Tag Archives: Ineffective Assistance of Counsel

Additional Thoughts on Orocio

The Third Circuit Court of Appeals might be the first federal appellate court to rule on Padilla retroactivity but it certainly won’t be the last.  Indeed, as of this writing, the Government has sought a re-hearing, en banc, in Orocio, a request that will likely be granted, considering the import of the issues.  Here are some of my thoughts/observations on the case:

(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.

(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition.  The court didn’t address any procedural issues related to this since the lower court had not done so.

(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context.  According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.”  And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.

(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice.  Thus, defendant’s no longer have to show so-called factual innocence; instead,  a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard.  Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial.  But that’s just my reading of the decision.

I post here the Third Circuit’s official opinion in Orocio.  The Government’s brief is here, the Appellant’s, here.  The Appellant’s reply brief is here.

April Showers Bring May Flowers*

[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.

Laguna: Padilla is a “New Rule,” Not Retroactive

The Northern District of Illinois still remains a hotbed of Padilla retroactivity decisionmaking.  This time, the court, as per Judge Virginia Kendall, came out against Padilla retroactivity.  So it’s currently 2-1 at the Northern District of Illinois, in favor of Padilla non-retroactivity, if you’re keeping score.

In United States v. Laguna, the petitioner, in an unusual procedural maneuver, collaterally challenged his order of removal under Padilla v. Kentucky rather than attacking the convictions that gave rise to the order itself.  (He most likely ran out of time on the latter approach; the convictions at issue arose in 2001 and the removal order was entered against him in 2002.)  The court noted at the outset that there was no dispute that the petitioner was not advised of immigration consequences prior to his pleading guilty to the 2001 offenses.  Nevertheless, the court went on to reject the petitioner’s Padilla-based challenge on several grounds, including the non-retroactivity of Padilla.  The Laguna court went through a relatively thorough analysis before finding that Padilla constituted a “new rule” under Teague and was therefore not retroactively applicable.  The highlights of the court’s retroactivity findings are as follows:

(1) Prior to Padilla, Seventh Circuit law did NOT mandate that an attorney advise a client of immigration consequences in order to render effective assistance under the Sixth Amendment.

(2) Pre-Padilla directives contained in bar rules and professional guidelines requiring advice on immigration consequences are not considered legal rules for purposes of the new rule/old rule retroactivity analysis.

(3) Even when Padilla was decided, the courts, including the U.S. Supreme Court, lacked unanimity as to whether the Sixth Amendment required advice as to immigration consequences, thus establishing that Padilla is a new rule.

(4) Padilla did not involve the application of an old rule to a new set of facts but instead required the resolution of the threshold issue of whether the Sixth Amendment applied at all in situations concerning immigration consequences.

It is worth noting that the court’s Padilla retroactivity analysis is still dicta since it it had already rejected the petitioner’s claim on procedural grounds before reaching the issue of Padilla retroactivity.  In fact, this retroactivity discussion could be considered double dicta since the court had already decided that one, the the petitioner’s collateral challenge was procedurally barred, and two, that the petitioner would not have been able to prove Strickland prejudice pursuant to Padilla.  [The correctness of the court’s Strickland prejudice analysis is questionable: contrary to the court’s ruling, the issue of Strickland prejudice in the plea context is not whether the defendant would not have been convicted at trial had the defendant received effective assistance of counsel but instead whether he would have proceeded to trial rather than pleading guilty based on the attorney misconduct at issue.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).  It’s a fine point and probably one that would not matter in most cases of ineffective assistance, but is still worth mentioning, especially since the issue for most immigrant defendants facing imminent deportation is not actually contesting guilt in a full-blown trial but securing a favorable plea deal that would avoid adverse immigration consequences – a fact emphasized by the Padilla majority, Padilla, 130 S. Ct. at 1486.]   A final note: the petitioner in this case had to shoulder what were some pretty unsympathetic facts (for example, he impeded the government’s efforts to remove him from the country after agreeing initially to voluntary departure), which, in all likelihood, contributed to the court’s decision against him.

The decision in United States v. Laguna can be downloaded here.

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.

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.

Bonilla: Failure to Advise on Immigration Consequences Violates Padilla

In a not-so-surprising but still significant decision, the Ninth Circuit Court of Appeals in United States v. Bonilla found that a public defender rendered ineffective assistance of counsel when he failed to advise a client of immigration consequences, even after he had been asked about it by the client’s wife.  While a positive case for those in the pro-Padilla camp, it is important to point out that the matter came to the Bonilla court on a motion to withdraw a plea under Federal Rule of Criminal Procedure 11 (d)(2)(B).  This rule allows for the pre-sentence withdrawal of a plea for “fair and just” reasons, which, as the Bonilla court noted, is a “liberal” and “generous” standard.  That being said, I would venture to guess that a court might have a hard time denying a habeas claim under the same facts.  The decision can be downloaded 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’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.

Padilla Retroactivity Update

Two federal district court decisions touched on but did not decide the Padilla retroactivity issue.

They are:

Haddad v. United States, Case No. 07-12540 (E.D. Mich. Jul. 20, 2010)

and

United States v. Aguilar-Lopez, Case No. No. CR-09-6045-FVS-1 (E.D. Wash. Jul. 29, 2010)

The petitioner in Haddad brought an ineffective assistance claim under Padilla arguing that he was not informed by his attorney of the immigration consequences of his misdemeanor drug conviction.  The court rejected this claim, finding that the petitioner failed to establish both prongs of the ineffective assistance rubric.  Because the prevailing professional standards at the time of the petitioner’s conviction – 1997 – did not require a Padilla-style notice, the court concluded that counsel’s performance was not deficient under the first IAC prong.  In doing so, the court noted in passing that Padilla would most likely not apply retroactively, relying on Teague v. Lane, but offered little if any analysis as to why that would be the case, aside from its citation to Teague.  Even assuming that Padilla did apply retroactively, the court concluded that the petitioner couldn’t establish the second prejudice prong for postconviction relief.

In Aguilar-Lopez, the court noted that the defendant might have a shot at successfully challenging his prior state court convictions if Padilla applied retroactively but concluded that the proper forum for such a challenge would be in state court, essentially rendering the Padilla retroactivity issue moot.

ALSO, the New York Law Journal published a piece last week about the split among courts on whether to apply Padilla retroactively.

Padilla Strikes Again

A recent decision by the Georgia Court of Appeals concludes that Padilla’s ineffective assistance of counsel analysis applies to an attorney’s failure to advise a client about sex offender registry requirements.  The case is Taylor v. State, 2010 WL 2684051 (Jul. 8, 2010) and can be downloaded here.  In essence, the Taylor court held that even if sex offender registration requirements could be considered a “collateral consequence” of a conviction, “the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance,” much like an attorney’s failure to advise a client about the risk of deportation associated with a guilty plea under Padilla.  Id. at 4.

Because the appeal was pending while the U.S. Supreme Court decided Padilla, there is no discussion about retroactivity.  (Sorry!)

It’s unclear at this point whether the State will seek discretionary review from  the Georgia Supreme Court.  And any developments on that front will be reported on the blog.