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Padilla V. Kentucky: New Constitutional Ground

03/29/11

PADILLA V. KENTUCKY: NEW CONSTITUTIONAL GROUND FOR VACATING CRIMINAL CONVICTIONS WITH IMMIGRATION CONSEQUENCES BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL

Motions to vacate pleas are generally regarded as a drain on an already case-crowded criminal justice system. Criminal courts' dockets are already filled with hundreds of open cases and in the midst of those, a defense attorney files his motion to vacate a criminal case that has already been resolved….sometimes years and even decades prior to the motion being filed.

Padilla v. Kentucky has opened up a new ground upon which to challenge convictions with immigration consequences based on violation of defendants' Sixth Amendment right to effective assistance of counsel at a time when Florida court remedies for involuntary pleas under State v. Green, 944 So.2d 208 (Fla. 2006), had all but expired. The need for collaboration between criminal defense lawyers and immigration lawyers is now greater than ever. General consensus is: "Confer with an expert! Stay within your area of proficiency."

The state is aggressively defending against these motions to vacate because old cases that were already litigated and/or negotiated and closed now are being reopened. Thorough preparation is vital. The need for creativity in your presentation of the case both to the State and the Court is great. Be prepared to present a mitigation packet in the event the State can be persuaded to vacate the conviction and alternatively dispose of the case. If an evidentiary hearing is granted, the court's ultimate ruling will likely turn on the defendant's credibility.

Padilla v. Kentucky, 599 U.S. __, 130 S.Ct. 1473 (2010).

There is now a new paradigm for vacating criminal convictions. Padilla v. Kentucky holds that ineffective assistance of counsel (IAC) is a ground upon which to vacate a plea. The Supreme Court's decision essentially utilizes the IAC as contemplated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), and applied to pleas through the two part test of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (2006). In doing so, the Supreme Court is asking: (1) whether defense counsel's representation fell below the level of reasonable competence demanded of criminal defense counsel and (2) was the defendant prejudiced by counsel's ineffectiveness, i.e., but for counsel's ineffectiveness defendant would not have pled guilty but would have exercised his or her right to trial. Id. at 59.

The facts of Padilla are as follows: Mr. Padilla was a Lawful Permanent Resident (LPR) for over 40 years. He pled guilty to Kentucky marijuana distribution charges. His criminal defense attorney (1) failed to tell him that his plea subjected him to "virtually mandatory" deportation and (2) affirmatively misadvised him that "he did not have to worry about immigration status since he had been in the country so long." 130 S.Ct. at 1478. Apparently, no plea colloquy warning was given to Mr. Padilla but he may have signed a plea form that contained the possible deportation warning. Id. at 1486 n. 15. Mr. Padilla alleged that he would have insisted on taking his case to trial if he had known of his deportation consequence. There was no evidentiary hearing involved to determine an issue of fact. Id. at 1478.

The Supreme Court held that defense counsel has a 6th amendment obligation to "inform her client whether his plea carries a risk of deportation." 130 S.Ct. at 1486. Counsel must correctly advise a criminal defendant of the deportation consequence of a plea that is "truly clear," i.e., where the applicable immigration law is "succinct and straightforward . . .." Id. at 1483. Where the deportation consequence is "unclear or uncertain," counsel's duty is "more limited" and counsel need only advise that "pending criminal charges may carry a risk of adverse immigration consequences." Id. (footnote omitted). The Court did not address the issue of whether Mr. Padilla suffered prejudice as a result of his plea and remanded to the Kentucky court that previously had never addressed the issue. Id. at 1478, 1483-4, 1487.

In addition to adding a new ground upon which criminal convictions could be vacated, the Court necessarily reclassified the issue of immigration consequences, finding that they are no longer collateral to criminal convictions, but rather that they often stem directly from criminal convictions. The previous culture in the criminal justice system due to decades old precedents was that immigration consequences were considered collateral in nature and thus did not have to be contemplated by defense counsel when advice was given to criminal defendants regarding a plea to any charge. The Padilla decision specifically changed this ruling that the collateral versus direct consequence distinction has no vitality in the context of immigration consequences stemming from criminal convictions. "We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland . . . . The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation." 130 S.Ct. at 1481-2. This completely abrogates the analytical framework Florida courts have employed for decades in analyzing these types of IAC claims. See, e.g., Major v. State, 814 So.2d 424 (Fla. 2002) (IAC claims can only be based on failure to advise about direct, not collateral, consequences of plea); Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009)(same).

Though in a particular case, you may find that there was a lack of advice as to whether the client would suffer immigration consequences as a result of a plea to a criminal charge, or you may find that there was affirmative misadvice about whether the consequences would actually apply, Padilla makes no distinction between affirmative misadvice and lack of advice. 130 S.Ct. at 1484.

In addition to the concerns that most attorneys may have with respect to whether to file a motion to vacate based on Padilla, one main concern is whether it applies retroactively. It appears, at a minimum, that the Court contemplates its holding to apply to criminal pleas entered as long ago as 1996 (and before) when sweeping changes in immigration laws eliminated the AG's authority to grant discretionary relief from deportation, 130 S.Ct. at 1480: "It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea. . . . We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their client's considered pleading guilty." Id. at 1485. See, e.g., Martin v. United States, 2010 WL 3463949 at *3 (C.D. Ill. Aug. 25, 2010) (Padilla applies retroactively to claims on collateral review because not a "new rule" under Teague v. Lane, 489 U.S. 288, 301 (1989)); United States v. Chaidez, No. 03 CR 636-6, 2010 WL 3184150 (N.D. Ill. Aug. 11 2010) (holding Padilla applies retroactively and citing cases).

Quoting from Padilla, "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." 130 S.Ct. at 1483 (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271 (2001)). Because the Padilla decision places an affirmative duty on the defense attorney to advise the client of the immigration consequences that are virtually inevitable, another concern is the scope of that obligation. Regarding reaffirming counsel's 6th amendment obligation to correctly advise, the Court states: "Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less." Id. at 1486.

Scope of obligation to advise under Padilla

It's not just about whether your client is facing removal, whether he's inadmissible to the U.S., whether his LPR status has been impaired or whether his opportunity for naturalization is now gone. Given the Court's clarification that the distinction between "collateral" and "direct" consequences of a criminal plea has no bearing upon defining counsel's 6th amendment obligations, 130 S.Ct. at 1481-2, it appears the focus of this inquiry is more properly placed on what laws potentially negatively impacting a guilty-pleading defendant's rights are "succinct, clear, and explicit," id. at 1483, "succinct and straightforward," id., or "truly clear . . .." Id. If, for instance, impairment of naturalization is "truly clear" and counsel affirmatively misadvises (or fails to advise), under the Court's test it seems this would be constitutionally ineffective. The Court does not fear according this "expansive" scope to effective counsel's obligation will overrun the courts with claims of invalid pleas: "Surmounting Strickland's high bar is never an easy task. . . . Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. . . . There is no reason to doubt that lower courts - now quite experienced with applying Strickland - can effectively and efficiently use its framework to separate specious claims from those with substantial merit." Id. at 1485.

Justice Alito, in his concurrence joined by Chief Justice Roberts, presumed the scope of the obligation explained by the Court went beyond advising of deportation consequences: "This case happens to involve removal, but criminal convictions carry a wide variety of consequences other than conviction and sentencing , including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses." Id. at 1488.

See, e.g., Bauder v. Dept. of Corrections State of Florida, 619 F.3d 1272, 1274-5 (11th Cir. 2010) (affirming finding of IAC based on defense counsel's affirmative misadvice that defendant's no contest plea to aggravated stalking would not subject him to civil commitment).

So, what is considered "law that is 'succinct and straightforward, and truly clear?'" Again, look to Padilla! Counsel's 6th amendment obligation is not limited to knowing and advising clients about immigration statutes where "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence . . .." 130 S.Ct. at 1483. Although determining whether a non-citizen's plea to a particular charge renders the defendant removable "is often quite [a] complex [task]," id. at 1488 (Alito, J., concurring), competent counsel must be prepared to venture into case law that may also provide clear answers to the deportation question. See, e.g., Matter of Medina, 15 I&N Dec. 611, 612 (BIA 1976)(aggravated assault with a deadly weapon has long been recognized as crime involving moral turpitude (CIMT)).

Establishing Prejudice under Padilla

Many attorneys want to know whether their clients are procedurally barred from seeking relief. Florida courts have been litigating claims of involuntary pleas, due to a court's failure to provide the Rule 3.172(c)(8) deportation warning made mandatory in 1989, or counsel's affirmative misadvice, see State v. Sallato, 519 So.2d 605 (Fla. 1988), for more than 10 years under Peart v. State, 756 So.2d 82 (Fla. 2000), and later State v. Green, 944 So.2d 208 (Fla. 2006). The procedural requirements of these cases should not logically, and have not been held to, apply to claims under Padilla. For instance, while the Green window all but closed shut on October 26, 2008, id. at 214, Padilla claims in Florida courts should be viable to challenge convictions pre-dating Padilla for a full two years following its March 31, 2010 filing date. See Fla. R. Crim. P. 3.850(b).

A defendant must demonstrate "a reasonable probability that but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial, i.e., would the defendant have rejected the plea and gone to trial?" Hill, 474 U.S. at 59. See also Polite v. State, 990 So.2d 1242, 1244 & n.1 (Fla. 3d DCA 2008). This is distinct from the "prejudice" issue examined under Peart and Green, i.e., whether the challenged conviction is the "sole" basis for deportation. See, Peart v. State, 756 So.2d 82 (Fla. 2000), and later State v. Green, 944 So.2d 208 (Fla. 2006).

Moreover, the defendant need not show he would have prevailed at the trial level though the merits of his defense relevant to the credibility of the defendant's assertion that he would have gone to trial may be looked into. Grosvenor v. State, 874 So.2d 1176, 1181 (Fla. 2004). The court will then consider totality of circumstances surrounding the plea including whether a particular defense was likely to succeed at trial, the plea colloquy, and the difference between the sentence imposed and the maximum penalty the defendant faced at trial. Id. at 1181-2.

Does a plea colloquy that mentions a deportation warning cure prejudice under Padilla?

The first order of business is to determine if there is a written transcript of a plea colloquy. If the underlying conviction is a felony, it is more than 10 years old, and there is no pre-existing transcript, the notes have probably been destroyed. If a misdemeanor is more than 5 years old, likewise, the corresponding notes have probably been destroyed. A legally insufficient warning should not be an adequate substitute for defense counsel's warning. Similarly, a warning sufficient to meet the requirements of Rule 3.172(c)(8) will not be sufficient to meet the requirements of Padilla (more on this in a moment…). A mere plea form, for example, not incorporated into the plea colloquy, probably will not be enough to establish that the defendant was warned about immigration consequences. The State may try to prove the colloquy by routine practices of a specific judge who did the colloquy to warn defendants of deportation consequences per Rule 3.172(c)(8), by presenting judge, prosecutors, or even assistant public defenders who practiced in that particular courtroom around the time of the plea.

Rule 3.172(c)(8) requires that a trial judge specifically advise every defendant that a guilty plea may subject him or her to deportation. Florida courts recognize that if the colloquy does/did not comply with 3.172, a defendant's claim of an involuntary plea under Peart/Green cannot be summarily denied. See, e.g., Labady v. State, 783 S.2d 275, 277 (Fla. 3rd DCA, 2001)(trial court's advisement that plea could have "adverse consequences" to defendant's immigration status failed to satisfy Rule 3.172(c)(8) and required withdrawal of plea); Fernandez v. State, 780 So.2d 336 (Fla. 3rd DCA 2001)(trial court's advisement that plea "could affect [non-citizen's] status in the United States" failed to satisfy Rule 3.172(c)(8) and required evidentiary hearing to determine if defendant was prejudiced by trial court's failure to specifically warn that plea could result in deportation); Morales v. State, 988 So.2d 705 (Fla. 3rd DCA 2008)(warning that plea "could have adverse consequences to your immigration status" failed to adequately advise of possibility of deportation). If a trial court's warning is vague or otherwise fails to comply with 3.172, it certainly should not be deemed to "conclusively refute" a defendant's claim that she was prejudiced by counsel's failure to advise/misadvice. Moreover, if Padilla requires the defense attorney's advice to be specific to the client's consequences, that the advice be clear and correct, and that the advice allow the client to grasp the immigration consequences in order to voluntarily enter a plea or reject one, then any "standard" plea colloquy question or statement by a judge regarding the mere possibility of deportation would never suffice if given by the attorney.

Florida case law is clear that a defendant's mere signature/initials on a plea form without a plea colloquy transcript showing that the defendant was personally addressed by the judge on the matter and that the defendant read and understood the warnings/advisements contained in the form, do not satisfy the requirements of Rule 3.172(c)(8) and do not conclusively refute a defendant's Rule 3.850 claim that she did not know she was subject to deportation. See, e.g., Koenig v. State, 597 So.2d 256, 258 (Fla. 1992); Perriello v. State, 684 So.2d 258, 260 (Fla. 4th DCA 1996); Hen Lin Lu v. State, 683 So.2d 1110 (Fla. 4th DCA 1996). Likewise, a standard plea form that mentions the possibility of deportation cannot and should not be used as conclusive proof to refute an ineffective assistance of counsel claim. At best, a signed plea form could be an indication of a fact in question which would still have to be determined at an evidentiary hearing. After all, a plea form does not equal legal advice in the form of a conversation with questions and answers from attorney to client and client to attorney.

Post-Padilla Florida cases holding that the colloquy cures prejudice.

a. Flores v. State, 4D08-3866, 2010 WL 2882465 (Fla. 4th DCA July 14, 2010). The plea colloquy transcript showed that a warning compliant with 3.172(c)(8) was given to the defendant. BUT the trial court denied the defendant's motion to withdraw his guilty plea only after an evidentiary hearing at which the court found "that Flores was not credible." Id. at *1. A trial court's ruling that a defendant was not credible in demonstrating prejudice under Hill, see Grosvenor factors, would more than adequately support a denial of the defendant's IAC claim. The defendant's motion for rehearing, rehearing en banc, and certification of questions, supported by the briefs of FACDL and AILA, is still pending.

b. Diaz v. State, 3D10-2563, 2010 WL 4103145 (Fla. 3d DCA Oct. 20, 2010). Affirmed summary denial of defendant's Rule 3.850 motion for post-conviction relief citing only Flores and Bermudez v. State, 603 So.2d 657 (Fla. 3d DCA 1992). Flores does not support Diaz for reasons stated above and because in Diaz, the court gave a legally insufficient warning, your "plea can be used in deportation proceedings," that did not comply with Rule 3.172(c)(8). Bermudez does not support Diaz because the entire analytical framework upon which it rests, that deportation is a "collateral consequence" and that the Florida Supreme Court "intended to avoid the vacating of guilty pleas on the sole ground that the non-citizen defendant may have been misinformed about deportation," id., 603 So.2d at 658, has been completely abrogated by Padilla. Id., 130 S.Ct. at 1481-2 (See discussion above, "collateral/direct consequence distinction has no vitality in this context"). The defendant's motion for rehearing, rehearing en banc, or for certification of questions, also supported by amicus briefs of FACDL and AILA, is still pending.

For practitioners in Florida…

Arguably, a trial court's Rule 3.172(c)(8) generic warning during a plea colloquy constitutes "some evidence" contrary to a defendant's claim that he would not have pled guilty and would have gone to trial had he known from his attorney, with certainty, of the deportation consequence. But the existence of the warning itself does not conclusively refute the defendant's claim of prejudice. In State v. Leroux, 689 So.2d 235 (Fla. 1996), the court considered whether a motion to withdraw a plea based on defense counsel's misadvice about how much time the defendant would serve could be summarily denied based on the defendant's plea colloquy statement that no one had promised him anything to induce his plea. Id. at 235. The court noted Florida law was clear that a defendant may be entitled to withdraw his plea entered in reliance upon his attorney's mistaken sentencing advice:

The law is well settled that if a defendant enters a plea in reasonable reliance on his attorney's advice, which in turn was based on the attorney's honest mistake or misunderstanding, the defendant should be allowed to withdraw his plea. . . . Although the record reflects a sufficient basis to find that an actual mistake or misunderstanding existed, we think this issue would be best determined by the trial court after testimony from, but not limited to, defendant and his trial attorney. Id. at 237 (citations omitted).

The court highlighted the "proposition that a defendant invariably relies upon the expert advice of counsel concerning sentencing in agreeing to plead guilty." Id. Explaining the importance of a correct plea colloquy, it emphasized the distinction between the questions asked by the trial court during a plea colloquy and the nuances of plea sentencing consequences and plea discussions between trial counsel and his client. In light of this distinction, the court held that, while a "plea colloquy may . . . be some evidence contrary to a defendant's claim [of ineffective counsel, if] it is not so clear or inconsistent with the claim," it is insufficient to "conclusively" rebut it. Id. Accord Chandler v. State, 843 So.2d 1046 (Fla. 2nd DCA 2003)(reversing summary denial of motion for post-conviction relief based on defense counsel's erroneous sentence assurances despite plea colloquy that advised defendant of maximum possible sentence and elicited that no promises regarding length of sentence had been made); Johnson v. State, 757 So.2d 586 (Fla. 2nd DCA 2000)(defendant entitled to hearing on motion to withdraw plea where attorney incompetently assured him that his actual sentence would be much less than the actual maximum, despite court's warning of the maximum sentence he faced).

There are federal and state decisions to the effect that generic plea colloquy warnings of possible deportation consequences do not, as a matter of law, cure prejudice from defense counsel's failure to give specific immigration consequence advice or misadvice:

a. United States v. Choi, 581 F.Supp.2d 1162 (N.D. Fla. 2008)(granting motion to withdraw plea and noting that when plea makes deportation "practically inevitable" there is a substantial difference between informing defendant that plea may result in deportation and informing defendant that plea will result in deportation).

b. In Re: Resendiz, 19 P.3d 1171, 1177-79 (Cal. 2001)(holding court's warning of possible deportation neither cures attorney's misadvice nor bars defendant's IAC claim).

c. State v. Creary, 2004 WL 351878 (Ohio Ct. App. 2004)(motion to withdraw guilty plea based on counsel's misadvice regarding deportation consequences warranted hearing notwithstanding trial court's generic warning that plea "could" result in deportation).

d. People v. Garcia, 907 N.Y.S.2d 398 (2010)(defendant entitled to withdraw plea and established prejudice under Padilla based on lack of advice from defense counsel and misadvice from "immigration specialist" that misdemeanor conviction would have "no adverse immigration consequences" notwithstanding trial court's warning that a "controlled substance offense can certainly lead to deportation").

e. State v. Limarco, 235 P.3d 1267 (Kan. App. 2010)(defendant entitled to evidentiary hearing on motion to withdraw plea based on defense counsel's failure to discuss "immigration consequences" notwithstanding plea court's confirmation that defendant understood warning in plea form he signed that conviction "may result in deportation").

f. United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005)(respondent who pled guilty in reliance on defense attorney's misadvice that his guilty plea would have no adverse immigration consequences entitled to coram nobis relief notwithstanding plea court's generic deportation warning).

Where plea transcripts are unavailable (for the state to use in refuting defendants' claims of prejudice), or where because the case is old, the defense attorney may not have a recollection of what was told or not told to the defendant, the State has resorted to presenting testimony from defense attorneys, prosecutors, and even the original plea judges regarding what their "usual practices" were in advising defendants about deportation consequences. Several cases had language in them indicating that a defendant's specific recollection should be credited over a conflicting witness' testimony about how things were usually done. See, e.g., Polite v. State, 990 So.2d 1242, 1244 (Fla. 3d DCA 2008); Labady v. State, 783 So.2d 275, 276 (Fla. 3d DCA 2001). More recent cases have reviewed such "usual practice" testimony more charitably. See, e.g., State v. Avila, 43 So.3d 936, 938 (Fla. 3d DCA 2010); Gusow v. State, 6 So.3d 699, 702 n.4 (Fla 4th DCA 2009). Creative and aggressive cross-examination can undermine the credibility of this "usual practice testimony." Finally, to bring back a term from our law school days: Laches! Beware of this prosecution argument in response to claims based on older pleas. Laches must be proven by the state at an evidentiary hearing. See Frances v. State, 31 So.3d 285 (Fla. 4th DCA 2010).

"If my client's motion to vacate plea, judgment and sentence is granted, what language should the Order contain?" The law is well-settled that where a defendant's conviction is quashed or vacated for the "sole purpose of avoiding the bar to his acquisition of permanent residence, the court's action [will be deemed] not effective to eliminate the conviction for immigration purposes." In Re: Christopher Pickering, 23 I&N Dec. 621 (BIA 2003). Based on the Board of Immigration Appeals decision, your Order should contain specific language so as to avoid the presumption that the Order was entered for the "rehabilitative or immigration hardship[]" purposes. That is, appropriate language may include, but it not limited to: "This Court hereby vacates the plea, judgment and sentence in the above-captioned matter. . . This Court's Order has not been rendered for reasons of rehabilitation or immigration hardships but rather due to deficiencies in the plea process and/or due process considerations involving the plea process."

In conclusion, remember that your motions to vacate will generally regarded as a drain on an already case-crowded criminal justice system. Be mindful of the court's docket and of the number of 3.850 post conviction relief motions the prosecutor will have to respond to as this may create some obvious delays in resolution to your motions. As soon as you meet with your client, begin to collect evidence you will present in a mitigation packet so that you may negotiate rather than litigate, when available!

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