Post-Conviction Relief for Immigrants

 

The courts are somewhat skeptical concerning the defendant’s claims that s/he has been prejudiced by counsel’s error.  As a result, it is wise to corroborate every factual assertion supporting a claim of prejudice — that if the error in question had not occurred, there is a reasonable probability that a more favorable result would have occurred for the client.

 

            The prosecution may raise In re Alvernaz,[16] in which a habeas petitioner complained of IAC when counsel mistakenly informed him that his risk of incarceration was two or 2 ½ years if convicted, whereas he actually received a sentence requiring him to serve 16 years 7 ½ months before parole.  The court stated, in holding the petitioner had not demonstrated prejudice, that “defendant’s self‑serving statement that he would have accepted a proffered plea bargain is insufficient to establish prejudice.”[17]  After the California Supreme Court denied habeas, the federal district court granted the writ and vacated the conviction on the ground original counsel had rendered ineffective assistance by underestimating the petitioner’s exposure if convicted at trial.[18]

 

            The Alvernaz decision by the California Supreme Court did not, however, completely reject “self‑serving” statements.  Indeed, all statements made by a petitioner in a habeas corpus petition (and by respondent in its return) are to some extent self‑serving.  What Alvernaz said is that such a statement “in and of itself” is insufficient to establish prejudice and that such a statement must be “corroborated by independent, objective evidence.”[19]

 

            In Alvernaz, not only did the petitioner fail to corroborate his claim of prejudice, but the available evidence indicated that he was not prejudiced: Alvernaz had continuously and adamantly insisted upon his innocence.  The court thus ruled that even if counsel had adequately informed him of the consequences of going to trial and losing, Alvernaz would not have accepted the prosecution’s offer.

 

            It is important for the petitioner to develop as much independent, credible, objective evidence as possible supporting petitioner’s claim that s/he would not have pleaded guilty if properly informed of the drastic immigration consequences of the plea.[20]

 

The California Supreme Court held that defense counsel’s affirmative misadvice at plea regarding the immigration consequences of a criminal conviction can constitute ineffective assistance of counsel, if prejudice is shown.  The court soundly rejected the “collateral consequences” doctrine, which states that defense counsel has no duty to advise concerning immigration consequences because they are imposed by a different agency, since that doctrine originated to limit the court’s duty to advise at plea, rather than the obligations of counsel.  The court did not decide whether counsel’s silence on the question can constitute ineffective assistance, but limited its decision to affirmative misadvice.  The court therefore left standing California court of appeals decisions from nearly 15 years earlier holding that defense counsel’s failure to investigate the immigration consequences of a plea or sentence constituted ineffective assistance of counsel.[21]  The court ultimately held on the facts of the case the petitioner had not established prejudice, i.e., a reasonable probability that he would not have entered the plea absent counsel’s error.[22]

 

            In Resendiz, the Supreme Court’s discussion of prejudice was as follows:

 

            The Attorney General rightly reminds us, however, that petitioner’s assertion he would not have pleaded guilty if given competent advice “must be corroborated independently by objective evidence.”  (In re Alvernaz, supra, 2 Cal.4th at p. 938; see also U.S. v. Horne (D.C. Cir. 1993) 987 F.2d 833, 836.)  “In determining whether a defendant, with effective assistance, would have accepted [or rejected a plea] offer, pertinent factors to be considered include:  whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.”  (In re Alvernaz, at p. 938.)

 

            Petitioner has not contended that his counsel inaccurately communicated the People’s plea offer.  Nor has he adduced any substantial evidence suggesting the prosecutor might ultimately have agreed to a plea that would have allowed petitioner to avoid adverse immigration consequences.  While the prosecution also did not introduce evidence in this regard, the burden remains petitioner’s to prove by a preponderance of the evidence his entitlement to relief.  (In re Johnson (1998) 18 Cal.4th 447, 460.)  In the end, petitioner pleaded guilty as charged; no charges were dropped.

 

            Had petitioner proceeded to trial on the drug charges against him, and had the prosecution chosen to seek maximum penalties, petitioner faced a maximum total punishment of five years and four months of incarceration.  The plea bargain that petitioner reached with the district attorney burdened him with only 180 days of local incarceration and three years of probation.  The choice, moreover, that petitioner would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation.  While it is true that by insisting on trial petitioner would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences.

 

            In determining whether or not a defendant who has pleaded guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned.  (Cf. Hill, supra, 474 U.S. at p. 59 [probable trial outcome relevant in assessing prejudice from counsel’s failure to discover exculpatory evidence or present affirmative defense]; accord, Roe v. Flores-Ortega, supra, 528 U.S. at p. 485 [120 S.Ct. at p. 1039].)  Petitioner states that he has consistently maintained his innocence and asserts that the police report shows he has a “triable case,” but nothing in his declaration or the other evidence he offered indicates how he might have been able to avoid conviction or what specific defenses might have been available to him at trial.  Nor did petitioner explain at the hearing on the order to show cause how the evidence might have exonerated him. 

 

            Based upon our examination of the entire record, petitioner fails, ultimately, to persuade us that it is reasonably probable he would have forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had trial counsel not misadvised him about the immigration consequences of pleading guilty.  (See Hill, supra, 474 U.S. at pp. 58-59; In re Alvernaz, supra, 2 Cal.4th at p. 934.)[23]

 

            This discussion is based on the specific facts of the case, and has little application to other cases involving different facts.

 

            In People v. Sandoval,[24] the court reversed the trial court’s denial of a motion to set aside the plea and vacate the judgment on grounds of ineffective assistance of counsel.  The defendant admitted that “counsel did tell him of the possibility of deportation, but argues that counsel had a duty to go further, to emphasize the likelihood of deportation and discuss with him options which might reduce the risk of deportation given appellant’s strong ties to this country.”[25]

 

In discussing the prejudice requirement, the court gave an excellent list of factors to be considered:

 

Reasonable probability of a different result in the plea proceeding is thus the applicable standard of proving prejudice under the Sixth Amendment in California.  In addition to stating the standard, the Alvernaz court assists us in determining what evidence is needed to make the face required showing.  Specifically, the court expresses its reluctance to accept at value an after-the-fact statement by a defendant that he or she would have acted differently if given better representation.  (Ibid., citing In re Alvernaz (1992) 2 Cal.4th 924, 938, .2d 747, holding the defendant’s statement “must be corroborated independently by objective evidence.”)

 

            It appears to us the question is one of credibility. . . .  Generally, credibility determinations are within the expertise of the trial court and we hesitate to intrude upon this important trial court function. . . .  For this reason we feel the need to remand for further proceedings.  [W]e are able in this case to identify several [factors for consideration] which, if believed by the trial court, could sufficiently corroborate appellant’s assertion [that he would not have entered this plea if correctly advised].

 

            First, appellant does have strong ties to this country.  His children are citizens, his wife a permanent legal resident. . . .  He has spent most of his life in this country and since 1989 as a permanent legal resident. . . .  The loss of his family ties would have severe consequences for his remaining life.  The need to protect those ties would be a strong factor in determining whether to accept the plea bargain as offered.  Thus, a defendant’s personal and family circumstances are important factors to be weighed in considering his or her credibility.

 

            A second factor is the nature of the bargain itself. . . .  [T]he district attorney in this case was willing to offer probation, conditioned on 210 days’ local time.  This indicates to us the district attorney was not taking a hard line on this case and may have been amenable to other outcomes.  While it is difficult to reconstruct the district attorney’s decisionmaking in a case, the treatment of the case and particular defendant is a factor which can be considered in weighing the overall probability a different result during the plea process could or would have been achieved.

 

            Third, a defendant’s current posture in the case seems relevant to the determination of credibility.  In this case, appellant has met all the terms of his bargain.  He served his local time and successfully completed the terms of his probation.  His present claim that he would have rejected the plea and taken ‘greater risks’ if he had known the high risk of deportation seems particularly credible – at a time when his part of the bargain has been completed, he is willing to go back to square one in order to avoid the adverse immigration consequences threatened. . . .  In light of what appellant has to lose, the claim appears to have credibility.

 

            The availability of alternative forms of redress at the time the plea was entered may be relevant as well.  However, we are not persuaded by respondent’s argument that the possibility of a “discretionary waiver” of deportation is of significance in this case. . . .  Although we recognize there were and continue to be provisions providing for discretionary waiver of deportation in limited circumstances under federal immigration laws [citation omitted], it is mere speculation to say appellant would have been granted such relief in the absence of strong evidence and authority establishing entitlement to such relief.

 

            There are other factors which come to mind which are either not present in this case or do not appear to offer appellant support.  For example, consideration of what advisements were given by the court and a defendant’s responses, including whether he or she challenged the court’s advisements in any way or whether there are any reasons given for a defendant’s disregard of the court’s advisements.  A defendant’s criminal history, and his or her sophistication or naivete with respect to the judicial process, may also be a factor for the trial court’s consideration.  In some cases, the availability of an arguable legal defense might suggest a defendant would have some reason to believe a better outcome would be available with a jury trial.  We stress this is not the applicable standard of review; whether a different outcome would result if the matter proceeded to trial is not determinative on the issue of prejudice suffered during the plea process.  (See Hill v. Lockhart, supra, 474 U.S. at 58-59; In re Resendiz, supra, 71 Cal.App.4th at p. 149.)  However, when a defendant can articulate a trial strategy or defense available, this adds support to his or her claim to have rather faced trial than accept the plea had he or she been advised adequately by counsel.  Another factor to consider is whether a defendant is aware that the risk of conviction has significantly dropped for reasons related to the passage of time (e.g., death of a witness or loss of evidence).  If a defendant knows the risk of conviction has been significantly reduced for a particular reason, this could be a factor suggesting a motive for fabricating a statement to support a motion to withdraw the plea.

 

            Ultimately, the prejudice analysis rests on the objective evidence presented by a defendant to corroborate his or her representation to the court that absent the inadequate representation of counsel, the plea would have been rejected instead of accepted (or vice versa).  In other words, the outcome of the process would have been different.  A consideration of the factors we have expressed here, and others relevant to the issue of credibility, should guide the trial court in deciding whether there has been the requisite showing.  Is there a reasonable probability the defendant would have acted differently absent counsel’s errors or omissions?[26]

 

Therefore, counsel should offer as much independent factual support for the client’s claim of prejudice as possible.

 

[16] In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992)

[17] Id., 2 Cal.4th at p. 938.

[18] Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D.Cal. 1993).

[19] In re Alvernaz, supra, 8 Cal.Rptr.2d at p. 727.

[20] Declarations may be obtained from original defense counsel, friends and family of the accused, new defense counsel, and immigration counsel in order to corroborate the petitioner’s declaration.

[21] People v. Soriano, 194 Cal.App.3d 1470 (1987); People v. Barocio, 216 Cal.App.3d 99 (1987).

[22] In re Resendiz, 25 Cal.4th 230, 2001 Cal. LEXIS 1812 (April 2, 2001).

[23] Ibid.

[24] People v. Sandoval, 73 Cal.App.4th 404, 86 Cal.Rptr.2d 431 (1999) (opinion vacated on grant of review by the California Supreme Court).

[25] Ibid.

[26] Ibid.