Judge’s Admonishments about Possible Deportation Did Not Foreclose Ineffective Assistance of Counsel Claim

United States v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (Dennis, Prado, Brown) (per curiam)

Defendant Innocent Rutahagara Batamula pleaded guilty to making false statements right after a judge’s plea colloquy that the felonies committed were “likely” to result in deportation. However, prior to the Batamula’s plea, he was never advised by counsel that conviction would result in deportation. Had the Batamula known of deportation or the possibility thereof, he would have “‘refused to make the plea,’ would have pleaded not guilty, and would have insisted on going to trial.”

The panel reversed the district court’s denial of Batamula’s claim of ineffective assistance of counsel under the Sixth Amendment and remanded.  The district court held that when a judge informs the defendant of possible deportation in the plea colloquy, counsel’s failure to advise on immigration consequences is thereby “cured,” with defendant’s relevant constitutional claim forfeited or waived, estopping the defendant from showing prejudice. The panel disagreed since “forfeiture of certain constitutional claims,” like effective counsel, occur only when “the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel.” The defendant did not have the latter.

The risk of deportation, per the Supreme Court, is akin to “banishment or exile” and warrants the need for counsel to inform the defendant of the consequences. The Court in Padilla v. Kentucky, 559 S. Ct. 356 (2010), recognized that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Additionally, defense counsel has certain, basic obligations to the defendant in complying with the Sixth Amendment. These include “effectively investigating and advising the client regarding immigration consequences before the client decides whether to plead guilty.”

The panel reasoned that a judge’s admonishments “during a plea colloquy are not a substitute for effective assistance of counsel,” nor do they “supersede errors by the defense counsel.” These admonishments also do not “foreclose” the defendant from demonstrating prejudice when counsel is ineffective. Further, even if counsel is ineffective and a defendant accepts his plea intelligently, voluntarily, and knowingly, the Supreme Court has rejected arguments that the defendant was “not deprived of any legal benefit to which he was entitled.” Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012). In a similar decision, the Court in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), took the right to counsel further, asserting that even if the trial was fair and the defendant was guilty, the defendant was still entitled to effective assistance of counsel and can bring a claim of prejudice if counsel was otherwise.

Thanks to FPD Intern Adam Pena for this post.

Ignored Plea Agreement Prompts Partial Reversal and Dismissal

United States v. Hughes, No. 12-60005 (Aug. 8, 2013) (King, Higginbotham, Clement)

            Hughes contested his convictions and sentence in this distribution conspiracy case. The panel affirmed in part and reversed in part the judgment of the district court.

            On the morning of trial, Hughes decided to plead guilty. The Government informed the court of an oral agreement for Hughes to plead guilty to the conspiracy count and continue the other four counts until sentencing at which time the Government would move to dismiss those counts. Without addressing this oral agreement, the court took Hughes’ guilty plea to all five of the counts. Hughes tried to withdraw his guilty pleas later, but the court denied that request. At sentencing, the Government moved to dismiss all but the conspiracy count, but the court denied that request and handed down sentences on all five counts of Hughes’ indictment.

            Hughes raised three main arguments on his appeal: (1) his change-of-plea hearing was procedurally deficient under Federal Rule of Criminal Procedure 11, (2) the district court abused its discretion in denying his motion to withdraw his guilty pleas, and (3) the district court abused its discretion in not dismissing the telephone counts on the Government’s motion.

            In regards to Hughes’ first argument, the panel found it to be unavailing since Hughes failed to show a reasonable probability that he would not have pleaded guilty. In regards to Hughes’ second concern, the panel held that the district court did not abuse its discretion when it denied Hughes’ motion to withdraw his guilty pleas. According to the Carr test, the district court’s decision was justified. Finally, the panel found that the district court failed to supply reasoning for sentencing Hughes to the substantive counts, so the refusal to dismiss Counts 2-5 was an abuse of discretion. The panel affirmed the judgment of the court with respect to Hughes’ conspiracy count, but reversed the denial of the motion to dismiss Counts 2-5. The panel then dismissed Counts 2-5.

            Judge Higginbotham concurred with the judgment handed down by the district court because neither Hughes nor the government clarified whether the plea deal was still in effect as of sentencing.

            Judge King dissented. She argued that Hughes should have been given notification as to whether the plea agreement concerning Counts 2-5 was accepted or declined. Furthermore, since Hughes was denied his right to withdraw his guilty plea, she would have vacated the convictions and sentence and remanded the matter to the district court to clarify its stance on accepting or rejecting the plea agreement.

Thanks to FPD Intern Matthew Gonzalez for this blog post.

Carr Factors: "Close Assistance of Counsel" Not the Same Thing as "Ineffective Assistance of Counsel"

United States v. McKnight, No. 08-30229 (5th Cir. June 5, 2009) (O'Connor, Wiener, Stewart)

This case involves the appeal of a district court's denial of a motion to withdraw a guilty plea. Given the fact-intensive nature of the issue, a case like this ordinarily wouldn't be worth discussing here. But two aspects of the case merit mention: 1) the eyebrow-raising circumstances of the offense, and 2) the court's clarification of one of the factors relevant to the analysis.

What's eyebrow-raising about the case? DEA agents used a confidential informant to set up a man undergoing treatment for severe mental illness:

Before the arrest that led to the proceedings below, McKnight was diagnosed with and treated for paranoid schizophrenia, delusions, and major depression at the East Jefferson Mental Health Center (“Center”) in New Orleans, Louisiana. On June 1, 2005, while McKnight was undergoing treatment at the Center, agents with the Drug Enforcement Administration (“DEA”) arranged a purchase of two and one-fourth ounces of cocaine base from McKnight through cooperation with a confidential source (“CS”). On June 2, 2005, McKnight met the CS and an undercover agent in a parking lot located at a Walgreens. McKnight handed the undercover agent a package containing 61.6 grams of cocaine base and the agent handed McKnight $1,500.

McKnight was charged with, and pleaded guilty to, possessing more than 50 grams of crack with the intent to distribute it. "In exchange for McKnight’s guilty plea, the Government promised not to file a 21 U.S.C. § 851 recidivist bill and McKnight waived certain rights to appeal." The day after his rearraignment, "McKnight sent a letter to the district court where he expressed doubts regarding his decision to plead guilty." To make the rest of a long and troubling story short,

• McKnight was found incompetent by two doctors.
• The district court appointed new counsel for McKnight.
• McKnight was sent to Butner for restoration of competency, where doctors concluded he was malingering.
• McKnight "moved to withdraw his guilty plea based on lack of competency at the time he pled guilty and ineffective assistance of counsel."
• McKnight was sent back to Butner, where doctors again concluded he was malingering, and that he was competent at the time of his plea.
• The district court held a hearing on the ineffective assistance claim, denied McKnight's motion to withdraw his guilty plea, and sentenced him to 292 months' imprisonment.

McKnight appealed the district court's denial of his motion to withdraw his guilty plea. In determining whether the district court abused its discretion in doing so, the court of appeals considers the seven "Carr factors." And therein lies the second reason for discussing this case. One of the Carr factors is whether the defendant received "close assistance of counsel." Both in the district court and on appeal, "McKnight framed his argument that he lacked close assistance of counsel as a 'claim' of 'ineffective assistance of counsel.'" Incorrect, said the court:

Close assistance of counsel under Federal Rule of Criminal Procedure (“Rule”) 11(d)(2)(B) and constitutionally ineffective assistance of counsel under the Sixth Amendment are distinct issues. The former is to be considered by a district court in the exercise of its discretion to allow or to disallow a defendant to withdraw his guilty plea. The latter presents a basis for invalidating a conviction (or sentence) secured in violation of a defendant’s fundamental right to counsel. McKnight moved to withdraw his guilty plea under Rule 11(d)(2)(B). He has not sought to invalidate his conviction under the Sixth Amendment or any other provision of law. Thus, McKnight erred in framing his close assistance of counsel claim before the district court and this Court as a Sixth Amendment inquiry.

The court went on to consider the facts under correct standard at length, and concluded that McKnight received close assistance of counsel. On another Carr factor—whether the guilty plea was knowing and voluntary—the court held in conclusory fashion that the district court did not clearly err in relying on the Butner doctors' reports declaring McKnight a malingerer. Most of the rest of the Carr factors weighed against an abuse of discretion, so the court of appeals ultimately affirmed McKnight's conviction.

Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?

United States v. Arami, No. 07-50536 (5th Cir. July 21, 2008) (Prado, Elrod, Haynes)

This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[.]" Not surprisingly, the court correctly holds that the rule means what it says. Unfortunately, the court creates some confusion with an unnecessary discussion of an question that wasn't at issue and that the court doesn't resolve, and by applying the wrong standard of review.

The procedural posture: Arami agreed to plead guilty to one count of a five-count indictment, in exchange for dismissal of the remaining four counts. He also consented to allowing a magistrate judge take his plea. After the hearing, the magistrate judge recommended that the district judge accept the plea. A couple of months later, Arami filed a motion to withdraw his guilty plea, "asserting his innocence and stating that the allegations contained in the factual basis were incorrect." The district court denied the motion after a hearing. Eight days later, the district court adopted the magistrate judge's recommendation, accepted Arami's guilty plea, and sentenced him to 27 months' imprisonment.

Arami appealed his conviction, arguing that the district court violated Rule 11(d)(1) by refusing to allow him to withdraw his guilty plea. The court of appeals agreed, finding the rule clear: "Rule 11(d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or her guilty plea before the court accepts it." Since the district court didn't accept Arami's guilty plea until eight days after he moved to withdraw it, the district court erred.

That should be the end of it. Unfortunately, the court drops a footnote with some dicta that might create confusion when it comes to determining exactly when a guilty plea has been accepted. The note discusses a couple of Fourth Circuit cases which held that a plea is accepted as soon as the district court completes the Rule 11 colloquy, and that a defendant may consent to having a magistrate judge accept his guilty plea. The court then goes on to say,

Putting the rules from [those cases] together, the Fourth Circuit likely would rule that when a defendant consents to having a magistrate judge perform the plea colloquy and accept the plea, the court has accepted the plea for purposes of Rule 11(d)(1) once the magistrate judge completes the plea colloquy. Regardless, here, both parties concede that Arami did not consent to having the magistrate judge accept his guilty plea, so we leave for another day the questions of whether an acceptance occurs when the court completes the plea colloquy and whether a defendant can consent to having a magistrate judge accept a guilty plea.

Given the potential for this footnote to cause confusion in the application of an otherwise clear rule, the court probably should have waited for a case squarely presenting the question.

Another fly in the soup is the court's use of plain error review. Why plain error review? That's unclear. The court says that, "[b]ecause Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court’s decision for plain error[,]" citing Vonn v. United States, 535 U.S. 55 (2002). But why isn't a motion to withdraw the guilty plea enough to raise the issue in the district court? Also, Vonn isn't on point. Vonn involved a guilty plea colloquy in which the district court failed to admonish the defendant that he had a right to be represented by counsel at trial. The Supreme Court held that the defendant's failure to object to a defect in the guilty plea colloquy results in plain error review of that defect on appeal. But Arami complained of a different kind of Rule 11 error: the district court's refusal to allow him to withdraw his plea before it was accepted. If an unsuccessful motion to withdraw the plea isn't sufficient to preserve the error, it's hard to imagine what would be. Cf. Fed. R. Crim. P. 51.

As it is, the question of whether plain error applies in this situation is largely academic. Because of the way the court analyzes all the plain error elements, a Rule 11(d)(1) violation should always be reversible plain error. Nevertheless, it would have been better if the court had treated this as preserved error, lest its use of plain error create confusion over how to preserve other kinds of error.

Finally, the court suggests a way to head this problem off at the pass:

If a district court wishes to avoid a similar situation in the future—where a defendant pleads guilty in front of a magistrate judge and then later seeks to withdraw the plea before the court accepts it—the district court simply should accept the plea more promptly. In fact, the court can accept the plea before it reviews the plea agreement and imposes a sentence. See United States v. Hyde, 520 U.S. 670, 677-78 (1997)(distinguishing a plea from a plea agreement); Jones, 472 F.3d at 909 (same). But a defendant does not relinquish his right to have a jury determine his guilt or innocence until the court actually accepts the defendant’s guilty plea.

Not sure that's right, either, because Hyde involved former Rule 32(e)'s requirement that a defendant show a "fair and just reason" for withdrawing a guilty plea (now codified at 11(d)(2)(B)). I invite folks to weigh in on that question in the comments.