POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - ADVICE OF POTENTIAL IMMIGRATION CONSEQUENCES
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev.
POST CON RELIEF - GROUNDS - COUNSEL - PLEA BARGAINING IS A CRITICAL STAGE
Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the government are a "critical stage" of a prosecution for Sixth Amendment purposes).
POST CON - IAC - AFFIRMATIVE MISADVICE
Vega-Gonzalez v. Oregon, __ P.3d __, 2006 WL 1100564 (Apr. 27, 2006) (advice of criminal defense counsel that conviction of an aggravated felony "may" trigger deportation is not affirmative misadvice; although conviction of an aggravated felony is very likely to result in deportation, the DHS could choose not to prosecute or the noncitizen could obtain withholding of removal or relief under the convention against torture). Note: the Ninth Circuit, in United States v. Kwan, 407 F.3d 1005 (9th Cir.
POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE - UTAH POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - AFFIRMATIVE MISADVICE - UTAH
State v. Rojas-Martinez, 125 P.3d 930, 539 Utah Adv. Rep. 58, 2005 UT 86 (Utah Nov 22, 2005) (advising defendant that guilty plea and conviction for sexual battery "might or might not" lead to deportation is not an affirmative misrepresentation, and thus does not constitute ineffective assistance of counsel).
POST CON - FEDERAL - GROUNDS - INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so).
POST CON - GROUNDS - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES
Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective assistance of counsel for affirmatively misadvising noncitizen defendant of immigration consequences of conviction).
POST CON RELIEF - GROUNDS - COURT OR PROSECUTION AFFIRMATIVE MISADVICE CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding the mandatory parole provision in the plea bargain violated due process. See Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendants due process rights were violated when in the course of making a plea agreement the court misinformed him that he would not have to serve mandatory five-year parole term).
POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES - GENERAL RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) ("Our conclusion today is in agreement with the majority of jurisdictions, both federal and state, that have considered the issue of whether the failure to advise a client of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. See id., [United States v. Gonzalez, 202 F.3d 20, 24 (1st Cir. 2000)] 25; United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed.
POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE OF ACTUAL IMMIGRATION CONSEQUENCES - CONNECTICUT
State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (affirming denial of motion to withdraw the plea based on a claim that ineffective assistance of counsel meant the plea was not knowingly and voluntarily entered, since counsel's failure to advise that deportation consequence was mandatory, not merely possible, did not constitute ineffective assistance of counsel because counsel is not required to inform the defendant of collateral consequences, as opposed to direct consequences, of the plea).
POST CON RELIEF - FEDERAL -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - FAILURE TO ADVISE DEFENDANT WHEN IMMIGRATION CONSEQUENCES CHANGED PRIOR TO JUDGMENT
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel rendered ineffective assistance of counsel, by correctly advising the defendant prior to entry of plea concerning immigration consequences of disposition of criminal case that deportation was not a serious possibility, but in failing to notify the defendant when, prior to sentence, the law changed and in fact it became a near certainty, where the defendant could have made a motion under F.R.Crim.P.