Tag Archives: Due Process

Does Padilla Have Due Process Implications?

In my last post, I touched upon what I believed was the erroneous rejection of Padilla ineffective assistance claims by courts based on a defendant’s failure to raise the immigration consequence issue during his plea colloquy.  The Ninth Circuit Court of Appeals has provided additional clarification on this point in a recent decision, much to the benefit, I think, of potential Padilla claimants.  The case is Delgado-Ramos v. United States (per curium).  In Delgado-Ramos, the defendant appealed his conviction for attempted entry after deportation, arguing that his plea was invalid because the court never informed him of the immigration consequences of his conviction, in contravention of Rule 11 of the Federal Rules of Criminal Procedure.  Recognizing that such a failure did not constitute a basis for withdrawal of a plea under Ninth Circuit law — immigration consequences are considered a collateral consequence of a conviction and therefore have no due process implications, the animating concern of Rule 11 — the defendant nevertheless argued for reversal, claiming that the decision in Padilla effectively overturned Ninth Circuit law in the immigration/collateral consequence context.  The court rejected this argument, stating as follows:

[5] Because the defendant in Padilla raised only a Sixth Amendment claim, the Court had no occasion to consider the scope of a district court’s obligation under Rule 11, whether a defendant’s due process rights are violated if the court fails to inform him of the immigration consequences of his plea, or the continued viability of the distinction between direct and collateral consequences in the due process context (which traces back to Brady’s statement that a plea is voluntary so long as a defendant is informed of the direct consequences of the plea). Rather, the Court indicated only that where the immigration consequences of a plea are clear, an attorney’s failure to provide such information falls below professional norms, see id. at 1486, and therefore failure to advise a defendant of the immigration consequences of a plea can constitute a Sixth Amendment violation under some circumstances, see id. at 1486-87. While Padilla’s holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla “undercut[s] the theory or reasoning underlying” our decision in Amador-Leal “in such a way that the cases are clearly irreconcilable.” See Miller, 335 F.3d at 900. Because Amador-Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea. See Recio, 371 F.3d at 1100. Furthermore, because Delgado does not assert on appeal that he would not have entered the plea “but for the [district court’s alleged] error,” he has not demonstrated the “probability of a different result” and thus cannot show that the district court’s action affected his “substantial rights.” Dominguez Benitez, 542 U.S. at 83.

It’s an open question whether this principle will remain good law in light of the increasingly inseparable and perhaps incestuous relationship immigration law has developed with its criminal counterpart.  At present, however, it is.  And a good argument can and should be made that courts have no business looking at what a defendant said or did not say during his plea colloquy in assessing the merits of a Padilla ineffective assistance claim.

The decision in Delgado-Ramos can be downloaded here.

Not Enough Collateral

The Court of Appeals in New York ruled yesterday that a defendant has not constitutional right to be notified of requirement to register as a sex offender registration during a plea proceeding.  In People v. Gravino (decision available here), the court rejected the argument that a guilty plea is rendered involuntary and unknowing when a court fails to inform a defendant that he or she is required to register as a sex offender by virtue of the defendant’s conviction.  The court found that such a requirement a “collateral consequence” of a conviction and therefore did not have a ” ‘ definite, immediate, and largely automatic effect on a defendant’s punishment.’ “

It is notable and not surprising that the dissent brought up the Supreme Court’s recent decision in Padilla v. Kentucky to make the point that registration as a sex offender is not a “collateral consequence” of a conviction.  Indeed, if I recall correctly, Justice Stevens in Padilla made clear that there is no distinction between collateral and direct consequences when it comes of deciding claims of ineffective assistance of counsel.  That, however, was not the case in Gravino.

It will be interesting to see how this plays out in other courts and whether Padilla will eventually to applied in contexts outside the IAC framework.

Thanks to the Sentencing Law and Policy Blog for reporting on the Gravino decision.