Tooby's California Post-Conviction Relief for Immigrants

 

(B)

Proof of Prejudice.  It is important for 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.[216]

 

            That is because the prosecution may raise In re Alvernaz,[217] in which a habeas petitioner complained of IAC when counsel mistakenly informed him his risk of incarceration was two or two-and-a-half years if convicted, whereas he actually received a sentence requiring him to serve 16 years, seven-and-a-half months before becoming eligible for parole.  The court stated, in holding the petitioner had not demonstrated prejudice, that “defendant’s self‑serving statement that he would have accepted a proffered plea bargain is insufficient to establish prejudice.”[218]  After the California Supreme Court denied habeas, the federal district court granted the writ and vacated Alvernaz’ conviction on the ground original counsel had rendered ineffective assistance by underestimating the petitioner’s exposure if convicted at trial.[219]

 

            A three-judge plurality in Resendiz relied on Alvernaz to make a finding of no prejudice in that case.  While recognizing that the immigration consequences may play a large, if not decisive, role in the decision to plead guilty, the plurality nonetheless found insufficient evidence to corroborate petitioner’s claim that he would have gone to trial had he been correctly advised.[220]  The court noted that petitioner pleaded guilty as charged and no charges were dropped, and that he faced a maximum total punishment of five years and four months of incarceration, while his plea bargain resulted in only 180 days of local incarceration and three years of probation.[221]  Moreover, while petitioner maintained his innocence and alleged that he had a “triable case,” the court found that he had not demonstrated what evidence might have exonerated him, or what defenses he could have raised at trial.[222]

 

The lead opinion in Resendiz on this point, however, garnered only three votes.  The three judge concurring/dissenting opinion written by Justice Brown concurred in the judgment only, reasoning that petitioner could not establish prejudice because he was properly advised pursuant to Penal Code §  1016.5.[223]  Thus, while there were 6 votes for a finding of no prejudice, there was no majority in support of that portion of the opinion regarding prejudice.  It therefore lacks precedential value.[224]

 

Moreover, it is fact-based and limited to the facts of the particular case.  Resendiz reaffirmed, as it must, the federal constitutional test for prejudice.  Any case in which the specific facts indicating prejudice meet the federal prejudice test must result in reversal.  This requires credibility determinations by the factfinder, and counsel is free to argue any factor that logically tends to establish the probability of a different outcome absent counsel’s error.

 

            The Alvernaz decision by the California Supreme Court did not 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.”[225]

 

In Alvernaz, not only did 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. 

 

Corroborating evidence may include the choice to file the habeas petition itself, since petitioner now understands that if the petition prevails, the original criminal charges will be reinstated in full and that, in addition to the immigration consequences, criminal consequences potentially greater than those already suffered may be imposed.  The present willingness to undertake these risks is compelling corroborative evidence that petitioner would have accepted the very same risks in the original criminal proceedings if the petitioner had then been aware of all the consequences of the situation.

[216] 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.

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

[218] Id., 2 Cal.4th at p. 938.

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

[220] Id. at 253-54, citing People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 206-207.

[221] Ibid.

[222] Ibid., citing Hill, supra, 474 U.S. at p. 59 (probable trial outcome relevant in assessing prejudice from counsel’s failure to discover exculpatory evidence or present affirmative defense).

[223] See id. at 259 (Brown, J. concurring and dissenting).

[224] See Del Mar Light & Power Co v. Eshleman (1914) 167 Cal. 666, 682 ("[a]ny proposition or principle stated in an opinion is not to be taken as the opinion of the court unless it is agreed to by at least four of the justices.”); Board of Sup. v. LAFC (1992) 3 Cal.4th 903, 918 (a plurality opinion "lacks authority as precedent [citations], and the doctrine of stare decisis does not require us to defer to it.”).

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