The test for prejudice is whether it is reasonably probable that a determination more favorable to the defendant would have resulted in the absence of counsel’s failure.[176]  Unless counsel’s performance was so deficient that a breakdown in the adversarial process occurred, actual prejudice must be shown to justify reversal.  The defense must show a reasonable probability of a different outcome, i.e., a probability sufficient to undermine confidence in the result.[177] 

 

            As the California Supreme Court has stated:

 

            The test for prejudice that is relevant in light of the preceding is well established.  In Hill, supra, 474 U.S. at pages 58-59, the United States Supreme Court explained that a defendant who pled guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.[178]

 

            The standard of reversal is that the chances of a more favorable outcome must be significant, less than a preponderance, but great enough to undermine confidence in the existing outcome.[179]  In the context of setting aside a plea, prejudice is shown if petitioner establishes a reasonable possibility, less than 50 percent but great enough to undermine confidence in the outcome, that s/he would not have entered the plea if correctly advised.[180]

 

            In Soriano, the court found the prejudice requirement to be satisfied because the petitioner “has been prejudiced by the institution of deportation proceedings against him.”[181]  The court made this ruling even though trial counsel had testified that the best offer she was able to obtain was a four-year state prison sentence suspended, and that the options of a sentence of “imposition of sentence suspended” or a sentence of one day less than one year in jail were not available to her.[182]  The court also noted: “Defendant states in his declaration that he would not have entered the plea had he known he was exposing [himself] to deportation.”[183]  Thus, under Soriano, prejudice is shown by proving that the client was incorrectly advised about the immigration consequences, and that removal proceedings have been instituted against the client.

 

[176] People v. Fosselman, 33 Cal.3d 572, 584 (1983); People v. Pope, supra, 23 Cal.3d 412.

[177] United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984); Strickland v. Washington, 466 U.S. 668 (1984).

[178] Resendiz, supra, at 253, citing In re Alvernaz, supra, 2 Cal.4th at pp. 933-934.

[179] People v. Howard, 190 Cal.App.3d 41, 45, 235 Cal.Rptr. 223 (1987).

[180] People v. Karis, 46 Cal.3d 612, 250 Cal.Rptr. 659, 682 (1988); People v. Wright, 43 Cal.3d 487, 233 Cal.Rptr. 69, 76 (1987); In re Ronald E., 19 Cal.3d 315, 137 Cal.Rptr. 781, 788 (1977).  See also People v. Limones, 233 Cal.App.3d 338, 284 Cal.Rptr. 418, 421 (1991) (“Thus, it does not appear that it was reasonably probable that appellant would not have agreed to the submission of his case on the stipulated facts had he been more specifically advised of the probability that the proceeding would result in conviction.”).

[181] People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328, 336 (1987).

[182] Id. at p. 335.

[183] Id. at p. 336.

Lower Courts of Second Circuit

POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A HEARING
People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004) (allegation that defendant would not have pleaded guilty if properly advised, sufficient to require hearing on claim of ineffective assistance based on affirmative misadvice concerning immigration consequences).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (It bears emphasizing that by entering a plea of guilty without a plea agreement as to both counts of the indictment, Bonilla did not stand to benefit from a plea agreement in a way that might have made the plea an attractive alternative to trial.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " LACK OF ADVICE CONCERNING MANDATORY DEPORTATION COULD AT LEAST PLAUSIBLY MOTIVATED DEFENDANT TO PLEAD RATHER THAN GO TO TRIAL
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Because a reasonable person in Bonillas position could well have interpreted his lawyers silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsels failure to advise Bonilla of the immigration consequences could have at least plausibly motivated him to plead guilty rather than go to trial. Garcia, 401 F.3d at 1012.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " COUNSELS SILENCE CONCERNING IMMIGRATION CONSEQUENCES COULD HAVE MOTIVATED DEFENDANT TO PLEAD GUILTY
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Because a reasonable person in Bonilla's position could well have interpreted his layer's silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsel's failure to advise Bonilla of the immigration consequences..." could have motivated him to plead guilty.).

POST CON - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL
Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (although counsel rendered ineffective assistance in failing to impeach prosecution witness with evidence that he had lied to a police officer about a traffic ticket -- counsel tried to impeach with the fact of the misdemeanor conviction that followed the lie [but misdemeanor convictions are not admissible for impeachment in California, only the conduct underlying the conviction is] -- but evidence failed to meet the second Strickland prong since the witness had been impeached with other evidence, and "it was almost impossible to believe" this conduct would have made a difference in the outcome of the case).

APPEALS - FEDERAL - STRUCTURAL ERROR
United States v. Recio, 371 F.3d 1093 (9th Cir. June 15, 2004) (trial court use of criminal conspiracy rule that was later rejected constituted structural error, requiring reversal without specific showing of prejudice); see Sullivan v. Louisiana, 508 U.S. 275, 282 (1993).

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
Commonwealth v. Clarke, 460 Mass. 30, 31, 949 N.E.2d 892 (Jun. 17, 2011) (prejudice from deficient performance in failing to give adequate advice of immigration consequences of plea can be shown by: (1) establishing that the defendant would have gone to trial if he had been properly advised and that the decision to go to trial would have been reasonable, or (2) showing either that there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time, or (3) that the defendant placed such emphasis and importance on immigration consequences that the advice would have had a significant impact on his decision to plead guilty).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " TEXAS " STANDARD OF REVIEW
Ex Parte Tanklevskaya, ___ Tex. ___, ___ (Ct. Crim. App, 1st Dist., May 26, 2011) (to show prejudice from IAC at plea, the defendant must show a reasonable probability that, absent counsels errors, a particular proceeding [a trial] would have occurred, but she need not show that she would have received a more favorable disposition had she gone to trial); citing Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005); see also Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
Ex Parte Tanklevskaya, ___ Tex. ___, ___ (Ct. Crim. App, 1st Dist., May 26, 2011) (courts boilerplate general warning that adverse immigration consequences may occur as a result of a plea is insufficient to bar a showing of prejudice from defense counsels ineffectiveness).

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " FORMS OF PREJUDICE
The two-part Strickland test for ineffective assistance of counsel applies to guilty pleas as it does to other critical phases of the criminal proceeding. Hill, 474 U.S. at 57. Where counsel is ineffective at the guilty-plea stage, one form of Strickland prejudice " a reasonable probability of a different outcome " is shown where there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. Id. at 59. Stricklands second prong requires a defendant to establish that his counsels objectively unreasonable performance prejudiced him. Prejudice exists in this context where there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. This is the prejudice test normally used since Strickland by state courts in which the vast majority of all criminal cases are prosecuted, as well as federal court. The court in Strickland adopted the following standard for prejudice: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . [a] reasonable probability is a probability sufficient to undermine confidence in the outcome." The court said that a reasonable probability is more stringent than a standard in which the defendant would "show that the errors had some conceivable effect on the outcome of the proceeding," and less stringent than a "more likely than not" standard." Strickland, 466 U.S. at 694; see Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C.L. Rev. 1069, 1079 (2009) Courts have recognized many forms of prejudice that meet Stricklands general test in different contexts. For example, a defendant may also show prejudice if the attorneys performance caused the defendant to plead guilty to harsher charges or receive a higher sentence. See, e.g., United States v. Kwan, 407 F.3d 1005, 1017-18 (9th Cir. 2005) (prejudice shown where defendant could have avoided deportation by persuading court or prosecutor to shorten sentence by two days); cf. Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009) (prejudice from breach of plea bargain can be shown by adverse effect on sentence); United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (to show prejudice from courts plain error in administering Rule 11, the defendant must show a reasonable probability that, but for the error, he would not have entered the plea) (citing Strickland). Another form of ineffective assistance was counsels failure, at sentence, to request a judicial recommendation against deportation. JRADs were so essential to avoiding the collateral consequence of deportation that courts found failure to request a JRAD for a defendant facing deportation to be ineffective assistance of counsel under the Sixth Amendment. See, e.g., United States v. Castro, 26 F.3d 557, 563 (5th Cir. 1994); Janvier, 793 F.2d at 456. The remedy for this deficiency was obviously to vacate the sentence, and remand for resentencing giving counsel an opportunity to make that motion. This is another example of context-specific prejudice. Similarly, the prejudice inquiry must be tailored to the specific error that failed constitutional muster. Ineffectiveness at trial requires a new trial. Ineffectiveness at sentence requires a fresh sentencing hearing. Ineffectiveness in failing to make a motion for a non-deportable sentence requires a new sentence hearing at which competent counsel can make that motion. Similarly, ineffective assistance at plea requires invalidating the plea, so counsel can render effective assistance at that critical stage as well. In addition to making it reasonably likely a defendant would have rejected the plea and gone to trial, many errors prevent the defendant from obtaining a beneficial plea-bargain. A well-developed case for suppression [of evidence], or a thorough investigation that reveals weaknesses in the governments case, for example, often lead to a better plea offer from the prosecution. Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 705 n.51 (2011). In Padilla, Justice Stevens stated that the court has long recognized that the negotiation of a plea bargain is a critical stage of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Padilla, 130 S.Ct. at 1486. There are two main types of plea bargaining: charge bargains, and sentence bargains. See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN.L.REV. 29, 32 nn.10, 82 (2002)(In a charge bargain, the prosecution agrees to dismiss some charges in return for a plea of guilty to the remaining charges, whereas sentence bargains entail a conversation [that] relates directly to the sentence rather than to the crime of conviction.). A charge bargain is more suited to the reasonable chance defendant would have gone to trial type of prejudice, but even here, a serious error in charge bargaining, such as one that ignores the immigration consequences of a plea to one count as opposed to another, can cause serious prejudice in the form of the loss of a plea to an equivalent offense that did not carry the mandatory deportation consequence. See Padilla, 130 S.Ct. at 1485. Plea bargaining, however, often involves a negotiation that extends beyond the question of guilt or innocence, and affects or controls the sentence, either directly or indirectly. A plea bargain can control sentence directly by specifying the exact sentence agreed to be imposed. An error in this aspect of a plea bargain would thus translate directly into a sentence error, rather than a trial error, and a reasonable chance of a shorter sentence absent counsels error would constitute prejudice under Glover. A plea bargain can also specify the level of the offense of conviction, as where the prosecution offers a misdemeanor plea. This aspect of plea bargaining controls the sentence indirectly, since the maximum sentence for a misdemeanor is less than for a felony. A prejudice requirement of a showing of a reasonable chance the defendant would have gone to trial ignores the real world in which 95% of all criminal cases are resolved by plea bargains. This willfully blind test ignores nearly all of realistic damage counsels plea-bargaining errors can cause. Lower courts have recognized the many types of prejudice that can flow from ineffective assistance of counsel. In United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005), the court found that upon learning of the actual immigration consequences of the disposition after plea but before sentence, defense counsel should have undertaken three different defensive efforts to forestall the damage: (1) he should have tried to renegotiate the case to avert the immigration consequences; (2) he should have filed a motion to withdraw from the plea bargain in view of the new information; and (3) he should have asked the sentencing judge for a sentence short enough to avoid the mandatory deportation consequences of the plea. This decision recognizes the reality of the situation: counsels duties with respect to the immigration consequences of a case extend beyond mere advice. Counsel must not only tell the client The axe is coming down on your neck. Counsel must actually attempt to stop the axe by engaging in the vigorous representation required by the Sixth Amendment. Counsel must do more than simply advise the client during plea bargaining; counsel must affirmatively attempt to secure a favorable plea bargain for the client. A failure to do an adequate job can cause many different forms of prejudice: (1) It can forfeit a reasonable chance the defendant would have chosen to take the case to trial, where a reasonable defendant would have chosen that course. (2) It can forfeit a misdemeanor one-year lid on the possible sentence for the offense of conviction. (3) It can forfeit " as in Padilla " a chance of negotiating a non-deportable alternative plea. (4) It can forfeit as in Glover a reasonable chance of a shorter sentence. There may be many other forms that prejudice can take, depending on the nature of the error and the context in which it occurs. The great benefit of the Strickland general prejudice definition is that it is flexible, and depends, as the Supreme Court has many times noted, on the facts of the case. A straight-jacket, one-size-fits-all, prejudice test ignores the complex realities of the plea-bargaining criminal justice system we have.

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL DISADVANTAGES OF FIXED RULES IN THIS FACT-INTENSIVE ANALYSIS
Claims of ineffective assistance of counsel are intensely fact-specific, resisting fixed rules. The Supreme Court has time and again resisted attempts to impose fixed rules delineating the obligations of counsel under the Sixth Amendment. Roe v. Flores-Ortega, 528 U.S. 470, 478-79 (2000). Attorney errors come in an infinite variety[.] Strickland, 466 U.S. at 693. No particular set of detailed rules for counsels conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688-89. The Sixth Amendment does not specify[] particular requirements of effective assistance. Id. at 688. Instead, it relies . . . on the legal professions maintenance of standards sufficient to justify the law's presumption that counsel will fulfill [its] role in the adversary process . . . . Id. Accordingly, [i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id. (emphasis added). Prevailing norms of practice as reflected in American Bar Association (ABA) standards and the like are helpful guides to determining what is reasonable. Id.

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - PREJUDICE - DOES NOT DEPEND ON IDIOSYNCRACIES OF PARTICULAR DECISIONMAKER
In assessing a claim of prejudice from ineffective assistance of counsel, the court does not consider the idiosyncrasies of a particular decisionmaker, whether judge or prosecutor. Therefore, a declaration of the prosecutor that s/he would never have altered the plea for immigration reasons is not conclusive. The question is whether a reasonable prosecutor would have done so, in light of the totality of the circumstances. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination. Strickland v. Washington (1984) 466 U.S. 668, 694-695, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord, Hill v. Lockhart (1985) 474 U.S. 52, 59-60, 106 S.Ct. 366 ("these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker."); United States v. Moran (1st Cir. 2004) 393 F.3d 1, 11 n.6; Jones v. Jones (5th Cir. 1998) 163 F.3d 285, 306; Miller v. Champion (10th Cir. 1998) 161 F.3d 1249, 1253-1254; see In re Sassounian (1995) 9 Cal.4th 535, 544-545, 887 P.2d 527 (employing this ineffective assistance prejudice concept in the analogous area of prejudice from prosecutorial suppression of material evidence)("Further, it is a probability that is, as it were, "objective," based on an "assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision," and not dependent on the "idiosyncrasies of the particular decisionmaker," including the "possibility of arbitrariness, whimsy, caprice, nullification, and the like." (Strickland v. Washington, supra, 466 U.S. at p. 695, 104 S.Ct. at p. 2068 [dealing with ineffective assistance of counsel in violation of the Sixth Amendment]

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " DIFFERENT PREJUDICE STANDARDS CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " DIFFERENT PREJUDICE STANDARDS
The Supreme Court has now recognized a number of different types of plea bargaining IAC errors, and that each error has its own different type of prejudice. There are two different types of prejudice: (1) normal IAC prejudice, interpreting the Strickland general prejudice standard in different contexts. The general test is whether the defendant can show a reasonable probability, less than a preponderance, but large enough to undermine confidence in the outcome, that a different (more favorable) outcome would have resulted absent counsels error; and (2) whether it would have been rational for the defendant not to enter the plea (Roe v. Flores-Ortega, Padilla). There is another prejudice formulation: loss of an opportunity for a rational decisionmaker to exercise discretion in the defendants favor. This comes up in Roe, Barocio, Bautista, Janvier v. US, and US v. Kwan. These two formulations can be considered to be the same prejudice test, and the defendant can be considered to be a rational decisionmaker under this standard. This prejudice test is appropriate where counsels error resulted in the complete loss of a procedural opportunity, such as: -- loss of the right to appeal (Roe); -- loss of a motion for a JRAD or other form of non-deportable sentence, such as a sentence imposed of 364 days instead of 365 for a conviction that would otherwise be an aggravated felony crime of violence. (Barocio, Janvier, Kwan) -- loss of a motion to withdraw a plea (Kwan), or -- loss of the opportunity to make an immigration-neutral defense plea offer (Padilla, Bautista; Kwan). This second type of prejudice is a very favorable standard. The defendant does not need to show a reasonable chance that the appeal or motion would have been victorious, just that the defendant would have chosen to make it if s/he had known of the opportunity. This is far easier to prove.