Tag Archives: Postconviction

Hernandez: Eleventh Circuit Accepts Allegations of Bad Lawyering under Padilla v. Kentucky; Case Sent Back for an Evidentiary Hearing

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts.  Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015).  In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney  should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists.  Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country —  if he pled guilty to a federal drug trafficking charge.  The lawyer had mixed opinions about the issue.  Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported.  At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved.  Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one.  Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test.  This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt —  the appeals court in this case sided with the defendant.  It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted  to fight the charges at trial.  Of course, had Mr. Hernandez  gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea.  But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge.  I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

Rasheed: Divided Fifth Circuit Panel Finds Counsel Ineffective Under Padilla But No Harm

Now that the Supreme Court has decided that Padilla cannot be applied retroactively, the lower courts are, as expected, trying to figure out what set of circumstances merits relief under Padilla — that is, when does a foreign national have a claim for ineffective assistance of counsel under the Sixth Amendment because his attorney did not give him the correct or any advice on the immigration consequences of pleading guilty to a criminal offense?

The Fifth Circuit Court of Appeals recently took up this issue in the case of United States v. Kayode, and, in a 2-1 decision, ruled against the petitioner, a federal prisoner who brought the appeal without the help of an attorney.  The majority concluded that while the petitioner might have, in fact, received ineffective assistance of counsel — the petitioner told the court among other things that his attorneys failed to tell him he would be subject to deportation once he pleaded guilty to the charges brought against him by the Government —  he did not show that his attorneys’ bad lawyering harmed him in any way.  The fact that the petitioner resided in the country for 30-plus years, while relevant to whether the petitioner would have opted for a chance to fight his criminal charges at trial rather than succumb to a plea — his victory at trial would have presumably saved him from deportation — was, by itself, not enough to show he had been harmed by his lawyers’ shoddy work.  Instead, the majority focused on what it believed was the strong case the Government had against the petitioner and the petitioner’s failure to rebut any of this with evidence of his own.

If this result seems unjust to you, you are not alone.  Judge Dennis dissented from the majority decision, accusing the majority of short-circuiting the petitioner’s case.  For one, Judge Dennis wondered, how could the petitioner have given the majority what it wanted when he was housed under lock-and-key for the duration of the appeal and prepared the entire appeal on his own without the help of an attorney?  It is also puzzling, although Judge Dennis doesn’t make mention of this in his dissent, that the petitioner won’t be given a do-over, which is really what these kinds of postconviction cases are all about, when he has already demonstrated to the satisfaction of the entire court the grossly incompetent lawyering he received up until he pleaded guilty.

The opinion in United States v. Rasheed Kayode, No. 12-20513 (5th Cir. decided Dec. 23, 2014), can be found here.

UPDATE (2/24/2015): I have since learned that the petitioner in this case, Rasheed Kayode, had asked the appeals court to reconsider its decision.  He is, surprisingly, still representing himself, and he prepared and filed his own petition for rehearing, which relies, exclusively, on Judge Dennis’s dissent, for the reasons why he should be given a rehearing.

End of a Chapter

I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog.  Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter.  Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.

I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively.  This effort began in earnest in 2011 and ended only recently, in the last month or so.  It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys.  I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end.  In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.

This doesn’t mean Padilla retroactivity is dead in the water.  Quite the contrary.  As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all.  The Chaidez court never addressed the former because it was not asked to do so.  And Chaidez itself was a failure-to-advise case.  Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often.  Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far.  It took a little less than three years from its decision in Padilla for the Court to decide Chaidez.  While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.

Some Thoughts on the Chaidez Decision

The core of the majority’s decision in Chaidez rests on the notion that before Padilla no court would have granted postconviction relief to a foreign national defendant under Strickland based on an attorney’s failure to give deportation advice because deportation was considered a collateral, not a direct, consequence of a conviction.  It is this dispositive aspect of the collateral v. direct distinction and, to the majority, Padilla’s “rejection” of it, that makes Padilla a particularly novel decision and one ill-suited for retroactive application.  The problem, it seems to me, with the majority’s analysis is that it overstates the importance or effect of the collateral v. direct divide, and it is also a demonstration that judges who have little or no on-the-ground experience, as is the case with Kagan, make bad law.  (There is a reason Kagan was assigned to write the opinion which I will get to a bit later.)  To take just one example: if what the majority stated was true, and courts really made mince meat out of Padilla-like ineffective assistance claims pre-Padilla based on the collateral-direct divide, then few if any of the cases which presented these claims before Padilla should have made it past the pleading stage, let alone being decided on their merits in published decision after published decision.  I do not think that is how courts treated Padilla-like claims in the pre-Padilla era, however.  Instead, courts still decided Strickland claims pertaining to deportation advice on their merits even if they ended up denying them based on the collateral v. direct distinction.  In other words, there was no question that Strickland defined the standard of competent representation received by foreign nations in criminal cases  pre-Padilla, the debate rather was over how that standard should be defined in such cases.  To take yet another example: let’s say an individual is irked by his attorney’s performance in an immigration matter which ended up in his removal and in a misguided effort to prevent his removal brings a claim in federal district court alleging ineffective assistance under Strickland.  There would be no question as to the applicability of Strickland or the fate of his claim; it would fail and fail big because Strickland applies only to criminal, not civil, cases.   But Strickland squarely governs in  cases like Padilla and Chaidez because they are, at their collective core, criminal matters.  I think this is, in part, what led the Padilla court to describe as “ill-suited” to the Strickland analysis the dichotomy between collateral v. direct consequences of a conviction — a point that Sotomayor seized on in her dissent where she took the majority to task for its over-reliance on and over-emphasis of this distinction.

As to my hypothesis as to why Kagan ended up writing the Chaidez opinion,  I think that the debate between say, Roberts and Alito, on the one hand, and Breyer and Kennedy, on the other, centered not on whether Padilla could be applied retroactively — the majority’s opinion makes clear that there was never much doubt there — but on how Padilla and now Chaidez might be used to expand the scope of Strickland to encompass advice on other so-called collateral matters, an outcome which presumably Roberts and Alito, to say nothing of Scalia and Thomas, would have disfavored.  At the same time, the more liberal members of the bench, did not want Chaidez written in a way that would have narrowed or weakened the mandate in Padilla (I wonder if Stevens’ presence at the Court — he apparently still maintains an office there — and generally as an observer of the Court,  might have had some influence as well).  So the task of authorship was given to Kagan who was willing to say no to retroacivity but do so in a way that was respectful of the Padilla decision.

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.

Some Early Term Padilla-Activity in the Supreme Court And A Thought From Yours Truly

The Justices of the U.S. Supreme Court have reconvened for yet another term and with Chaidez still pending before the Court, it comes as no surprise that the Court issued hold orders in several other cases concerning the retroactive application of Padilla v. Kentucky.  As reported by the SCOTUS blog:

Diaz v. Wyoming11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel.  (Disclaimer:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.)  It is not immediately apparent to us how Diazdiffers materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye.  Insert puzzled emoticon.

It goes on further to discuss others cases, in addition to Diaz, which have received hold treatment from the Court in light of Chaidez:

Argument is still nearly a month away and already Chaidez v. United States11-820, appears to have yielded five holds:  Poblete v. Arizona11-1381Diaz-Palmerin v. United States11-1414Alshaif v. North Carolina,11-10826Shahly v. Florida11-9642; and Gaitan v. New Jersey11-10846.  Plus, there’sDiaz v. Wyoming11-9831, the holdish relist described above.  Like Chaidez, all these cases concern the potential retroactivity of Padilla.

Lastly, and this observation may be coming a bit late in the game, but I have been tracking Padilla-related decisions for some time, both because I need to for my own practice and because I want to for the benefit of my fellow practitioners and the public at large.  In doing go, I have seen many courts, when faced with the Padilla retroactivity issue, decide not to address it but instead proceed to the merits on the petitioner’s Padilla ineffective assistance claim — especially, if doing so results in the denial of the petition at issue.  This is wrong on several levels. It often denies the petitioner an opportunity to fully present his case on collateral review, which is almost always the first and last forum where he can present a claim of ineffective assistance, since the court generally issues its decision on the pleadings rather than on a fully developed factual record as was the case in Chaidez.  And it is often contrary to the Supreme Court’s directive that “if the State does argue that the defendant seeks  the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.”  Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (citation omitted).  As I noted above, this issue will become moot once the Supreme Court answers the Padilla retroactivity question some time in the next year.  But I cannot help but wonder how many otherwise meritorious requests for postconviction relief have been wrongly denied based on a court’s cursory review of the petitioner’s claim, when, what it could have done, was either decide the retroactivity question and only that question or, more preferably,  hold off on deciding the petition entirely until the Supreme Court issues its decision in Chaidez.

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.