Can Raise Padilla Claim in Motion to Withdraw Guilty Plea; Counsel Has Duty to Advise of Certain Deportation Consequence

United States v. Urias-Marrufo, No. 13-50085 (5th Cir. Feb. 28, 2014) (Davis, Garza, Dennis)

The panel rules that defendants can raise ineffective assistance of counsel claims for counsel’s failure to explain immigration consequences of the plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010). 

The panel applies the seven-factor Carr test for determining whether a plea should be withdrawn under Rule 11.  In Urias’ case, the panel finds that she received close assistance of counsel, which is different than receiving effective assistance of counsel.  However, the factor of whether or not her guilty plea was knowing and voluntary is “inextricably tied to her ineffective assistance of counsel claim under the Sixth Amendment” since “she must understand the consequences of her plea.” 

The panel then applies the two-prong Strickland test to resolve this question, determining whether counsel’s representation fell below an objective standard of reasonableness and whether there is a reasonable possibility the result of the proceeding would have been different but for counsel’s errors.  The panel phrases the duty announced in Padilla to be for counsel “to warn of certain immigration consequences.”  The magistrate judge’s inquiry during the plea colloquy whether Urias “understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty” is irrelevant.  Since the district court did not make findings regarding Urias’ Padilla claim, but instead concluded that it could not address it, the panel remands for further proceedings.

Judge Garza writes a special concurrence joining the holding “that a district court must consider a Padilla claim that is sufficiently presented, both legally and factually, as part of a  Rule 11 motion to withdraw a plea.”  He does not read the majority to hold, however, that “Padilla requires counsel to advise that deportation is a certain consequence of a guilty plea.”  Judge Garza believes the real holding of Padilla is that counsel must inform a client whether the plea carries a risk of deportation, and that the scope of the Padilla duty is an open question that need not be resolved in this appeal.