Criminal Defense of Immigrants


§ 3.56 4. Corroborating the Client's Assertions of Prejudice

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                The courts are somewhat skeptical concerning the defendant’s claims that s/he has been prejudiced by counsel’s error.  As a result, it is wise to corroborate every factual assertion supporting a claim of prejudice — that if the error in question had not occurred, there is a reasonable probability that a more favorable result would have occurred for the client.


                For example, in In re Alvernaz,[166] a habeas petitioner complained of IAC when counsel mistakenly informed him that his risk of incarceration was two or 2 ½ years if convicted, whereas he actually received a sentence requiring him to serve 16 years 7 ½ months before parole.  The court, in holding the petitioner had not demonstrated prejudice, stated that “defendant’s self‑serving statement that he would have accepted a proffered plea bargain is insufficient to establish prejudice.”[167]  After the California Supreme Court denied habeas, the federal district court granted the writ and vacated the conviction on the ground original counsel had rendered ineffective assistance by underestimating the petitioner’s exposure if convicted at trial.[168]


                The Alvernaz decision by the California Supreme Court did not, however, completely reject “self‑serving” statements.  Indeed, all statements made by a petitioner in a habeas corpus petition (and by respondent in its return) are to some extent self‑serving.  What Alvernaz said is that such a statement “in and of itself” is insufficient to establish prejudice and that such a statement must be “corroborated by independent, objective evidence.”[169]


                In Alvernaz, not only did the petitioner fail to corroborate his claim of prejudice, but the available evidence indicated that he was not prejudiced: Alvernaz had continuously and adamantly insisted upon his innocence.  The court thus ruled that even if counsel had adequately informed him of the consequences of going to trial and losing, Alvernaz would not have accepted the prosecution’s offer.


                It is important for the petitioner to develop as much independent, credible, objective evidence as possible supporting petitioner’s claim that s/he would not have pleaded guilty if properly informed of the drastic immigration consequences of the plea.[170]


The California Supreme Court has held that defense counsel’s affirmative misadvice at plea regarding the immigration consequences of a criminal conviction can constitute ineffective assistance of counsel, if prejudice is shown. [171]  The court soundly rejected the “collateral consequences” doctrine, which states that defense counsel has no duty to advise concerning immigration consequences because they are imposed by a different agency, since that doctrine originated to limit the court’s duty to advise at plea, rather than the obligations of counsel.  The court did not decide whether counsel’s silence on the question can constitute ineffective assistance, but limited its decision to affirmative misadvice.  The court therefore left standing California court of appeals decisions from nearly 15 years earlier[172] holding that defense counsel’s failure to investigate the immigration consequences of a plea or sentence constituted ineffective assistance of counsel. The court ultimately held on the facts of the case the petitioner had not established prejudice, i.e., a reasonable probability that he would not have entered the plea absent counsel’s error.

[166] In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992)

[167] Id. at 938.

[168] Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D.Cal. 1993).

[169] In re Alvernaz, supra, 8 Cal.Rptr.2d at 727.

[170] Declarations may be obtained from original defense counsel, friends and family of the accused, new defense counsel, and immigration counsel in order to corroborate the petitioner’s declaration.

[171] In re Resendiz, 25 Cal.4th 230 (Apr. 2, 2001).

[172] People v. Soriano, 194 Cal.App.3d 1470 (1987); People v. Barocio, 216 Cal.App.3d 99 (1987).