GROUNDS " IAC " PREJUDICE - DIFFERENT STANDARD FOR IAC IN GUILTY PLEA CONTEXT
Premo v. Moore (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (under limited role of federal court in reviewing state court denial of effective assistance claims, Court reversed Ninth Circuit finding the state courts determination was not an unreasonable application of the Strickland standards, in the guilty plea context). Practice Advisory. The Court in Premo noted that there are significant differences between an ineffective assistance claim in the guilty plea context and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial, and employed the standard enunciated in Hill v. Lockhart, in 1985. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. The Court discounted the possibility that a defendant can show prejudice by showing a reasonable possibility that a different plea might have been entered absent counsels error, rather than a possibility the defendant would have chosen to go to trial. On the other hand, the Court in Padilla v. Kentucky explicitly referred to the possibility of an ineffective counsel claim for failure to attempt to negotiate an immigration-harmless plea. Counsel can argue that in the immigration context, the proper standard of prejudice is that suggested by Padilla. This is because certain pleas cause severe immigration damage, while others do not, a factor not present in the non-immigration plea context presented in Premo.

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE STANDARD
Harrington v. Richter, (January 19, 2011) 131 S.Ct. 770, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under limited role of federal court in reviewing state court denial of effective assistance claims, state court reasonably could have concluded that no prejudice was proven, i.e., there was no showing of [t]he likelihood of a different result that is substantial, not just conceivable.; here, there was ample evidence for the California Supreme Court to think that any real possibility of the defendants being acquitted was eclipsed by the remaining evidence pointing to guilt, and there was no guarantee that further expert evidence would have proven innocence).

GROUNDS " IAC " PREJUDICE - DIFFERENT STANDARD FOR IAC IN GUILTY PLEA CONTEXT
Premo v. Moore (January 19, 2011) 131 S.Ct. 733, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (under limited role of federal court in reviewing state court denial of effective assistance claims, Court reversed Ninth Circuit finding the state courts determination was not an unreasonable application of the Strickland standards, in the guilty plea context). Practice Advisory. The Court in Premo noted that there are significant differences between an ineffective assistance claim in the guilty plea context and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial, and employed the standard enunciated in Hill v. Lockhart, in 1985. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. The Court discounted the possibility that a defendant can show prejudice by showing a reasonable possibility that a different plea might have been entered absent counsels error, rather than a possibility the defendant would have chosen to go to trial. On the other hand, the Court in Padilla v. Kentucky explicitly referred to the possibility of an ineffective counsel claim for failure to attempt to negotiate an immigration-harmless plea. Counsel can argue that in the immigration context, the proper standard of prejudice is that suggested by Padilla. This is because certain pleas cause severe immigration damage, while others do not, a factor not present in the non-immigration plea context presented in Premo.

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " ARTICLE
Flawed Supreme Court Decision in Premo v. Moore Restricts Prejudice Analysis of Ineffective Assistance of Counsel Claims in Plea of Guilty Context By Norton Tooby In Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (January 19, 2011), the Supreme Court held that the state post-conviction courts conclusions that defense counsel did not render deficient performance, and the defendant had not shown prejudice, were were not unreasonable applications of clearly established federal law as determined by the Supreme Court. The court pointed out that federal habeas corpus is very limited in its review of state post-conviction decisions, and owes great deference to the decisions of state courts. In addition, federal habeas review of ineffective assistance claims owes deference to defense counsel. This double duty of federal courts to defer to state ineffective counsel decisions provides the framework for this decision. Here, the Court found the court of appeals was wrong to accord scant deference to counsels judgment, and doubly wrong to find that the Oregon court was unreasonable in its finding that effective assistance was provided. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. In this sense, Premo is inapplicable to state court post-conviction consideration of claims of ineffective assistance of counsel, because state courts are not constrained by the limitations of 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court stated there are significant differences between an ineffective assistance claim in the guilty plea context, and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (Hill v. Lockhart, 1985). After trial, the burden is on the defendant to show a reasonable probability that the outcome of the trial would be different. A trial produces a fuller record of the facts of the case and the details of trial counsels actions and omissions. The plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. Hindsight and second guesses are inappropriate and the stability and certainty that the plea process brings to the criminal justice system must not be undermined. Most of these differences between guilty pleas and trials, however, are not real and this dictum is gratuitous and irrelevant the legal standards involved. Stability is equally important in both contexts, and the court makes no sensible case for stating that stability is more important in the guilty plea context. The slightly different prejudice standard does not mean that it is any more difficult to set aside a guilty plea than a trial; Hill simply applied the Strickland standard to the plea context. It did not stiffen the standard, and Premo did not purport to change the Hill standard. Therefore, the prejudice standard in the plea context enunciated in Hill remains unchanged. The Supreme Court pointed out that the plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. (Id. at ___.) Counsel can nullify this factor, however, by making as full a record as necessary during post-conviction litigation as to any relevant facts that are not already in the record. The issue of hindsight is equally significant in the trial and plea contexts. The only other real difference between the plea and trial contexts is that the vast majority of criminal cases, perhaps more than 95%, are resolved by plea rather than trial. This difference, however, does not offer a reason why it should be more or less difficult to set aside a conviction in either context. Each case is equally important to the defendant and to society. The Constitution should provide equal guarantees of fairness and stability in both contexts. The deficient performance claim in Premo was that counsel erred in recommending a guilty plea in a potentially capital case to avoid the possibility of the death penalty, without making a motion to suppress the defendants confession. The Supreme Court found that the state court was not unreasonable in believing the motion was not meritorious, or counsel made a reasonable recommendation to plead guilty early to avoid the death penalty, or that the motion was pointless because even if the defendants confession to authorities had been suppressed, he had made identical admissible confessions to two codefendants. The Supreme Court found the Ninth Circuit misapplied Fulminante (1991), and that novelty alone was a sufficient reason to reject the Ninth Circuits reasoning under 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court also found the state courts conclusion that the petitioner was not prejudiced by counsel's allegedly deficient performance, was not an unreasonable application of clearly established federal law as determined by the Supreme Court. As Justice Ginsberg pointed out in her concurrence, the petitioner never claimed that he would not have pleaded guilty absent counsels error, so there was no proof that he would not have entered the plea, as is required for reversal under Hill v. Lockharts prejudice standard. This alone was a sufficient reason to deny relief in this case under the traditional guilty-plea prejudice standard established by the Supreme Court in 1985. Second, the Supreme Court reasoned that it was quite likely that Moores confession to others would have made his police confession superfluous. This reason, as well, is sufficient standing alone to require denial of relief under Hill v. Lockharts prejudice standard. In addition, the Supreme Court found that the state courts decision that pleading guilty early to avoid a capital prosecution without filing motions was a not unreasonable strategy. The Supreme Court threw a number of gratuitous generalities into this decision. It stated: Many defendants reasonably enter plea agreements even though there is a significant probability " much more than a reasonable doubt " that they would be acquitted if they proceeded to trial. (Id. at ___.) It commented that the guilty plea context is different in several ways from the trial context. These comments are irrelevant to the decision of future ineffective assistance cases, because it is well-established that ineffective assistance claims are decided based on the individual facts of the cases. What [m]any defendants do " reasonably or not " is irrelevant to the individual case before the court. The Supreme Court stated: Finally, we reject [without analysis] Judge Berzons concurring suggestion that the standard for prejudice in the guilty plea context should be a reasonable possibility that he would have obtained a better plea agreement but for his counsels errors. The standard established in Hill (1985), that the defendant would not have pleaded guilty controls. (Id. at ___.) This statement is unaccompanied by any analysis, and seems to contradict the implications of Padilla, that a different non-deportable disposition is something competent counsel would seek. It also contradicts the standard for ineffective assistance at sentencing: a different sentence. See Glover v. United States. The Courts impatience with the Circuit appears to have pretermitted its analysis here. There might be an argument that Judge Berzons suggested standard is not clearly established federal law, but that reasoning is not presented in the Courts opinion.

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " ARTICLE
Flawed Supreme Court Decision in Premo v. Moore Restricts Prejudice Analysis of Ineffective Assistance of Counsel Claims in Plea of Guilty Context By Norton Tooby In Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (January 19, 2011), the Supreme Court held that the state post-conviction courts conclusions that defense counsel did not render deficient performance, and the defendant had not shown prejudice, were were not unreasonable applications of clearly established federal law as determined by the Supreme Court. The court pointed out that federal habeas corpus is very limited in its review of state post-conviction decisions, and owes great deference to the decisions of state courts. In addition, federal habeas review of ineffective assistance claims owes deference to defense counsel. This double duty of federal courts to defer to state ineffective counsel decisions provides the framework for this decision. Here, the Court found the court of appeals was wrong to accord scant deference to counsels judgment, and doubly wrong to find that the Oregon court was unreasonable in its finding that effective assistance was provided. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. In this sense, Premo is inapplicable to state court post-conviction consideration of claims of ineffective assistance of counsel, because state courts are not constrained by the limitations of 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court stated there are significant differences between an ineffective assistance claim in the guilty plea context, and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (Hill v. Lockhart, 1985). After trial, the burden is on the defendant to show a reasonable probability that the outcome of the trial would be different. A trial produces a fuller record of the facts of the case and the details of trial counsels actions and omissions. The plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. Hindsight and second guesses are inappropriate and the stability and certainty that the plea process brings to the criminal justice system must not be undermined. Most of these differences between guilty pleas and trials, however, are not real and this dictum is gratuitous and irrelevant the legal standards involved. Stability is equally important in both contexts, and the court makes no sensible case for stating that stability is more important in the guilty plea context. The slightly different prejudice standard does not mean that it is any more difficult to set aside a guilty plea than a trial; Hill simply applied the Strickland standard to the plea context. It did not stiffen the standard, and Premo did not purport to change the Hill standard. Therefore, the prejudice standard in the plea context enunciated in Hill remains unchanged. The Supreme Court pointed out that the plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. (Id. at ___.) Counsel can nullify this factor, however, by making as full a record as necessary during post-conviction litigation as to any relevant facts that are not already in the record. The issue of hindsight is equally significant in the trial and plea contexts. The only other real difference between the plea and trial contexts is that the vast majority of criminal cases, perhaps more than 95%, are resolved by plea rather than trial. This difference, however, does not offer a reason why it should be more or less difficult to set aside a conviction in either context. Each case is equally important to the defendant and to society. The Constitution should provide equal guarantees of fairness and stability in both contexts. The deficient performance claim in Premo was that counsel erred in recommending a guilty plea in a potentially capital case to avoid the possibility of the death penalty, without making a motion to suppress the defendants confession. The Supreme Court found that the state court was not unreasonable in believing the motion was not meritorious, or counsel made a reasonable recommendation to plead guilty early to avoid the death penalty, or that the motion was pointless because even if the defendants confession to authorities had been suppressed, he had made identical admissible confessions to two codefendants. The Supreme Court found the Ninth Circuit misapplied Fulminante (1991), and that novelty alone was a sufficient reason to reject the Ninth Circuits reasoning under 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court also found the state courts conclusion that the petitioner was not prejudiced by counsel's allegedly deficient performance, was not an unreasonable application of clearly established federal law as determined by the Supreme Court. As Justice Ginsberg pointed out in her concurrence, the petitioner never claimed that he would not have pleaded guilty absent counsels error, so there was no proof that he would not have entered the plea, as is required for reversal under Hill v. Lockharts prejudice standard. This alone was a sufficient reason to deny relief in this case under the traditional guilty-plea prejudice standard established by the Supreme Court in 1985. Second, the Supreme Court reasoned that it was quite likely that Moores confession to others would have made his police confession superfluous. This reason, as well, is sufficient standing alone to require denial of relief under Hill v. Lockharts prejudice standard. In addition, the Supreme Court found that the state courts decision that pleading guilty early to avoid a capital prosecution without filing motions was a not unreasonable strategy. The Supreme Court threw a number of gratuitous generalities into this decision. It stated: Many defendants reasonably enter plea agreements even though there is a significant probability " much more than a reasonable doubt " that they would be acquitted if they proceeded to trial. (Id. at ___.) It commented that the guilty plea context is different in several ways from the trial context. These comments are irrelevant to the decision of future ineffective assistance cases, because it is well-established that ineffective assistance claims are decided based on the individual facts of the cases. What [m]any defendants do " reasonably or not " is irrelevant to the individual case before the court. The Supreme Court stated: Finally, we reject [without analysis] Judge Berzons concurring suggestion that the standard for prejudice in the guilty plea context should be a reasonable possibility that he would have obtained a better plea agreement but for his counsels errors. The standard established in Hill (1985), that the defendant would not have pleaded guilty controls. (Id. at ___.) This statement is unaccompanied by any analysis, and seems to contradict the implications of Padilla, that a different non-deportable disposition is something competent counsel would seek. It also contradicts the standard for ineffective assistance at sentencing: a different sentence. See Glover v. United States. The Courts impatience with the Circuit appears to have pretermitted its analysis here. There might be an argument that Judge Berzons suggested standard is not clearly established federal law, but that reasoning is not presented in the Courts opinion.

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " GUILTY PLEA PREJUDICE STANDARD IS WHETHER THE DEFENDANT WOULD NOT HAVE PLEADED GUILTY, RATHER THAN WHETHER HE WOULD HAVE OBTAINED A BETTER PLEA AGREEMENT
The Supreme Court stated: Finally, we reject [without analysis] Judge Berzons concurring suggestion that the standard for prejudice in the guilty plea context should be a reasonable possibility that he would have obtained a better plea agreement but for his counsels errors. The standard established in Hill (1985), that the defendant would not have pleaded guilty controls. (Id. at ___.)

Third Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " PREJUDICE
United States v. Orocio, 645 F.3d 630 (3d Cir. Jun. 29, 2011) (Mr. Orocio argues two forms of prejudice from his attorney's failure to inform him of possible immigration consequences. First, he argues that prejudice should be presumed in his case because the failure to advise of immigration consequences is "easy to identify and prevent." Second, he argues that he suffered actual prejudice because he would have chosen to go to trial instead of agreeing to a plea that subjected him to automatic deportation. We reject his first contention, but we agree with his second. * * * [W]e hold that, on the facts as alleged in his coram nobis petition, a decision by Mr. Orocio "to reject the plea bargain would have been rational under the circumstances."); citing Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (March 31, 2010); accord State v. Sandoval, 249 P.3d 1015, 1021-22 (Wash. 2011) (finding prejudice to lawful permanent resident defendant on similar facts); distinguishing as no longer good law, United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (requiring defendant to show that he would have been acquitted at trial in order to show prejudice).

Ninth Circuit

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " WHERE DEFENDANT GOT NO ADVANTAGE FROM HIS PLEA, IT IS MORE LIKELY THAT HE WOULD NOT HAVE ENTERED THE PLEA IF HE HAD KNOWN OF THE IMMIGRATION DISASTER
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(It bears emphasizing that by entering a plea of guilty without a plea agreement as to both counts of the indictment, Bonilla did not stand to benefit from a plea agreement in a way that might have made the plea an attractive alternative to trial.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE -- MERE AWARENESS OF POSSIBILITY OF DEPORTATION DOES NOT ESTABLISH WILLINGNESS TO PLEAD GUILTY WITH KNOWLEDGE OF THE CERTAINTY OF DEPORTATION
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty. See Padilla, 130 S. Ct. at 1483. There can be little doubt that the district court abused its discretion in concluding that, because Bonilla was willing to enter a plea when he was at least aware of the possibility of deportation, his counsels failure to advise him that he would almost certainly be deported did not constitute a fair and just reason for the withdrawal of his plea. McTiernan, 546 F.3d at 1167.)

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " LACK OF ADVICE CONCERNING MANDATORY DEPORTATION COULD AT LEAST PLAUSIBLY MOTIVATED DEFENDANT TO PLEAD RATHER THAN GO TO TRIAL
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(Because a reasonable person in Bonillas position could well have interpreted his lawyers silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsels failure to advise Bonilla of the immigration consequences could have at least plausibly motivated him to plead guilty rather than go to trial. Garcia, 401 F.3d at 1012.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " COUNSELS SILENCE CONCERNING IMMIGRATION CONSEQUENCES COULD HAVE MOTIVATED DEFENDANT TO PLEAD GUILTY
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(Because a reasonable person in Bonilla's position could well have interpreted his layer's silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsel's failure to advise Bonilla of the immigration consequences..." could have motivated him to plead guilty.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE STANDARD
Harrington v. Richter, (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under limited role of federal court in reviewing state court denial of effective assistance claims, state court reasonably could have concluded that no prejudice was proven, i.e., there was no showing of [t]he likelihood of a different result that is substantial, not just conceivable.; here, there was ample evidence for the California Supreme Court to think that any real possibility of the defendants being acquitted was eclipsed by the remaining evidence pointing to guilt, and there was no guarantee that further expert evidence would have proven innocence).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " WHERE DEFENDANT GOT NO ADVANTAGE FROM HIS PLEA, IT IS MORE LIKELY THAT HE WOULD NOT HAVE ENTERED THE PLEA IF HE HAD KNOWN OF THE IMMIGRATION DISASTER
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(It bears emphasizing that by entering a plea of guilty without a plea agreement as to both counts of the indictment, Bonilla did not stand to benefit from a plea agreement in a way that might have made the plea an attractive alternative to trial.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE -- MERE AWARENESS OF POSSIBILITY OF DEPORTATION DOES NOT ESTABLISH WILLINGNESS TO PLEAD GUILTY WITH KNOWLEDGE OF THE CERTAINTY OF DEPORTATION
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty. See Padilla, 130 S. Ct. at 1483. There can be little doubt that the district court abused its discretion in concluding that, because Bonilla was willing to enter a plea when he was at least aware of the possibility of deportation, his counsels failure to advise him that he would almost certainly be deported did not constitute a fair and just reason for the withdrawal of his plea. McTiernan, 546 F.3d at 1167.)

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " LACK OF ADVICE CONCERNING MANDATORY DEPORTATION COULD AT LEAST PLAUSIBLY MOTIVATED DEFENDANT TO PLEAD RATHER THAN GO TO TRIAL
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(Because a reasonable person in Bonillas position could well have interpreted his lawyers silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsels failure to advise Bonilla of the immigration consequences could have at least plausibly motivated him to plead guilty rather than go to trial. Garcia, 401 F.3d at 1012.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " COUNSELS SILENCE CONCERNING IMMIGRATION CONSEQUENCES COULD HAVE MOTIVATED DEFENDANT TO PLEAD GUILTY
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(Because a reasonable person in Bonilla's position could well have interpreted his layer's silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsel's failure to advise Bonilla of the immigration consequences..." could have motivated him to plead guilty.).

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
Commonwealth v. Clarke, 460 Mass. 30, 31, 949 N.E.2d 892 (Jun. 17, 2011) (prejudice from deficient performance in failing to give adequate advice of immigration consequences of plea can be shown by: (1) establishing that the defendant would have gone to trial if he had been properly advised and that the decision to go to trial would have been reasonable, or (2) showing either that there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time, or (3) that the defendant placed such emphasis and importance on immigration consequences that the advice would have had a significant impact on his decision to plead guilty).

PRACTICE ADVISORY " POST-CONVICTION RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC DURING PLEA NEGOTIATIONS " DISTINGUISHING LOCKHART V. FRETWELL
In 1993, the Supreme Court stated that the only errors of counsel that can be considered as claims of ineffective assistance are those that deprive the defendant of a substantive or procedural right to which the law entitles him in his defense. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). While pertinent in Lockhart, in which counsels error deprived the defendant only of a benefit later declared illegal, Justice OConnor was at pains to point out that this language, as well as the courts decision in that case, flowed from the highly unusual fact that the only benefit of which the defendant was there deprived was one which was forbidden under the correct legal analysis. Lockhart did not alter in any way the normal analysis of claims of ineffective assistance of counsel. The normal Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims. Williams v. Taylor, 529 U.S. 362, 391 (2000). The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland. Ibid. Williams clarified that the Courts earlier decision in Lockhart dealt with the rare situation where the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall to the defendant rather than the legitimate prejudice contemplated by our opinion in Strickland. Williams, 529 U.S. at 392; see also United States v. Glover, 531 U.S. 198, 203 (2001) ([O]ur holding in Lockhart does not supplant the Strickland analysis.); Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 699 n.23 (2011). Lockhart was an exception to the normal Strickland prejudice test, applicable only when the benefit of which the defendant was deprived by counsels error was in fact prohibited by a later change in the law. It would be an unfair error of the gravest magnitude to glorify it into a rule that eliminates any protection against ineffective assistance of counsel except in those rare cases in which the defendant can show a reasonable probability he or she would have taken the case to trial.

POST CON RELIEF " BIBLIOGRAPHY " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE CORRECT IMMIGRATION ADVICE AT PLEA
Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693 (2011).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " GUILTY PLEA PREJUDICE STANDARD IS WHETHER THE DEFENDANT WOULD NOT HAVE PLEADED GUILTY, RATHER THAN WHETHER HE WOULD HAVE OBTAINED A BETTER PLEA AGREEMENT
The Supreme Court stated: Finally, we reject [without analysis] Judge Berzons concurring suggestion that the standard for prejudice in the guilty plea context should be a reasonable possibility that he would have obtained a better plea agreement but for his counsels errors. The standard established in Hill (1985), that the defendant would not have pleaded guilty controls. (Id. at ___.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " DIFFERENT PREJUDICE STANDARDS CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " DIFFERENT PREJUDICE STANDARDS
The Supreme Court has now recognized a number of different types of plea bargaining IAC errors, and that each error has its own different type of prejudice. There are two different types of prejudice: (1) normal IAC prejudice, interpreting the Strickland general prejudice standard in different contexts. The general test is whether the defendant can show a reasonable probability, less than a preponderance, but large enough to undermine confidence in the outcome, that a different (more favorable) outcome would have resulted absent counsels error; and (2) whether it would have been rational for the defendant not to enter the plea (Roe v. Flores-Ortega, Padilla). There is another prejudice formulation: loss of an opportunity for a rational decisionmaker to exercise discretion in the defendants favor. This comes up in Roe, Barocio, Bautista, Janvier v. US, and US v. Kwan. These two formulations can be considered to be the same prejudice test, and the defendant can be considered to be a rational decisionmaker under this standard. This prejudice test is appropriate where counsels error resulted in the complete loss of a procedural opportunity, such as: -- loss of the right to appeal (Roe); -- loss of a motion for a JRAD or other form of non-deportable sentence, such as a sentence imposed of 364 days instead of 365 for a conviction that would otherwise be an aggravated felony crime of violence. (Barocio, Janvier, Kwan) -- loss of a motion to withdraw a plea (Kwan), or -- loss of the opportunity to make an immigration-neutral defense plea offer (Padilla, Bautista; Kwan). This second type of prejudice is a very favorable standard. The defendant does not need to show a reasonable chance that the appeal or motion would have been victorious, just that the defendant would have chosen to make it if s/he had known of the opportunity. This is far easier to prove.