(E)  Other Grounds.  Many other potential statutory and constitutional grounds of legal invalidity exist that can eliminate a criminal conviction for immigration purposes.  There are at least 40 federal constitutional grounds for setting aside convictions based on guilty pleas, that can be used in any jurisdiction.  These are documented in N. Tooby, Post-Conviction Relief for Immigrants, Chap. 6 (Grounds for Vacating the Conviction) (2004).  This work is kept up-to-date monthly on www.CriminalAndImmigrationLaw.com.  What follows is a checklist of selected grounds for vacating guilty pleas.[371]  See N. Tooby, California Post-Conviction Relief for Immigrants (2002), Post-Conviction Relief for Immigrants (2004).

 

(1)  The court may fail to secure voluntary, knowing and intelligent waivers of the fundamental constitutional rights waived by a plea of guilty or no contest.[372] The plea must be vacated where the district court failed to take full Rule 11 waivers from a criminal defendant, even though the defendant has prior experience with entry of guilty pleas, fails to raise an objection, and is advised of his right to a jury trial.[373]  The court must conduct an on-the-record colloquy with the defendant, in addition to obtaining a written waiver, to obtain a valid waiver of the right to jury trial.[374]  The waiver of the right to a jury trial is not knowing and voluntary where the nature of the right was not sufficiently explained to the defendant.[375]

(2)  A defendant’s claim that his guilty plea was involuntary because of his inability to speak English was rejected, since the petition to enter the plea was written in both English and Spanish, the defendant was represented by a bilingual counsel who explained the petition in Spanish, and he was assisted by an interpreter at plea and sentencing.[376]  See, generally, Chapter 4, supra.

 

(3)  Improper use of a prior conviction, that has been or should have been[377]  invalidated, to contribute to a later conviction or sentence.[378]  A conviction of violating 18 U.S.C. § 922(g)(9) (possession of firearm by person previously convicted of a misdemeanor domestic violence offense) requires the government to prove the defendant was represented by counsel or knowingly and intelligently waived counsel.[379]  When a defendant pleaded guilty in state court, he signed a form that said he waived counsel, and warned him of consequences, but did not warn him of dangers and disadvantages of self-representation.[380]  The court held this warning was insufficient to prove a knowing and intelligent waiver, and therefore the prior conviction could not constitute a predicate offense on which to sustain a charge of possession of a firearm after conviction of a listed criminal offense.  In this case, the Ninth Circuit expressly extended the Faretta standard to misdemeanor state court crimes. “[A] brief exchange regarding the waiver of counsel should not significantly increase the burden on the courts.  While the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result, we must continually guard against assembly-line justice, in which expediency is placed ahead of fundamental fairness.”[381]  The court also pointed out that an innocent defendant, unaware of the potential consequences of a misdemeanor conviction, may be more likely to waive counsel to “get the whole thing over with,” especially if s/he is to be sentenced to time served, as was done here.[382]  The defendant, who did not knowingly and intelligently waive the right to counsel in the prior criminal proceeding, cannot be convicted of being a felon or misdemeanant in possession of a firearm under 18 U.S.C. § 922(g)(9).[383]

 

(4)  Denial of the right to counsel.[384]  A defendant who waived the right to counsel at sentencing was held to have been adequately informed of the dangers of self-representation, and the court therefore rejected his claim of violation of his right to cross-examine the doctor whose report formed the basis for a dangerous offender sentence.[385]

 

(5)  Denial of the right to an effective appeal.[386]

 

(6)  Ineffective assistance of counsel, for any reason that calls the outcome of the case into question.[387]

 

(7)  Reliance on inaccurate legal advice.[388]

 

(8)  Failure to inform the defendant of the nature of the charge and elements of the offense.[389]  The court can look to defendant’s prior life experiences in deciding whether s/he adequately understood the nature of the offense to which a plea was entered.[390]  A plea to illegal re-entry was held invalid, where neither the judge nor the prosecutor described the elements of the charge, the indictment was not read, and the judge did not ask the defendants whether they understood the charges.[391]

 

(9)  Failure of the court to inquire into the defendant’s mental competence if it was or should have been on notice of the problem. [392]  Due process requires the Tennessee statute of limitations for post-conviction relief, despite an explicit anti-tolling provision, must be tolled during any period in which petitioner was mentally incompetent.[393]

 

(10)  Inability of defense counsel to render effective assistance because of a conflict of interest.[394]  Where the trial court knew, or reasonably should have known, of a conflict of interest, it was required to inquire as to the conflict, but the defendant must show adverse performance of his attorney to win reversal of conviction on this ground.[395]

 

(11)  Erroneous waiver of counsel without adequate warning of the dangers of self-representation.[396]  For a waiver of the right to counsel to be constitutionally valid, the defendant must be made aware of the dangers of self-representation.[397]  A waiver of counsel in a misdemeanor case is subject to the same standards as in a felony case, requiring the court to warn the defendant about the dangers and disadvantages of self-representation.[398]  The Supreme Court has weakened, but not destroyed, this ground of legal invalidity.[399]

 

(12)  Failure to find a proper factual basis for the plea, where during the plea colloquy the defendant made factual statements negating essential elements of the crimes charged.[400]  Once the court finds a factual basis exists, however, Rule 11 does not require that the issue be reopened if the defendant later makes a statement suggesting the affirmative defense of justification.[401]

 

(13)  The omission of an essential element of an offense from the charging paper constitutes error.[402]  These decisions distinguished Neder v. United States,[403] which held that jury instructions omitting offense elements could be found harmless.  The Ninth Circuit has indicated in dictum that, after Apprendi v. New Jersey,[404] the failure to charge facts proved at trial that increase the maximum penalty may constitute a variance between pleading and proof in violation of due process.[405]  However, defects in the indictment are not jurisdictional errors and do not deprive the court the power to adjudicate a case.[406]

 

(14)  Breach of plea-bargain.  The circuits are divided concerning the enforceability of a federal prosecutor’s promise in a criminal plea bargain not to deport the defendant as a result of the conviction.  The Ninth Circuit held that 28 U.S.C. § 547(1), which authorizes the U.S. Attorney “to prosecute for all offenses against the United States,” requires the court to enforce a federal prosecutor’s promise, made in a plea agreement, not to deport the defendant, despite the prosecutor’s lack of express authority to bind the INS, provided the agreement falls within the scope of § 547(1).[407]  The Eighth Circuit held that the federal prosecutor has the authority to bind all government agencies to abide by plea agreements by virtue of § 547(1).[408]  The Eleventh Circuit disagreed, concluding that because only officers and employees of the INS can initiate or terminate deportation proceedings, the criminal prosecutor cannot prevent the INS from initiating a deportation proceeding by promising a noncitizen defendant in a plea agreement that s/he will not be deported.[409]   It held to do so would constitute an impermissible exercise of authority over the INS and permit the U.S. Attorney’s general power of prosecution to usurp the attorney general’s specific power to deport certain classes of noncitizens, a result not intended by Congress.  Thus, the court held, a prosecutor should not, as part of a plea agreement, promise a noncitizen that s/he will not be deported unless prior authorization from the Criminal Division of the Department of Justice has been received.[410]  The San Pedro decision, however, runs contrary to the United States Supreme Court’s decision in Santobello v. New York: “[W]hen a plea rests in any significant degree on a promise or agreement of a prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L. Ed. 2d 427 (1971).” The dissent in San Pedro pointed out that the decisive issue was not whether the prosecutor may make an effective non-deportation promise, but whether the defendant’s due process rights were violated by the government’s decision to violate its promise.  Where prosecutors, as part of the plea agreement, promised the defendant that he would not be deported, due process requires the court to afford the defendant specific performance of the promise contained in the plea agreement, or the opportunity to withdraw his guilty plea.  If the prosecutor’s promise is breached, the plea on which it was based must be held involuntary and therefore unconstitutional unless the breach is remedied.[411]

 

(15)  A district court must warn a defendant pleading guilty to certain drug-related offenses under 21 U.S.C. § 862(a) that s/he will be ineligible for certain federal benefits, including food stamp and social security programs, as ineligibility is automatic upon conviction and therefore not a collateral consequence.[412]

 

(16)  A district court’s advice to the defendant that he faced a mandatory minimum sentence lower than he actually faced rendered the plea involuntary.[413]

 

(17)  Denial of the presence of counsel.  The right to counsel includes the right for counsel to be present at a readback of testimony, and where the defendant is not afforded that right, a writ of habeas corpus is appropriate.[414]

 

(18)  Denial of right of self-representation.[415]

 

(19)  Coercion of guilty plea by “package-deal” plea bargain.[416]  The potential for coercion has been recognized by the Minnesota Supreme Court, especially when codefendants are family members.[417]  Federal courts as well have required special care when a family member’s consent is required for another’s plea agreement.[418]

[371] For other collections of grounds on which habeas corpus has been granted, see 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure 7-13 (1993 Cum. Supp.); Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 460, 481-88 (1960); Wells, Habeas Corpus and Freedom of Speech, 1978 Duke L.J. 1307, 1349-51; D. Wilkes, Federal Post-conviction Remedies and Relief § § 4-4 to 4-9 (1996 & 1998 Supp.).

[372] Boykin v. Alabama, 395 U.S. 238 (1969).

[373] United States v. Hernandez-Fraire, 208 F.3d 945 (11th Cir. 2000) (court failed to inform defendant of right to plead not guilty, right to assistance of counsel at trial, right to confront and cross-examine adverse witnesses at trial, and right against compelled self-incrimination).

[374] Cabberiza v. Moore, 217 F.3d 1329 (11th Cir. 2000) (Seventh Circuit agrees; Fifth, Sixth, Ninth, and Tenth Circuits disagree).

[375] See Johnson v. Zerbst, 304 U.S. 458 (1938); United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997); United States v. Martin, 704 F.2d 267, 273 n.5 (6th Cir. 1983) (“a defendant can hardly be said to make a strategic decision to waive his jury trial right if he is not aware of the nature of the right or the consequences of its waiver”); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981) (reversing conviction after bench trial where record did not reveal whether defendant understood his right to a jury trial and the consequences of waiver); see also United States v. Lyons, 898 F.2d 210, 215 (1st Cir. 1990) (knowing waiver requires defendant be fully informed about the right s/he is waiving).

[376] United States v. Martinez-Cruz, 186 F.3d 1102 (8th Cir. 1999).

[377] Cook v. Lynaugh, 821 F.2d 1072, 1978 (5th Cir. 1987) (ineffective counsel to admit prior conviction allegation without investigating whether it was constitutionally invalid).

[378] Johnson v. Mississippi, 486 U.S. 578, 580-84, 585 n.7 (1988).

[379] 18 U.S.C. § 921(a)(33)(B)(i).

[380] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975).

[381] Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006 (1972) (internal quotes omitted).

[382] Footnote 4, quoting Molignaro v. Smith, 408 F.2d 795, 801 (5th Cir. 1969).

[383] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[384] Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764 (2002) (suspended sentence that may result in deprivation of liberty cannot be imposed unless the defendant is afforded the assistance of counsel); United States v. Tucker, 404 U.S. 443 (1972); Burgett v. Texas, 389 U.S. 109 (1967).

[385] Lopez v. Thompson, 202 F.3d 1110 (9th Cir. 1997). A valid waiver of the right to counsel requires the court to go beyond general references to the consequences of waiving the right, and describe the specific dangers of self-representation. United States v. Hayes, 231 F.3d 663 (9th Cir. 2000) (noting the court had reversed 16 published cases on this ground since 1978, and giving model admonishment for use by district courts); Baker v. City of Blaine, 205 F.3d 1138 (9th Cir. 2000).

[386] See Johnson v. Mississippi, 486 U.S. 578 (1988).

[387] Darden v. Wainwright, 477 U.S. 168 (1986); Strickland v. Washington, 466 U.S. 668 (1984); see In re Alvernaz, 2 Cal.4th 924 (1992) (ineffective assistance of counsel for mistaken advice in rejecting plea and going to trial); Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) (failure to interview witnesses); Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999) (same); Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) (finding “constructive withdrawal from [] representation” where counsel was absent from virtually every important court proceeding, including sentencing, and failed to raise requested issues on appeal).

[388] E.g., United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998) (mistake in the estimate of appellant’s sentence).

[389] Henderson v. Morgan, 426 U.S. 637, 647 (1976).

[390] United States v. Mosley, 173 F.3d 1318 (11th Cir. 1999).

[391] United States v. Lujano-Perez, 274 F.3d 219 (5th Cir. 2001).

[392] Godinez v. Moran, 509 U.S. 389 (1993).

[393] Seals v. State, 23 Tenn. 272 (2000).

[394] Holloway v. Arkansas, 435 U.S. 475, 482 (1978).

[395] Mickens v. Taylor, 122 S.Ct. 1237 (2002) (relief denied for lack of showing of adverse performance where capital murder defendant was given an attorney who had previously represented the victim of the murder, in another criminal matter, which the trial judge had previously dismissed before he appointed him to represent the defendant in this murder).

[396] United States v. Balough, 820 F.2d 1485, 1487-90 (9th Cir. 1987).

[397] Faretta v. California, 422 U.S. 806, 835 (1975).

[398] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[399] Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379 (Mar. 8, 2004) (trial court must inform unrepresented defendants of nature of charges against him or her, right to counsel regarding plea, and range of allowable punishments for plea to be “knowing and intelligent”; trial court does not need to inform accused that viable defense will be overlooked, or that he will lose opportunity to obtain independent opinion on whether it is wise to plead guilty).

[400] Montgomery v. United States, 853 F.2d 83 (10th Cir. 1988).

[401] United States v. Smith, 160 F.3d 117 (2d Cir. 1998).

[402] United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) (indictment alleging violation of Hobbs Act, 18 U.S.C. § 1951, failed to specify mental element); United States v. Spinner, 180 F.3d 514 (3d Cir. 1999); United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc) (omission of element in indictment subject to harmless-error analysis).

[403] Neder v. United States, 527 U.S. 1 (1999).

[404] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

[405] Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000).

[406] United States v. Cotton, 122 S.Ct. 1781, 152 L. Ed. 2d 860 (2002).

[407] Thomas v. INS, 35 F.3d 1332 (9th Cir. 1994).

[408] Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994).

[409] San Pedro v. United States, 79 F.3d 1065 (11th Cir. 1996).

[410] San Pedro v. United States, 79 F.3d 1065 (11th Cir. 1996); see also United States Attorneys Manual, § 9-73.510.

[411] San Pedro v. United States, 79 F.3d 1065 (11th Cir. 1996) (Goettel, J., dissenting).

[412] United States v. Littlejohn, 224 F.3d 960 (9th Cir. 2000).

[413] United States v. Santo, 225 F.3d 92 (1st Cir. 2000).

[414] Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001).

[415] See United States v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001), reh’g and reh’g en banc denied, 262 F.3d 1034 (9th Cir. 2001) (conviction affirmed).

[416] State v. Bey, 270 Kan. 544, 17 P.3d 322 (2001).

[417] State v. Danh, 516 N.W.2d 539 (Minn. 1994).

[418] United States v. Wright, 43 F.3d 491 (10th Cir. 1994); United States v. Abbott, 241 F.3d 29 (1st Cir. 2001) (failure to inform court that defendant’s plea was linked to his mother’s).

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions, affirming dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention).

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Hawaii Stat. Ann. 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. 29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031 (West 1989); Ore. Rev. Stat. 135.385 (2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. 6565; Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. 971.08(1)(c), (2) (West 1994).

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Hawaii Stat. Ann. 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. 29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031 (West 1989); Ore. Rev. Stat. 135.385 (2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. 6565; Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. 971.08(1)(c), (2) (West 1994).

Lower Courts of Eleventh Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES
United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).