19 0 obj C. Recognizing A Duty To Avoid Incompetent Advice Even When Counsel Has No Duty To Speak Is Consistent With Related Legal Principles. See United States v. O’Rourke, 213 F. 2d 759, 762 (CA8 1954). Strickland, 466 U.S. at 695 ("An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like.

Because that distinction is thus ill-suited to evaluating a. App.

§§ 218A.1421(4)(a), 532.060(2)(c).

See Verizon Communications Inc. v. FCC, 535 U. S. 467, 530 (2002). All of these affirmative obligations promote the defen dant's capacity to evaluate intelligently how to resolve her jeopardy in the criminal proceeding, in light of the defense options available and the potential punishments. 1995) (concluding that, where the sub ject of parole revocation "never came up," other factors, including potential sentencing consequences, drove the defendant's plea decision), cert. V6�`�&������,c�b�7�H��"�B2

There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. 08-651 U.S. Padilla v. Kentucky 559 U.S. 356 (2010) • 130 S. C t . United States Supreme Court. However, lower courts eventually agreed that the narcotics offense provision was “special,” Chung Que Fong v. Nagle, 15 F. 2d 789, 790 (CA9 1926); thus, a narcotics offense did not need also to be a crime of moral turpitude (or to satisfy other requirements of the 1917 Act) to trigger deportation. Gen. Laws, ch. The court held that the Sixth Amendment's guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a "collateral" consequence. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. Justice Stevens delivered the opinion of the Court.

There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. II, infra.

Hill, 474 U.S. at 60 (predictions about what advice a competent attorney would give about the outcome of a trial "should be made objectively, without regard for the 'idio syncrasies of the particular decisionmaker.'") CALL US TODAY!

And these Strickland claims would not prevail if counsel made a reasonable professional judgment that immigration consequences would likely hold little sway at sen tencing, or if the defendant could not establish prejudice-both of which inadequacies are likely in view of the limited weight of removal in the sentencing calculus.

The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. 54–55 (1950). 4 Under 8 U.S.C.

Pp. Counsel, in short, has a responsibility to provide professionally reasonable advice, if she provides any advice, even on topics as to which she need not pro vide advice at all.

In its view, neither counsel’s failure to advise petitioner about the possibility of removal, nor counsel’s incorrect advice, could provide a basis for relief. Padilla relied on his counsel's erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory.

The “drastic measure” of deportation or removal, Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes. In 1907, Congress expanded the class of excluded persons to include individuals who “admit” to having committed a crime of moral turpitude. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. See V. Flango, National Center for State Courts, Habeas Corpus in State and Federal Courts 36–38 (1994) (demonstrating that 5% of defendants whose conviction was the result of a trial account for approximately 70% of the habeas petitions filed). 37, and that petitioner would be unable to demonstrate prejudice from counsel's misdavice, id. 23 0 obj Many defen dants would likely not challenge their pleas until years later, when the collateral consequences of the conviction first become evident.

1441, 25 L.Ed.2d 763. A defendant has no entitlement to the luck of a lawless decision maker, even if a lawless decision cannot be reviewed."). To meet the preju dice standard, the defendant must show that, as an ob jectively reasonable matter, she would not have pleaded guilty but for counsel's deficient failure to advise. An attorney's Sixth Amendment duty to render effec tive assistance does not require her to provide advice about the possible immigration consequences of a guilty plea.

As Justice Alito explains at length, deportation consequences are often unclear. 25 0 obj z�,ai�ܿ��������d6!/��&���L}�7���VYUki�a��a%(�F�4ؕj �[m��-�)w�(��Xx�3�g ��OM��4 t�4G��k-1 �3+�l`d��9 J�%������bU�M�8��tm��i�*5�+�84a�8;��"�g$�]��#%JO��

R. Crim. D. Misadvice On Immigration Consequences May Consti tute Deficient Performance. Id. See 1 Restatement (Third) of the Law Governing Lawyers § 51(2) & cmt. open the floodgates to challenges of convictions obtained through plea bargains. 1101(a)(43)(B), 1227(a)(2)(A)(iii) and (B)(i) (2002), which rendered him removable and eliminated most grounds for relief from removal.

54. endstream You should consult an attorney for information on obtaining formal legal advice. Rev. Petitioner, an alien, is a national of Honduras who has lived in the United States for about 40 years. But those best- practices formulations do not define the meaning of the Sixth Amendment. ), cert. endobj J.A. See ibid. The trial court de nied the motion, finding that petitioner had validly con sented to the search of his truck. §135.385 (2007); R. I. Gen. Laws §12–12–22 (Lexis Supp. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice. The guarantee of effective assistance of counsel ap plies in all "criminal prosecutions."

To this end, we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences. See, e.g., United States v. Morse, 36 F.3d 1070, 1072 (11th Cir.

But such a claim re quires both deficient performance and prejudice. The majority’s “vague, halfway test will lead to much confusion and needless litigation,” he wrote.

No. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney. An early effort to empower the President to order the deportation of those immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 2000).

McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. The Hardin County Circuit Court denied the motion without an evidentiary hearing, observing that "[a] valid guilty plea does not require that a defendant be in formed of every consequence" of conviction.

Id. endstream

Petitioner con sented in writing to a search of the truck's trailer, where officers found approximately 1000 pounds of marijuana. 1 In 1999, the INS had issued a Notice to Appear requiring petitioner to respond to allegations that he was removable because he had been convicted of an aggravated felony in 1997-namely, a California offense of receiving stolen property, see 8 U.S.C.

Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance. Justice Stevens said the answer was yes. Strickland, 466 U.S. at 697 (ineffective assistance claim can be resolved by finding lack of prejudice without reaching adequacy of performance). There is no reason to doubt that lower courts—now quite experienced with applying Strickland—can effectively and efficiently use its framework to separate specious claims from those with substantial merit. See United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. It extends to all critical stages of the adversarial criminal process, see Rothgery v. Gillespie County, 128 S. Ct. 2578, 2591 (2008), and comprehends counsel's ad vice in deciding whether to plead guilty or go to trial. Code.

5 In addition, defendants may argue in certain cases that they should be given a reduced sentence either to enable them to avoid removal, see Pet. Thank you for your interest in our firm. 43.

See, e.g., First Nat'l Bank v. Small Bus. See, e.g., Alaska Rule Crim. P�����|�ɶ� �# �h���{K���|"AK�Li,��8D/�W;��/��p}. denied, 519 U.S. 857 (1996).