Post-Conviction Relief for Immigrants

If the court failed to advise the defendant of his or her constitutional rights at the time of the entry of the plea, the plea itself is involuntary.  Waivers of constitutional rights must be knowing and intelligent as well as voluntary.[127]  A defendant cannot knowingly and intelligently waive constitutional rights of which s/he is unaware.  Therefore, a guilty plea entered without awareness of the constitutional rights is involuntary and legally invalid.[128]

            Defense counsel must also conduct a sufficient investigation, and provide the defendant with legally competent advice, concerning whether to accept a plea agreement.[129]

[127] Brady v. United States, 397 U.S. 742, 748 (1970).

[128] See George v. United States, 633 F.2d 1299, 1301 (9th Cir. 1980), cert. denied, 450 U.S. 933 (1981); United States v. Sherman, 474 F.2d 303, 305-307 (9th Cir. 1973).

[129] United States v. Day, 285 F.3d 1167 (9th Cir. April 10, 2002) (fact that counsel’s ineffectiveness provided defendant with opportunity to commit perjury does not excuse violation of constitutional right; deprivation of right to make well-informed decision about whether to accept plea agreement was prejudicial ineffective assistance); Nunes v. Mueller, 350 F.3d 1045 (9th Cir. December 1, 2003) (ineffective assistance in advising defendant concerning plea offer found where counsel met with petitioner for just five minutes to discuss the plea offer and miscommunicated an 11 year offer as a 22 year offer, and the prejudice is not cured by a later fair trial; remedy: release unless State offers the same bargain again).