(D)

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.[233]  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.[234]  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.[235]

 

In People v. Sandoval,[236] 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.  The court’s analysis of prejudice, however, 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?[237]

[233] See id. at 255-60 (Mosk, J, concurring and dissenting).

[234] See id. at 255-58 (Mosk, J, concurring and dissenting).  Justice Mosk also cataloged 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).

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

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

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

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.