(B)  Sample Arguments.  The dissenting opinion of Justice Mosk in Resendiz would have found prejudice from a multitude of objective and subjective factors corroborated petitioner’s claim that he would not have plead guilty.[185]  In any close case of prejudice, this opinion should be consulted and its arguments used to make the required showing.

 

            The dissent emphasized that “the immigration consequences of criminal convictions have verged on the monstrously cruel in their harshness compared to many of the crimes on which they are imposed,” and detailed the draconian consequences that flow from criminal convictions, including mandatory, indefinite detention.[186]  The Mosk opinion detailed subjective factors establishing prejudice, including:

 

The undisputed corroborating evidence that he (1) is willing to risk years in state prison to gain a glimmer of a chance of escaping conviction and thereby avoiding deportation, and (2) that he has United States citizen children, establishes a reasonable probability that if he had known he would be deported, permanently banished, and involuntarily separated from his children unless they chose to move to Mexico and abandon the privileges attendant to living in the United States (all consequences of his guilty plea) he would have elected to proceed to trial.  If “a defendant’s conclusion that success is remotely possible, even if not likely, is sufficient to induce many to go trial,” how much more that must be for someone in petitioner’s situation, facing lifetime banishment from his home and family.  Without a doubt, the foregoing evidence meets the Hill burden — i.e., it establishes a reasonable probability that, but for his lawyer’s omission, he would have gone to trial.

 

Few with petitioner’s family and cultural ties to the United States would turn down a chance, even a slight chance, of escaping the talons of the federal law.  A rational person could conclude that the great likelihood of spending some five years in a California prison, balanced against the slight chance of avoiding permanent banishment to the developing world, is a worthwhile gamble.  Obviously petitioner has so concluded.  To deny him his choice is tragic, defying any accurate reading of Hill v. Lockhart, supra, 474 U.S. 52.[187]

 

In People v. Sandoval,[188] 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.  Although the decision was vacated when the California Supreme Court granted review, it's analysis of prejudice was exemplary, and could usefully be followed in trial court motions and habeas petitions on this issue:

 

            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.

 

            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 naiveté 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?[189]

 

[185] See In re Resendiz, 25 Cal.4th 230, 255-60 (2001) (Mosk, J, concurring and dissenting).

[186] See id., at 255-58 (Mosk, J, concurring and dissenting).  Justice Mosk also catalogued examples of deportation as the result of trivial offense that occurred long ago, such as the case of a 34-year-old born in Germany who came to the United States about age 1, and who pleaded guilty in 1990 to a misdemeanor battery that involved “hair-pulling.”  See id. at 256-57 (Mosk, J, concurring and dissenting).

[187] Id., at 258-59 (Mosk, J, concurring and dissenting) (internal citations omitted).

[188] People v. Sandoval, 73 Cal.App.4th 404, 86 Cal.Rptr.2d 431 (1999), opinion vacated on grant of review.

[189] Ibid., citing In re Alvernaz, 2 Cal.4th 924, 938 (1992), holding the defendant’s statement “must be corroborated independently by objective evidence.”

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.