The Resendiz Court held that counsel renders ineffective assistance by affirmatively misadvising the defendant of the immigration effects of a plea.  In People v. Soriano,[152] the court held that in order to render effective assistance of counsel, defense counsel must investigate the particular immigration consequences to defendant of a plea and advise the client of those consequences prior to entry of the plea.  Both courts found that it is insufficient for counsel to rely on the general language of the state advisal statute that deportation, exclusion, and denial of naturalization may result.[153]  A number of other states are in agreement.[154]

 

            Thus, in order to prevail on a claim of ineffective assistance of counsel during plea bargaining, the client must show either that counsel gave affirmative misadvice or that defense counsel did not investigate and advise the client of the exact immigration consequences that would flow from the conviction.  Further, prejudice must be shown, i.e., a reasonable probability that the client would not have entered this plea if s/he had been told the truth.

 

The Resendiz Court recognized the federal rule that “deportation is a drastic measure and at times the equivalent of banishment or exile . . . . To banish [noncitizens] from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later.”[155]  Because “criminal convictions may have ‘dire consequences’ under federal immigration law,” and “such consequences are ‘material matters’ for  noncitizen defendants faced with pleading decisions,” affirmative misadvice of a plea’s immigration effects can amount to deficient performance under prevailing professional norms.[156]

 

Mr. Resendiz pled guilty to possession for sale of cocaine and marijuana[157] and possession of a usable amount of methamphetamine,[158] which were considered by the INS to be controlled substance and aggravated felony convictions, requiring petitioner’s mandatory deportation.[159]  Prior to pleading guilty, petitioner told counsel he was concerned about keeping his green card, and counsel told him that if he pleaded guilty as charged, there would be “no problems with immigration” except that petitioner would not be able to naturalize and become a United States citizen.[160] 

 

This advice was wrong, because, as the court explained:

 

[S]uch advice would have been mistaken.  Controlled substance violations “are the most damning convictions in the Immigration and Nationality Act.  There are very few situations where a plea to a narcotics violation would not have a fatal and permanent immigration consequence” as an “alien convicted of a crime ‘relating to’ controlled substances is deportable and excludable.” 

 

Owing to the enactment of IIRAIRA and AEDPA in 1996, petitioner became subject to expedited removal from the United States upon pleading guilty to the charges against him, both because they involved controlled substances and because drug trafficking is considered an “aggravated felony.”  The only contingency on which institution of actual removal proceedings at that point hung was that they be instituted “upon the order of the [United States] Attorney General,” which indeed they were.[161] 

 

Ultimately, due to an evidentiary dispute, the court did not decide whether trial counsel misadvised petitioner as alleged.  The court instead found petitioner had not demonstrated prejudice.

 

In Soriano, supra, the defendant received a sentence of 365 days, and was deportable, while a sentence of 364 days would have avoided deportation.  Many cases will be almost identical, where a sentence of 365 days or more is imposed for one of the many types of crime that will then be considered an “aggravated felony” only if that sentence is imposed: common offenses such as any “crime of violence,” theft offense, burglary, receiving stolen property, perjury, obstruction of justice, and the like.[162]  These convictions would then constitute “aggravated felonies,” with the most terrible of all immigration consequences, only if the defendant received a sentence imposed of 365 days or more on that count.  A sentence of 364 days or less on any such conviction would avoid “aggravated felony” status, and enable the immigration court to consider granting discretionary relief from deportation if the defendant was otherwise qualified for “cancellation of removal.”[163]

[152] People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987).

[153] Resendiz, supra, 25 Cal.4th at 240-42; Soriano, 194 Cal.App.3d 1481-1482, 240 Cal.Rptr. at 336.

[154] People v. Pozo, 746 P.2d 523, 527‑529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 976‑978 (1985); see Daily v. State, 61 Md.App. 486, 487 A.2d 320 (1985).  There is less than unanimity on the subject.  See People v. Kadadu, 169 Mich.App. 278, 425 N.W.2d 784, 785‑787 (1988) (arraying split of authority).  See, e.g., State v. Ginebra, 511 So.2d 960  (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741‑2 (Ill. 1991).  At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.  INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); see D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes, Appendix B (2001); People v. Pozo, supra, 746 P.2d at 526 n.4.  Florida now requires such advice by court rule.  (Florida Rules of Criminal Procedure, Rule 3.172(c)(viii) [In re Amendments to Florida Rules, 536 So.2d 992, 994].)  See Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Waiver of Jury Trial, 103 A.L.R. Fed. 867; Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868.

[155] Id. at 250 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), and Lehmann v. Carson, 353 U.S. 685, 691 (1957) (conc. opn. of Black, J.)).

[156] Id. at 250 (quoting People v. Superior Court (Giron), 11 Cal.3d 793, 797-98 (1974)).

[157] California Health & Saf. Code, § § 11351, 11359.

[158] Id., § 11377(a).

[159] INA § § 237(a)(2)(B)(i); (a)(2)(A)(iii), 8 U.S.C. § § 1127(a)(2)(B)(i), (a)(2)(A)(iii).

[160] Resendiz, supra, 25 Cal.4th at 251.

[161] Id. at 251-52.

[162] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).  See § § 8.5-8.6, infra.

[163] INA § 240A(a), 8 U.S.C. § 1229b(a).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO SEEK FUNDS FOR EXPERT " ERROR BASED ON COUNSELS MISTAKEN BELIEF IN IMPORTANT POINT OF LAW AND FAILURE TO RESEARCH IT
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam)(counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"STANDARDS OF PROFESSIONAL PRACTICE
Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21. 2012) (Though the [ineffective assistance] standard for counsel's performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides.).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PREJUDICE
Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21, 2012) (defendant must show a reasonable probability that the defendant would have accepted, and the prosecution and court would have entered, a more favorable plea bargain absent counsels error).

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).

Sixth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - ADVICE OF POTENTIAL IMMIGRATION CONSEQUENCES
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.").

Ninth Circuit

POST CON RELIEF " REMEDY " ERROR AFFECTED PLEA, NOT MERELY SENTENCE
Johnson v. Uribe, 682 F.3d 1238 (9th Cir. Jun. 22, 2012) (reversing district courts grant of habeas corpus relief invalidating only the sentence, since ineffective assistance of counsel affected the entire plea negotiation stage of the proceedings in the Superior Court: "Although the district court found that Johnson would still have entered into the Vargas waiver when it was offered, we cannot properly determine whether, with effective assistance of counsel, Johnson would have even reached that point in the proceedings. It is impossible for us to know how the earlier stages of the plea negotiation process might have progressed had Durdines rendered effective counsel from the outset by correctly evaluating the charges against Johnson. Where, as here, it is mere speculation to assume that the plea negotiations would have progressed in a similar fashion with competent counsel, we cannot allow the defendant to be prejudiced by that uncertainty. See United States v. Blaylock, 20 F.3d 1458, 1469 (9th Cir. 1994) (The Sixth Amendment mandates that the State [or the government] bear the risk of constitutionally deficient assistance of counsel.) (quoting Kimmelman v. Morrison, 477 U.S. 365 (1986)). Note: Counsel can use this authority to counter the prosecutors argument that the defendant has not proven by a preponderance of the evidence that an immigration-neutral disposition would have been offered and that therefore it is mere speculation that the defendant would have rejected the plea offer. Moreover, the Strickland prejudice standard does not require proof by a preponderance of the evidence, but only by a lesser standard sufficient to undermine confidence in the outcome. Thanks to Michael K. Mehr.

POST CON RELIEF - GROUNDS - COUNSEL - PLEA BARGAINING IS A CRITICAL STAGE
Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the government are a "critical stage" of a prosecution for Sixth Amendment purposes).

DC Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RELEVANCE OF ABA STANDARDS
Miller v. United States, 14 A.3d 1094, 1108 n.16 (D.C. Cir. Mar. 3, 2011) (While obviously not dispositive, the ABA Standards appropriately inform our analysis [of ineffective assistance of counsel claims]. . . . Judicial opinions routinely cite treatises, the various Restatements of the Law, and law review articles, and we discern no reason to exclude from our consideration guidelines prepared by members of the nation's foremost legal organization who are experienced in the criminal law.), citing Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (internal quotation marks omitted)); see Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1783 n.15, 173 L.Ed.2d 701 (2009).

Other

ARTICLE"POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO COMMUNICATE PLEA OFFER"PREJUDICE
Prejudice For Violation of Right to Effective Assistance of Counsel in Plea Bargaining Can be Shown by Reasonable Probability That the Defendant Would Have Accepted, and the Prosecution and Court Would Have Entered, a More Favorable Plea Bargain By Norton Tooby The Supreme Court held that the right of effective assistance of counsel applies in all critical stages of a criminal case, including consideration of plea offers that lapse or are rejected. In Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21, 2012), the court held defense counsel has a duty to inform the defendant of any formal plea offers from the prosecution that may be favorable to the accused before they expire. Justice Kennedy, in a 5-4 decision, reasoned that the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. The court held that to establish that prejudice resulted from counsel's deficient performance, defendants must show a reasonable probability both (1) that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel, and (2) that the plea would have been entered without the prosecution's canceling it or the trial court's refusing to accept it, if they had the authority to exercise that discretion under state law. Deficient Performance in Plea Bargaining The court first held that the right to effective assistance of counsel applied during the critical stage of plea negotiations: It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (quoting United States v. Wade, 388 U.S. 218, 227"228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (guilty plea). (Id. at 1405.) The court continued: In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. 559 U.S., at """" (slip op., at 16). (Id. at 1406.) Justice Kennedy pointed out that: Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. . . . In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant. (Id. at 1407.) Without describing the full scope of the duty to render effective assistance of counsel, the court had little difficulty concluding that defense counsel violated that duty by his failure to communicate the formal written offer in this case to the defendant: This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires. (Id. at 1408.) The court suggested states may adopt several measures to protect against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. (Id. at 1408-09.) First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. . . . Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. (Id. at 1409.) Requirements to Show Prejudice To show prejudice, the defendant must meet the following standard: To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ([A]ny amount of [additional] jail time has Sixth Amendment significance). (Id. at 1409.) The court pointed out that the prejudice necessary to a successful claim of ineffective assistance of counsel takes different forms, depends on the nature of the error: This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years' imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland 's inquiry into whether the result of the proceeding would have been different, 466 U.S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed. (Id. at 1409-10.) If counsels error caused the defendant to go to trial, prejudice can be shown by a reasonable chance the defendant would have accepted an earlier more favorable plea offer absent the error. If counsels error caused the defendant to accept a disadvantageous plea bargain, prejudice can be shown by a reasonable chance the defendant would have taken the case to trial or accepted an earlier, more favorable plea bargain, absent the error. Finally, the court pointed out that a showing of prejudice through loss of an opportunity to accept a favorable plea bargain must include a showing of a reasonable probability that the lost plea bargain would in fact have become effective: In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. (Id. at 1410.) In applying these principles to the present case, the court found no difficulty in concluding that counsel rendered deficient performance in making no effort to communicate the favorable plea offer to the defendant before it lapsed. The court, however, found there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final[,]given the defendants new arrest for a new offense. (Id. at 1411.) The court also found it likely that the defendant would have accepted the earlier, more lenient offer, because he later accepted a harsher offer: There appears to be a reasonable probability Frye would have accepted the prosecutor's original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution's case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case. (Id. at 1411.) The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. (Id. at 1411.) The extent to which the prosecution or court can alter a plea bargain after it has been entered is a question of state law that affects the prejudice showing, and the court remanded the matter to allow the Missouri courts to address them in the first instance. (Ibid.) In dissent, Justice Scalia, joined by the Chief Justice and Justices Alito and Thomas, felt that Frye's conviction here was established by his own admission of guilt, received by the court after the usual colloquy that assured it was voluntary and truthful. . . . Here it can be said not only that the process was fair, but that the defendant acknowledged the correctness of his conviction. . . . Counsel's mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. (Id. at 1412.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " WAIVER OF CLAIM BY DEFENDANT MISREPRESENTING THAT HE IS A UNITED STATES CITIZEN
People v. Baker, 2010 WL 2175691, 2010 N.Y. Slip Op. 31289(U) (N.Y. Sup. Ct. 2010) (concluding that an individual who stated during his plea colloquy that he was a United States citizen, but who later filed a claim of ineffective assistance of counsel based on adverse immigration consequences, deliberate[ly] misrepresent[ed] his status in the hopes of possibly avoiding detection of his immigrant status without considering that many individuals genuinely believe they are citizens only to learn later that they are not).

BIBLIOGRAPHY - CRIMINAL DEFENSE OF IMMIGRANTS
Joanne Gottesman, 33 Seton Hall Legis. J. 357 (2009), Avoiding the "Secret Sentence": A Model for Ensuring that New Jersey Criminal Defendants are Advised About Immigration Consequences Before Entering Pleas.