Oberholzer v. Commission on Judicial Performance, 20 Cal.4th 371, 375, 975 P.2d 663 (May 13, 1999) (Commission on Judicial Performance has authority to issue advisory letters, such letters are a form of discipline, its procedures comport with the requirements of due process of law, and such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty).

It is true that the Supreme Court, in Padilla, discussed counsels duty to advise where the immigration law is not clear. In that situation, it stated, more general advice that the plea may trigger deportation or other immigration consequences may suffice. But it is well-established that defense counsel must first conduct a competent investigation before giving such advice, and a competent tactical decision cannot be based on ignorance.

As the Supreme Court held in Strickland v.

Julia Preston, In Deportation Policy Test, 1 in 6 Offered Reprieve, N.Y. TIMES (Jan. 19, 2012) (16 percent of all those facing deportation in Denver " 1,301 immigrants " will receive offers from prosecutors to close their cases after they pass criminal background checks. Department of Homeland Security officials plan to extend the review in coming months to all of about 300,000 cases before the countrys immigration courts.). Nationwide, about 39,000 immigrants nationwide could see their deportations suspended.

In a pending en banc case, Young v. Holder, the court has asked for supplemental briefing on the validity of Sandoval-Lua, 499 F.3d 1121, 1131 (9th Cir. 2007) and Rosas-Castaneda v. Holder, 655 F.3d 875, 886 (9th Cir. 2011), rehg en banc denied. The court potentially could overrule these decisions. Even if the court does not, the issue could go to the Supreme Court at some point because of a split between circuits.

Chris Conrad is an expert on the biological classification of various species of Cannabis, including C. Sativa L., and C. Indica L. chris@chrisconrad.com; T 510.215.8326; F 510.234.4460. His assistant Danielle is very responsive if you have trouble getting in touch with Mr. Conrad. Her email address is pirkolater@gmail.com.

An October 2010 ICE memo from ICE Deputy Legal Advisor Riah Ramlogan to ICE Assistant Deputy Director Beth Gibson presenting ICE's legal arguments for making Secure Communities mandatory.
http://www.aila.org/content/default.aspx?docid=38217

In state court, post-conviction counsel may confront an argument that Padilla is not retroactive as to pleas that were entered prior to March 31, 2010, the date Padilla was decided. Counsel can still make three arguments:

1. Padilla is an "old" rule; it is an application of the familiar Strickland v. Washington 1984 rules on ineffective assistance of counsel to a new set of facts. Two state courts of last resort (Maryland and Massachusetts) have held that Padilla is "old" and applies retroactively.

The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility.

The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea.

Where the court takes a waiver of the right to (appointed) counsel, it is obligated to advise the defendant concerning the dangers and disadvantages of self-representation.

Smith v. Cain, ___ U.S. ___, 132 S.Ct. 627 (Jan. 10, 2012) (prosecutor's failure to disclose contradictory statements of the sole eyewitness, whose testimony formed the basis of defendant's conviction, was a Brady violation requiring reversal of the conviction, because the statements are material where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different).