In addition to presenting the arguments as framed by the Resendiz decision, post-conviction counsel can raise the following additional arguments and authority in support to attack the collateral consequences argument. 

 

            Professor Amsterdam has written: “No intelligent plea decision can be made by either lawyer or client without full understanding of the possible consequences of a conviction. . . .  In some defendants’ cases the consequences of conviction may be so devastating that even the faintest ray of hope offered by a trial is magnified in significance.”[200]  He continued: “The possible consequences of a conviction require research in each case concerning: . . .  Liability to deportation if the defendant is an alien. . . .  Of course, in addition to knowing each of the consequences that may follow conviction, counsel must undertake to calculate the likelihood of actual occurrence of each.”[201]

 

The ABA Standards establish the duty of defense counsel to investigate and advise the defendant of the immigration consequences of the plea.  The United States Supreme Court has held that these standards may be applied as guides to determining what is reasonable to require of defense counsel as a component of effective assistance of counsel.[202]  The ABA Standards have long required defense counsel to take the immigration consequences into account in the defense of criminal cases.[203]

 

The new edition of the ABA Standards for Guilty Pleas requires the court to advise the defendant of the possibility of collateral consequences of the plea, and to offer him or her more time to investigate them if necessary.[204]  The Commentary to this Standard states:

 

            A serious and growing issue in a significant number of cases involving non-citizens is the grave immigration consequences that may flow from a guilty plea.  Under federal law, the initiation of deportation proceedings automatically follows conviction of any offense on a long list.  Indeed, in a growing number of states, the court is required to inform the defendant of the potential immigration consequences of a guilty plea.  Moreover, federal caselaw notes that, while the failure to warn a defendant of the immigration consequences of conviction does not affect the soundness of the conviction, the better practice is to include such a notice in the court’s colloquy with the defendant.  Such a notice should not, however, require the defendant to disclose to the court his or her immigration status.  (Footnotes omitted.)

 

The new ABA Standard concerning the responsibilities of defense counsel in advising a defendant prior to plea provides:

 

Standard 14-3.2.  Responsibilities of Defense Counsel:

 

            (f) To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.

 

The Commentary to this Standard states:

 

Standard 14-3.2(f) is another new provision.  It requires defense counsel, “sufficiently in advance of the entry of any plea,” to determine and advise the defendant as to “the possible collateral consequences that might ensue from entry of the contemplated plea.”  While the standards always required defense counsel to advise his or her client concerning other considerations “deemed important by defense counsel or the defendant” (Standard 14-3.2(b)), the number and significance of potential collateral consequences has grown to such an extent that it is important to have a separate standard that addresses this obligation.

 

            An increasing burden must fall to defense counsel by virtue of the growing number and range of consequences of conviction.  As discussed at length in connection with Standard 14-1.4, these consequences may include civil or criminal forfeiture, mandatory restitution, court-martial or disqualification from the armed services, loss of or ineligibility for licenses granted by the state, loss of civil rights, loss of federal benefits, denial of certain types of employment, mandatory HIV testing, registration of sex offenders, use of the conviction in a subsequent civil or criminal case, and, for non-citizens, immigration consequences, to name a few.  Because such discussions may involve the disclosure of privileged or incriminatory information (such as the defendant’s immigration status), only defense counsel is in a position to ensure that the defendant is aware of the full range of consequences that may apply in his or her case.

 

            Given the ever-increasing host of collateral consequences that may flow from a plea of guilty or nolo contendere, it may be very difficult for defense counsel to fully brief every client on every likely effect of a plea in all circumstances.  Courts do not require such an expansive debriefing in order to validate a guilty plea.  This Standard, however, strives to set an appropriately high standard, providing that defense counsel should be familiar with, and advise defendants of, all of the possible effects of conviction.  In this role, defense counsel should be active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant, who will frequently have little appreciation of the full range of consequences that may follow from a guilty, nolo or Alford plea.  Further, counsel should interview the client to determine what collateral consequences are likely to be important to a client given the client’s particular personal circumstances and the charges the client faces.  For example, depending on the jurisdiction, it may well be that many clients’ greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction.  To reflect this reality, counsel should be familiar with the basic immigration consequences that flow from different types of guilty plea, and should keep this in mind in investigating law and fact and advising the client.  Knowing the likely consequences of certain types of offense conduct will also be important.  Defense counsel should routinely be aware of the collateral consequences that obtain in their jurisdiction with respect of certain categories of conduct.  The most obvious such categories are controlled substance crimes and sex offenses because convictions for such offense conduct are, under existing statutory schemes, the most likely to carry with them serious and wide-ranging collateral consequences.[205]

 

Therefore, under the current Standards, defense counsel is required to investigate the collateral consequences, including the immigration consequences, of criminal cases and advise the client prior to plea.  While this Standard is newly published, the Commentary makes clear that the substance of the rule remains the same as before, simply adding more specifics under the enduring general principle.

Federal courts of appeal are concluding, in the immigration context, that criminal counsel have the duty to investigate the immigration consequences prior to entry of plea.  For example, in Jideonwo v. INS,[206] the court held that AEDPA § 440(d) cannot be applied retroactively to bar a noncitizen from eligibility to apply for a discretionary waiver of deportation in immigration court, where the petitioner demonstrates that s/he relied on the availability of the INA § 212(c) waiver in deciding to enter the guilty plea.  The court noted, as the courts did in St. Cyr and Magana-Pizano, that to do so would unfairly disturb the parties’ settled expectations of the immigration effects of the plea.  In recognition of the fact that plea decisions may often be affected by the immigration consequences of the plea, the court noted “many states have found that it is a breach of professional responsibility for a defense attorney to fail to discuss the immigration consequences of a plea agreement with a criminal defendant.”[207]

 

            The Ninth Circuit also recognized that defense counsel is ineffective in failing to warn the defendant of the adverse immigration consequences flowing from a plea:

 

That an alien charged with a crime involving controlled substances would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial is well-documented.  See Wallace v. Reno (D. Mass. 1998) 24 F.Supp. 2d 104, 110, aff’d, 194 F.3d 279 (1st Cir. 1999); Mojica v. Reno (E.D.N.Y. 1997) 970 F. Supp. 130, 177, aff’d in part, dismissed in part, Henderson v. INS (2d Cir. 1998) 157 F.3d 106.  For example, the district court in Wallace noted that it was widely recognized as a violation of an attorney’s professional duty to his client not to advise him of the immigration consequences of a plea or conviction.  See Wallace, 24 F. Supp. 2d at 110; see also Mojica, 970 F. Supp. at 177; People v. Barocio (Cal. Ct. App. 1989) 264 Cal. Rptr. 573, 578-79.[208]

 

            The Fourth Circuit concluded that application of AEDPA § 440(d)’s bar on discretionary relief previously afforded by INA § 212(c) to guilty pleas made before the AEDPA’s enactment “would upset reasonable, settled expectations and change the legal effect of prior conduct.”[209]

 

            The Ninth Circuit has recognized the unfairness of causing extreme immigration consequences without advance notice to the defendant.  In United States v. Gonzalez,[210] the Ninth Circuit held that the district court abused its discretion in denying a prosecution motion to for leave to dismiss Count III of an indictment, to which defendant had entered a guilty plea, charging him with carrying a firearm in relation to a drug trafficking crime.  One of the prosecutor’s reasons in attempting to dismiss the charge was to prevent the defendant’s deportation after service of his sentence.  The defendant, because of inadequate assistance of counsel, had not been informed, prior to plea, of the deportation consequences of the conviction.  This led to a concern that the plea agreement had been “unfairly negotiated” “when the defendant lacked full information regarding the consequences.”[211]  The court held that the desire to prevent deportation, under these circumstances, was in the interests of justice and was “a proper and appropriate reason for dismissing an indictment . . . .”[212]  “Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III.”[213]    

 

            The court stated “due to the unusual circumstances of the defendant’s citizenship status [he was not a U.S. citizen] and the poor assistance rendered by his counsel, Gonzalez was not informed of the possible consequences of his plea — namely that he would be deported when he was released from jail.  The prosecutor expressed concern that the plea agreement was unfairly negotiated, particularly in light of the fact that all of Gonzalez’s codefendants had been informed of possible deportation consequences before they entered into plea agreements.”[214]

 

            Such a justification represents an appropriate ground for a Rule 48(a) motion, as our decision in United States v. Weber, 721 F.2d 266 (9th Cir. 1983), makes clear.  In Weber, we explicitly held that, even after a defendant has been convicted of a crime, a prosecutor may obtain a Rule 48(a) dismissal based on broad considerations of justice.  Weber, 721 F.2d at 268.  We emphasized that “it is the duty of the United States Attorney not simply to prosecute, but to do justice.”[215]

 

            Here, the prosecutor sought to dismiss Count III in part because of a desire ‘to do justice’ — that is, he was concerned about the fairness and appropriateness of a plea agreement reached when the defendant lacked full information regarding the consequences.  Such a concern, if held in good faith, is a proper and appropriate reason for dismissing an indictment — at least where the dismissal is not ‘clearly contrary to manifest public interest.’[216]

 

            Here, the request [for dismissal] was made for reasons that were both proper and appropriate.  Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III.[217]

 

[200] I A. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases, § 202, pp. 343, 344  (1988).

[201] Id. at § 204, pp. 344-346.  Professor Amsterdam, like the criminal client, does not construe the notion of collateral consequences narrowly: he specifically lists forfeiture, civil disabilities including loss of occupational or driver’s licenses, disqualification from public office, loss of voting rights, criminal registration requirements, ineligibility for military service, higher insurance rates, and “Restrictions on employment, residence, admission to professions, admission to educational institutions, and so forth.”  Id. at p. 346.

[202] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003); Strickland v. Washington, 466 U.S. 668, 688 (1984).

[203] See People v. Soriano, 194 Cal.App.3d 1470 (1987).

[204] American Bar Ass’n, ABA Standards For Criminal Justice, Pleas Of Guilty (3d Edition, 1999), Standard 14-1.4, provides: “(c)  Before accepting a plea of guilty or nolo contendere, the court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant’s immigration status.  The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea.”  Ibid. [emphasis supplied].

[205] Ibid. [emphases supplied].

[206] Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000).

[207] See, e.g., Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000); Williams v. State, 641 N.E.2d 44, 48-49 (Ind. App. 1994); People v. Mehmedoski, 565 N.E.2d 735,738 (Ill. App. 1990); see also Wis. Stat. 971.08(1)(c) (requiring that state trial courts inform criminal defendants of the federal immigration consequences of a guilty plea).

[208] Magana-Pizano v. INS, 200 F.3d 603, 613 (9th Cir. 1999), on remand from United States Supreme Court sub nom. INS v. Magana-Pizano, 119 S.Ct. 1137 (1999).

[209] Tasios v. Reno, 204 F.3d 544, 552 (4th Cir. 2000).

[210] United States v. Gonzalez, 58 F.3d 459 (9th Cir. 1995).

[211] Ibid.

[212] Ibid.

[213] Ibid.

[214] Ibid.

[215] Ibid. [emphases added].

[216] Ibid.

[217] Ibid.

Other

POST CON RELIEF - GROUNDS - VOLUNTARINESS OF PLEA - IMMIGRATION CONSEQUENCES ARE COLLATERAL CONSEQUENCES THAT DO NOT AFFECT THE VOLUNTARINESS OF A PLEA
Barajas v. State, 115 Nev. 440, 442, 991 P.2d 474, 475-76 (1999) (deportation is a collateral consequence that does not affect the voluntariness of a guilty plea), reaffirmed in Rubio v. State, 124 Nev. Adv. Op. No. 87 (October 30, 2008) (en banc).