Post-Conviction Relief for Immigrants

The most common ground for vacating a conviction through habeas corpus is ineffective assistance of counsel.[64]  The right to counsel, secured by the Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of state constitutions, includes the guarantee that the defendant will receive effective representation.[65]  The Ninth Circuit has noted that the “conviction of an innocent person as a result of [his or her] lawyer’s incompetence constitutes one of the most serious infringements of the integrity of the judicial process.”[66]

            A guilty plea may be attacked in post-conviction proceedings on the ground it was entered as a result of ineffective assistance of counsel.[67]  “[A] guilty plea lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from the Sixth and Fourteenth Amendments.”[68]  “[I]f the quality of counsel’s advice falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice.  And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required minimal level.”[69] 

            Whether counsel has violated the relevant ABA Standards has been held by the Supreme Court to be relevant in considering whether counsel’s action or inaction fell below the required standard of competence.[70]

[64] An excellent article on this area in general is Sevilla, Investigating and Preparing an Ineffective Assistance of Counsel Claim, 37 Mercer L. Rev. 927 (1986), and, focusing on immigration cases, Rosenberg & Stern, Ineffective Assistance of Counsel, Interpreter Releases, May 23, 1988, pp. 529‑537.  For a useful checklist of California decisions identifying successful (and unsuccessful) grounds of ineffective assistance of counsel, see Attorney Incompetence, Appendix A, Grounds of Incompetence, 17 Western State L. Rev. 270.  For a comprehensive collection of federal decisions reversing convictions on grounds of ineffective assistance of counsel, see L. Fassley, Ineffective Assistance Of Counsel (1994), published by Southwest Legal Services, P.O. Box 57091, Tucson, AZ 85732.

[65] Powell v. Alabama, 287 U.S. 45, 71 (1932); People v. Pope, 23 Cal.3d 412, 422 (1979).

[66] Morris v. California, 966 F.2d 448, 453 (9th Cir.), cert. denied, 113 S. Ct. 96 (1992).

[67] United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990); Scott v. Wainwright, 698 F.2d 427 (11th Cir. 1983); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), rehearing denied, 667 F.2d 93 (5th Cir. 1982), cert. denied, 456 U.S. 992; Ford v. Parratt, 638 F.2d 1115 (8th Cir. 1981).

[68] Hill v. Lockhart, 474 U.S. 52, 57 (1985); Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988); United States v. Rummery, 698 F.2d 764, 766 (5th Cir. 1983), citing Trahan v. Estelle, 544 F.2d 1305, 1309 (5th Cir. 1977).

[69] Herring v. Estelle, supra, 491 F.2d at 128.

[70] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003); Valdez v. Johnson, 93 F.Supp.2d 769 (S.D.Tex. 1999).