Post-Conviction Relief for Immigrants

(E)  Misadvice About Sentence.  A plea of guilty is taken in violation of Due Process if the attorney’s misrepresentation of the court’s sentence commitment rendered the plea involuntary, even without a showing of prejudice.[173]  The court stated:

“A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” Machibroda v. United States, 368 U.S. 487 [parallel citations omitted] (1962). A plea is involuntary if induced by counsel’s misrepresentations as to what sentence in fact would be.  See Unger, 665 F.2d at 254; Marzgliano, 588 F.2d at 397-98; Wellnitz, 420 F.2d at 936. Defendant is entitled to rely on counsel’s representation that a sentence agreement had been struck and if the nolo plea was induced by that representation, the defendant is entitled to relief.  No indication that the attorney acted in bad faith is required. The Tahl-Boykin waiver form and colloquy between the court and the defendant do not cure misrepresentations.[174]

            (F)  Failure to Defend.  A closely related claim is ineffective assistance by failing to defend the defendant against the adverse immigration consequences.  This claim would arise, for example, where defense counsel investigated the adverse immigration consequences of the plea, and accurately informed the defendant concerning them, but failed to use standard techniques in an effort to protect the defendant against them.  This failure to defend itself can take many forms.  For example, it can consist in failure to use the immigration disaster as a factor in mitigation in plea bargaining to try for a nondeportable plea bargain, or in sentencing to try for a nondeportable sentence.  It can also consist in counsel’s failure to identify an equivalent alternative plea that will meet the needs of the court and prosecution, and yet avoid triggering the adverse immigration consequences.  For example, in California, a conviction of possession for sale constitutes an aggravated felony, but a conviction of offering to sell or transportation do not.  The latter two offenses are in the same statute as sales, and carry a greater potential punishment than possession for sale, a lesser offense.  Thus, the California Court of Appeal has held that counsel’s failure to figure this out, and attempt to persuade the prosecution to allow the defendant to plead guilty to the greater, nondeportable offenses was ineffective assistance of counsel, requiring reversal if prejudice could be shown.[175]

[173] Chizen v. Hunter, 809 F.2d 560, 561-563 (9th Cir. Dec. 24, 1986) (plea involuntary where defense attorney misrepresented that court had committed itself to particular sentence and defendant relied on that representation; no showing of prejudice required).

[174] Ibid.

[175] People v. Bautista, 8 Cal.Rptr.3d 862 (Ct. App. January 27, 2004) (defense counsel’s failure properly to advise, investigate and defend noncitizen defendant by offering to plead guilty to a greater offense "offering to sell” or "transportation" of marijuana, which are not "aggravated felonies," in place of possession for sale of marijuana, which was an aggravated felony, constituted ineffective assistance of counsel, requiring reversal if prejudice could be shown by proof of a reasonable probability that the alternative, greater plea, would have been accepted).