Post-Conviction Relief for Immigrants

 

The court must inform the defendant prior to plea of the direct penal consequences of the plea.  When challenging a conviction for lack of advice concerning the consequences of the plea, it is somewhat more difficult to sustain the defense burden of proof because a showing of prejudice is required. 

 

            To prevail, it is necessary to establish:

 

(a) the court failed to advise the defendant of the direct penal consequences of the plea,

 

(b) the client was in fact unaware of these consequences, and

 

(c) the client would have refused to enter the plea if s/he had been properly advised of these consequences.

 

            The California courts have held that the failure to inform a defendant of the direct consequences of the plea is a judicially-declared rule of criminal procedure, not rising to the level of constitutional magnitude.[356]  As a result, any error regarding the direct consequences is subject to a harmless error analysis in state court.  Relief will not be granted unless the petitioner demonstrates a reasonable probability that s/he would have entered a different plea if properly advised.[357]

 

            The defendant must be informed of the following direct consequences:

 

(a) The maximum possible penalty that may be imposed as a result of the plea;[358]

 

(b) absolute or presumptive probation ineligibility;[359]

 

(c) the maximum period of parole defendant might have to serve after completion of any prison term imposed;[360]

 

(d) any mandatory requirement of registration, e.g., as a sex or narcotics offender;[361] and

 

(e) that the defendant cannot withdraw the plea even if the court fails to impose the expected sentence.[362]

 

Some courts have held, improperly, that even government misadvice concerning the deportation consequences of a plea does not justify vacating the conviction.[363]  These decisions are inconsistent with a host of authority.  See § 6.17, supra.[364]

 

The court is not required to advise defendants regarding collateral consequences that do not automatically flow from the conviction.  Thus, the court need not explain the availability of good time or work-time credits as a direct consequence of plea.[365]

[356] Bunnell v. Superior Court, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310 (1975); In re Yurko, 10 Cal.3d 857 (1974).

[357] People v. McMillion, 2 Cal.App.4th 1363 (1992).  This showing of prejudice requires evidence that defendant would not have entered the plea if s/he had been informed of the consequences that were omitted.  In re Ronald E., 19 Cal.3d 315, 137 Cal.Rptr. 781 (1977).  In the immigration context, this might include statements that the defendant would not have entered a guilty plea, or would instead have sought a non-deportable result, a sentence of less than one year, or a plea to an alternative offense that does not exhibit moral turpitude, and the like.  See California Criminal Law and Immigration, § 8.28.

[358] Hart v. Marion Correc. Instn., 927 F.3d 256 (6th Cir. 1991), cert. denied, 502 U.S. 816 (1991) (conditional habeas relief available where defendant was incorrectly informed by trial judge and counsel as to the maximum period of incarceration); Marvel v. United States, 380 U.S. 262 (1965); United States v. Roberts, 5 F.3d 365 (9th Cir. 1993); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); cf. Lane v. Williams, 455 U.S. 624, 630 and n.9 (1982) (reserving the question whether and under what circumstances a failure to inform a defendant of a mandatory parole term will invalidate a guilty plea); Hill v. Lockhart, 106 S.Ct. 366, 369 (1985) (dictum that failure to inform a defendant that his or her eligibility for parole is restricted because of a prior conviction would not invalidate a guilty plea); In re Birch, 10 Cal.3d 314 (1973).

[359] People v. Caban, 148 Cal.App.3d 706 (1983).

[360] In re Moser, 4 Cal.4th 342 (1993).

[361] The requirement that certain controlled substances offenders must register under California Health and Safety Code § 11590 must be disclosed to the defendant, prior to entry of the plea.  People v. Cotton, 230 Cal.App.3d 1072, 284 Cal.Rptr. 757 (1991).

[362] United States v. Benitez, 310 F.3d 1221 (9th Cir. November 25, 2002) (conviction reversed where district court failed to inform defendant he could not withdraw guilty plea if court did not accept sentencing recommendation set forth in plea agreement, in violation of Fed. R. Crim. P. 11(e)(2)).

[363] El-Nobani v. United States, 287 F.3d 415 (6th Cir. April 4, 2002) (misrepresentation by government regarding deportation consequences prior to plea does not justify habeas claim when plea not first challenged on direct review as deportation is collateral consequence to plea; arguments that IIRAIRA makes deportation mandatory, and thus not collateral, rejected since INS has prosecutorial discretion to bring case, and deportation is beyond control and responsibility of  district court).

[364] Chizen v. Hunter, 809 F.2d 560, 561-563 (9th Cir. Dec. 24, 1986) (plea involuntary where defense attorney misrepresented that court had committed itself to particular sentence and defendant relied on that representation; no prejudice required); Wanatee v. Ault, 101 F.Supp.2d 1189 (N.D. Iowa 2000) (to establish prejudice from trial counsel’s deficiencies in advising petitioner about a plea bargain, petitioner must show: (1) a plea agreement was formally offered by the prosecution; (2) petitioner would have accepted the plea agreement if he had been properly advised by counsel about the applicable law, which is an objective test, i.e., what a reasonable defendant would have done; and (3) petitioner could have performed any conditions attached to the agreement. The district court agrees with respondent that after-the-fact assertions by petitioner that a plea offer would have been accepted are insufficient in and of themselves to meet the prejudice standard. In finding that petitioner’s assertions were corroborated, the district court notes, among other things, that petitioner mounted an intoxication defense at trial rather than a complete denial of liability. This defense would at best have garnered him a conviction for second-degree murder, which was what the plea agreement was for. Finding a reasonable probability that petitioner could have satisfied the terms of the plea agreement, the district court concludes that petitioner is entitled to relief.).

[365] People v. Barella, 20 Cal.4th 248 (1999).