Tag Archives: Adverse Collateral Consequences

A Local Event on the “Real Effects” of a Criminal Record

The Georgia Justice Project is organizing a seminar in Atlanta for individuals who wish to learn more about the effects of a criminal record and how to get around them, as best as one can given the current laws.  It will be held on Saturday, Sept. 28th at Our Lady of the Lourdes Catholic Church in Atlanta.  I will post more about the event if and when I receive more information about it.

Here is what the GJP has to say about the seminar:

A staggering 3.7 million, or one in three Georgians, have criminal records and many face a daunting array of counterproductive legal barriers making it difficult to succeed in important aspects of life.  Lack of access to employment, housing, civic life, and food assistance present major obstacles for individuals seeking to escape the cycle of poverty and crime.  9to5 Atlanta Working Women, ABLE (Atlantans Building Leadership for Empowerment), Georgia Justice Project, Central Outreach and Advocacy Center, Racial Action Center/Families for Dignity and Freedom, and Women on the Rise, will host “The REAL Effects of a Criminal Record” on Saturday, September 28th at Our Lady of the Lourdes Catholic Church in Atlanta.  The event will build on the success of “Breaking the Chains,”  held in October of 2012, and is designed to be both informative and activating for individuals who are experiencing the negative effects of a past criminal encounter, specifically how to understand criminal records,  employment discrimination based on a criminal record, the food stamps ban for people with drug felony convictions and immigration consequences resulting from a conviction.

The program will include a panel comprised of those that have experienced the negative effects of a criminal record in Georgia as well as presentations from experts at the host organizations who will speak about specific efforts and possible solutions for each of the problems discussed in the panel.  Following the program, there will be four topic-specific breakout sessions focused on education about the current laws and finding ways to engage more people into the movement.  In addition to providing practical information, the event will include a call to action, that asks participants to join the movement to change Georgia’s counterproductive laws that are stopping people with criminal records from moving on with their lives and supporting their families.

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.

A National Survey on Collateral Consequences of Criminal Convictions

Homepage for the Project’s website

In a notable project and much-needed initiative, the Department of Justice and the American Bar Association have joined forces to create a comprehensive yet user-friendly database of collateral consequences of criminal convictions for the domestic United States.  Called the National Inventory of the Collateral Consequences of Conviction, the project, according to its creators:

[W]ill make it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offenses, for affected individuals to understand the limits of their rights and opportunities, and for lawmakers and policy advocates to understand the full measure of a jurisdiction’s sanctions and disqualifications.

It is no surprise that in describing the genesis of the project, the ABA and DOJ made express mention of Padilla and its proposition “that when a person considering a guilty plea is unaware of severe consequences that will inexorably follow, this raises questions of fairness and implicates the constitutional right to effective assistance of counsel.”

For all its benefits, the project is still a work in progress and those who access its website might well encounter a dearth of information for certain states — Georgia being one of them.  Going forward, and knowing that the list of collateral consequences is ever growing, I would like the project’s creators and staff to consider adding a blog to the website which would be updated every time a new collateral consequence is added to the project’s database.

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.



Defining the Ex-Offender

In today’s New York Times is an Op-Ed piece entitled “Paying a Price, Long After the Crime.”  It touches upon some of the issues that have been covered on this blog concerning the increasing marginalization of ex-offenders in all aspects of daily life, from employment to education to housing, and provides proposals as to how those in power may seek to reintegrate ex-offenders into society.  On the latter point and  in addition to what the authors have proposed, I would simply add the following: that we consider a fundamental shift in our perception of the capacities and desires of an ex-offender from an individual with a presumed criminal bent to someone who, if given the chance, greatly wishes to contribute to society, perhaps (gasp!) more so than those from different (read: more conforming) walks of life.

Crowder (Ga. Supreme Ct.): Misadvice May Constitute Ineffective Assistance

In a case with implications in the Padilla postconviction context, particularly in Georgia, the Supreme Court of Georgia recently reversed a trial court’s denial of a motion to withdraw a plea, finding that the trial court incorrectly relied on the plea colloquy of the defendant in determining that the defendant was not prejudiced by counsel’s misadvice as to a collateral consequence of his conviction — in this case, the amount of time the defendant had to serve before becoming eligible for parole.  The trial court had denied the defendant’s motion to withdraw his plea because the defendant failed to voice his concerns about parole eligibility during his plea colloquy, instead stating that he “knew all his rights.”  In the view of the trial court, this adversely affected the defendant’s credibility and amounted to a failure by the defendant to establish the prejudice prong of the two-part test for ineffective assistance.  The Georgia Supreme Court rejected such reasoning as “an irrelevant basis to discredit appellant because, at the time, appellant had not in fact been correctly advise of his parole eligibility or its effect on his plea.”

Courts often reject Padilla claims on a similar basis — that is, citing a defendant’s failure to raise the immigration consequence issue during the plea colloquy or his acknowledgment that he knows his conviction may result in imminent deportation as evidence that either counsel was not ineffective or that the defendant was not prejudiced.  See, e.g., Momah v. United States, Case No. 10-CV-369-A (N.D. Tex. Aug,. 30, 2010); United States v. Obonaga, Case No. 10-CV-2951 (E.D.N.Y. June 30, 2010).  In light of Crowder, however, a defendant could well argue that his failure to raise immigration consequences during his plea colloquy has nothing whatsoever to do with proving IAC prejudice since he simply didn’t know, through the misadvice of counsel (or absence of advice), that immigration consequences was even a collateral issue of his conviction.

The decision in Crowder is available here.

Collateral No More

The effects of Supreme Court’s decision in Padilla v. Kentucky continue to be felt in other areas of criminal procedure law.  In Pridham v. Commonwealth, the Court of Appeals of Kentucky ruled that postconviction relief would be warranted where an attorney provides “gross misadvice” to a client concerning parole eligibility, relying almost exclusively on Padilla.  In doing so, the Pridham court rejected the notion, advanced by KY authorities, that Padilla only applied to situations involving deportation:

The Commonwealth argues that the unique nature of deportation limits the Padilla decision to only misadvice concerning the risk of deportation. However, the Court in Padilla repeatedly cited with approval to its decision in Hill, a case dealing with the Strickland standards in the context of misadvice regarding parole eligibility. Moreover, the factors relied upon in the deportation context apply with equal vigor to the circumstances of gross misadvice about parole eligibility. Parole eligibility involves a foreseeable, material consequence of the guilty plea that is “intimately related to the criminal process” and is an “automatic result” following certain criminal convictions. Id. at —-, 130 S.Ct. at 1478, 1486. The varying degrees of eligibility enumerated by the General Assembly in KRS 439.3401 are “succinct, clear and explicit.” KRS 439.3401 provides that “any person who has been convicted of or pled guilty to the commission of ․ [a] Class A felony”․ is considered a “violent offender” for the purposes of the parole statute. KRS 439.3401. The statute further states that, “[a] violent offender who has been convicted of ․ a Class A felony with a sentence of a term of years ․ shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.” KRS 439.3401(3). Even though Pridham’s Class A felony conviction (Manufacturing methamphetamine, 2nd offense) would not be regarded by most as a violent offense, all Class A felonies are treated equally for the purposes of parole eligibility. The parole classification system is automatic upon conviction or guilty plea and permanently affects a defendant’s minimum term of imprisonment.

While not particularly groundbreaking in terms of strengthening the rights of the accused – after all, this is a gross misadvice case – the decision is significant in that its reasoning is based almost entirely on Padilla and its more general, non-deportation related proposition that the Sixth Amendment right to the effective assistance of counsel is not limited to the confines of a courtroom, thus giving new meaning to the attorney as counselor and advisor.

Padilla Retroactivity Confusion

From the Eastern District of Michigan comes a decision by Judge Denise Hood finding that Padilla cannot be applied retroactively.  The case is United States v. Shafeek, Criminal Case No. 05-81129, Civil Case No. No. 10-12670 (E.D. Mich. Sept. 22, 2010).  Opinion courtesy of Google Scholar here.

The wrinkle, however, is that she reaches this conclusion despite having concluded in the same decision that the Supreme Court’s decision in Padilla did NOT announce a “new rule” for retroactivity purposes.  From the Shafeek decision:

Given the Supreme Court’s opinion in Padilla, it appears that the rule announced is not a “new rule” regarding a defense counsel’s duty to, at the minium, advise a client of a risk of adverse immigration consequences. The Padilla decision turned on the fact that the defense counsel could have easily determined from reading the removal statute that defendant’s deportation “was presumptively mandatory” and that his counsel’s advice to the contrary was incorrect. Id. Because the Padilla opinion may not be considered a “new rule,” Shafeek cannot show that the Padilla opinion should be applied retroactively.

Huh?  It has been my understanding that under the Supreme Court’s seminal decision in Teague v. Lane on retroactivity in cases pending on collateral review, only “new rules” are barred from retroactive application unless they fall within one of two exceptions.  The upshot, of course, is that rules that are not considered “new” under the Teague analysis should be applied retroactively.  Such was the conclusion by the court in Chaidez which concluded, correctly in my opinion, that because Padilla was not a “new rule” it could be applied retroactively.  See United States v. Chaidez (“Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner’s claim”).

Am I missing something here?

Padilla’s Collateral Effect

The 11th Circuit Court of Appeals recently affirmed a grant of habeas relief to a petitioner whom it found to have received ineffective assistance of counsel.  The case is Bauder v. Dep’t of Corrections, State of Fla. (Case No. 10-10657) and the opinion can be accessed here.  Relying on Padilla v. Kentucky, the Bauder court found that trial counsel’s misadvice to the petitioner concerning the likelihood of a “civil commitment” sentence constituted ineffective assistance of counsel.  It concluded that even though a “civil commitment” sentence might be considered an “adverse collateral consequence” of a conviction, the petitioner’s attorney was still required under Padilla to advise the client that the charges at issue might trigger the collateral consequence, particularly in situations when the law is unclear.  In Padilla, the adverse collateral consequence at issue was, of course, the prospect of deportation.  The Bauder decision doesn’t really break new ground on the Padilla postconviction front.  Even before Padilla, the law has been quite clear that an attorney’s affirmative misadvice concerning an “adverse collateral consequence” constitutes ineffective assistance of counsel.  See, e.g., Strader v. Garrison, 611 F. 2d 61 (4th Cir. 1979).  Which also means that the Bauder court didn’t have to consider the Padilla retroactivity issue since it was applying an old rule, so to speak.