Book updates to PCN

POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING

State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if failure to file motion in arrest of judgment resulted from ineffective assistance).

jurisdiction: 
Lower Courts of Eighth Circuit

POST CON RELIEF - GROUNDS - COUNSEL - SELF-REPRESENTATION COUNSEL - SELF-REPRESENTATION - DENIAL BASED ON LACK OF LEGAL KNOWLEDGE

Hirschfield v. Payne, 420 F.3d 922 (9th Cir. Aug. 22, 2005) (state court properly ruled that first Faretta motion was for purposes of delay, but second motion (made after case had to be delayed due to other reasons), which was denied by another judge on the basis that the defendant did not have sufficient legal knowledge to represent himself, was erroneous; because the appellate court did not address the second motion separately, the federal panel reviewed the trial court's oral decision, and found it contrary to clearly established federal law).

jurisdiction: 
Ninth Circuit

GROUNDS - RIGHT TO COUNSEL - INVALID WAIVER - NO NEED WARN OF DANGERS

Iowa v. Tovar, 124 S.Ct. 1379 (March 8, 2004) (trial court must inform unrepresented defendants of nature charges against him, 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).
http://laws.lp.findlaw.com/us/000/02-1541.html

jurisdiction: 
US Supreme Ct

POST CON RELIEF - GUILTY PLEA WAIVES CLAIMS

United States v. Delgado-Garcia, ___ F.3d ___ (D.C. Cir. July 23, 2004) (defendants alien smuggling convictions affirmed on appeal; initial, unconditional pleading of guilty to charged crimes acted as waiver of defendants' subsequent due process and maritime law claims).
http://caselaw.lp.findlaw.com/data2/circs/dc/033060a.pdf

jurisdiction: 
DC Circuit

POST CON RELIEF - GROUNDS - DIRECT CONSEQUENCES - IMMIGRATION CONSEQUENCES HELD NOT TO BE DIRECT CONSEQUENCES - CONNECTICUT

State v. Irala, 68 Conn. App. 520 (Conn. App. May 5, 2002) ("the impact of a plea's immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea." (Internal quotation marks omitted)).

jurisdiction: 
Lower Courts of Second Circuit

COUNSEL - REFUSAL TO PROCEED WITH OR WITHOUT

United States v. Massey, __ F.3d __ (9th Cir. 2005) ("Massey attempted to hinder his trial by declining every constitutionally recognized form of counsel while simultaneously refusing to proceed pro se. A defendant may not abuse the Sixth Amendment in this way: tactics such as those employed by Massey amount to an unequivocal waiver of the right to counsel. United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994); United States v. Hardy, 941 F.2d 893, 896-97 (9th Cir. 1991)."

jurisdiction: 
Ninth Circuit

COUNSEL - SELF-REPRESENTATION - REQUEST FOR COUNSEL AT SENTENCING

Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (state trial court denial of request for counsel at sentencing by defendant who had represented himself during trial violated Sixth Amendment)

jurisdiction: 
Ninth Circuit

POST CON RELIEF - GROUNDS - SENTENCE - DENIAL OF COUNSEL

Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (Sixth Amendment right to counsel violated when trial court denied timely request for representation at sentencing on erroneous basis that once waived, the right to counsel cannot be re-asserted).
http://caselaw.lp.findlaw.com/data2/circs/9th/0217298p.pdf

jurisdiction: 
Ninth Circuit

POST CON RELIEF - FEDERAL -- CORAM NOBIS - STATUTE OF LIMITATIONS - AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS

United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

jurisdiction: 
Ninth Circuit

POST CON RELIEF - FEDERAL -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - PREJUDICE - LOSS OF OPPORTUNITY FOR FAVORABLE EXERCISE OF DISCRETION

United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel's ineffective assistance of counsel, in failing to notify the defendant when, prior to sentence, the law changed and in fact deportation changed from a mere possibility to a near certainty, was prejudicial where the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences, or attempted to obtain a sentence of two days less, and lost the opportunity for a favorable exercise of discretion).

jurisdiction: 
Ninth Circuit

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