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.

AUSAs Will Not Ask for Waiver in Plea Agreement of Ineffective Assistance of Counsel Claims

Attorney General Eric Holder announced a new policy that "the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."  Deputy Attorney General James Cole authored the memo instructing assistant U.S. attorneys to follow this new policy.  Prior to this policy, "35 of the department's 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel."

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.

SCOTUS: Counsel Ineffective If Does Not Understand Resources Available to Hire Expert

Hinton v. Alabama, No. 13-6550 (U.S. Feb. 24, 2014) (per curiam)

Hinton’s guilt hinged on ballistics evidence and one eyewitness who identified Hinton as the person who robbed his restaurant and tried to kill him in 1985.  The State’s Department of Forensic Sciences concluded that the six bullets all came from the Hinton’s gun.  Hinton’s attorney filed a motion for funding to hire an expert witness.  The trial judge granted $1000, stating that he did not know how much he could grant, thinking that it was $500 per case, and instructing the attorney to file another form if he needed additional experts.  In fact, there was not a statutory cap of $500 per case at the time of the trial; the law allowed for reimbursement for “any expenses reasonably incurred.”  Hinton’s attorney never asked for more funding, though.  Instead, he found an expert for $1000, recognizing that the expert did not have the expertise that the attorney thought he needed but thinking that was the best he could afford.  The prosecutor badly discredited the expert on cross-examination due to the expert’s lack of experience.

In his postconviction petition, Hinton produced three new experts who all examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from Hinton’s gun.  The circuit court denied the petition on the ground that Hinton was not prejudiced by the trial expert’s alleged poor performance because the trial expert’s testimony did not depart from what the postconviction experts said.  On remand from the Alabama Supreme Court, the circuit court also held that the trial expert was qualified to testify as a firearms and toolmark expert.

The Supreme Court finds that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.”  The inadequate assistance was not hiring “an expert who, though qualified, was not qualified enough. . . . The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.”  The Court remands for reconsideration of whether the attorney’s deficient performance was prejudicial.

More analysis available on SCOTUSblog.com.

No Prejudice for § 2255 Based on Implausible Testimony that Would Have Appealed But For Counsel’s Deficient Performance

United States v. Bejarano, No. 12-10952 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)

The panel denied the habeas corpus petitions for ineffective assistance of counsel because, even if counsel did not sufficiently consult with the appellants about filing an appeal and had a duty to do so, the appellants did not show any prejudice.  “The record does not support a finding that there is a ‘reasonable probability that Appellants would have timely appealed but for their counsels’ deficient failure to consult[.]”

The appellants (husband and wife) pled guilty to conspiring to commit money laundering and waived their rights to contest their convictions and sentences except for claims of ineffective assistance of counsel.  They were both sentenced to 42 months’ imprisonment (below the advisory guideline range), but the district court allowed the wife to delay her prison term and return to China to care for her minor children until the husband, Bejarano, completed his prison term. 

To show prejudice, the appellants relied on their expression of interest to counsel in appealing and Bejarano’s testimony that he would have appealed.  Evidence of interest in appealing alone, however, is insufficient to establish that a defendant would have instructed his attorney to file an appeal but for the counsel’s deficient performance.  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  The district court found Bejarano’s testimony that he would have appealed to be “self-serving” and “implausible in light of the other evidence,” and the appellants did not argue that the district court’s findings were clearly erroneous.  Given that, and that the appellants waited nearly a year after sentencing to file their petitions, the panel found that they failed to show a reasonable probability they would have appealed but for counsels’ deficiency.

Ineffective Assistance of Counsel to Not Consult Regarding Appeal Once Client Expressed an Interest in Getting Less Time

United States v. Pham, No. 11-50717 (July 8, 2013) (Wiener, Dennis, Owen)

Pham, a Vietnamese refugee who speaks no English, pleaded guilty pursuant to a plea agreement with an appeal waiver. Counsel explained to Pham that he was likely to receive the mandatory minimum sentence, but Pham believed he would get probation. Pham had no criminal history and only started growing marijuana because his wife was diagnosed with a brain tumor. The Government, however, did not believe that he was being truthful about his conduct and did not move for a § 5K1.1 downward departure. Similarly, the district court concluded he did not qualify for safety valve and sentenced Pham to five years.

Immediately after sentencing, Pham spoke with his counsel and said he "was concerned about getting 60 months and wanted to do something to get less time." Counsel discussed with Pham the possibility of a reduced sentence pursuant to Rule 35 if he cooperates, but counsel did not mention or discuss the possibility of a direct appeal, and no notice of appeal was filed. Pham later filed a § 2255, which the district court denied.

The panel reversed, holding that counsel breached his duty to consult because Pham reasonably demonstrated to counsel that he was interested in appealing since counsel knew Pham had hoped to receive a sentence of probation only and Pham was visibly upset when he told counsel that he wanted to do something to get less time. "We disagree [with the district court] that a lay defendant, particularly one who speaks no English, must incant the magic word ‘appeal’ to trigger counsel’s duty to advise him about one. . . . [C]ounsel’s professional opinion eschewing appeal does not excuse failure to consult altogether."

The lesson: Consult with your client regarding an appeal. The Supreme Court predicted that this duty would exist "in the vast majority of cases." Thus, failure to consult will likely be ineffective assistance of counsel.

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.

Cert Grant: Whether Lawyer's Nonadvice or Misadvice About Immigration Consequences of Guilty Plea Constitutes Ineffective Assistance of Counsel

As a commenter to an earlier post points out, the Supreme Court granted cert last week in Padilla v. Kentucky, No. 08-651, a case concerning a defense lawyer's obligation to advise an alien client about the immigration consequences of pleading guilty to a criminal offense. The formal questions presented are available here, but an amicus brief in support of the petition frames the questions in a way that is much easier to understand:

1. Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a client who is not a citizen that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation?
2. If a criminal defense attorney misadvises his noncitizen client that a guilty plea will not lead to deportation, and that misadvice induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Both questions have produced lopsided splits among the federal and state appeals courts. According to the amicus brief, a large majority answer question one "no," and question two "yes." (By the way, all of the cert-stage pleadings are available at ScotusWiki.) Where does our fair circuit fall, you ask? It just so happens that the Fives addressed these questions, among others, in a decision handed down last November: Santos-Sanchez v. United States, No. 07-40145 (5th Cir. Nov. 6, 2008) (Reavley, Clement, Prado).

Santos-Sanchez presented a procedural scenario you don't see every day: an appeal from the denial of a petition for a writ of coram nobis. Santos, a legal resident alien, pleaded guilty to aiding and abetting the illegal entry of an alien, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2(a) (known colloquially as misdemeanor alien smuggling). As a result, DHS sought to remove Santos from the United States. While the removal proceedings were still ongoing, Santos filed his petition for a writ of error coram nobis, seeking vacation of his conviction. The petition was ultimately denied, and Santos appealed.

Santos presented three arguments, all of which the court of appeals rejected. First, "he argue[d] that his defense counsel rendered ineffective assistance by affirmatively misrepresenting the immigration consequences of his guilty plea." Specifically, Santos claimed that he was misled into believing that removal was only a possibility---rather than a certainty---because 1) one of his attorneys advised him that deportation is a possible consequence of a guilty plea to a criminal charge, and for that reason that he may want to consult an immigration lawyer, and 2) his other attorney gave him an immigration lawyer's business card "and suggested that Santos-Sanchez call the lawyer if he had any problems with immigration." The court held that the attorneys' advice was not objectively unreasonable under the Strickland standard, given the circumstances: neither attorney claimed to be an expert in immigration law, they did not answer any questions concerning deportation, and "[w]hile [the] statement that deportation was 'possible' might indicate that deportation was not a certainty, it is not so inherently misleading in this context that it constitutes an affirmative misrepresentation of the law."

Second, Santos argued, in the alternative, that his attorneys were ineffective "due to [their] failure to warn him of the immigration consequences of a guilty plea." That ran smack into the Fifth Circuit's prior decision in United States v. Banda, which held that "counsel’s failure to inform a defendant of the collateral consequences of a guilty plea"---and deportation is a collateral consequence---"is never deficient performance under Strickland." Santos tried to get around Banda by arguing that certain deportation---as opposed to the mere possibility of deportation---is a direct consequence of a guilty plea, not a collateral consequence, particularly after IIRIRA. The court disagreed, observing that "[t]he likelihood that a defendant would be deported was irrelevant to" Banda's holding. As for IIRIRA, the court

agree[d] with the First and Tenth Circuits that the changes wrought by IIRIRA have not so altered the nature of deportation as to wholly undermine our holding in Banda. We, like our sister circuits, have drawn a bright line between the direct and collateral consequences of a guilty plea and require that counsel advise a defendant of only the former. And also like our sister circuits, we have limited the direct consequences of a guilty plea to “the immediate and automatic consequences of that plea such as the maximum sentence length or fine.” Under Banda, regardless of certainty, deportation is a collateral consequence of a guilty plea. Consequently, Santos-Sanchez’s counsel was not required to inform him of the immigration consequences of his guilty plea for counsel’s assistance to be effective.

(internal cite removed).

Santos's third argument---as well as the court's rejection of it---mirrored the second one:

• Santos argued that his guilty plea was ineffective because the magistrate judge failed to advise him of the immigration consequences of his guilty plea.
• The Fifth Circuit has "previously held that neither due process nor Federal Rule of Criminal Procedure 11 require that a court advise a defendant of the collateral consequences of a guilty plea[,]" and deportation is one such collateral consequence.
• Santos said things are different after IIRIRA.
• The court agreed with other circuits that have held that the post-IIRIRA certainty of deportation doesn't make it a direct consequence of a conviction, meaning it's still a collateral consequence, meaning a court need not admonish a defendant of the immigration consequences of a guilty plea.

(One last thing from Santos-Sanchez for all of you procedure wonks out there: the case holds that magistrate judges lack statutory jurisdiction to hear a petition for writ of coram nobis. Read the opinion if you want to know why.)

On Direct Appeal, Denial of Evidentiary Hearing Regarding Ineffective Assistance Claim is Reviewed for Abuse of Discretion

United States v. Demik, No. 05-11215 (5th Cir. June 14, 2007) (per curiam) (Smith, Benavides, Dennis)

After being convicted at trial, Demik fired his attorney and filed a motion for new trial in which he alleged that his attorney was ineffective at trial. The court appointed the Federal Public Defender to represent Demik, and the FPD filed both a supplemental motion for new trial that went into greater detail on the ineffective assistance claim, as well as a motion for an evidentiary hearing on the matter. The district court denied the supplemental motion for new trial as untimely. It also denied Demik's original motion for new trial on the ground that it contained nothing but conclusory allegations, and refused to grant the requested evidentiary hearing.

On appeal, Demik challenged the distict court's denial of the evidentiary hearing. The court of appeals rejected Demik's arguments, in a two-part holding. First, the court said,

We have not previously articulated what standard of review to use, on direct appeal, to evaluate the denial of an evidentiary hearing regarding a claim of ineffective assistance of counsel. In cases involving petitions for writs of habeas corpus under 28 U.S.C. § 2255, we review the denial of an evidentiary hearing for abuse of discretion. We now apply that standard on direct appeal.

Second, the court declined to take a position on Demik's contention "that a district court must hold an evidentiary hearing on a claim of ineffective assistance of counsel unless the record conclusively shows the defendant is entitled to no relief." The court held that it "need not decide whether that standard applies here in a case on direct appeal, because conclusional allegations are insufficient to require an evidentiary hearing." The court pointed to the failures in the various motions filed (conclusory allegations, no explanation of what trial counsel should have done or how it would have affected the trial, no allegation of harm from trial counsel's omissions), and refused to consider the apparently more thorough allegations in the supplemental motion for new trial because it was untimely "and the district court was within its discretion not to consider it."