Counsel has been found ineffective for failure to assist the defendant in withdrawing a guilty plea on request.[130]  The failure to move to withdraw the plea prior to sentencing has been held to be ineffective assistance of counsel where it was based upon an erroneous understanding of the law.[131]  The test for prejudice is whether there is a reasonable likelihood that the motion to withdraw the plea would have been granted.[132]

 

[130] Osborn v. Shillinger, 861 F.2d 612 (10th Cir. 1988) (failure to file motion to withdraw plea and informing media the motion was meritless); Holtan v. Parratt, 683 F.2d 1163 (8th Cir. 1982), cert. denied, 459 U.S. 1225 (1983) (failure to comply with defendant’s instructions to seek withdrawal of no contest plea).

[131] United States v. Alvarez-Tautimez, 160 F.3d 573, 575 (9th Cir. 1998).

[132] Ibid.

Lower Courts of Eighth Circuit

POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if failure to file motion in arrest of judgment resulted from ineffective assistance).