Post-Conviction Relief for Immigrants
Summary Table of Contents
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Subject Matter Index
Index References are to section numbers in text
A
“A Number” 3.5, 3.15
ABA Standards for Criminal Justice
Defense Counsel, Applied to 5.57, 6.7-6.8, 6.22, 7.76-7.79, 7.82
Duty to Investigate 6.22
Effective Advice, Example 6.18(D)
Pleas of Guilty 1.1, 5.57, 6.22
Prosecution, Applied to 7.108
Sentencing Court, Applied to 6.22, 7.95-7.96, 7.104
Ab Initio, Order Vacating
Conviction 4.4
Sentence 7.51
Accessory After the Fact
Aggravated Felony 7.6
Controlled Substance Offenses 2.16, 9.4, 10.12
Sentence 7.6, 7.51
Accessory Before the Fact, see Aiding and Abetting
Addiction or Abuse, see Drug Addiction or Abuse
Adjustment of Status
Expungement as Evidence of Rehabilitation for 8.2
Admission by Defendant
Conduct-Based Grounds of Removal 2.5, 3.8, 5.12
Controlled Substance Offense 5.12
Crime of Moral Turpitude 5.12
Requirements 5.12
Factual Basis to Establish Conviction 6.38
Guilt, see Guilty Plea
Supervised Release, Violation of 7.119
Advice of Immigration Consequences see Ineffective Assistance of Counsel
Aggravated Felonies
Accessory After the Fact 7.6
Asylum 7.32
Conviction, Definition of see Conviction
Crimes of Violence, see Crimes of Violence
Assault 7.24, 8.44
Federal Definition 7.24
Felony, Reduction to Misdemeanor see Sentence
Misdemeanor Offenses 7.24
Fraud
Loss Requirement, Restitution
Order Altering Restitution 7.53
Sentence Requirement 7.6, 7.24
Sentencing Guideline Definition 7.24
Sex with a Minor, see Sexual Abuse of Minor
Statutory Rape, see Sexual Abuse of a Minor
Detention, see Detention, Mandatory
Divisible Statutes 7.20
Drug Trafficking Offenses, see Controlled Substance Offenses
Reduction of Felony to Misdemeanor 7.25-7.26
Simple Possession 7.25-7.26
Felony Offenses see Felony
Foreign Convictions, see Foreign
Immigration Consequences of 7.5
Judicial Recommendation Against Deportation
See Judicial Recommendation Against Deportation
Misdemeanor Offenses 7.3, 7.24
Pardons, see Pardons
Aggravated Felonies (cont'd)
Restriction on Removal, see Restriction on Removal
Sentence
Definition, see Sentence
Enhancements see Sentence Enhancements
Offenses Requiring a One-Year Sentence 7.6, 7.24
Aggravated Felonies Regardless of Sentence 7.6, 7.21
Offenses Defined in Terms of Potential Sentence
Petty Offense Exception, Reduction of Maximum 7.35
Removal for One CMT, Reduction of Maximum 7.48
One-Year Rule 7.5
Reduction of Felony to Misdemeanor, Effect of 7.21
Sentencing Guidelines, see Sentencing Guidelines
Alaska 8.20
Alcoholic, see Drunkard, Habitual
Alien Smuggling, Harboring, Transporting
See Smuggling Immigrants Offenses
Alien 1.5(A), 9.2
All Writs Act 4.12, 5.46
Immigration Effect 4.5, 5.46
Jurisdiction to Consider 4.12, 5.46
Ninth Circuit 5.46
Second Circuit 5.46
Amnesty, see Legalization Program
Appeal
Certificate of Probable Cause 5.19, 5.60, 7.56, 8.18
Duties of Counsel 6.15
Federal Criminal Appeal, Direct 5.19-5.26
Finality, Effect on 4.7, 5.25, 7.56
Grounds 5.19
Immigration Consequences 5.19, 5.23
Effect on Immigration Proceedings 5.6, 5.21, 6.14
Late Notice of Appeal 5.19, 5.21
Court Failure to Advise of Appeal Right 5.21
Counsel Failure to Advise of Appeal Right 5.21, 6.14
Mootness 5.38
Most Direct Form of Post-Conviction Relief 5.19
Negotiating a Better Result 5.26, see also Negotiation
Pending Relief, Immigration Effect of 5.25
Procedural Requirements 5.19, 5.20
Record on Appeal 5.19, 5.20
Reversal of Conviction, Effect 5.24
Procedural Requirements 5.20
Waiver of Appeal, Attacking 5.22, 5.68
Grounds to Attack 5.68
Ineffective Assistance of Counsel 5.68
Immigration Appeal 10.18-10.20
Appeal of Immigration Decision to Federal Court 10.21
Stay of Removal 10.21
Ineffective Assistance of Counsel, Failure to Consult Regarding 6.14
Ineffective Assistance of Counsel, During Appeal 6.15
California 6.15
Issues on Appeal 6.15
Jurisdictional Error as Basis for 5.28
Misdemeanor 5.66, 7.56
Plea, see Guilty Plea
Sentence 7.56
Certificate of Probable Cause 7.56
Effect 7.56
Pending Relief 7.56
Timing 7.56
Appeal (cont'd)
State Criminal Appeal, Direct 5.65-5.71
Finality, Effect on 5.65
Immigration Consequences 5.69
Reversal of Conviction 5.70
Finality of Conviction 5.71
Late Notice of Appeal 5.67
Pending Relief, Immigration Effect of 5.71
Procedural Requirements 5.66
California 5.66
Timing 5.66
Record on Appeal, Contents 5.66
Timing, Strategy 5.65
Waiver of Appeal, Attacking a 5.68
California 5.68
Grounds 5.68
Ineffective Assistance of Counsel 5.68
Strategic Effect of Filing Appeal 5.25, 5.71
Appointment of Counsel
Post-Conviction Proceedings 9.11
Arizona 7.26
Arson 5.36
Assault, see Crimes of Violence
Asylum 7.14, 7.23, 7.27, 7.32, 7.135
Attempt 7.48
Plea, to Reduce Sentence 7.48
Attorney-Client Privilege, Waiver 3.27
Audita Querela 4.9
Criminal Conviction, Effect on 5.45
Immigration Effect 4.9, 5.45, 5.82, 7.52, 8.3
Federal 5.45
Judicial Review of 4.12, 5.45
Purely Equitable Grounds 5.45, 5.82
State 5.82, 8.3
California 4.9, 8.3
B
BCBP, see Bureau of Customs and Border Protection
BCIS, see Bureau of Citizenship and Immigration Services
BICE, see Bureau of Immigration and Customs Enforcement
BIA, see Board of Immigration Appeals
Bias Against Immigrants 9.2-9.10
Benefit of the Doubt, see Rule of Lenity
California 9.3
Defeating Bias 9.3
Discretion, Race as Factor 9.3
Interpreter 3.4
Judicial 7.111
National Origin, Constitutional Protection 9.3
Sentencing, at 107.6(C), 7.111(A)
State Law 9.3
Strategies to Defeat 9.3
Board of Immigration Appeals (BIA) 1.5(A)
Circuit Precedent as Binding on 8.3
Bond,Immigration 1.5(H)
Custody, as 5.37, 5.75
Ineligibility, see Detention, Mandatory
Bribery
As Aggravated Felony 7.6
Bureau of Citizenship and Immigration Services (USCIS) 1.5(A)
Bureau of Customs and Border Protection (BCBP) 1.5(A)
Bureau of Immigration and Customs Enforcement (BICE) 1.5(A)
Burglary
Aggravated Felony with One-Year Sentence 7.6
Pardon 8.42
C
California
Advisal Statute 5.57-5.59
Appeal 5.6, 5.68, 6.41
Audita Querela 4.9, 8.3
Bias 9.3
Coram Nobis 4.12, 5.4, 5.78, 2.23
Expungement 2.32
Guilty Plea 5.48-5.51, 5.53, 6.32-6.33, 6.39-6.41
Habeas Corpus 2.29, 5.4, 5.36, 5.38(D), 5.71, 5.75
Ineffective Assistance of Counsel 6.4, 6.15-6.19, 6.21, 7.77
Interpreters 6.49
Jury Trial Waiver 6.33-6.34
Mental Incompetence 6.49
Misdemeanors 2.32-2.33, 7.26, 7.120-7.132, 7.137
Motion to Reduce 2.33, 7.26, 7.121-7.132, 7.137
Motion to Vacate 2.31
Negotiation 9.5
Pardon 8.44
Parole 7.62
Prior Conviction 7.115
Sentencing, Right to Allocution 7.103(B)
State Rehabilitative Relief 7.3, 8.7, 8.20
Youthful Offenders 7.3
Cancellation of Removal, see Waivers
Certificate of Probable Cause 5.19, 5.60, 7.56, 8.18
CIS, see Bureau of Citizenship and Immigration Services
Citizenship, United States, see also Naturalization
Acquired 1.5(B)
Checking for 3.6
Derivative 1.5(B)
State Advisal Statutes, Proving Lack of Citizenship for 5.58
Unknown 1.5(B), 3.6
Ways of Obtaining 1.5(B)
Client Interview, see Investigation
Client’s Presence in Criminal Court 9.15
Clients in Immigration Custody 9.16
Clients Already Deported 9.17, 9.19, 10.22
Clients Who Have Returned Illegally 9.18
Habeas Corpus Ad Testificandum 9.16(3)
Production of Prisoner, Request for 9.16(1)
Transport Prisoner, Order to 9.16(2)
Collateral Attack in Immigration Court
By Respondent On Criminal Conviction 5.37
By Government On Criminal Court Order Vacating Conviction 4.11
Collateral Consequences Argument, see Ineffective Assistance of Counsel
Conduct-Based Grounds of Deportability 1.5(E)
Admission of Crime of Moral Turpitude or Drug Offense 1.5(E), 2.5
Drug Addiction or Abuse 1.5(E), 2.5, 5.12, 8.12
State Rehabilitative Relief, Effect of 8.12
Vacating Conviction, Effect of 5.12
Conduct-Based Grounds of Inadmissibility 1.5(E)
Admissions by Client 1.5(E), 2.5
Admissions of Crimes of Moral Turpitude and Drug Offenses 1.5(E), 2.5
Drug Addiction or Abuse 1.5(E), 2.5, 5.12, 8.12
Prostitution 1.5(E), 5.12, 8.12
“Reason to Believe” Illicit Trafficking
In Controlled Substances 5.12, 5.25, 8.12
Conflict of Interest, see Counsel, Effectiveness
Consular Processing 10.22
Consulate, Right to Contact Upon Arrest 6.46
Continuance, Immigration Court 8.15, 8.39, 10.23
Controlled Substance Offenses
Addict or Abuser 1.5(E), 2.4, 2.5, 5.12, 8.12
Admission of Offense 1.5(E), 2.5
Accessory After the Fact 2.16, 9.4, 10.12
Alternative Felony Misdemeanor (Wobbler) Offenses 7.26
Cancellation of Removal, see Waivers
Cocaine Base Offenses 7.25(B)
Conduct-Based Grounds of Deportability 1.5(E), 5.12, 8.12
Conduct-Based Grounds of Inadmissibility 1.5(E), 5.12, 8.12
Distribution of Marijuana, Gratuitous
Effective State Rehabilitative Relief 8.4(A), 8.5
Diversion Programs 8.8, 10.12
Driving under the Influence 2.11, 3.20, 7.24, 8.6
Drug Abuse and Addiction, see Drug Abuse and Addiction
Expungements 8.2-8.12
Federal Offenses 8.2-8.12
Felony Offense, see Felony Offense
Flunitrazepam (Date-Rape Drug) 7.25(B)
INA § 212(c), see Waivers
Immigration Consequences of Convictions 6.7
Deportability 1.5(F)
Burden of Proving Nature of Drug 2.11
Inadmissibility 1.5(G)
Marijuana Exception, Less than 30g for Personal Use 4.11, 7.51
Proof of Nature of Drug 2.11
Judicial Recommendation Against Deportation, Effect of 8.23
Liberty, Restraint on 7.56
Nature of Controlled Substance, Record of Conviction 2.11
Marijuana Distribution, Gratuitous
Effective State Rehabilitative Relief 8.4(A), 8.5
Marijuana Exception 4.11, 7.51
Misdemeanor Offense 7.23
Simple Possession 1.4, 7.23
Pardon, see Pardons
Particularly Serious Crime, see Particularly Serious Crime
Possession 1.4, 7.25, 8.2-8.12
Federal First Offender Act 8.4
First Time Simple 7.25, 8.2-8.12
Multiple Convictions 7.25
Reduction to Misdemeanor 1.4
State Felony/Federal Misdemeanor 7.25
State Rehabilitative Relief, see State Rehabilitative Relief
Paraphernalia, Possession of 1.4, 8.6
“Reason to Believe” Drug Trafficking Grounds 5.12, 5.25, 8.12
Reduction of Felony to Misdemeanor, see Sentence
Registry, see Registry
State Analogues to Federal Offenses 7.23
State Felony/Federal Misdemeanor 7.25-7.26
Alternative Felony-Misdemeanor Offenses 7.26
Federal Conviction 7.25
State Conviction
Majority Rule 7.25(A)
Minority Rule 7.25(B)
State Rehabilitative Relief, see State Rehabilitative Relief
Controlled Substance Offenses (cont'd)
Trafficking Offenses
Requirement of Felony 7.25-7.26
Transportation
Particularly Serious Crime 7.13
Treatment and Probation Programs 2.4, 8.7, 8.19
Under the Influence 8.6
Conviction
Ab Initio, Vacated 4.4, 5.1, 7.51
Collateral Effects of 4.5(C)
Immigration Related Consequences 5.38, 5.45, 6.16, 6.20-6.23
Non-Immigration Related Consequences 4.5(C), 5.36
Deferred Entry of Judgment 8.7, 10.12, 7.3
Definition of 4.5
Purpose of 4.5
Federal 4.5(D)
Diversion Programs 8.8, 10.12
Expungements Chap. 8, see also State Rehabilitative Relief
Family Unity Benefits, see Family Unity Benefits
Finality, see Finality
Foreign Convictions, see Foreign
Grounds to Vacate Chap. 6
Charge Fails to State Offence 6.51
Counsel, Denial of 6.3 ff.
California 6.4
Ineffective Per Se 6.4
Prejudice Required 6.4
Representation by Non-Counsel 6.4
Self-Representation, Failure to Allow 6.6
Suspended from Practice 6.4
Waiver, Invalid 6.5
Admonition Required 6.4
Failure to Admonish 6.4(A)
Knowing, Intelligent, Voluntary 6.4(B)
Sample Colloquies 6.4(B)
Sufficiency of Admonition 6.4(B)
Felony v. Misdemeanor Case 6.4(A), 6.5
Immigration Consequences, Relationship to 6.4(C)
Native Language Issues in Waiving 6.3
Requirements to Allow 6.4(A)
Exculpatory Evidence, Failure to Disclose 6.53
Failure of Charge to State All Elements of Offense 6.55
Federal v. State Convictions 6.1
Fundamental Procedural Defect 4.5
Generally Chap. 6
Guilt 4.5
Ineffective Assistance of Counsel, see Ineffective Assistance of Counsel
Innocence 2.14, 6.54
Interpreters, see Interpreters
Invalid Guilty Plea, see Guilty Plea
Jurisdictional Defects 6.51
Legal Invalidity 7.52
Newly Discovered Evidence 6.52
Other Grounds 6.50, 6.56
Self-Representation, Failure to Allow 6.6
Before Court Rules on Request 6.4(A)
Insufficient Basis for Refusal 6.6
Involuntary Plea 6.6
Unconstitutionality of Statute Defining Offence 6.51
Conviction (cont'd)
Grounds to Vacate (cont'd)
Waiver
Of Counsel, Invalid 6.5
Of Other Rights, see Guilty Plea
Humanitarian Relief, Effect of 4.9
Invalidity, Effect of Chap. 4
Juvenile Delinquency Findings 3.24, 7.30
Prior Convictions 2.11, 3.25, 4.6-4.7, 5.35, 5.37, 6.3, 7.115, 8.9
Sentence, see Sentence
New Sentence as Proof of Vacated Conviction 7.51, 7.73
Vacating Conviction, Effect of 7.51, 7.71
State Rehabilitative Relief 4.10, Chap. 8, see also State Rehabilitative Relief
Vacated Convictions, Effect Chap. 4, 10.6
Vehicles for Vacating, see Vehicles for Seeking Post-conviction Relief
Counsel, Effectiveness of 6.2-6.31
Advice of Immigration Consequences 6.16-6.27
ABA Standards of Criminal Justice, see ABA Standards
Appointment of Counsel
Appeal, Right to Counsel on 6.3, 6.15
Counsel of Choice, Denial of Request for 6.3
Critical Stage of Proceedings, Counsel not Present at 6.3
Denial of Request for Counsel 6.3
Collateral Attack of Prior Conviction at Federal Sentencing 6.3
Indigence 9.11
Invalid Waiver of Right to Counsel 6.5
Admonition Required 6.4
Failure to Admonish 6.4(A)
Knowing, Intelligent, Voluntary 6.4(B)
Sample Colloquies 6.4(B)
Sufficiency of Admonition 6.4(B)
Felony v. Misdemeanor Case 6.4(A), 6.5
Immigration Consequences, Relationship to 6.4(C)
Native Language Issues in Waiving 6.3
Requirements to Allow 6.4(A)
Minor/Misdemeanor Criminal Cases 6.4(A), 6.3, 6.5, 6.18(D)
New Counsel, Denial of Request 6.3
Reversible Per Se 6.3
Writ Proceedings 9.11
Conflict of Interest 6.28
See also Ineffective Assistance of Counsel
Between Defendant and Counsel 6.31
Claim 6.29
Coercion 6.29
Right to Counsel 6.28
Failure to Raise Ineffectiveness of Oneself 6.30
Motion to Substitute Counsel 6.31
Multiple Representation 6.29
One’s Own Ineffectiveness as Basis for Conflict 6.30
Other Examples 6.29
Prejudice 6.29
Standard and Proof 6.29
Cooperation between Criminal and Immigration Counsel 5.6, 7.1
Duty to Investigate
See also Ineffective Assistance of Counsel
ABA Standards, see ABA Standards
Counsel, Effectiveness of (cont'd)
Finding Expert Counsel 9.20
Immigration Counsel 9.22
Post-Conviction Counsel 9.21
Public Interest 9.20-9.21
Federal 5.41-5.44
Consequences of Conviction 5.43(3)
Custody, No Longer In 5.43(1)
Delay, Reason For 5.43(2)
Fundamental Error, Examples of 5.43(4)
Grounds 5.43
Immigration Consequences 5.44
Innocence, Actual 6.54
Judicial Review of Denial 5.42
Mootness 5.43(3)
Procedure 5.42
Immigration Effect of 1.4, 5.44
Interpreter, Counsel as, see Interpreters
Nature of Writ 5.42
Pending Writ, Immigration Effect 5.44
Sentence, Vehicle to Vacate 7.59
State 5.78
Availability in States 5.79
California 4.12, 5.4, 5.78
Custody, Not Required 5.78
Delay, Reason For 5.80
Fundamental Error Test v. Modern Standard 5.78
Grounds 5.4, 5.80
Immigration Disaster as 5.80
Other Grounds 5.80
Immigration Consequences 5.81
Jurisdiction 5.79
Procedure 5.79
Pending Relief, Immigration Effect 5.81
Purpose 5.78
Requirements 4.9
Timing 2.26
Counsel, see Conviction, Grounds to Vacate
See Counsel, Effectiveness of
See Ineffective Assistance of Counsel
Counterfeiting 7.6
Crime of Moral Turpitude (CMT)
Adjustment of Status 7.41
Admissions of CMTs 1.5(E), 2.5, 5.12, 8.12
Attempt, Maximum Sentence and 7.48
Bar to Good Moral Character 7.40
Cancellation of Removal 7.38
Deportability 1.5(F)
One CMT 7.48
Multiple CMTs 7.11
Detention 1.5(H), 7.12
Divisible Statutes 7.20
Felony/Misdemeanor 7.48
Inadmissibility 7.48
Ineffective Assistance of Counsel 7.85, see also Ineffective Assistance
JRAD, see Judicial Recommendation Against Deportation
Non-Immigration Effects of CMT Conviction
Bar Admissions as Attorney 6.4
Occupational Bar 4.5(C)
Witness Impeachment 5.38(C)
Pardon, see Pardons
Petty Offense Exception 1.4, 7.8-7.9, 7.36, see also Petty Offense Exception
Record of Conviction, see Record of Conviction
Reduction of Sentence to Avoid 7.48, 7.135
Registry, see Registry
Suspension of Deportation, see Waivers
VAWA, see Violence Against Women Act
Voluntary Departure, see Voluntary Departure
Waiver, see Waivers
Crimes of Violence
Assault 7.24, 8.44
Federal Definition 7.24
Felony, Reduction to Misdemeanor, see Sentence
Misdemeanor Offenses 7.24
Sentence Requirement 7.6, 7.24
Sentencing Guideline Definition 7.24
Sex with a Minor, see Sexual Abuse of Minor
Statutory Rape, see Sexual Abuse of a Minor
Criminal History
Correcting
FBI 3.22, 4.14(A), 10.4
State 3.23, 4.13(B), 10.5
Obtaining
DMV 3.20
FBI 3.18
State 3.19
Criminal Records, see Criminal History
Cultural Influences 1.6, see also Bias Against Immigrants
Custody Requirement, see Habeas Corpus
D
Date-Rape Drug (Flunitrazepam) 7.25(B)
Deferred Adjudication Programs, see State Rehabilitative Relief
Delay in Seeking Post-Conviction Relief 2.26, 2.29, 3.1, 5.34, 5.43, 5.59, 5.74
Delinquency Findings, see Juveniles
Department of Homeland Security (DHS) 1.5(A)
Department of Motor Vehicles, Records 3.20
Deportation
Conduct-Based Grounds 1.5(E)
Aggravated Felony 1.5(F)
Crimes of Moral Turpitude 1.5(F)
Domestic Violence Offenses 1.5(F)
Firearms Offenses 1.5(F)
Effect of Post-Conviction Relief on Conviction-Based Grounds 1.5(D)
Deportation Proceedings
See Judicial Removal Proceedings
See Removal Proceedings
Derivative Citizenship 1.5(B)
Detainers, Immigration 5.37, 9.16
Detention, Mandatory, INA § 236(c) 1.5(H)
Aggravated Felonies 1.5(H)
Crimes of Moral Turpitude 7.12, 1.5(H)
Domestic Violence 1.5(H)
Multiple Convictions 7.11
Offenses that Do Not Cause Mandatory Detention 1.5(H)
Petty Offense Exception 7.10, 7.90(F)
DHS, see Department of Homeland Security
Direct Appeal, see Appeal
Discretionary Relief
Effect of Post-Conviction Relief on 1.2, 2.1, 6.19(c), 8.12, 10.26
Disturbing the Peace 7.137
Diversion Programs, see State Rehabilitative Relief
Divisible Statute Analysis 7.20
DMV, see Department of Motor Vehicles
Document Fraud
Aggravated Felony 7.6
Domestic Violence Convictions
Expungement 8.2
Immigration Consequences
Deportability 1.5(F)
Pardon, see Pardons
Record of Conviction, see Record of Conviction
Waivers, see Waivers
Driving Under the Influence, see Motor Vehicle Offenses
Drug Abuse and Addiction 1.5(E), 2.5, 5.12, 8.12
Drug Offenses, see Controlled Substance Offenses
Drunkard, Habitual 2.4
Drunk Driving, see Motor Vehicle Offenses
Due Process
Benefit of the Doubt 9.9-9.10
Counsel on Appeal 6.3, 6.15
Coercion to Enter Plea 6.44
Coram Nobis 5.78, 7.59
Court Duty to Advise of Collateral Consequences 6.21
Conflict of Interest 6.29, 6.31
Equal Protection, see Equal Protection
Exculpatory Evidence 7.96
Ineffective Assistance of Counsel 6.10, 6.18
Interpreter, Right to 6.47-6.49
Judicial Review of Deportation 10.26
Jury Trial 6.35
Mental Competence 6.45, 7.110
Motion for New Trial 5.62
Nature of Charge 6.39
Non-reciprocal Procedural Rules 4.11
Plea Bargain, Breach 6.41, 7.97
Procedural Rules, Equal Application to Parties 8.37
Sentencing Hearing 7.99
Accurate Information 7.104
Allocution 7.102, 7.103
Confrontation 7.102
Discretion, Awareness of 7.101
Exclusion of Relevant Information 7.112
Hearsay 7.105
Improper Evidence 7.106
Individualized Consideration 7.109
Judicial Bias 7.111
Maximum Sentence, Jury Determination of Facts 7.100
Prosecutorial Misconduct 7.108
State Procedural Requirements 5.60
Vindictive Sentencing 7.95, 10.7
E
Effective Assistance of Counsel, see Counsel, Effectiveness and
Ineffective Assistance of Counsel
Effective Order to Vacate Chap. 4
See also Order Vacating Conviction
EOIR, see Executive Office of Immigration Review
Equities of Client, see Investigation
Equal Protection
Bias 7.108, 9.3
Counsel, Right to
Appeal, on 6.3
Indigent Defendant 9.11
Due Process 8.10, see also Due Process
Federal First Offender Act 4.10, 8.3
Interpreter, Right to 6.48
JRAD, see Judicial Recommendation Against Deportation
State Rehabilitative Relief, 4.10, 8.3
Evaluation of Post-Conviction Case Chap. 2
Adverse Criminal Consequences 2.18, 5.11
Adverse Immigration Consequences 2.19
Aggravated Felony Exposure 2.8
Checklist of Factors to Consider Appendix 2
Equities 2.5, 3.8
Factors to Consider 2.2
Intake Forms Appendix
Lawful Presence 2.9
Sobriety 2.4
Timing of Case, see Timing of Case
Evidence
Coram Nobis Based on Issues of 5.43
Exculpatory Evidence, Withholding of 6.53
Improper Evidence at Sentencing, see Sentence
Newly Discovered 6.52
Evidence (cont'd)
Obtaining Evidence From Client After Deportation 9.19
Testimony and Depositions 9.19
Of Ineffective Assistance of Counsel 6.19(A)
Of Post-Conviction Order 10.2-10.5
Certified Copies of Order, Obtaining 10.3
Immigration Proceedings, For Benefit of 10.14
FBI Criminal History, Correcting 10.4
State Criminal History, Correcting 10.5
Victim Impact, Improper Use of Evidence of, see Sentence
Withholding of Exculpatory Evidence 6.53, 7.96
Executive Office of Immigration Review 1.5(A)
Executive Pardon, see Pardon
Ex Post Facto 5.13, 7.94, 8.36
See also Retroactivity
Expungements Chap. 8, see also State Rehabilitative Relief
F
Family Unity Benefits
Act of Juvenile Delinquency as Bar 7.30
Adjustment of Status, as 7.30
Criminal Convictions 1.4, 7.30
Juvenile Delinquency as Bar 7.30
Felony Offense 7.30
Reduction of Felony to Misdemeanor 7.27, 7.30
Reduction of Misdemeanor to Infraction 7.135
Federal Bureau of Investigation
See Criminal History
Federal First Offender Act (FFOA)
Chap. 8
See also State Rehabilitative Relief
Federal Juvenile Delinquency Act, see Juveniles
Felony Offense
Controlled Substance Convictions 7.23, 7.25, 7.75
Criminal Convictions, Effect on Other 7.34
Definitions
Controlled Substance Act 7.23, 7.25
Immigration 7.21, 7.28
Federal, General 7.21
State 7.25
Disqualification for Benefits 7.27-7.33
Family Unity Program 7.30
Legalization (Amnesty) 7.28
Political Asylum 7.32
Restriction on Removal (Withholding of Deportation) 7.33
Special Agricultural Worker (SAW) 7.29
Misdemeanor, Distinguished from 7.23
Reduction of Maximum Sentence, see Sentence
Reduction to Misdemeanor, see Sentence
State/Federal Distinction 7.25
FFOA, see Federal First Offender Act
Finality
Avoiding Final Conviction 8.18
Conviction, Effect on Finality of 5.25
Appeal 5.71
Coram Nobis 5.44, 5.81
Habeas Corpus 5.32, 5.40, 5.77
Foreign Post-Conviction Relief 5.71
Motion to Withdraw 5.50, 5.56
Nonstatutory Motion to Vacate 5.64
State Advisal Statute Violation 5.60
Finality (cont'd)
Generally 5.25
Immigration Effect of Lack of 5.25
Sentence
Appeal 7.56
Judicial Recommendation Against Deportation 8.29
Florida 5.59
Flunitrazepam (Date-Rape Drug) 7.25(B)
FOIA, see Freedom of Information Act
Foreign
Convictions 5.71, 7.115(C)
Expungements 6.10, 8.10
Finality of Convictions 5.71
Full Faith and Credit 4.5(D)
Judicial Recommendations Against Deportation (JRAD) 8.25
Pardons 8.43
Forgery
Aggravated Felony 7.6
Fraud
Loss Requirement, Restitution
Order Altering Restitution 7.53
Freedom of Information Act (FOIA) Requests 3.14-3.16
Full Faith and Credit 4.5(D), 4.11
G
Gambling
Aggravated Felony 4.6
Georgia 6.18, 8.44
Goals of Client 10.11-10.13
Good Moral Character
Criminal Conviction Bars 7.11
Confinement 7.17
Definition 7.18
Disqualification from Showing 7.11
Expungement 8.12
Inadmissibility 7.10(D)
JRAD, see Judicial Recommendation Against Deportation
Length of Sentence 7.4, 7.11, 7.15, 7.17, 7.86
Naturalization 7.18(B), 7.19, 7.42
Pardon, see Pardon
Petty Offense Exception 7.9-7.10, 7.40
Reduction of Felony to Misdemeanor 7.86
Registry 7.18(C), 7.43
Suspension of Deportation 7.18(D), 7.49
Vacating Conviction 4.6
Violence Against Women Act 7.18(E), 7.45
Voluntary Departure 7.18(F), 7.46
Waivers, see Waivers
Withdraw of Guilty Plea 5.48, 5.52
Where Applicable 7.18
Grounds to Vacate Conviction, see Conviction
Grounds to Vacate Sentence, see Sentence
Guilty Plea
ABA Standards for Court see ABA Standards
Appeal from 7.56
As Part of the Record of Conviction 7.20
Breach of Plea Bargain 6.41, 7.97
Commitment by Court, Violation of 7.111(C)
Contractual Nature 6.41, 7.97(A)
Withdrawal of Offer 6.41
Breach of Plea Bargain at Sentence 7.97
Contractual Nature 7.97(B)
Due Process Right to Vacate Original Sentence 7.97(A)
Obstacles to Relief 7.97(D)
Procedure 7.97(C)
Remedy 7.97(E)
California 6.32(B), 6.33(B)
Coercion to Enter Plea 6.44
Co-defendants 6.44(A)
Counsel 6.29
Judicial 6.44(B)
“Package Deal” 6.44(A)
Guilty Plea (cont'd)
Coercion to Enter Plea (cont'd)
Standards 6.44(A)
Colloquy 6.39, 6.44(B)
Consequences Not Explained 6.22, 6.40, 7.77
California 6.40
Direct Consequences 6.40
Collateral Consequences 6.40, 7.77, see Ineffective Assistance of Counsel
Proof 6.40
Consulate, Failure to Advise of Right to Contact 6.46
Effect of Treaty 6.46
Prejudice 6.46
Suppress Evidence, Ineffective to 6.46
Duty to Warn of Consequences 7.51
Elements, Failure to State All, 6.55
Exculpatory Evidence, Withholding 6.53
Discovery, Mandated 6.53
Impeachment 6.53
Perjury 6.53
Standard 6.53
Factual Basis, Failure to Establish 6.38
Actual Innocence 7.73
Harmless Error 6.38
Rule 11, F.R. Crim. Pro. 6.38, 7.73
Ineffective Waivers 6.32
Confrontation 6.37, 6.49
Counsel, see Counsel, Effectiveness
Jury Trial 6.33
California 6.33(B), 6.34
Explain Nature of Right, Failure to 6.34
Federal Standard 6.33(A)
Involuntary Waiver 6.35, 6.45
Requirements 6.34
Silent, Right to Remain 6.36
Self-Incrimination, Right Against 6.36
Harmless Error 6.36
Where Applicable 6.36
Translations of Waiver Forms 6.49
Innocence, Actual 6.54, 7.73
Interpreters, Right to, see Interpreters
Judicial Participation, Impermissible 6.44(B)
Jurisdictional Defects 6.51
Mental Incompetence 6.45
California Test for 6.45
Competency Hearing 6.45
Constitutional Basis 6.45
Medication, Effect 6.45
Substantive Incompetency 6.45
Federal Test for 6.45
Plea Agreement Not Disclosed on Record 6.43
California 6.41
Harmless Error 6.41
Requirements 6.43
Rule 11, F.R.Crim.Pro. 6.43
Promissory Estoppel 6.42
Definition 6.42
Detriment, Sufficient 6.42
Requirements for Valid Plea 6.32
Nature of Offense Not Explained 6.39
Counsel, Duty of 6.39
California 6.39
Requirements 6.39
Negotiation see Negotiation
Newly Discovered Evidence 6.52
Sentencing, Reaffirm Plea at 7.73
Slow Plea 5.22, 6.32(B), 8.18
Standard of Review 6.43
Voluntariness 6.32(A)
Withdrawal of Plea, see Motion to Withdraw Plea
H
Habeas Corpus
AEDPA Worksheet Appendix 3
Custody 5.35
After Deportation 5.37
Constructive Custody 5.35
Definition 5.30, 5.35
Enhanced Custody in Different Jurisdiction as Basis for Habeas 5.37
Immigration Detention as Custody 5.37, 5.75
Federal v. State Habeas 5.37
Mootness 5.38(A), 5.75, 10.25
Recidivist Statute, Attack of Underlying Conviction 5.35
Registration as Custody 5.36
California 5.36
Required 5.30
Factual Basis, see Habeas Corpus--Timing
Federal 5.29
AEDPA Limitations on Habeas 5.29
Federal or State Conviction 5.27
Immigration Consequences 5.40
Immigration Detention as Custody 5.37
Immigration Detention, Challenging 1.5(H)
Procedure 5.39
Removal Order, Challenging 1.5(H)
General Requirements 5.27-5.28, 7.57
Immigration Effect 5.27
Issues that May/May Not Be Raised 5.28
Jurisdiction 5.35-5.37, 5.75
Mootness 5.38, 5.75
After Deportation 5.38(D), 10.25
California 5.38(D), 5.75
Custody 5.38(A)
Collateral Consequences, Non-Immigration 5.38(C)
Collateral Immigration Effects, Precluded By 5.38(B)
Exceptions to Mootness Doctrine 5.38(D)
Pending Petition, Immigration Effect of 5.40, 5.77
Sentence, Vehicle to Vacate 7.57
State 5.72-5.77
AEDPA, Not Applicable 5.74
California 5.4, 5.71
Custody 5.75
Constructive 5.75
Generally 5.75
Immigration Custody 5.75
Registration as Custody 5.75
Timing of Petition, and 5.75
Effect, Criminal 5.72
General Requirements 5.73
Immigration Consequences 5.77
New York 5.71
Procedure, General 5.76
State Differences 5.72
Timeliness 5.74
Statute of Limitations 5.74
Prejudice to Prosecution 5.74
Prejudice to Defense 5.74
Timing 2.24, 5.30
AEDPA Statute of Limitations 5.29-5.31
Equitable Tolling 5.34
Factual Predicate/Basis of Claim 5.32
Properly Filed State Post-Conviction Actions 5.33
Starting Date, How to Figure 5.32
Statutory Tolling 5.33
Holds, Immigration
See Detainers
Humanitarian Relief Chap. 8
See State Rehabilitative Relief
I
Illegal Re-Entry after Removal
Clients Who Have Reentered Illegally, Dealing with 2.8, 9.18, 10.22-10.26
Consequences, Warning of 3.7, 6.18
Sentencing 7.24, 7.34
Simple Possession Becomes Aggravated Felony 7.25
Illinois 4.5, 4.5(D)
Immigration and Naturalization Service 1.5(A)
Immigration Attorneys, Referral Services 9.22
Immigration Consequences, Generally
Counsel, Duty to Advise, see Counsel, Effectiveness
Sentencing, see Sentencing
Immigration Effect of Order Granting
All Writs Act 5.46
Audita Querela 5.45, 5.82
Coram Nobis 5.44, 5.81
Direct Appeal 5.23, 5.68
Finality of Conviction 5.25, 5.71, 7.56
Validity of Conviction 5.24, 5.70
Habeas Corpus 5.40, 5.77
Motion to Vacate
Non Statutory Motion 5.64
State Advisal Statute Violation 5.60
Motion to Withdraw Plea 5.18
Pre-Judgment 5.52
Post-Judgment 5.56
Immigration Holds and Detainers, see Detainers
Immigration Status 5.43, 6.18(c)
Amnesty Applicants 3.16
Bias, see Bias Against Immigrants
Determining 3.3, 3.5, 3.14
Disclosing to Court 6.22
Questionnaire Appendices 3, 4
INA § 212(c) Relief, see Waivers
INA § 212(h), see Waivers
Inadmissibility
Conduct-Based Grounds 1.5(E)
Effect of Post-Conviction Relief on, see Conduct Based Grounds of Inadmissibility
Controlled Substances Convictions, see Controlled Substances Convictions
Conviction Based Grounds 1.5(D), 1.5(G)
Crimes of Moral Turpitude, see Crimes of Moral Turpitude
Exceptions
Petty Offense Exception, see Petty Offense Exception
Multiple Conviction Ground 1.5(G), 7.11
Ineffective Assistance of Counsel 6.7-6.31
Advice Regarding Immigration Consequences 6.18
Examples of Effective Advice 6.18(D)
ABA Standards, see ABA Standards
Aggravated Felony 7.87
Anticipate Need for Future Post-Conviction Relief, Failure to 7.88
Alternative Felony-Misdemeanor 7.88
Judicial Recommendation Against Deportation 7.88
Probation 7.88
State Rehabilitative Relief 7.88
Collateral Consequence, Removal as 6.20-6.26, 7.77
Affirmative Misadvise and 6.23, 7.77
California 6.21, 7.77
Distinct from Other Collateral Consequences 6.21
Generally 6.20
Judicial Failure v. Ineffective Assistance of Counsel 6.21
Ineffective Assistance of Counsel (cont'd)
Conflict of Interest, see Counsel, Effectiveness
Constructive Withdrawal from Representation 6.8(A)
Correct Errors of Fact or Law in Record, Failure to 7.81
Deficient Performance 6.8(A)
Denial of Tools Needed to Provide Effective Assistance 6.8(A)
Denial of Counsel, see Counsel, Effectiveness
During Appeal see Appeal
Failure to Advise 4.5(E)
Accept Plea, Whether to 6.11, 6.12
Appeal, Right to 6.14, see also Appeal--Late Notice
California Standard 6.14
Duty to Consult 6.14
Federal Standard 6.14
Constitutional Rights, of 6.12
Defenses, of 6.11
Elements, of 6.11, 6.39
Jury Instructions 6.11
Immigration Consequences, of 6.18-6.23, 6.27, 6.40, 7.77
Presenting Claim Based on Failure to Warn 6.18(C)
Withdrawal of Plea, Whether to 6.13, 7.82
Generally 6.7-6.8, 6.17-18
Immigration Consequences Failure to Protect Against 6.16-6.22, 7.77
California 6.16, 6.17
Federal Standard 6.16
Reliance Upon State Advisal Statute Insufficient 6.17
Innocence, see Innocence
Investigating Claim, Facts 6.9
Plea, Effect on Plea 6.9
Requirements, Minimum 6.9
Witnesses, Expert and Other 6.9
Investigating Mitigating Facts 6.8(A), 6.9, 6.24-26, 7.77
Collateral Consequences Argument, Compared 6.24-6.26
Direct Consequence of Plea 6.26
Generally 6.25
Sample Argument 6.26
Investigating Claim, Law 6.10, 6.26
Changes In Law, Duty to Anticipate 6.10(B)
Law In Effect 6.10(A)
Legal Advise, Erroneous 6.10
Procedural Errors 6.10
Sentence, Misinforming Client Regarding 6.10
Interviewing Counsel 3.27
JRAD, see Judicial Recommendation Against Deportation
Judicial Failure v. Ineffective Assistance of Counsel 5.57, 6.20-6.22
ABA Standards for Courts, see ABA Standards
Misadvice of Immigration Consequences 4.5(E), 6.17-6.18, 7.77
Affirmative Misadvice 6.18(A), 7.77
California 6.18(A)
Collateral Consequences Argument 6.20-6.23, 7.77
Georgia 6.18
Illinois 4.5
Failure to Advise, Compared 6.18
Presenting Claim 6.18(C)
Mental Incompetency 6.45
Misadvice Regarding Sentence 6.18(E)
Plea Bargaining 6.17, 6.26
Plea, Effect on 6.7
Plea, Withdrawal of 6.13
Ineffective Assistance of Counsel (cont'd)
Prejudice 6.8(B), 6.19
California 6.19
Credibility 6.19(B)
Immigration Proceedings as Proof of 6.19
Guilty Plea v. Trial 6.8(B)
Standard and Presumption 6.8(B), 6.19, 6.19(B)
Plea 6.19
Proof of 6.19(A), 6.19(B)
Sample Arguments 6.19(B)
Subjective Factors 6.19(B)
Remedy 6.2, 6.8(B), 6.16
Representation by Non-Counsel, see Counsel, Effectiveness
Settled Expectations 6.22
Tactical Decisions 6.9
Trial Counsel’s Duty to Cooperate with Post-Conviction Counsel
Trial, Immigration Consequences of 6.27
Failure to Investigate 6.27
Vacating Sentence For, see Sentence
Vacating Conviction For, see Conviction
Vehicles
California 5.4
Coram Nobis 5.41
Habeas Corpus 6.7
Habeas Corpus v. Coram Nobis 5.4
Nonstatutory Motion to Vacate 5.62
Waiver of Privileges, Attorney-Client and Work Product 3.27
Waiver of Appeal, Attacking 5.68
See also Counsel, Effectiveness
Innocence, Actual
Co-Defendant 2.15, 6.44(A)
Coram Nobis 6.54
Ex Post Facto 5.13
Ground to Vacate, as 2.14, 6.54
Ineffective Assistance of Counsel 6.7
Pardon 8.44
Plea, No Factual Basis for 7.73
INS, see Immigration and Naturalization Service
Interpreters 6.47-6.49, 9.12
Bias 3.4
California 6.49
Co-Defendants and Witnesses 6.49
Communication with Client 3.11
Competence of 6.49
Counsel as 3.11, 6.49
Error in Interpretation 9.14
Grounds 6.49
Ex Parte Communication 6.49
Fluency 6.49
Counsel as Interpreter 6.49
Indigence 6.49
Native Language 6.49
Purpose of Interpreter 6.49
Plea Proceedings, During 6.49
Right to an Interpreter in Criminal Proceedings 6.47-6.49
Constitutional Basis 6.47-6.49
Federal Statutory Basis 6.48
How To Determine Possible Violation 6.47
Indigent 6.49
Per Se Violation 6.47
State Statutory Basis 6.48-6.49
Roles of 6.49
Selecting Interpreters 6.49, 9.13
Sentencing, During 6.49, 7.73
Translations 6.49
Use of Interpreters in Court 9.14
Vacating Conviction for Violation of Right To Interpreter 6.49
Interview, First Client, see Investigation
Investigation Chap. 3
ABA, Duty to 7.77
Client Interview, First 3.2
Criminal History 3.9
Equities 2.5, 3.8, 5.10
FOIA Request 3.15
Investigation (cont'd)
Immigration History 3.14
Illegal Re-Entry Exposure 3.7
Language Issues 3.4
Original Defense Counsel
Duty to Cooperate 3.26
Interview of 3.27
Involuntary Manslaughter
Aggravated Felony 7.24
J/K
Judicial Recommendation Against Deportation (JRAD) 8.21-8.37
Aggravated Felonies 8.23
Crime of Moral Turpitude 7.88, 8.23, 8.24, 8.26
Congressional Intent 8.35
Continuing Validity of Timely Granted JRAD 8.25
Counsel Failure to Anticipate Need for 7.88
Counsel Failure to Seek JRAD 8.30-8.32, 7.89
Effective Date of Repeal 8.21, 8.34
Ex Post Facto Argument 8.36
Foreign JRAD 8.25
Government Collateral Attack on JRAD 8.37
Immigration Effect of 8.22-8.24
Conviction, As Bar to Relief 8.24(C)
Deportation Grounds Excused 8.23
Discretionary Relief, Consideration of Conviction for 8.24(D)
Exclusion 8.24(A)
Voluntary Departure 8.24(B)
Ineffective Assistance of Counsel in Failure to Seek 6.18, 7.76-7.77, 8.30
Ground to Vacate Sentence 8.31
Remedy 8.32
Jurisdiction 8.31
Legislative Intent 8.30, 8.35
Post-Conviction Relief, Following 8.31
Procedure 8.26
Notice to Immigration Authorities 8.28
Timing 8.29
Proof of Receipt 8.26
Requirements 8.27-8.29
Retroactivity of Repeal 8.33-8.36
Jurisdiction
All Writs Act, see All Writs Act
Appellate Court
After Removal 10.24-10.26
Error, as Basis for Appeal 5.28
Prior Conviction, Collateral Attack on 10.26
Reduction of Sentence 7.132
Removal Orders 5.23
Time Limit 5.66
Board of Immigration Appeals
After Removal 10.23
Challenge Validity of Conviction, to 4.11
Controlling Precedent, Circuit Decisions as 8.3
Motion to Reopen 10.15-10.23
Criminal Court, Original 2.20, 6.51
Amenity to Assist 2.20
Pending Direct Appeal 5.25
Vacate Conviction, to 4.5(D), 4.12
Habeas Corpus, see Habeas Corpus
JRAD, see Judicial Recommendation Against Deportation
Motion to Vacate, see Motion to Vacate
Pardon, see Pardon
Reduction of Sentence, see Sentence
Jurisdictional Error 5.28, 5.48, 5.51, 6.51
Juveniles
Admission of CMT or Controlled Substance Offenses 7.32
Juveniles (cont'd)
Conviction, Juvenile Court Adjudication as 7.30
Crimes of Moral Turpitude 7.32
Delinquency Findings, Immigration Consequences
Family Unity Benefits 7.30
Derivative Citizenship 1.5(B)
Family Unity Program 7.30
Juvenile Criminal Adjudication, Immigration Effect 7.30
Records
Destruction 3.24
Sealing 3.17
Serious Nonpolitical Crime, Bar to Relief
Asylum 7.32
Restriction on Removal (Withholding of Deportation) 7.33
Vienna Convention
Ground to Vacate Conviction 6.46
Suppression of Confession 6.46
L
Legalization Program 1.4, 5.46, 7.28, 7.88, 8.42, 10.13
Felony Offense 7.28
Lenity, Rule of, see Rule of Lenity
Loss to Victim 7.20
Order Altering Restitution, Effect of 7.53
Louisiana 8.44
LPR, see Lawful Permanent Resident
M
Mandatory Detention, see Detention, Mandatory
Marijuana Exception, Less than 30g for Personal Use 7.51
Massachusetts 4.10, 5.59
Misdemeanor
Adjustment of Status 7.14
Aggravated Felonies 7.3, 8.44
Appeal, see Appeal
Arizona 7.26
Asylum 7.32
California 2.32-2.33, 7.26, 7.120-7.132, 7.137
Controlled Substance Offenses, see Controlled Substance Offenses
Crimes of Moral Turpitude 7.9, 7.48
Crimes of Violence 7.24
Criminal Court, Treatment in 2.11, 10.12-10.13
Conviction, Effect on Subsequent 7.26, 7.136
Counsel, see Counsel, Effectiveness
Definition 7.3, 7.14, 7.21, 7.23, 7.134, 7.143
Family Unity Program 7.30
Federal Misdemeanor/State Felony 7.26
Felony, Compared 7.14, 7.23, 7.26
Illegal Re-Entry 3.7
Legalization (Amnesty) 7.28
Naturalization 7.42
Pardon, see Pardons
Petty Offense Exception, see Petty Offense Exception
Plea, Factual Basis for 6.38
Reduction of Felony to 7.49, 7.88, see also Sentence
Reduction to Infraction, see Sentence
Restriction on Removal (Withholding of Deportation) 7.33
Special Agricultural Worker (SAW) Program 7.28
State Differences 7.14
Temporary Protected Status (TPS) 7.31
Traffic Offenses 3.20
Waivers, see Waivers
Wobblers (Alternative Felony-Misdemeanors) 7.26, 7.120-7.132
Montana 8.20
Mootness
Appeal, see Appeal
Coram Nobis, see Coram Nobis
Habeas Corpus, see Habeas Corpus
Judicial Review of Removal Order After Deportation 10.23
Immigration Consequences 5.38(B)
Motion to Reconsider Removal Order 10.18
Motion to Reopen Removal Proceedings 1.5(H). 4.7, 10.15
After Deportation 10.22
Appellate Court Jurisdiction 10.24
BIA Jurisdiction 10.23
Collateral Attack in Illegal Re-Entry Case 10.26
Federal Habeas Corpus Following Vacation of Conviction 10.25
Readmission, Court Ordered 10.22, 10.24-10.26
Validity of Removal Order 10.23
Before Deportation 10.16
After Denial of Appeal by BIA 10.20
After Removal Order 10.18
Before Removal Order 10.17
During Appeal to BIA 10.19
During Petition for Review 10.21
Procedural Requirements 10.18, 10.23
Sua Sponte Motion to Reopen by BIA 10.18
Motion to Vacate Conviction
Nonstatutory 5.61
Grounds, Constitutional 5.62
Immigration Consequences 5.63
Ineffective Assistance of Counsel, Applicable to 5.62
Jurisdiction 5.62
New Trial 5.62
Pending Relief, Immigration Effect of 5.64
Procedure 5.64
When to Use a 5.61
State Advisal Statute Violation, see State Advisal Statute
Motion to Vacate Sentence
Non-Statutory 7.58
Statutory (28 U.S.C. § 2255)
Timing 2.24
Motion to Withdraw Plea
Ineffective Assistance of Counsel, Failure to Assist 7.82
Federal 5.15-5.18
Immigration Consequences 5.18
Grounds 5.17, 6.18
Procedural Requirements, Rule 32(e) 5.16
State 5.48-5.56
After Judgment 5.53
Grounds 5.55
Pending Relief, Immigration Effect of 5.56
Procedural Requirements 5.54
California 5.48-5.51, 5.53
Discretionary v. Required 5.48
Good Cause to Withdraw, Deportation as 5.51
Jurisdiction 5.48
New York 5.51
Prior to Judgment 5.49-5.52
Immigration Consequences 5.52
Grounds 5.51
Procedural Requirements 5.50
Timing 5.15
Motor Vehicle Offenses
Driving Under the Influence 7.24
Crime of Moral Turpitude 7.24
Reckless Driving 7.24
N
Narcotics, see Controlled Substance Offenses
National of the United States 1.5(A)
Native Language 3.4, 6.49
Naturalization
Crime Involving Moral Turpitude 7.11, 7.42
Derivative Citizenship 1.5(B)
Expungements and Rehabilitative Relief 8.12
Good Moral Character 7.18, 7.86
Incarceration, Length of 7.86
Petty Offense Exception see Petty Offense Exception
Probation or Parole, Effect of 7.19
Rehabilitation 8.2
Sentence Reduction, see Sentence
State Advisal 5.57, 5.59
Negotiation 9.4, 10.13
Adverse Immigration Consequences, Use of 9.4
California 9.5
Permitted by Legislature 9.5
Direct Appeal, Following 5.26
Equitable Factors 9.6
Prosecutorial Discretion, Use of 9.6
Reasonable Doubt, Benefit of 9.8
Criminal Defendant 9.10
Immigrant 9.9
Safer Alternative Dispositions 10.11-10.12
Sample Negotiation Script 9.7
Strategy 9.4
Sweetening the Pot 10.13
Vacated Conviction, Following 10.13
New York 4.5(D), 4.10, 5.71
Non-Immigrant Visa
Notice to Appear (NTA) 1.5(H)
O
Obstruction of Justice
Accessory after the Fact 7.6
Ohio 5.59
Order Vacating Conviction Chap 4, 4.4
See also Conviction
Ambiguity of Order Construed Against Government 4.5(D)
As Legally Invalid, Effect of Chap. 4
Collateral Attack on, in Immigration Proceedings 4.11
Conduct-Based Immigration Factors, Effect on 5.12
Conviction 4.2, see also Conviction
De-emphasize Immigration Facts 4.5(C) Federal Sentence, Effect on 4.7, 4.13(C)
Fifth Circuit Rule 4.5, 5.24
Full Faith and Credit 4.5(C), 4.5(D), 4.11
Ground of Legal Invalidity 4.2, 7.52
Grounds to Vacate, Generally
Immigration Related Grounds 4.5(C)
Non-Immigration Related Grounds 4.5(C)
Immigration Effect of Chap. 4
All Immigration Purposes 4.6
Deportation 4.6
Exclusion 4.6
Good Moral Character 4.6
Inadmissibility 4.6
Petty Offense Exception 4.6
Prior Gambling Conviction 4.6
Removal 4.6
Sentence Eliminated 4.6
Humanitarian Grounds 4.2, 4.5, 4.9, 5.45
Immigration Purposes, Sole Purpose 4.5(C)
Implicit Vacation of Conviction 4.5
Jurisdiction of Court Issuing, see Jurisdiction
Requirements for 4.5(A)-4.5(C)
Requirements for Effective Order 4.5(A)-4.5(C)
Sentence, see Sentence
Solely For Immigration Purposes 4.5(C), 4.10-4.11
Specification of Ground of Invalidity 4.4, 4.6
Strategy
P/Q
Pardons 8.38-8.44
California 8.44
Controlled Substance Offenses 8.40
Crime Involving Moral Turpitude 8.39-8.43
Domestic Violence 8.40
Effective Pardons 8.40, 8.42
Executive Pardons 8.38, 8.42(A)
Foreign Pardons, see Foreign
Full and Unconditional 8.42(A)
Georgia 8.44
Immigration Effects 8.39-8.41
180-Day Bar 8.41
Good Moral Character 8.41
Grounds of Removal 8.39
Inadmissibility 8.39
Judicial Pardons 8.42(D)
Jurisdiction 8.42
Legislative Pardons 8.38, 8.42(C)
Louisiana 8.44
Misdemeanors 8.44
Other Offenses, Effect on 8.42(E)
Parole Boards 8.44
Pending Relief 8.39
Probation or Parole, Effect of 8.44
Proof 8.42(B)
States, Individual Experiences 8.44
Stay of Removal 8.39
Qualifying Removal Grounds 8.40
Record of Conviction
Rehabilitation, Certificate of 8.44
Requirements 8.42(A)
Sexual Assault 8.44
Washington State 8.44
Wisconsin 8.44
Parole, Immigration
After Removal 9.17
Particularly Serious Crime 7.13
Asylum 7.32
Controlled Substance Offenses 7.13
Firearm Offenses 7.13
Reduction of Felony to Misdemeanor, Effect of, see Sentence
Reduction of Misdemeanor to Infraction, Effect of, see Sentence
Restriction on Removal (Withholding of Removal) 7.13, 7.33
Pending Relief
Immigration Effect of 5.40
Appeal, see Appeal
Coram Nobis, see Coram Nobis
Deferred Adjudication, see State Rehabilitative Relief
Habeas, see Habeas
Nonstatutory Motion to Vacate, see Motion to Vacate
State Advisal Statute Violation, see State Advisal Statute
Withdraw Guilty Plea, Motion to see Motion to Withdraw Guilty Plea
Protecting the Client Before Relief is Available 8.13-8.19
Criminal Court, While in 8.17-8.19
Direct Appeal 8.18, see also Appeal
Expediting Rehabilitative Relief 8.19
Final Conviction, Avoiding 8.18
Probation, Shorten or Terminate 8.19
Slow Plea 8.18
Immigration Proceedings 5.6, 8.14-8.16
Appellate Review of 8.16
Continuance, Obtaining 5.6, 8.15
Finality of Conviction 8.15
Termination of Sentence or Probation, Prior to 8.15
Perjury
Aggravated Felony 7.6
Petition for Writ of Coram Nobis, see Coram Nobis
Petition for Writ of Habeas Corpus, see Habeas Corpus
Petty Offense Exception to Inadmissibility 7.8, 7.36-7.47
Crimes of Moral Turpitude 1.4, 7.8-7.9, 7.36
Generally 7.9, 7.36
Immigration Effects, List of 7.10
Admissibility 7.37
Cancellation of Removal for Lawful Permanent Residents 7.38
Cancellation of Removal for Non-Lawful Permanent Residents 7.39
Good Moral Character 7.40, 7.42-7.46
Lawful Permanent Resident Status 7.41
Mandatory Detention 7.10
Naturalization 7.42
Registry 7.43
Suspension of Deportation 7.44
Violence Against Women Act 7.45
Voluntary Departure at End of Removal Proceedings 7.46
Reduction of Maximum Sentence 7.8, 7.47
Strategy to Qualify for 1.4
Plea, see Guilty Plea
Plea Bargain
Defense Negotiation Tactics, see Negotiation
Enforceability, see Guilty Plea
Immigration Consequences as Appropriate Considerations, see Negotiation
Immigration Harmless Alternatives, see Negotiation
Possession, Drugs, see Controlled Substance Offenses
Post-Conviction Relief
Appointment of Counsel 9.11
Effective Vehicle 5.3
Practice Materials 1.3
State Rehabilitative Relief Chap. 8
Strategy 1.2, 5.1-5.12
Timing 5.6
Vehicles for Relief
See All Writs Act
See Audita Querela
See Coram Nobis
See Direct Appeal
See Habeas Corpus
See Motion to Withdraw Plea
Motion to Vacate Conviction 1.4
State Petition 5.72
Custody 5.75
General Requirements 5.73
Illinois 4.5, 4.5(D)
Immigration Consequences 5.77
New York 4.5(D)
Procedure 5.76
Timeliness 5.74
Precedent, Circuit Decisions as 8.3
Privilege Against Self-Incrimination 6.32, 6.36, 7.95, 7.106
Probation or Parole
Appeal, During 8.18
Denial of Probation, as Consequence of Plea 6.40
Duration of 7.3
Failure to Seek, Ineffective Assistance of Counsel 7.88
Federal First Offender Act 8.4
Jail as Condition of 7.3, 7.62
Modify, Shorten 7.62-7.63, 8.19
California 7.62
Jurisdiction of Court to 7.62, 7.64
Naturalization, Effect on, see Naturalization
Pardon, see Pardon
Parole Board 7.64
Punishment, as 7.123
Reduction of Sentence, see Sentence
Probation or Parole (cont'd)
Reports, as Not Part of Record of Conviction, see Record of Conviction
Right to Counsel During Hearing 7.75, 7.81, 7.88
State Rehabilitative Relief, Effect of 7.63
Termination of, Effect
Habeas Corpus, see Habeas Corpus
Motion to Reduce Sentence, see Sentence
Violation, added to Sentence Calculation 6.3
Prosecution Following Vacated Conviction 10.6-10.14
Credit for Time Served as Result of Original Conviction 10.8
Deferred Entry of Judgment 10.12
Dismissing Charges 10.12
Documenting New Disposition for Immigration Counsel 10.14
Immigration Safe Pleas 10.12-10.13
Guilt Not Required 10.13
Misdemeanors, Multiple Counts 10.13
More Serious Criminal Offense/Penalty 10.13
Jail Time, Additional 10.17, 10.13
Judge, Disqualify Original 10.9
Mandatory Sentences 10.7
Minimizing Adverse Immigration Consequences, Strategy 10.11-10.14
Plea Negotiations see Negotiation
Post-Conviction Work 10.12
Pre-Plea Diversion Programs 10.12
Procedural Rules 10.6
Right to Vacate Conviction, No Retaliation for Punishment 10.7
Constitutional Basis 10.7
Equities 10.7
Vindictive Judge 10.9
Vindictive Prosecution 7.108(C), 10.7
Vindictive Sentencing 7.95, 10.7
Safer Alternative Dispositions 10.12-10.13
Sentencing to Minimize Adverse Immigration Consequences 10.12-10.13
Statute of Limitations, Effect of 10.10
Trial 10.12
Prostitution
Admission of 2.5
Conduct-Based Ground of Inadmissibility 1.5(E), 5.12, 8.12
R
“Reason to Believe” Trafficking Grounds of Inadmissibility
Vacated Convictions, see Conduct Based Grounds of Inadmissibility
Receiving Stolen Property
Aggravated Felony 7.6
Record of Conviction 7.20
Documents Included
Sentence 7.20
Documents Not Included
Sentencing Enhancements 7.20
Re-Entry After Removal, see Illegal Re-Entry
Refugees, Immigration Consequences to Avoid, see Particularly Serious Crime
Registry 7.10(H), 7.18(C), 7.49, 8.12
Crime Involving Moral Turpitude 7.43
Rehabilitative Relief, see State Rehabilitative Relief
Release from Criminal Custody to Immigration Custody, see Detainers
Relief from Removal, see Waivers
Removal, Harsh Consequences/Punishment 5.37, 6.17, 6.19, 6.21, 7.77, 9.9
Removal Proceedings 1.5(C), 1.5(H)
Reopening Immigration Proceedings
See Motion to Reopen
Res Judicata 4.5(D), 5.59
Restitution, Alteration of 7.53
Restriction on Removal, see Waivers
Retroactivity 6.10, 6.22, 7.94, 8.33-8.36
Returning LPRs Seeking Admission, see Legal Permanent Residents
Rule of Lenity 9.8
Criminal Defendants 9.10
Noncitizens 9.9
S
Selective Service Registration 1.5(F)
Sentence
Concurrent Sentences 5.80, 6.10, 7.3
Consecutive Sentences 7.7, 7.87, 10.7
Criminal
Effect of Order Vacating Prior Conviction 4.7
Definition of 4.5(F), 7.3
Definition of “Sentence Imposed” for Immigration Purposes 7.3
Court Order 7.3
Concurrent Sentences 5.80, 7.3, 6.10
Deferred Entry of Judgment 7.3
Immigration Purpose Irrelevant 4.5(F)
Indeterminate Sentence 7.3
Misdemeanors 7.3, 7.14, 7.134
Most Recent Sentence Governs 4.5(F), 7.22, 7.53
Parole 7.3
Suspended Sentence 7.3
Youthful Offender Sentences 7.3
Immigration Consequences 7.2-7.49
180-Day Bar to Good Moral Character 7.17
Actual Confinement 7.17
Adjustment of Status, Definition of Misdemeanor 7.14
Aggravated Felonies, “One Year” Rule 6.18, 7.5-7.7, 7.77, 7.87
Generally 7.5
List of Qualifying Offenses 7.6
Reduction of Sentence 7.7, 7.24
Strategies to Obtain Reduction 7.7
Aggregate Sentences of Five Years of More 7.11, 7.13, 7.16, 7.86
212(c) Waiver 7.16
Multiple Offenses 7.11
Restriction of Removal (Withholding of Deportation) 7.13
Counsel’s Duty to Investigate, see Ineffective Assistance
Crime of Moral Turpitude, Sentence of One Year or More 7.12, 7.85
Naturalization, see Naturalization
Petty Offense Exception, see Petty Offense Exception
Length of Confinement 7.4, 7.15
212(c) Waiver Eligibility 7.15-7.16
Good Moral Character 7.15, 7.17-7.18
Immigration Consequences Dependent Upon, List 7.4
Post-Conviction Elimination of 7.17
Sentence Imposed, Compare 7.15, 7.17
Loss to Victim 7.20, 7.53
Most Recent Sentence 7.22, 7.53
Negotiation of, see Negotiation
“One Year,” Definition
Order Vacating
Effectiveness of 4.5(F)
Probation/Parole, see Probation or Parole
Sentence Enhancements 7.20
Sentence (cont'd)
Suspended Sentence 5.50, 7.3, 7.5, 7.19, 7.75, 7.85-7.86, 7.125-7.126, 7.129
Record of Conviction 7.20
Restitution, Alteration of Amount 7.53
Vacating or Reducing the Sentence 7.50-7.137
As Implicit Proof of Vacated Conviction 7.51
Conviction, Compared to Vacating 7.53
Full Faith and Credit 7.52, 7.66
Generally 7.1, 7.52
Grounds to Vacate 7.65-7.119
Accurate Information, Right to 7.104
Constitutional Basis 7.104
Defense Objections, Request for 7.104(C)
Findings as to Disputed Fact, Right to 7.104(D)
Presentence Reports, Factual Errors in 7.104(A)
Prosecutorial Failure to Provide 7.108(A), (E)
Unreliable Information, Use of 7.104(B), 7.108(E)
Allocution, Right of 7.103
California 7.103(B)
Constitutional Basis 7.103(A)
Statutes and Rules 7.103(B)
Breach of Plea Agreement at Sentence see Guilty Plea
Choice of Ground 7.65-7.69
Compared to Grounds to Vacate Conviction 7.70-7.73
Constitutional Grounds, Substantive 7.91-7.98
Counsel, Right to 7.74-7.90
Probation Interview, During 7.75(A)
Sentencing, During 7.75
Suspended Sentence 7.75(B)
Waiver of 7.75
Cruel or Unusual Punishment 7.92
Delay in Imposition of Sentence, Unreasonable 7.118
Federal 7.118
States 7.118
Discretion, Judicial Awareness of 7.101
Due Process Rights in Sentencing Hearing 7.99-7.113
Evidence, Improper 7.106
Acquittal Conduct 7.106(D)
Illegally Obtained Evidence 7.106(E)
Improper Considerations 7.106(B)
Inflammatory 7.106(A), 7.108(B)
National Origin 7.106(C)
Right to Remain Silent, Improper Inference from 7.106(F)
Victim Impact 7.107
Exclusion of Relevant Information 7.112
Ex Post Facto Violations 7.94
Guidelines, Errors and Departures 7.116
Hearsay at Sentencing, Unreliable 7.105
Illegal Sentence 7.116
Immigration Equities 7.68
Individualized Consideration, Right to 7.109
Sentence (cont'd)
Vacating or Reducing the Sentence (cont'd)
Grounds to Vacate (cont'd)
Ineffective Assistance of Counsel, General 7.76-7.77, 7.90
Ineffective Assistance of Counsel, Immigration Related 7.77-7.89
Consequences of 7.84-8.90
Aggravated Felonies 7.87
Anticipating Post-Conviction Relief, Failure to 7.88
Crime Involving Moral Turpitude 7.85
Length of Sentence of Incarceration 7.86
Failure to Advise About Appeal 7.83
Failure to Assist in Withdrawal of Plea 7.82
Failure to Correct Error of Fact or Law 7.81
Failure to Investigate the Facts 7.77-7.78
Failure to Present Mitigating Information 7.77, 7.79
Failure to Research the Law 7.80
See also Ineffective Assistance of Counsel
Judicial Bias or Misconduct 7.111
Commitment as to Sentence, Violation of 7.111(C)
Ex Parte Receipt of Information 7.111(B)
Racial Prejudice 7.111(A)
Jury Determination of Facts Increasing Maximum 7.100
Mental Incompetence at Sentence 7.110
No Grounds 7.52, 7.66
Notice and Opportunity to Be Heard 7.102
Presentence Report, Lack of 7.117
Prior Conviction, Invalid 7.115
California 7.115
Constitutional Rights, Denial of 7.115(B)
Denial of Counsel 7.115(A)
Federal Sentences 7.115(D)
Foreign Convictions 7.115(C)
Procedure 7.115
Recidivist Statute, Sentencing based on 7.115
Prosecutorial Misconduct 7.108
Accurate Information, Failure to Provide Court with 7.108(A)
Bad Faith, Dishonesty 7.108(D)
Co-Defendants, Contradictory Facts 7.108(H), 7.109
Inflammatory Argument 7.108(B)
Sentence Recommendation, Improper 7.108(F)
Unreliable or False Information, Providing 7.108(E)
Vindictiveness 7.108(C), 10.7
Sentence (cont'd)
Vacating or Reducing the Sentence (cont'd)
Grounds to Vacate (cont'd)
Prosecutorial Misconduct (cont'd)
Vouching for Witness or Information, Improper 7.108(G)
Rule 11, No Factual Basis for Plea 7.73
Sentence Defects, Other 7.114-7.119
Testify, Right at Sentencing Hearing to 7.103(C)
Vague Sentencing Statute, Unconstitutionally 7.93
Victim Impact Evidence, Improper 7.107
Vindictive Sentencing by Court 7.95
Acceptable Sentencing 7.95(B)
Appeal, Exercising Right to 7.95(C)
Remain Silent, Exercising Right to 7.95(B), 7.106(F)
Presumption of Vindictiveness 7.95(C)
Trial, Exercising Right to 7.95(A)
Withholding of Exculpatory Evidence 6.53, 7.96
Legal Invalidity 7.52, 7.54. 7.66-7.69
Obtaining Effective Order 7.50-7.54
Generally 7.50, 7.53
Legal Invalidity 7.52
Modifying Original Sentence 7.54
Most Recent Sentence Controls 7.22, 7.50, 7.54
State Rehabilitative Statute, see State Rehabilitative Statute
Vacating Conviction, Effect 7.51
Probation, Jail as Condition of 7.62
Procedural Vehicles 7.55-7.64
Audita Querela, see Audita Querela
Commutation or Correction of Sentence 7.61
Coram Nobis, see Coram Nobis
Correct Void Sentence, Motion to 7.60
Direct Appeal From Sentence, see Appeal
Habeas Corpus, see Habeas Corpus
List of Vehicles 7.55
Non-Statutory Motion to Vacate, see Motion to Vacate
Parole, Modify, Shorten, see Probation or Parole
Probation, Modify, Shorten, see Probation or Parole
Reduction of Aggregate Sentence
Multiple Offenses 7.11
Restriction on Removal (Withholding of Deportation) 7.13
Reduction of Felony to Misdemeanor, Post-Conviction 7.120-7.132
Alphabetical List of Applicable Immigration Contexts 7.49
Alternative Felony-Misdemeanor Offenses 7.26, 7.48, 7.121-132
Arizona 7.26
California 7.26, 7.121-7.132
Sentence (cont'd)
Vacating or Reducing the Sentence (cont'd)
Reduction of Felony to Misdemeanor, Post-Conviction (cont'd)
Effect of Other Criminal Convictions 7.34
Expungement of Conviction, Effect on Jurisdiction 7.131
Family Unity, see Family Unity Benefit Program
Felony Definition, see Felony
Felony/Misdemeanor Distinction 7.21, 7.23, 7.26
Immigration Consequences 7.21-7.34
Asylum 7.32
Crime of Violence 7.23-7.24
Controlled Substance Offenses 7.23, 7.25
Other 7.23
In General 1.4, 7.21, 7.49
Judicial Review 7.132
Jurisdiction 7.130-7.131
Misdemeanor, Definition, see Misdemeanor
Most Recent Sentence 7.22, 7.26, 7.53
Motion To Reduce 7.121-7.132
Basic Requirements 7.122
Equitable Factors 7.127
Jurisdiction to Grant Motion 7.130-131
Probation, see Probation or Parole
Procedure 7.128
Review of Grant or Denial of Motion 7.132
Standard for Granting Reduction 7.127
Timing of Motion 7.129-7.130
Reducible Offenses, Definition 7.123
Required Sentence 7.124-7.126
Generally 7.125
State Prison, Effect of 7.126
State Felony/Federal Misdemeanor Offenses 7.26
State Misdemeanor/Federal Felony Offenses 7.26
Termination of Probation, Effect on Jurisdiction 7.130
Timing 7.26, 7.129-7.130
Wobblers 7.121-7.132
See Petty Offense Exception
Reduction of Maximum Sentence To or Below One Year 7.35
See Petty Offense Exception
Alternative Felony Misdemeanor (Wobbler) Offenses 7.48
Attempt 7.48
Immigration Consequences 7.29
Alphabetical Checklist of Immigration Contexts 7.49
Crime Involving Moral Turpitude 7.29, 7.48
Naturalization 7.42
Reduction of Misdemeanor to Infraction 7.133-7.137
California 7.137
Criminal Benefits of Reduction 7.135
Definition of Misdemeanor Conviction 7.134
Family Unity, see Family Unity Benefit Program
Sentence (cont'd)
Vacating or Reducing the Sentence (cont'd)
Reduction of Misdemeanor to Infraction (cont'd)
Generally 1.4
Immigration Benefits, Contexts 7.21, 7.135
Motion to Reduce 7.137
Strategy 7.1
Timing 7.61
Sentence Enhancements
As Part of Record of Conviction 7.20
Controlled Substances Offense, see Controlled Substance Offenses
Definition of Sentence, see Sentence
Loss to Victim 7.20, 7.53
Mandatory Sentencing 2.18
Prior Conviction as, 2.11, 4.7, 5.37-5.38, 6.3, 7.25, 7.115
Sentencing Guidelines 7.21
Sexual Abuse of a Minor
Age of Victim 7.24
Aggravated Felony 7.21
As a Crime of Violence 7.24
Statutory Rape 7.24
Special Agricultural Worker (SAW) Program 7.29, 7.135
State Advisal Statutes, Violation of 1.1, 4.5(E), 5.57-5.60, 6.57
Coram Nobis, Motion Compared to 7.59
Grounds, General 5.59
Immigration Consequences of Relief from 5.60
Individual States 5.57
California 5.57-5.59
Florida 5.59
Massachusetts 4.10, 5.59
Ohio 5.59
Washington State 5.59
Judicial Failure v. Ineffective Assistance of Counsel 5.57, 6.20
Pending Relief, Immigration Effect of 5.60
Prejudice 5.59
Procedure 5.58
Evidence 5.58(B)
Proof of Citizenship 5.58(C), 5.59
Timeliness 5.58(A)
Vehicle, Proper 5.58
Res Judicata 5.59
Sample Advisal Statute 5.57
States Without Advisal Statutes 5.57
Statutes of Limitations 5.59
Substantial Compliance 5.59
Vehicle, Matching to 5.4, 5.58
Standing Alone or With Other Vehicle 5.57
State Rehabilitative Relief Chap. 8
Alaska 8.20
California 7.3, 8.7, 8.20
Canada 8.20
Deferred Adjudication 5.71, 8.8
Distribution of Marijuana, Gratuitous 8.4(A), 8.5
Diversion Programs 8.8, 10.12
Domestic Violence 8.2
Effectiveness of Order 4.5, 8.3
Distribution of Marijuana, Gratuitous 8.4(A), 8.5
First Time Simple Possession and Other Drug Offenses 8.2-8.12
Other Offenses 8.2-8.3
Sexual Abuse of a Minor 8.2
Equal Protection 4.10, 8.3
Expediting Rehabilitative Relief 8.19
Full Faith and Credit 7.52
Federal First Offender Act (First Time Simple Possession) 4.10, 8.3-8.12
Application Outside Ninth Circuit 8.11
Distribution of Marijuana, Gratuitous 8.4(A), 8.5
Effect, Legal 8.4(D)
State Rehabilitative Relief (cont'd)
Federal First Offender Act (cont'd)
Eligibility 8.4(B), 8.8
Failure of Counsel to Anticipate Relief 7.88
Foreign Expungements 8.10
Multiple Simultaneous Qualifying Convictions 8.9
Ninth Circuit, Within 8.3, 8.5-8.10
Prior Drug Convictions 8.8
Procedure 8.4(C)
Previous Rehabilitative Relief 8.8
State Analogs 8.5-8.9
Qualifying Offenses 8.4(A), 8.6
Qualifying Types of Relief 8.7
Illinois 4.5(D)
Immigration Effects
Conviction v. Conduct Based Grounds of Removal 5.8, 8.12
Generally 1.4, 8.1-8.3
Good Moral Character 8.12
Jurisdictional Differences 8.20
Legal Invalidity v. Rehabilitation 7.54, 8.3
Marijuana Distribution, Gratuitous 8.4(A), 8.5
Montana 8.20
New York 4.5(D), 4.10
Pending Relief 8.15
Probation, Effect of 7.63
Rehabilitation, Expungement as Evidence of 8.2
Sentence, Modification, see Sentence
Texas 4.5(D), 5.71
Youthful Offender Statutes
California 7.3
New York 4.10
Statute of Limitations
AEDPA Worksheet Appendix 3
Federal AEDPA Deadline 2.24
Statutory Construction
Deference to Agency 8.3
Doubts Benefit Criminal Defendant 9.10
Doubts Benefit Noncitizen 9.9
Statutory Rape, see Sexual Abuse of a Minor
Stay of Removal 1.5(H)
Appeal, During 10.21
Pardon, Pending 8.39
Vacation of Predicate Conviction 4.10
Subordination of Perjury 7.6
Suspended Sentence, see Sentence
Suspension of Deportation, see Waivers
T
Tax Evasion 7.20
Temporary Protected Status 1.4, 7.14, 7.27, 7.31, 7.49, 7.135
Texas 4.5(D), 5.71
Timing of Case 2.23
AEDPA Worksheet Appendix 3
Coram Nobis 2.26
Delay 2.26
Habeas Corpus, see Habeas Corpus
Immigration Proceedings, Status of 2.34-2.35
Motion to Vacate Sentence (28 U.S.C. § 2255) 2.24
State Convictions 2.27
California Coram Nobis 2.30
California Expungement 2.32
California Habeas Corpus 2.29
California Motion to Reduce 2.33
California Motion to Vacate 2.31
Statute of Limitations 2.24
Trafficking, Drug, see Controlled Substance Offenses
Trafficking, Vehicles 7.6
Transportation of Drugs, see Controlled Substance Offenses
U/V
USCIS, see Bureau of Citizenship and Immigration Services
USICE, see Bureau of Immigration and Customs Enforcement
Vacated Convictions
Collateral Attack on Vacatur, see Collateral Attack
Criminal Consequences, Adverse 5.11
Documenting Order, see Evidence
Effectiveness
Immigration Proceedings 5.8
Not Always Effective
See Admissions by Defendant
See Conduct-Based Grounds
Jurisdictional Challenges to Vacatur, see Jurisdiction
VAWA, see Violence Against Women Act
Vehicles for Seeking Post-Conviction Relief
All Writs Act 5.46
Appeal, see Appeal
Audita Querela, see Audita Querela
Choice of Vehicle 5.5
Coram Nobis, see Coram Nobis
Ex Post Facto, see Ex Post Facto
Federal Vehicles for Vacating Convictions 5.14
All Writs Act, see All Writs Act
Audita Querela, see Audita Querela
Coram Nobis, see Coram Nobis
Dismissal, Rule 48(a) 6.22
Direct Appeal, see Appeal
Habeas Corpus, see Habeas Corpus
Withdraw Plea, Motion to, see Motion to Withdraw Plea
Filing Application, Effect of, see Pending Relief
General Procedure 5.9
Habeas Corpus, see Habeas Corpus
Immigration Effect, Matching Vehicle to 5.3
Legal Invalidity, Matching Vehicle to 5.4
Motion to Withdraw Plea see Motion to Withdraw Plea
Motion to Vacate Conviction, see Motion to Vacate Conviction
Non-Statutory, see Motion to Vacate Conviction
Violation of State Advisal Statute see State Advisal Statute
See also Sentence, Vacating or Reducing the Sentence
Practical Requirements 5.2
State Vehicles for Vacating Convictions 5.47-5.82
Advisal Statute, Motion Based on Violation of, see State Advisal Statutes
Appeal, Direct, see Appeal
Audita Querela, see Audita Querela
Coram Nobis, see Coram Nobis
Habeas Corpus, see Habeas Corpus
Nonstatutory Motion to Vacate, see Motion to Vacate
Other Vehicles 5.71
Withdraw Plea, Motion to, see Motion to Withdraw Plea
Strategy
Counsel, Cooperation of 5.6
Developing a 5.8
Factors to Consider 5.8
General Considerations 5.7
Timing 5.6
Strength of Ground v. Equities 5.10
Vienna Convention on Consular Relations 5.43
Violence Against Women Act (VAWA)
Adjustment of Status, as 7.10, 7.18
Crime Involving Moral Turpitude 7.45
Good Moral Character 7.18, 7.45
Violence Against Women Act (cont'd)
Inadmissibility 7.18, 7.45
Petty Offense Exception 7.18, 7.45
Voluntary Departure 3.5, 7.10(K), 7.18(F), 7.49, 7.86
Crime of Moral Turpitude 7.46
W/X/Y/Z
Waivers of Removal
Cancellation of Removal
Lawful Permanent Residents 6.18, 7.10(B), 7.11, 7.38, 7.49
Non-Lawful Permanent Residents 7.39, 7.10(C), 7.11, 7.18(A), 7.39, 7.49
Former INA § 212(c)
After Deportation 10.26
Effective Dates, Amendments 7.16
Sentence, Aggregate Five Years or More 7.16, 7.86
Retroactivity 6.22, 7.16, 7.77, 10.26
Restriction On Removal 7.13, 7.33
Suspension of Deportation (former) 7.10(I), 7.18(D), 7.44
Washington State 5.59, 8.44
Wisconsin 8.44
Withholding of Removal 7.13, 7.33
Work-Product Privilege, Waiver 3.27
Youthful Offenders Statutes, see State Rehabilitative Relief
Updates
POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach arguments by Chaidez that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance, because she did not adequately raise them in the lower courts: [M]indful that we are a court of review, not of first view, the court declined to rule on Chaidez's new arguments); quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach arguments by Chaidez that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance, because she did not adequately raise them in the lower courts: [M]indful that we are a court of review, not of first view, the court declined to rule on Chaidez's new arguments); quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF INEFFECTIVE ASSISTANCE CLAIMS BECAUSE THEY COULD NOT BE RAISED ON DIRECT APPEAL
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach argument that new rules may be reached in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal because Chaidez did not raise this argument in the courts below).
POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO COMMUNICATE WRITTEN PLEA OFFER
Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21. 2012) (defense counsel has the duty to communicate to the defendant formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused, and counsel was deficient in failing to communicate to defendant prosecutor's written plea offer before it expired).
POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PLEA BARGAINING
Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012) (defendant received ineffective assistance of counsel during plea bargaining, in rejecting an offer of a 51-to-85-month sentence, because counsel misadvised him that the prosecution would be unable to establish intent to murder, prejudice can be shown by establishing a reasonable probability the defendant and the trial court would have accepted the more favorable guilty plea absent counsels error). NOTE: The majority cites Padilla's floodgates discussion in defending the point that "Courts have recognized claims of this sort for over 30 years" without creating undo chaos. By "this sort," they mean Strickland claims about rejected pleas, which have a little bit more of a pedigree than non-advisal Padilla claims. This is another case with an application of Strickland that the dissent claims is novel. This language is strong confirmation that the Court understands Padilla's floodgates discussion as assuming its radioactivity as a mere application of Strickland and not a new rule. Thanks to Dan Kesselbrenner and Isaac Wheeler.
First Circuit
CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.
Fifth Circuit
POST-CON RELIEF " VEHICLES " HABEAS " CUSTODY " DEPORTED
Merlan v. Holder, 667 F.3d 538 (5th Cir. Dec. 6, 2011) (Noncitizen who has been deported to Mexico following a final order of removal is not "in custody" for purposes of 28 U.S.C. 2241).
Sixth Circuit
POST-CONVICTION RELIEF " FEDERAL " HABEAS CORPUS " STANDING " IMMIGRATION CONSEQUENCES AS LASTING COLLATERAL CONSEQUENCES SUFFICIENT FOR STANDING
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (petitioner has standing to pursue a motion under 28 USC 2255, because he continues to suffer from an injury in fact because we may presume collateral consequences, he was removed from the United States, and he is now inadmissible to reenter the United States).
Ninth Circuit
POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO INVESTIGATE OR PRESENT MITIGATION
Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. Oct., __ 2012) (record shows substantial mitigating evidence that could have been presented with little or no risk of further aggravating the negative information the jury already knew of defendant).
Lower Courts of Tenth Circuit
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ASCERTAIN DEFENDANTS IMMIGRATION STATUS
State v. Paredez, 136 N.M. 533, 540, 101 P.3d 799, 806 (2004) (defense counsel has an affirmative duty to determine a clients immigration status and provide specific advice on impact of a plea on immigration), cited by Padilla v. Kentucky, 130 S.Ct. 1473, 1484 (2010).
Other
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONFLICT OF INTEREST
Christeson v. Roper, ___ U.S. ___, 2015 WL 232187 (Jan. 20, 2015) (per curiam) (a conflict of interest, as here, in which counsel's contentions were directly and concededly contrary to their client's interest and manifestly served their own professional and reputational interests, is grounds for substitution of counsel, since original counsel had missed the filing deadline for a habeas corpus petition, and therefore could not be expected to argue that petitioner was entitled to equitable tolling of the statute of limitations because counsel's interest in avoiding damage to his own reputation was at odds with his client's strongest argument, that is, that counsel abandoned him; the court of appeals abused its discretion in denying petitioner's second request for substitution of federally-appointed counsel under interests of justice standard); see Martel v. Clair, 565 U.S. ___, 132 S.Ct. 1276, 182 L.Ed.2d 135 (2012). The court stated: The court's principal error was its failure to acknowledge Horwitz and Butts' conflict of interest. Tolling based on counsel's failure to satisfy AEDPA's statute of limitations is available only for serious instances of attorney misconduct. Holland v. Florida, 560 U.S. 631, 651-652, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood. See Restatement (Third) of Law Governing Lawyers 125 (1998). Thus, as we observed in a similar context in Maples v. Thomas, 565 U.S. """", """", n. 8, 132 S.Ct. 912, 925, n. 8, 181 L.Ed.2d 807 (2012), a significant conflict of interest arises when an attorney's interest in avoiding damage to [his] own reputation is at odds with his client's strongest argument" i.e., that his attorneys had abandoned him. Indeed, to their credit, Horwitz and Butts acknowledged the nature of their conflict. Shortly before the first motion for substitution was filed, they provided an update to the Missouri Supreme Court on the status of Christeson's collateral proceedings. In it, they stated: Because counsel herein would be essential witnesses to factual questions indispensable to a Holland inquiry, there may be ethical and legal conflicts that would arise that would prohibit counsel from litigating issues that would support a Holland claim. Unwaivable ethical and legal conflicts prohibit undersigned counsel from litigating these issues in any way. See Holloway v. Arkansas, 435 U.S. 475, 485"486 [98 S.Ct. 1173, 55 L.Ed.2d 426] (1978). Conflict free counsel must be appointed to present the equitable tolling question in federal district court. App. to Pet. for Cert. 48a"49a. Yet, in their response to the District Court's order to address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable tolling as ludicrous, and asserted that they had a legal basis and rationale for the [erroneous] calculation of the filing date. Id., at 86a, 90a. While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, Horwitz and Butts' contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests. Clair makes clear that a conflict of this sort is grounds for substitution. Even the narrower standard we rejected in that case would have allowed for substitution where an attorney has a disabling conflict of interest. 565 U.S., at """", 132 S.Ct., at 1284. And that standard, we concluded, would gu[t] the specific substitution-of-counsel clause contained in 3559(e), which must contemplate the granting of such motions in circumstances beyond those where a petitioner effectively has no counsel at all"as is the case when counsel is conflicted. Id., at """", 132 S.Ct., at 1286. Indeed, we went so far as to say that given a capital defendant's statutory right to counsel, even in the absence of 3599(e) a district court would be compelled to appoint new counsel if the first lawyer developed a conflict. Ibid. (Id. at ___.) Cal Crim Def 20.39
ARTICLE " CAL POST CON " EFFECT OF CHAIDEZ V. UNITED STATES ON CALIFORNIA LAW CONCERNING PADILLA CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO IMMIGRATION ADVICE
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague. Padilla did not much change on the California law on this subject. In California, in 1987, the First District Court of Appeals held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987). In 1989, the Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). Both of these decisions have been binding on trial courts statewide since their decision. Therefore, criminal defense counsel and lower state courts were bound to follow those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456) (Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.) The California Supreme Court then held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea if prejudice is shown. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of, and helping them avoid, disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. This unpersuaded statement, however, was nothing more than dictum, since the failure to advise claim was not before the California Supreme Court in Resendiz. The Court in Resendiz did not overrule or even cite the Soriano decision, that held since 1987 that failure to advise was ineffective. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (Mar. 31, 2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant affirmatively to provide accurate advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect. Therefore, defendants whose convictions became final prior to Padilla [March 31, 2010] therefore cannot benefit from its holding. (Chaidez, supra, at *10.) Defendants with convictions that were still on appeal, or as to which the time for filing a notice of appeal had not yet expired, may still take advantage of the new rule of Padilla. Seven justices joined in the judgment, with Justice Sotomayor, joined by Justice Ginsberg, dissenting. There are several important limitations to the Chaidez decision. Padilla decided two distinct claims: First, it held that counsels affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. Second, it held that counsels failure affirmatively to advise the client of those consequences also constituted ineffective assistance of counsel. In Chaidez, only a failure to advise claim was raised, and the Supreme Courts holding in Chaidez therefore only addressed failure to advise claims. The Supreme Court explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___ [emphasis supplied].) Therefore, the Chaidez holding on retroactivity of Padilla does not apply to the separate rule for material misrepresentations as to federal immigration consequences of a plea, that pre-existed Padilla and lived in harmony with the exclusion of claims like hers [failure to advise claims] from the Sixth Amendment . . . . (Ibid.) The affirmative misrepresentation rule, that material misrepresentations constitute ineffective assistance of counsel, falls within the normal run of Strickland claims, and there is no reason to believe it was a new rule. This rule by 2001 was considered a clear state and federal consensus on federal constitutional ineffective assistance of counsel. One of those state courts, though not mentioned in Chaidez, that earlier recognized failure to advise clients was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001) (For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 2010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes deficient performance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. The Supreme Court in Chaidez was wrong to omit California from the (short) list of jurisdictions that adopted the failure to advise rule prior to Padilla. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. This California 1987 decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1478-1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842, 117 Cal.Rptr. 437; Cal. Const., Art. I, 24 (declaring that [r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.)) Moreover, state courts are charged with enforcing federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx. Since these two arguments were not properly preserved and presented in Chaidez, the Supreme Court did not decide them. Therefore, counsel are free to argue: (1) Teague does not apply in state proceedings, unless the state has independently chosen to follow the Teague rule. (2) New rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. Chaidez does not apply to review of state claims under state authority. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) 216 Cal.App.3d 99 (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229 (counsel correctly told the defendant that he would be deported for possession of sale conviction, but failure to attempt to plead up to offer to sell or transportation may be ineffective assistance of counsel). This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.
ARTICLE " CAL POST CON " EFFECT OF CHAIDEZ V. UNITED STATES ON CALIFORNIA LAW CONCERNING PADILLA CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO IMMIGRATION ADVICE
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague. Padilla did not much change on the California law on this subject. In California, in 1987, the First District Court of Appeals held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987). In 1989, the Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). Both of these decisions have been binding on trial courts statewide since their decision. Therefore, criminal defense counsel and lower state courts were bound to follow those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456) (Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.) The California Supreme Court then held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea if prejudice is shown. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of, and helping them avoid, disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. This unpersuaded statement, however, was nothing more than dictum, since the failure to advise claim was not before the California Supreme Court in Resendiz. The Court in Resendiz did not overrule or even cite the Soriano decision, that held since 1987 that failure to advise was ineffective. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (Mar. 31, 2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant affirmatively to provide accurate advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect. Therefore, defendants whose convictions became final prior to Padilla [March 31, 2010] therefore cannot benefit from its holding. (Chaidez, supra, at *10.) Defendants with convictions that were still on appeal, or as to which the time for filing a notice of appeal had not yet expired, may still take advantage of the new rule of Padilla. Seven justices joined in the judgment, with Justice Sotomayor, joined by Justice Ginsberg, dissenting. There are several important limitations to the Chaidez decision. Padilla decided two distinct claims: First, it held that counsels affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. Second, it held that counsels failure affirmatively to advise the client of those consequences also constituted ineffective assistance of counsel. In Chaidez, only a failure to advise claim was raised, and the Supreme Courts holding in Chaidez therefore only addressed failure to advise claims. The Supreme Court explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___ [emphasis supplied].) Therefore, the Chaidez holding on retroactivity of Padilla does not apply to the separate rule for material misrepresentations as to federal immigration consequences of a plea, that pre-existed Padilla and lived in harmony with the exclusion of claims like hers [failure to advise claims] from the Sixth Amendment . . . . (Ibid.) The affirmative misrepresentation rule, that material misrepresentations constitute ineffective assistance of counsel, falls within the normal run of Strickland claims, and there is no reason to believe it was a new rule. This rule by 2001 was considered a clear state and federal consensus on federal constitutional ineffective assistance of counsel. One of those state courts, though not mentioned in Chaidez, that earlier recognized failure to advise clients was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001) (For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 2010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes deficient performance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. The Supreme Court in Chaidez was wrong to omit California from the (short) list of jurisdictions that adopted the failure to advise rule prior to Padilla. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. This California 1987 decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1478-1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842, 117 Cal.Rptr. 437; Cal. Const., Art. I, 24 (declaring that [r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.)) Moreover, state courts are charged with enforcing federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx. Since these two arguments were not properly preserved and presented in Chaidez, the Supreme Court did not decide them. Therefore, counsel are free to argue: (1) Teague does not apply in state proceedings, unless the state has independently chosen to follow the Teague rule. (2) New rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. Chaidez does not apply to review of state claims under state authority. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) 216 Cal.App.3d 99 (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229 (counsel correctly told the defendant that he would be deported for possession of sale conviction, but failure to attempt to plead up to offer to sell or transportation may be ineffective assistance of counsel). This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.
PRACTICE ADVISORY " POST-CONVICTION RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC DURING PLEA NEGOTIATIONS " DISTINGUISHING LOCKHART V. FRETWELL
In 1993, the Supreme Court stated that the only errors of counsel that can be considered as claims of ineffective assistance are those that deprive the defendant of a substantive or procedural right to which the law entitles him in his defense. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). While pertinent in Lockhart, in which counsels error deprived the defendant only of a benefit later declared illegal, Justice OConnor was at pains to point out that this language, as well as the courts decision in that case, flowed from the highly unusual fact that the only benefit of which the defendant was there deprived was one which was forbidden under the correct legal analysis. Lockhart did not alter in any way the normal analysis of claims of ineffective assistance of counsel. The normal Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims. Williams v. Taylor, 529 U.S. 362, 391 (2000). The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland. Ibid. Williams clarified that the Courts earlier decision in Lockhart dealt with the rare situation where the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall to the defendant rather than the legitimate prejudice contemplated by our opinion in Strickland. Williams, 529 U.S. at 392; see also United States v. Glover, 531 U.S. 198, 203 (2001) ([O]ur holding in Lockhart does not supplant the Strickland analysis.); Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 699 n.23 (2011). Lockhart was an exception to the normal Strickland prejudice test, applicable only when the benefit of which the defendant was deprived by counsels error was in fact prohibited by a later change in the law. It would be an unfair error of the gravest magnitude to glorify it into a rule that eliminates any protection against ineffective assistance of counsel except in those rare cases in which the defendant can show a reasonable probability he or she would have taken the case to trial.
SHAUNA M. STRICKLAND ET AL., STATE COURT CASELOAD STATISTICS: AN ANALYSIS OF 2008 STATE COURT CASELOADS
45 tbl.1 (2010) (stating that there were more than 21 million criminal cases filed in state trial courts in 2008), available at http://www.ncsconline.org/D_Research/csp/ 2008_files/EWSC_2008_Online_Version.pdf
