Under the federal Constitution, defense counsel should be considered to render IAC where s/he fails to research and protect the defendant against the immigration consequences of a plea.  Under California law, accurate immigration advice from counsel concerning the actual (not merely potential) immigration consequences is compulsory.  This requirement was first established in 1987 by People v. Soriano.[149]  It was recently reaffirmed by the California Supreme Court in In re Resendiz,[150] which rejected the argument that the “collateral” nature of the immigration consequences foreclosed any duty on the part of trial counsel to investigate and defend against the immigration effects.  While the “collateral consequences” doctrine is the prevailing rule in federal court,[151] California imposes an affirmative obligation on counsel to defend against the immigration consequences of a conviction.  As seen below, this requires counsel not only to investigate and research the immigration effects, but also to take affirmative action to defend against them.  In light of this clear duty, trial counsel’s failures in this regard are a fertile source of error that frequently give rise to grounds to vacate the conviction.

 

This should be the federal constitutional rule as well, applicable in all U.S. jurisdictions, as the following analysis shows.

 

            Counsel’s failure to seek a judicial recommendation against deportation, prior to November 29, 1990, has been held to be ineffective assistance of counsel.  See § 8.30, infra.

[149] People v. Soriano, 194 Cal.App. 3d 1470, 240 Cal.Rptr. 328 (1987).

[150] In re Resendiz, 25 Cal.4th 230 (2001).

[151] See § 6.20, below for a comprehensive argument as to why the “collateral consequences” doctrine has been erroneously applied to define the scope of counsel’s duties towards his or her client. 

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PLEA " KNOWING INTELLIGENT PLEA VOIDED BY INEFFECTIVE ASSISTANCE OF COUNSEL
Ineffective assistance of counsel voids a guilty plea (which is supposed to be a knowing, intelligent, and voluntary waiver of many rights) if there is prejudice, i.e., a reasonable probability of a different outcome absent counsels error. The most recent all-jurisdiction Supreme Court statement of this principle is found in Missouri v. Frye, 132 S.Ct. 1399 (March 21, 2012). The court there held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. That right applies to all critical stages of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, established that Stricklands two-part test governs ineffective-assistance claims in the plea bargain context. There, the defendant had alleged that his counsel had given him inadequate advice about his plea, but he failed to show that he would have proceeded to trial had he received the proper advice. 474 U.S., at 60, 106 S.Ct. 366. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, where a plea offer was set aside because counsel had misinformed the defendant of its immigration consequences, this Court made clear that the negotiation of a plea bargain is a critical stage for ineffective-assistance purposes, id., at 1392, 130 S.Ct., at 1486 and rejected the argument made by the State in this case that a knowing and voluntary plea supersedes defense counsel's errors.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FEDERAL CONSTITUTION PROVIDES MINIMUM STANDARDS " STATES ARE FREE TO PROVIDE GREATER PROTECTION IF THEY CHOOSE
Missouri v. Frye, 132 S.Ct. 1399, 1411 (March 21, 2012) (The Court has established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose.).

POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Sears v. Upton, 130 S.Ct. 3259, 3267 (Jun. 29, 2010) (in a capital murder prosecution, the Georgia Supreme Court's affirmance of a denial of post-conviction relief is vacated where the state post-conviction trial court failed to apply the correct prejudice inquiry for evaluating ineffective assistance: [a] proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence of Sears' significant mental and psychological impairments, along with the mitigation evidence introduced during Sears' penalty phase trial, to assess whether there is a reasonable probability that Sears would have received a different sentence after a constitutionally sufficient mitigation investigation.).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - FAILURE TO ADVISE -- PADILLA - RETROACTIVITY
There is an argument under Williams v. Taylor, 529 US 362, 391 (2000) that Padilla is retroactive for federal habeas challenges to state convictions because it is not a new rule but merely an application of the pre-existing Strickland rule. "The threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. That question is easily answered because the merits of his claim are squarely governed by our holding in Strickland v. Washington, 466 U.S. 668 (1964)." "This Court's precedent "dictated" that the Virginia Supreme Court apply the Strickland test at the time that court entertained Williams' ineffective-assistance claim. Teague, 489 U.S., at 301, 109 S.Ct. 1060. And it can hardly be said that recognizing the right to effective counsel "breaks new ground or imposes a new obligation on the States," ibid. Williams is therefore entitled to relief if the Virginia Supreme Court's decision rejecting his ineffective-assistance claim was either "contrary to, or involved an unreasonable application of," that established law. It was both." The Court in Padilla said: Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strickland to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions. However, new constitutional rules are prospective for purposes of federal collateral review unless they are either substantive (limit the scope of what can be prosecuted, e.g., a statute that violates commerce clause) or announce a watershed rule. Teague v. Lane. Unfortunately, Gideon v. Wainwright is the only case the Supreme Court treats as watershed for purposes of the Teague test. In the following cases, the Supreme Court decided not to apply a new constitutional rule retroactively: Whorton v. Bockting, 127 S. Ct. 1173 (2007) (rejecting retroactivity for Crawford v. Washington, 541 U.S. 35 (2004), which expanded right to witness confrontation under 6th Amendment); Schiro v. Summerlin, 542 U.S. 348 (2004) (rejecting retroactivity for Ring v. Arizona, 546 U.S. 584 (2002)); Beard v. Banks, 542 U.S. 406 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U.S. 367 (1988)); O'Dell v. Netherland, 521 U.S. 151 (1997) (rejecting retroactivity for Simmons v. South Carolina, 512 U.S. 154 (1994)); Gilmore v. Taylor, 508 U.S. 333 (1993) (rejecting retroactivity for a new rule relating to jury instructions on homicide); Sawyer v. Smith, 497 U.S. 227 (1990) (rejecting retroactivity for Caldwell v. Mississippi, 472 U.S. 320 (1985)). On the other hand, states can determine for themselves whether to apply a Supreme Court decision retroactively. Danforth v. Minnesota, 552 U.S. 264 (2008). Thanks to Dan Kesselbrenner.

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL -- RETROACTIVITY OF PADILLA V. KENTUCKY
Tyler v. Cain, 533 U.S. 656 (2001) (a petitioner cannot take advantage of the successive habeas petition rule, 28 U.S.C. 2244(b)(2), unless the Supreme Court has expressly held in a collateral review case that the earlier decision is retroactive).

POST CON RELIEF - GROUNDS - PROSECUTION MISCONDUCT -- PROSECUTION ETHICS
http://www.ethicsforprosecutors.com/quotes.html

Second Circuit

POST-CONVICTION RELIEF - EQUAL PROTECTION PROBLEM
United States v. Sullivan, ___ F.Supp.3d ___, 2009 U.S. Dist. LEXIS 82614 (D. Mass. Sept. 10, 2009)

"If, in fact, a determination that Mr. Sullivan had possessed marijuana is a factor which, under immigration law, the immigration authorities are legally charged with taking into account when deciding Mr. Sullivan's application, why should the United States Attorney make a judgment that, despite the immigration law, the charge should be dismissed because it would "adversely affect" his application? If other applicants for a certain immigration status have had their applications "adversely affected" by a conviction or a forfeiture of collateral for possession of marijuana, then why should Mr. Sullivan, who is in the same position, not have to deal with the same consequences?

Again, the Court takes no position on what the law should be regarding the effect of a prior possession of marijuana on an application for immigration status. That is a matter which is in the province of the Congress. Similarly, the Court takes no position on how the immigration authorities should exercise their discretion when presented with applications by persons who have either been convicted or forfeited collateral for possession of marijuana. If the law gives the immigration authorities the discretion to determine the weight, if any, to be given this circumstance in making their decision on the applications, presumably authorities could determine that the application is not to be adversely affected.

In short, the Court sees no legitimate reason why Mr. Sullivan should be treated differently, or why the Violation Notice issued to him should be dismissed. The only reasons given for the dismissal flout the bedrock principle of our legal system that all persons stand equal before the law."

Ninth Circuit

ARTICLE " POST CON RELIEF " FEDERAL " VEHICLES " MOTION TO WITHDRAW PLEA BEFORE SENTENCE " COUNSELS FAILURE TO ADVISE CONCERNING MANDATORY DEPORTATION CONSEQUENCES CONSTITUTED FAIR AND JUST REASON TO WITHDRAW PLEA -- BONILLA SUMMARY
On Mar. 11, 2011, the Ninth Circuit decided United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011), holding that criminal defense counsel rendered ineffective assistance of counsel by failing to advise the defendant concerning the immigration consequences of the plea in a criminal case. Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens. When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences. Judge Stephen Reinhardt, writing for the panel, held that the district courts denial of Bonillas pre-sentence motion to withdraw his plea was an abuse of its discretion. Bonillas wife had asked his defense lawyer, prior to plea, about the immigration consequences. Counsel said he would look into it, but never advised Bonilla of the mandatory deportation the plea would cause. Before sentence, Bonilla filed a motion to withdraw the plea, arguing his plea was not knowing or voluntary because he had not understood that pleading guilty would in all likelihood subject him to deportation. He said: Had I known that I would be deported as a result of my plea of guilty, I would never ha[ve] entered that plea to these charges; instead, I would have either sought a different type of plea (which would not result in my necessarily being deported) or, alternatively, I would have gone to trial. The district court denied the motion to withdraw his plea, in reliance on Ninth Circuit authority in effect at the time, which held that attorneys were not required to advise clients about immigration consequences of a plea because deportation was simply a collateral consequence of the plea. See United States v. Amador-Leal, 276 F.3d 511, 514-15 (9th Cir. 2002). The court held that even if Padilla v. Kentucky, 130 S. Ct. 1473 (2010), holding defense counsel rendered ineffective assistance by failing to give affirmative, accurate advice before plea concerning its immigration consequences, applied retroactively, Bonilla did not show prejudice. It reasoned: counsels failure to advise Bonilla did not give rise to a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). Specifically, the court found that Bonillas willingness to enter a plea without having received an answer to his wifes question demonstrated that he was not adversely affected by his counsels failure to inform him about whether pleading guilty carried a risk of deportation. Finding that the failure to receive proper advice from his counsel about the immigration consequences of pleading guilty did not prejudice his decision, the district court denied Bonillas motion to withdraw his plea. Id. (Bonilla, supra, at ___.) The court described the standard of review as follows: We review for abuse of discretion the district courts denial of Bonillas motion to withdraw his plea in accordance with the fair and just reason standard for withdrawal under Federal Rule of Criminal Procedure 11(d)(2)(B). As we have recently explained, the fair and just standard is generous and must be applied liberally. United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008). A defendant who moves to withdraw a guilty plea before a sentence is imposed is not required to show that he would not have pled, but only that the proper legal advice of which he was deprived could have at least plausibly motivated a reasonable person in [the defendants] position not to have pled guilty . . . . United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005). A presentence motion to withdraw a plea should be freely allowed if a defendant can show a fair and just reason for requesting the withdrawal. See United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005). Erroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal. McTiernan, 546 F.3d at 1167. Here, the reason Bonilla gave for withdrawal of the plea was inadequate legal advice concerning the immigration consequences of his guilty plea. (Bonilla, supra, at ___.) In reversing the district courts denial of the motion to withdraw the plea for abuse of discretion, the court reasoned: There can be no question that the immigration consequences about which Bonilla learned after entering a plea could have at least plausibly motivated a reasonable person in [the defendants] position not to [plead] guilty . . . . Garcia, 401 F.3d at 1011-12. As Bonilla stated in his declaration, he would at the very least have attempted to negotiate a plea to a lesser offense. In any event, if defense counsels failure to provide material advice plausibly could have motivated his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the fair and just reason standard. Davis, 428 F.3d at 808. Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion. (Bonilla, supra, at ___.) The court continued: There can be no question that the immigration consequences about which Bonilla learned after entering a plea could have at least plausibly motivated a reasonable person in [the defendants] position not to [plead] guilty . . . . Garcia, 401 F.3d at 1011-12. As Bonilla stated in his declaration, he would at the very least have attempted to negotiate a plea to a lesser offense. In any event, if defense counsels failure to provide material advice plausibly could have motivated his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the fair and just reason standard. Davis, 428 F.3d at 808. Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion. (Bonilla, supra, at ___.)

POST CON RELIEF " FEDERAL " MOTION TO WITHDRAW PLEA BEFORE SENTENCE " COUNSELS FAILURE TO ADVISE DEFENDANT CONCERNING MANDATORY DEPORTATION CONSEQUENCE OF PLEA CONSTITUTED FAIR AND JUST CAUSE TO WITHDRAW PLEA ON FACTS OF THE CASE
United States v. Bonilla, ___ F.3d ___, 2011 WL 833293 (9th Cir. Mar. 11, 2011) (counsels failure to advise defendant concerning mandatory deportation consequence of plea constituted fair and just cause to withdraw plea on facts of the case), following Padilla v. Kentucky, 130 S. Ct. 1473 (2010)(defense counsel rendered ineffective assistance by failing to give affirmative, accurate advice before plea concerning its immigration consequences).

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
State v. Sandoval, ___ Wash. ___, (Mar. 17, 2011) (We hold the performance of Sandoval's counsel during the plea process "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and thus was constitutionally incompetent because his advice regarding the immigration consequences of Sandoval's plea impermissibly downplayed the risks). The court noted that: Amici curiae Washington Defender Association, Washington Association of Criminal Defense Lawyers, Northwest Immigrant Rights Project, American Immigration Lawyers Association, and One America invite us to hold the Sixth Amendment requires a defense attorney to conduct a four-step process when handling a noncitizen criminal defendant's case: (1) investigate the facts; (2) discuss the defendant's priorities; (3) research the immigration consequences of the charged crime and the plea alternatives, and advise the defendant accordingly; and (4) defend the case in light of the client's interests and the surrounding circumstances. We decline amici's invitation, as their argument goes beyond the scope of this case. Sandoval's ineffective assistance claim is focused narrowly on the advice that he received about the deportation consequence of pleading guilty to rape in the third degree. Of course, Padilla recognizes that "bringing deportation consequences into this [plea] process" can give defense counsel the information necessary to "satisfy the interests" of the client, perhaps by "plea bargain[ing] creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation." 130 S. Ct. at 1486. However, this case does not concern Sandoval's counsel's negotiations with the prosecutor, his investigation of the facts, his analysis of a complicated immigration statute (we have concluded the statute was clear), or any other matter addressed by amici's arguments. We will consider these issues if and when they are squarely presented.