Post-Conviction Relief for Immigrants

Chapter

§6.1 I. Geography of the Field
§6.2 II. Violations of the Right to Counsel
§6.3 A. Denial of Counsel
§6.4 1. Representation by Non-Counsel
§6.5 2. Invalid Waiver of Right to Counsel
§6.6 3. Refusal to Allow Self-Representation
§6.7 B. Ineffective Assistance of Counsel
§6.8 1. Generally - Deficient Performance and Prejudice
§6.9 2. Failure to Conduct Competent Investigation of the Facts
§6.10 3. Failure to Research the Law
§6.11 4. Failure to Advise the Defendant of the Elements and Defenses
§6.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea the Plea
§6.13 6. Failure to Assist the Defendant to Withdraw
§6.14 7. Failure to Consult the Defendant about an Appeal
§6.15 8. Ineffective Assistance of Counsel on Appeal
§6.16 C. Failure to Protect the Defendant Against the Immigration Consequences of the Plea
§6.17 1. Deficient Performance
§6.18 2. Misadvice vs. Failure to Advise
§6.19 3. Prejudice
§6.20 4. The Collateral Consequences Argument
§6.21 a. California Rejects the Collateral
§6.22 b. Further Arguments and Authority
§6.23 5. Affirmative Misadvice May Circumvent the Collateral Consequences Argument
§6.24 6. Failure to Investigate Mitigating Facts
§6.25 a. Basic Approach
§6.26 b. Sample Argument
§6.27 7. Failure to Investigate the Immigration Consequences of Trial
§6.28 D. Conflict of Interest
§6.29 1. Multiple Representation of Conflicting Interests
§6.30 2. Conflict of Interest in Failing to Raise Counsel�s Own Ineffectiveness
§6.31 3. Conflict Between Defendant and Counsel
§6.32 III. Invalid Guilty Pleas
§6.33 A. Ineffective Waiver of Jury Trial
§6.34 1. The Failure to Explain the Nature of the Right to a Jury Trial
§6.35 2. Involuntary Waiver of the Right to a Jury Trial
§6.36 B. Ineffective Waiver of Right to Remain Silent
§6.37 C. Ineffective Waiver of Confrontation
§6.38 D. Failure to Establish Factual Basis
§6.39 E. Failure to Inform Defendant of the Nature of the Offense
§6.40 F. Failure to Inform Defendant of Consequences of Plea
§6.41 G. Breach of Plea Bargain
§6.42 H. Promissory Estoppel
§6.43 I. Failure to Disclose Plea Agreement on the Record
§6.44 J. Coercion to Enter Plea
§6.45 K. Failure to Establish Mental Competence to Enter Plea
§6.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
§6.47 IV. Violations of the Right to an Interpreter
§6.48 A. The Right to an Interpreter in Criminal Proceedings
§6.49 B. Grounds for Invalidating Conviction for Violation of the Right to an Interpreter
§6.50 V. Other Grounds For Vacating Guilty Pleas
§6.51 A. Jurisdictional Defects
§6.52 B. Newly Discovered Evidence
§6.53 C. Prosecution Withholding of Exculpatory Evidence
§6.54 D. Actual Innocence
§6.55 E. Failure of Charge to State All Elements of Offense
§6.56 F. Other Grounds to Vacate Guilty Pleas
§6.57 VI. State Advisal Statute Violations

§ 6.55 E. Failure of Charge to State All Elements of Offense

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A conviction based on a charging document that fails to state an essential element of the offense must be vacated, when prejudice is shown.[508] See § 6.51, supra.

[508] United States v. Bird, 342 F.3d 1045 (9th Cir. September 8, 2003) (failure to allege element of charged offense is fundamental defect that renders indictment constitutionally defective; failure to state race of victim not fatal, since violation of 18 U.S.C. § 1153 can also occur when defendant is Indian in Indian country).