(D)  Failure to Mitigate.  The basis for this argument is that counsel has a duty, at plea and sentencing, to present the pending immigration disaster to the prosecution and court as a mitigating factor to consider in agreeing to an immigration-harmless alternative plea or sentence.  This argument is supported by numerous analogous cases.[116]  Unlike the other ineffective-counsel arguments discussed above, this argument is not defeated by the “collateral consequences” doctrine that is the majority rule in federal courts and in several states.  Even if immigration consequences are collateral consequences, defense counsel still has a long-established duty to investigate mitigating facts wherever they may be found, and to use them to attempt to get a shorter sentence or a plea to a less serious offense.  These latter consequences are direct penal consequences, not collateral consequences, and the collateral consequences doctrine therefore does not excuse counsel’s failure to attempt to achieve a shorter sentence.

 

Defense counsel has always had the obligation to investigate the case in general, and attempt to discover mitigating facts of whatever sort that can be used to try to obtain a better plea-bargain and shorter sentence.[117]  Counsel must learn of all available sentencing alternatives “which may be of assistance in a plan for meeting the needs of the defendant.  Such preparation should also include familiarization with the practical consequences of different sentences . . . .”[118] Failure to do so can constitute ineffective assistance, where prejudice is shown.

 

The Supreme Court has held that prejudice from ineffective assistance of counsel can be shown where there is a reasonable probability the defendant would have received a sentence even one day shorter in length.[119]  Therefore, ineffective assistance can be shown where counsel failed to present the fact that a 365-day sentence will result in making a noncitizen deportable as an aggravated felon, causing separation from home and family, while a sentence of 364 days would avoid an aggravated-felony ground of deportation and at least allow the noncitizen to apply for some form of relief.

 

This is a strong ground that can be used in both state and federal courts, and can be applied to attack either the validity of a plea bargain or a sentence.   

[116] See N. Tooby, Post-Conviction Relief for Immigrants § § 6.24-6.26 (2004).

[117] Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) (effective counsel must investigate and present available mitigating evidence at sentencing, including evidence of social history); Karis v. Calderon, 283 F.3d 1117 (9th Cir. Mar. 18, 2002) (prejudicial ineffective assistance found where counsel failed to investigate and present highly relevant information of abusive childhood; “reasonable probability” existed that jury would find information important in understanding root of petitioner’s criminal behavior and culpability); Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (failure to present mitigating evidence at sentencing cannot be strategic, tactical decision where counsel fails to investigate).

[118] ABA Standards Relating to Sentencing Alternatives and Procedures § 5.3(f)(i)(1968).

[119] Glover v. United States, 531 U.S. 198, 205 (2001).

Sixth Circuit

POST CON RELIEF - EFFECTIVE ORDER - CONVICTION VACATED FOR IMMIGRATION REASONS STILL EXISTS
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) ("We hold that the present case is distinguishable from Pickering on the ground that, unlike the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction[, since] it is well settled that there is no obligation to advise a criminal defendant of the collateral immigration consequences of entering a guilty plea."), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).

POST CON RELIEF - EFFECTIVE VACATUR - PICKERING
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (although a petitioners immigration motive for seeking post-conviction relief is not sufficient by itself to hold vacatur ineffective for immigration purposes, there must be some demonstrable legal basis for the vacatur; defendants "state court petition and the uncontested order of the Arkansas court with the docket entry--On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City Attorney had no objection. Judge granted the motion.--fail to provide the evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any recognized legal ground. On this record, the only reasonable inference that can be drawn is that the conviction was vacated for the sole purpose of relieving Sanusi from deportation.").

http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf

"In Morgan, the Supreme Court upheld the availability of coram vobis to a defendant who had not been provided counsel, but who had served his entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no other remedy being then available and sound reasons for the failure to seek earlier relief, the petitioner was entitled to seek a writ of coram vobis, for "[o]therwise a wrong may stand uncorrected which the available remedy would right." Id. In this case, the wrong suffered by Mohamed cannot stand uncorrected. A defendant's Sixth Amendment rights must be protected, and in this case, the result was that both Mohamed and the Court were unaware of the immigration consequences that would follow from his sentence. Therefore, pursuant to a writ of coram vobis, the Court will amend Mohamed's sentence from a term of two years to a term of three hundred and sixty days, with all time suspended."

Commonwealth v. Mohamed, Aug. 18, 2006.

Case No. (Criminal) 06-1059

CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA

71 Va. Cir. 383

2006 Va. Cir. LEXIS 244