Tooby's California Post-Conviction Relief for Immigrants

Chapter

§7.1 I. Geography of the Field
§7.2 II. Violations of the Right to Counsel
§7.3 A. Denial of Counsel
§7.4 1. Representation by Non-Counsel
§7.5 2. Invalid Waiver of Right to Counsel
§7.6 3. Refusal to Allow Self-Representation
§7.7 B. Ineffective Assistance of Counsel
§7.8 1. Generally -- Deficient Performance and Prejudice
§7.9 2. Failure to Conduct Competent Investigation of the Facts
§7.10 3. Failure to Research the Law
§7.11 4. Failure to Advise the Defendant of the Elements and Defenses
§7.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea
§7.13 6. Failure to Assist the Defendant to Withdraw the Plea
§7.14 7. Failure to Consult the Defendant about an Appeal
§7.15 8. Ineffective Assistance of Counsel on Appeal
§7.16 C. Failure to Defend Against the Immigration Consequences of the Plea
§7.17 1. Deficient Performance
§7.18 2. Affirmative Misadvice
§7.19 3. Failure to Advise
§7.20 4. Failure to Defend Against Conviction and Sentence
§7.21 a. Failure to Seek out an Immigration-safe Alternative Disposition
§7.22 b. Failure to Seek Out an Immigration-safe Alternative Sentence
§7.23 5. Failure to Investigate Mitigating Facts
§7.24 a. Basic Approach
§7.25 b. Sample Argument
§7.26 6. Failure to Investigate the Immigration Consequences of Trial
§7.27 7. Prejudice
§7.28 D. Conflict of Interest
§7.29 1. Multiple Representation of Conflicting Interests
§7.30 2. Conflict of Interest in Failing to Raise Counsel's Own Ineffectiveness
§7.31 3. Conflict Between Defendant and Counsel
§7.32 III. Invalid Guilty Pleas
§7.33 A. Ineffective Waiver of Jury Trial
§7.34 1. The Failure to Explain the Nature of the Right to a Jury Trial
§7.35 2. Involuntary Waiver of the Right to a Jury Trial
§7.36 B. Ineffective Waiver of Right to Remain Silent
§7.37 C. Ineffective Waiver of Confrontation
§7.38 D. Failure to Establish Factual Basis
§7.39 E. Failure to Inform Defendant of the Nature of the Offense
§7.40 F. Failure to Inform Defendant of Consequences of Plea
§7.41 G. Breach of Plea Bargain
§7.42 H. Promissory Estoppel
§7.43 I. Failure to Disclose Plea Agreement on the Record
§7.44 J. Coercion to Enter Plea
§7.45 K. Failure to Establish Mental Competence to Enter Plea
§7.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
§7.47 IV. Violations of the Right to an Interpreter
§7.48 A. The Right to an Interpreter in Criminal Proceedings
§7.49 B. Violations of the Right to an Interpreter
§7.50 C. Grounds for Invalidating Conviction for Violation of the Right to an Interpreter
§7.51 V. Other Grounds For Vacating Guilty Pleas
§7.52 A. Jurisdictional Defects
§7.53 B. Newly Discovered Evidence
§7.54 C. Prosecution Withholding of Exculpatory Evidence

§ 7.37 C. Ineffective Waiver of Confrontation

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The Constitution requires a knowing and intelligent waiver of the right to confront witnesses in order for a plea to be valid. The same basic law and rules apply here as in the context of the rights to trial by jury and right to remain silent.[331]

[331] See § § 7.34-7.35, supra; Boykin v. Alabama, 395 U.S. 238 (1969) [valid waiver of fundamental constitutional rights, including right to confrontation, may not be presumed from a silent record]; F.R. Crim. P. 11(c)(3), (4).