Tag Archives: Eleventh Circuit Court of Appeals

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.

Advertisements

Stop and Frisk Writ Large

The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.

The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue.  The case is United States v. Kareen Rasul Green (No. 11-1558).  Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms.  Interestingly, she discussed the relevance, or irrelevance as the case may be, of  a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop.  According to Judge Barkett:

[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk.  The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk.  This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”

Judge Barkett does not stop there, however:

Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks.  In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.”  The Terry [v. Ohio] decision  itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.”  Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.

I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which 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.

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.