Tag Archives: Ineffective Assistance of Counsel

Taking Padilla One Step Further

The Supreme Court of Pennsylvania recently issued an interesting opinion that may be the opening salvo in another round of Padilla-related litigation, this one on the scope of the Court’s ruling in Padilla.  The case is Commonwealth v. Abraham, decided on December 7, 2012.  The defendant in Abraham, a public school teacher, sought postconviction relief because he claimed his counsel was ineffective for failing to advise him he would forfeit his public employee pension if he pleaded guilty to an offense involving an inappropriate with a former student.  The defendant argued that the near automatic pension forfeiture in his case was no different from the deportation consequences at issue in Padilla, and that he should have received counsel on this issue before he decided to enter his plea.  The threshold question before the court in Abraham, however, and one that I think will be litigated in more and more postconviction relief cases, concerned the viability of the distinction between direct and collateral consequences in the ineffective assistance of counsel context post-Padilla.

This is how the Pennsylvania Supreme Court answered the question:

Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa’s general holding remains: a defendant’s lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Frometa, at 93.

The Abraham court then went on to conclude that the consequence at issue in the case fell under the category of collateral consequences for which the Constitution did not require legal counsel.  In a notable concurrence, Chief Justice Castille wrote separately to observe that the defendant in the case would not have been entitled to retroactive application of Padilla in any event.  One justice dissented, arguing that Padilla did, indeed, do away with the distinction between collateral and direct consequences, and that the defendant did, in fact, receive ineffective assistance based on his attorney’s failure to advise him on the possibility that his pension would be forfeiting in light of his conviction.

The decision in Commonwealth v. Abraham can be downloaded here.

Akinsade: Strickland Prejudice Survives District Court Admonishment

A helpful reader has reminded me that fans of Padilla retroactivity may want to know about the recent decision issued by the Fourth Circuit Court of Appeals in Akinsade v. United States, No. 09-7554.  Akinsade involved a Nigerian immigrant who sought coram nobis relief based on the failure of his counsel to correctly advise him on the immigration consequences of a plea to embezzlement.  The lawyer advised Akinsade that he could not be deported based on a plea to this charge, when, in fact, he could have been.  No dispute that this was ineffective assistance.  The controversy, however, had to do with whether the district court cured the prejudice which flowed from the attorney’s misadvice during its plea colloquy with Akinsade.  The Fourth Circuit answered in the negative, and in doing so, granted Akinsade coram nobis relief.

There are a few things to note about the Akinsade decision.  First, in finding that the District Court did not “cure” the prejudice which arose from counsel’s misadvice, the Fourth Circuit was careful to emphasize the different constitutional rights underpinning a guilty plea proceeding and the effective assistance of counsel in a criminal matter.  As the Fourth Circuit put it:

Our decision today does not change the role of or impose any new obligations on the district court in Rule 11 proceedings. A district court’s duty to ensure a knowing and voluntary plea arises from the Fifth Amendment’s guarantee of due process and thus affords defendants a right distinct from the Sixth Amendment right to effective assistance of counsel. While we have recognized the inter-relationship between the two amendments in the context of guilty pleas, see United States v. Smith, 640 F.3d 580, 582 (4th Cir. 2011), we have never suggested that the sufficient protection of one right automatically corrects any constitutional deficiency of the other. Indeed, the Supreme Court has rejected a very similar argument. See Missouri v. Frye, 566 U.S. ___ (2012) (slip op., at 5) (explaining that the Court in Padilla, 130 S. Ct. 1473 (2010),rejected the state’s argument that a knowing and voluntary plea supersedes defense counsel’s affirmative misadvice on deportation consequences). As a result, we in no way suggest that in performing its role during the proceeding, a district court needs to be “clairvoyant” or must “guess” about whether a defendant has been misinformed regarding a particular consequence of a plea. When, as here, the claim raised is that of ineffective assistance of counsel, the overall focus must be on the prejudice arising from counsel‘s deficient performance. If a district court’s admonishment so happens to correct the deficient performance then there is no prejudice; however, if there is no correction, then our scrutiny is not directed toward the district court but appropriately to the constitutional offender.

Second, the Fourth Circuit expressly declined to rule on the issue of whether Padilla applied retroactively to the petitioner’s claim since the Government acknowledged that the misadvice provided by counsel was constitutionally deficient.  In essence, this is not so much a Padilla case as it is a Strickland case.  Which lends some support to the notion that Padilla did not create a new rule for retroactivity purposes.

Third, the finding of prejudice by the Fourth Circuit is significant in that the court looked beyond the so-called likelihood of success at trial to the defendant’s desire to contest the Government’s case because of the severity of the consequences which might befall him should he be convicted.  As the Fourth Circuit put it:

Akinsade still must show that the misadvice is a “but for” cause of his entering the guilty plea. Under the prejudice prong of Strickland, “[t]he potential strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account.” Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995)(citing Hill, 474 U.S. at 59-60overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence “proved to be more than enough” for a guilty verdict but was “hardly invincible on its face.” Ostrander, 46 F.3d at 356. We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation. United States v. Gajendragadkar, No. 97-7267, 1998 WL 352866, at *2 (4th Cir. June 3, 1998). In Gajendragadkar we reasoned that “[a]lthough a trial would present the risk of deportation, it would provide [the defendant] the opportunity to contest the Government’s evidence, or failing that, to challenge the Government’s estimate loss.” Id.

The decision can be downloaded here.

No Longer the New Gideon

After the Supreme Court announced its decisions in the Frye and Lafler cases, the news media, if I recall correctly, promptly declared it the dawn of a new era — one that meant significant new protections for the criminal defendant.  Some even went so far as to call the decisions in Frye and Lafler the “new Gideon”.

Not so says the Eleventh Circuit, at least when it comes to new rule, retroactivity.  In In re: Michael Perez, No. 12-12240, the Eleventh Circuit rejected the notion that Frye and Lafler (ineffective assistance applies to plea bargaining) announced “new rules” within the meaning of Teague’s retroactivity framework, and held, instead, that the decisions were “merely an application of the Sixth Amendment’s right to counsel, as defined in Strickland, to a specific factual context.”  The court’s rejection of “new rule” status for Frye and Lafler makes it harder for one to argue that these decisions revolutionized the practice of criminal defense.  And, it adds weight to the argument that no such revolution took hold when the Supreme Court announced a similar, Strickland-based decision in Padilla v. Kentucky.  Simply put, if Frye and Lafler did not announce a new rule under Teague, Padilla, surely, could not have done so.

It will be interesting to see if a similar Circuit-split develops with respect to the retroactive effect of Frye and Lafler, and how such rulings might affect the present controversy over Padilla retroactivity.  Might the Supreme Court take note of the Eleventh Circuit’s ruling in Perez in deciding Chaidez?  Perhaps.  Especially if asked to by counsel.

The opinion in In re: Michael Perez can be downloaded here.

Memorial Day 2012 Padilla Retroactivity Update

I hope everyone is having a nice and meaningful Memorial Day.  I believe I have some serious catching up to do in the Padilla retroactivity department for which I apologize.

First off, the Fifth Circuit U.S. Court of Appeals recently issued a decision which addressed the issue of whether Padilla can be applied retroactively.  The case is United States v. Amer and the Fifth Circuit held that Padilla cannot be applied retroactively because it is a “new” rule under Teague.  A few things to note about this decision.  First, the Fifth Circuit prefaced its opinion by acknowledging that the issue of Padilla retroactivity is currently pending before the Supreme Court vis-a-vis the Chaidez case.  Amer, slip op. at 2-3 (“We look forward to likely resolution of this question by the Supreme Court, however, in the interim, we join the Seventh and Tenth Circuits in holding that Padilla announced a ‘new’ rule within the meaning of Teague”).  This, coupled with the brevity of the Fifth Circuit’s opinion in Amer — the opinion is all but six pages — signals, to me at least, that the Fifth Circuit’s decision in Amer is less the product of a court seeking to answer a thorny legal question than it is an effort by the court to fortify the Padilla non-retroactivity contingent so as to sway the Supreme Court itself in whatever ruling it makes in the Chaidez case.  It is also interesting to note that although the district court ruled in favor of the petitioner it did so on an issue that was different from the one that was addressed and answered by the Fifth Court, at least from how the Fifth Circuit summarized the lower court’s decision (I have yet to read it).  Is this perhaps another indication of judicial overreaching by the Fifth Circuit?

In any event, the decision in Amer can be downloaded here.

In other Padilla retroactivity news, the Supreme Court of Florida recently heard oral arguments in its own Padilla retroactivity case, Hernandez v. State.  You can watch a webcast of the arguments here.  The Court has also made available the transcript of the oral argument, which can be downloaded here.

Lastly, the Social Science Research Network or SSRN has published a few articles  concerning Padilla; one pertains to Padilla’s on-the-ground relevance and utility for the criminal defense attorney, the other, to Padilla’s applicability under the Teague’s watershed exception to non retroactivity.

A Right Without A Remedy (Again?)

In a notable Padilla-related decision, the Eleventh Circuit today ruled that Padilla   does not constitute a “watershed”rule of criminal procedure such that it does not cure an otherwise untimely section 2255 habeas petition.  The case is Figuereo-Sanchez v. United States, No. 10-14235 (11th Cir. May 1, 2012).  Judge Carnes wrote a unanimous decision for the three-judge panel (the other two judges being  Beverly Martin and Adalberto Jordan).

It is important to note that in concluding that Padilla did not constitute a “watershed” rule of criminal procedure, the Eleventh Circuit assumed but expressly declined to decide that Padilla was a “new rule” for Teague retroactivity purposes.  It was able to do so, in part, because both parties agreed that Padilla was a new rule under Teague.  Accordingly, those who wish to argue before a court in the Eleventh Circuit that Padilla can be applied retroactively because it is NOT a new rule can still do so without worrying too much about contrary authority.  Indeed, the Eleventh Circuit seemed to leave the door open for a Padilla old rule argument in footnote 4 of the opinion in which the court noted, “If the decision merely clarified an old rule, then the decision applies retroactively.” (citing Williams, 529 U.S. 362, 392 … (“[I]t can hardly be said that recognizing the right to effective assistance of counsel breaks new ground or imposes a new obligation on the states.”) (quotation marks omitted).

The end result is an unfortunate one for the petitioner, however, since he prevailed in the first half of his appeal — the Court of Appeals found the trial court erred when it failed to give the petitioner so-called “Castro” warnings before it recharacterized his pleadings as a 2255 petition — but lost on timeliness grounds.

The opinion can be downloaded here.

Padilla in 2012 Thus Far

I apologize for the lack of Padilla related posts since the New Year.  There simply wasn’t much to report, perhaps due to the holidays.  This has changed some of late, and courts have been issuing opinions discussing both Padilla retroactivity and Padilla ineffectiveness.  As to the former, however, district courts seem to realize that the question of whether Padilla applies retroactively is one that, sooner or later, will be decided by the Supreme Court.  And they have acted accordingly, either skirting the issue entirely or ruling on it but with little analysis.  As to the latter question of what constitutes ineffective assistance of counsel under Padilla, the fight has mostly been over when a postconviction litigant establishes that he or she has been prejudiced by counsel’s unconstitutional performance — that is, given that counsel was ineffective, would it have been rational for a defense to opt for trial had he or she been given the advice that Padilla required, i.e., that your conviction will result in adverse immigration consequences and this is why.  In this respect, courts have been been split as to whether the decision to go to trial should be based on one’s likelihood of success in prevailing at trial, i.e., lack of evidence of inculpatory evidence and the availability of viable defenses, or on one’s determination to “fight to the death” so he or she could avoid potential deportation that would certainly come with a criminal conviction. The Third Circuit adopted the latter test for Padilla prejudice in its landmark decision in Orocio.

Without further ado, I offer here, cites to a few recent decisions which consider the above issue with varying outcomes:

Pilla v. United States, No. 10-4178 (6th Cir. Feb. 6, 2012) (defendant failed to establish prejudice under Padilla because of “overwhelming evidence of her guilt”).

McNeill v. United States, No. A-11-CA-495 SS, (W.D. Tex.  Feb. 2, 2012) (finding Padilla retroactive but denying relief because counsel was not ineffective and even if he were petitioner failed to establish prejudice)

United States v. Fajardo, No. 10-CV-1978, (M.D. Fla. Jan. 26, 2012) (finding Padilla not retroactively applicable after detailed Teague v. Lane analysis)

Yau v. United States, 11 C 8462 (N.D. Ill. Jan. 26, 2012) (granting 2255 petitioner an evidentiary hearing on Padilla claim after finding a sufficient threshold showing of prejudice where it would have been “rational under the circumstances for [the petitioner] to reject the plea agreement and go to trial had he known of the immigration consequences“) (emphasis added).

The decision in the cases cited above should be available on Google Scholar.  If not, please feel free to email me and I will send you the decision.

 

 

Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?