Post-Conviction Relief for Immigrants

 

(B)  Sample Arguments.  The dissenting opinion of Justice Mosk in Resendiz would have found prejudice from a multitude of objective and subjective factors corroborated petitioner’s claim that he would not have plead guilty.[185]  In any close case of prejudice, this opinion should be consulted and its arguments used to make the required showing.

 

            The dissent emphasized that “the immigration consequences of criminal convictions have verged on the monstrously cruel in their harshness compared to many of the crimes on which they are imposed,” and detailed the draconian consequences that flow from criminal convictions, including mandatory, indefinite detention.[186]  The Mosk opinion detailed subjective factors establishing prejudice, including:

 

The undisputed corroborating evidence that he (1) is willing to risk years in state prison to gain a glimmer of a chance of escaping conviction and thereby avoiding deportation, and (2) that he has United States citizen children, establishes a reasonable probability that if he had known he would be deported, permanently banished, and involuntarily separated from his children unless they chose to move to Mexico and abandon the privileges attendant to living in the United States (all consequences of his guilty plea) he would have elected to proceed to trial.  If “a defendant’s conclusion that success is remotely possible, even if not likely, is sufficient to induce many to go trial,” how much more that must be for someone in petitioner’s situation, facing lifetime banishment from his home and family.  Without a doubt, the foregoing evidence meets the Hill burden — i.e., it establishes a reasonable probability that, but for his lawyer’s omission, he would have gone to trial.

 

Few with petitioner’s family and cultural ties to the United States would turn down a chance, even a slight chance, of escaping the talons of the federal law.  A rational person could conclude that the great likelihood of spending some five years in a California prison, balanced against the slight chance of avoiding permanent banishment to the developing world, is a worthwhile gamble.  Obviously petitioner has so concluded.  To deny him his choice is tragic, defying any accurate reading of Hill v. Lockhart, supra, 474 U.S. 52.[187]

 

In People v. Sandoval,[188] the court reversed the trial court’s denial of a motion to set aside the plea and vacate the judgment on grounds of ineffective assistance of counsel.  Although the decision was vacated when the California Supreme Court granted review, it's analysis of prejudice was exemplary, and could usefully be followed in trial court motions and habeas petitions on this issue:

 

            Reasonable probability of a different result in the plea proceeding is thus the applicable standard of proving prejudice under the Sixth Amendment in California.  In addition to stating the standard, the Alvernaz court assists us in determining what evidence is needed to make the face required showing.  Specifically, the court expresses its reluctance to accept at value an after-the-fact statement by a defendant that he or she would have acted differently if given better representation.

 

            It appears to us the question is one of credibility. . . .  Generally, credibility determinations are within the expertise of the trial court and we hesitate to intrude upon this important trial court function . . . .  For this reason we feel the need to remand for further proceedings.  [W]e are able in this case to identify several [factors for consideration] which, if believed by the trial court, could sufficiently corroborate appellant’s assertion [that he would not have entered this plea if correctly advised].

 

            First, appellant does have strong ties to this country.  His children are citizens, his wife a permanent legal resident. . . .  He has spent most of his life in this country and since 1989 as a permanent legal resident. . . .  The loss of his family ties would have severe consequences for his remaining life.  The need to protect those ties would be a strong factor in determining whether to accept the plea bargain as offered.  Thus, a defendant’s personal and family circumstances are important factors to be weighed in considering his or her credibility.

 

            A second factor is the nature of the bargain itself.  . . .  [T]he district attorney in this case was willing to offer probation, conditioned on 210 days’ local time.  This indicates to us the district attorney was not taking a hard line on this case and may have been amenable to other outcomes.  While it is difficult to reconstruct the district attorney’s decisionmaking in a case, the treatment of the case and particular defendant is a factor which can be considered in weighing the overall probability a different result during the plea process could or would have been achieved.

 

            Third, a defendant’s current posture in the case seems relevant to the determination of credibility.  In this case, appellant has met all the terms of his bargain.  He served his local time and successfully completed the terms of his probation.  His present claim that he would have rejected the plea and taken ‘greater risks’ if he had known the high risk of deportation seems particularly credible — at a time when his part of the bargain has been completed, he is willing to go back to square one in order to avoid the adverse immigration consequences threatened. . . .  In light of what appellant has to lose, the claim appears to have credibility.

 

            The availability of alternative forms of redress at the time the plea was entered may be relevant as well.  However, we are not persuaded by respondent’s argument that the possibility of a “discretionary waiver” of deportation is of significance in this case. . . .  Although we recognize there were and continue to be provisions providing for discretionary waiver of deportation in limited circumstances under federal immigration laws [citation omitted], it is mere speculation to say appellant would have been granted such relief in the absence of strong evidence and authority establishing entitlement to such relief.

 

            There are other factors which come to mind which are either not present in this case or do not appear to offer appellant support.  For example, consideration of what advisements were given by the court and a defendant’s responses, including whether he or she challenged the court’s advisements in any way or whether there are any reasons given for a defendant’s disregard of the court’s advisements.  A defendant’s criminal history, and his or her sophistication or naiveté with respect to the judicial process, may also be a factor for the trial court’s consideration.  In some cases, the availability of an arguable legal defense might suggest a defendant would have some reason to believe a better outcome would be available with a jury trial.  We stress this is not the applicable standard of review; whether a different outcome would result if the matter proceeded to trial is not determinative on the issue of prejudice suffered during the plea process.  (See Hill v. Lockhart, supra, 474 U.S. at 58-59; In re Resendiz, supra, 71 Cal.App.4th at p. 149.)  However, when a defendant can articulate a trial strategy or defense available, this adds support to his or her claim to have rather faced trial than accept the plea had he or she been advised adequately by counsel.  Another factor to consider is whether a defendant is aware that the risk of conviction has significantly dropped for reasons related to the passage of time (e.g., death of a witness or loss of evidence).  If a defendant knows the risk of conviction has been significantly reduced for a particular reason, this could be a factor suggesting a motive for fabricating a statement to support a motion to withdraw the plea.

 

            Ultimately, the prejudice analysis rests on the objective evidence presented by a defendant to corroborate his or her representation to the court that absent the inadequate representation of counsel, the plea would have been rejected instead of accepted (or vice versa).  In other words, the outcome of the process would have been different.  A consideration of the factors we have expressed here, and others relevant to the issue of credibility, should guide the trial court in deciding whether there has been the requisite showing.  Is there a reasonable probability the defendant would have acted differently absent counsel’s errors or omissions?[189]

 

[185] See In re Resendiz, 25 Cal.4th 230, 255-60 (2001) (Mosk, J, concurring and dissenting).

[186] See id., at 255-58 (Mosk, J, concurring and dissenting).  Justice Mosk also catalogued examples of deportation as the result of trivial offense that occurred long ago, such as the case of a 34-year-old born in Germany who came to the United States about age 1, and who pleaded guilty in 1990 to a misdemeanor battery that involved “hair-pulling.”  See id. at 256-57 (Mosk, J, concurring and dissenting).

[187] Id., at 258-59 (Mosk, J, concurring and dissenting) (internal citations omitted).

[188] People v. Sandoval, 73 Cal.App.4th 404, 86 Cal.Rptr.2d 431 (1999), opinion vacated on grant of review.

[189] Ibid., citing In re Alvernaz, 2 Cal.4th 924, 938 (1992), holding the defendant’s statement “must be corroborated independently by objective evidence.”