Post-Conviction Relief for Immigrants

 

If a court denies a defendant’s request for counsel, in almost all cases the result will be an order vacating the conviction.[3]  The defendant is also denied the right to counsel where an invalid waiver of the right to counsel is taken,[4] where the court erroneously denies the defendant the right of self-representation, or where a person who is not an attorney represents the defendant in court.

 

            This ground is particularly fundamental, so as to allow a defendant to challenge the validity of the conviction during federal sentencing proceedings where it is alleged as a prior conviction to enhance the federal sentence, and by means of collateral attack under other circumstances in which attack on other less fundamental grounds would be barred.[5]

 

            The conviction will also be reopened when the trial court violated the defendant’s right to counsel by summarily rejecting his or her request for new counsel without inquiring into the basis of the request.[6]  A motion for new counsel presented on the eve of trial should not be denied solely because it is late, so long as it will not inconvenience the court or opposing party.[7]

 

A denial of the right to counsel of choice also results in an invalid conviction, for example, when a defendant was forced to trial without his retained attorney, who had been injured the day before trial.[8] 

 

A conviction will be reversed for denial of counsel if counsel is not present at a critical stage of the proceedings.  The right to counsel includes the right for counsel to be present at a readback of testimony, and where the defendant is not afforded that right, a writ of habeas corpus is appropriate.[9]  The court must allow the defendant to be present at a hearing concerning defense counsel’s conflict of interest, or else the denial of counsel at this critical stage will be considered reversible per se.[10]

 

Appellants have no Sixth Amendment right to counsel on direct appeal.[11]  Therefore, the Court of Appeals did not unreasonably apply federal law in substituting appellate counsel over appellant’s objection.  Note that the right to appellate counsel exists under the due process and equal protection clauses of the Fourteenth Amendment,[12] but the court did not reach those issues because appellant relied exclusively on the Sixth Amendment right, and did not raise the Fourteenth Amendment claims.[13]

 

            If an admonition concerning the right to counsel is given in a language other than the defendant’s mother tongue, or there is an inadequate translation, the result may be a constitutionally invalid waiver of the right to counsel that invalidates a resulting guilty plea.[14]

 

            In some states, the courts declined to appoint counsel in minor cases even on request.  This systematic practice may have violated the constitutional right to counsel in light of a recent United States Supreme Court decision extending the right to counsel to cases in which only a suspended sentence is imposed, since such a sentence may result in actual incarceration if a probation violation occurs.[15]

            A violation of the right to counsel is reversible per se, and prejudice need not be shown, because all constitutional rights flow through and depend on the right to counsel.  Denial of this right is considered a structural error that itself disables the defendant from showing prejudice.[16]

[3] Gideon v. Wainwright, 372 U.S. 335 (1963) (defendant forced to trial without counsel).

[4] See United States v. Bell, 303 F.3d 1187 (9th Cir. September 19, 2002) (defendant not improperly denied new court-assisted counsel, based on court’s careful consideration and undisputed on-the-record observations).

[5] Custis v. United States, 511 U.S. 485 (1994); Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578 (2001); Lackawanna County District Attorney v. Coss, 531 U.S. 923 (2001).

[6] Crandell v. Bunnell, 144 F.3d 1213, 1216 (9th Cir. 1998); Bland v. Cal. Dept. of Corrections, 20 F.3d 1469 (9th Cir. 1994), cert. denied, 513 U.S. 947 (1994).

[7] See United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999) (en banc).

[8] Bowen v. Maynard, 799 F.2d 593 (10th Cir.), cert. denied, 479 U.S. 962 (1986).

[9] Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001).

[10] Campbell v. Rice, 302 F.3d 892 (9th Cir. September 4, 2002) (habeas petitioner’s due process rights were violated by excluding him from the in-chambers hearing on defense counsel’s potential conflict of interest, and this violation was a structural error which was prejudicial per se).

[11] See Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) (no right to self-representation because Faretta applies only to trials).

[12] See Douglas v. California, 372 U.S. 353 (1963); Evitts v. Lucey, 469 U.S. 387 (1985).

[13] Tamalini v. Stewart, 249 F.3d 895 (9th Cir. 2001).

[14] See United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. December 23, 2002) (statements obtained after arrests of undocumented defendant violated Fifth Amendment rights where defendant received simultaneous warnings under both 8 C.F.R. § 287.3 [right to attorney, not at government expense, in deportation proceedings], and under Miranda [right to court-appointed criminal lawyer], since resulting confusion between the two conflicting warnings resulted in a Miranda violation).

[15] Alabama v. Shelton, 535 U.S. 654 (May 20, 2002) (suspended sentence which may result in deprivation of liberty may not be imposed unless defendant was accorded assistance of counsel).

[16] Cordova v. Baca, 346 F.3d 924 (9th Cir. October 6, 2003) (state trial judge's failure to admonish defendant as required by Faretta v. California, 422 U.S. 806 (1975) automatically vitiates waiver, and harmless error test is inapplicable. “[I]f a criminal defendant is put on trial without counsel, and his right to counsel has not been effectively waived, he is entitled to an automatic reversal of the conviction. The reason for the denial — whether it be an oversight on the part of the court, a failure to give proper warning or some other reason — is irrelevant. What matters is that the defendant was put on trial without a lawyer though the Constitution guarantees him that right. That is the kind of defect in the trial process the Supreme Court has told us time and again cannot be unscrambled.”).