This argument can be used in an effort to invalidate a conviction resulting from a jury or court trial, as opposed to a guilty plea.  The law is well-established that counsel may render ineffective assistance during plea bargaining, even if the defendant chose to take the case to trial.[233]  The claim is one of ineffective assistance of counsel in proceeding to trial, rather than accepting the proposed plea bargain or working to negotiate an immigration-harmless result. 

 

            A serious underestimation of the exposure to which the defendant will be subjected on conviction at trial can be considered reversible ineffective assistance of counsel.[234]  “The decision to reject a plea bargain and plead not guilty is [] a vitally important decision and a critical stage at which the right to effective assistance of counsel attaches.”[235] 

 

            As the California Supreme Court concluded in Alvernaz:

 

We conclude, as have all federal and state courts presented with this issue, that . . . where counsel’s ineffective representation results in a defendant’s rejection of an offered plea bargain, and in the defendant’s decision to proceed to trial — also give rise to a claim of ineffective assistance of counsel.  Both alternate decisions — to plead guilty or instead to proceed to trial — are products of the same attorney-client interaction and involve the same professional obligations of counsel.  Application of the constitutional guarantee of effective assistance of counsel to the advice given a defendant to plead guilty necessarily encompasses the counterpart of that advice: to reject a proffered plea bargain and submit the issue of guilt to the trier of fact.[236] 

 

            Counsel can prove and argue that criminal counsel would have recommended against taking the case to trial if the true immigration consequences had been known.  Immigration counsel, if consulted, would have recommended against taking the case to trial under the circumstances of this case.  The client undoubtedly would have declined to take the case to trial if s/he had been informed of the actual immigration consequences of his or her different courses of action.

[233] In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992) (counsel rendered ineffective assistance by telling defendant his exposure was small, when it was in fact a minimum of 16 years, 7 months before parole); People v. Brown, 177 Cal.App.3d 537 (1986); Turner v. Tennessee, 858 F.2d 1201 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989), reinstated, 726 F.Supp. 1113 (1989), aff’d, 940 F.2d 1000 (6th Cir. 1991), cert. denied, 112 S.Ct. 915 (1992) (attorney’s incompetent advice in rejection of plea offer constituted ineffective assistance of counsel); see United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994) (ineffective assistance of counsel in failing to communicate plea offer to defendant; prejudice not cured by fair trial); United States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (squarely rejecting argument that “a defendant can suffer no prejudice by standing a fair trial”).  In United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992), the court held the relevant inquiry was whether counsel’s failure to apprise defendant of his right to challenge the typicality of part of his conduct, for sentencing purposes under the Guidelines, deprived him of the right to make a reasonably informed decision whether the accept the plea offer.

[234] In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992) (counsel rendered ineffective assistance by telling defendant his exposure was small, when it was in fact a minimum of 16 years, 7 months before he would become eligible for release on parole).

[235] United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982); United States v. Smith, 824 F. Supp. 420, 425 (S.D.N.Y. 1993).

[236] In re Alvernaz, supra, 2 Cal.4th at 934-935 [footnote omitted].

Fifth Circuit

POST CON - FEDERAL - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL- INEFFECTIVE REPRESENTATION DURING PLEA BARGAINING - UNDERSTATEMENT OF EXPOSURE AFTER CONVICTION AT TRIAL
United States v. Grammas, 376 F.3d 433 (5th Cir. 2004) (denial of effective assistance of counsel in plea negotiations where counsel gave incompetent advice, which misstated the exposure defendant faced at trial, and defendant proceeded to trial instead of entering a guilty plea; case remanded for determination of actual prejudiced, i.e., whether defendant would have pleaded guilty with competent advice and whether he would have received a reduced sentence had he pled guilty).