Tooby's California Post-Conviction Relief for Immigrants

Chapter

§7.1 I. Geography of the Field
§7.2 II. Violations of the Right to Counsel
§7.3 A. Denial of Counsel
§7.4 1. Representation by Non-Counsel
§7.5 2. Invalid Waiver of Right to Counsel
§7.6 3. Refusal to Allow Self-Representation
§7.7 B. Ineffective Assistance of Counsel
§7.8 1. Generally -- Deficient Performance and Prejudice
§7.9 2. Failure to Conduct Competent Investigation of the Facts
§7.10 3. Failure to Research the Law
§7.11 4. Failure to Advise the Defendant of the Elements and Defenses
§7.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea
§7.13 6. Failure to Assist the Defendant to Withdraw the Plea
§7.14 7. Failure to Consult the Defendant about an Appeal
§7.15 8. Ineffective Assistance of Counsel on Appeal
§7.16 C. Failure to Defend Against the Immigration Consequences of the Plea
§7.17 1. Deficient Performance
§7.18 2. Affirmative Misadvice
§7.19 3. Failure to Advise
§7.20 4. Failure to Defend Against Conviction and Sentence
§7.21 a. Failure to Seek out an Immigration-safe Alternative Disposition
§7.22 b. Failure to Seek Out an Immigration-safe Alternative Sentence
§7.23 5. Failure to Investigate Mitigating Facts
§7.24 a. Basic Approach
§7.25 b. Sample Argument
§7.26 6. Failure to Investigate the Immigration Consequences of Trial
§7.27 7. Prejudice
§7.28 D. Conflict of Interest
§7.29 1. Multiple Representation of Conflicting Interests
§7.30 2. Conflict of Interest in Failing to Raise Counsel's Own Ineffectiveness
§7.31 3. Conflict Between Defendant and Counsel
§7.32 III. Invalid Guilty Pleas
§7.33 A. Ineffective Waiver of Jury Trial
§7.34 1. The Failure to Explain the Nature of the Right to a Jury Trial
§7.35 2. Involuntary Waiver of the Right to a Jury Trial
§7.36 B. Ineffective Waiver of Right to Remain Silent
§7.37 C. Ineffective Waiver of Confrontation
§7.38 D. Failure to Establish Factual Basis
§7.39 E. Failure to Inform Defendant of the Nature of the Offense
§7.40 F. Failure to Inform Defendant of Consequences of Plea
§7.41 G. Breach of Plea Bargain
§7.42 H. Promissory Estoppel
§7.43 I. Failure to Disclose Plea Agreement on the Record
§7.44 J. Coercion to Enter Plea
§7.45 K. Failure to Establish Mental Competence to Enter Plea
§7.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
§7.47 IV. Violations of the Right to an Interpreter
§7.48 A. The Right to an Interpreter in Criminal Proceedings
§7.49 B. Violations of the Right to an Interpreter
§7.50 C. Grounds for Invalidating Conviction for Violation of the Right to an Interpreter
§7.51 V. Other Grounds For Vacating Guilty Pleas
§7.52 A. Jurisdictional Defects
§7.53 B. Newly Discovered Evidence
§7.54 C. Prosecution Withholding of Exculpatory Evidence

§ 7.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea

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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 would be involuntary. Waivers of constitutional rights must be knowing and intelligent as well as voluntary.[118] 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.[119]

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

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