Effective Assistance of Counsel Where Pleas Mandate Deportation Effective Assistance of Counsel Where Pleas Mandate Deportation
Padilla v. Kentucky expands the 6th Amendment right to counsel for noncitizens while clarifying that where a conviction would automatically lead to deportation the attorney is obliged so to advise the client. The authors explain that current practice and existing constraints on defense counsel make an influx of Padilla motions unlikely and argue that Padilla should be applied retroactively.
Recently the United States Supreme Court expanded the right to counsel in Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 03/30/10). The criminal bar and the Hennepin County bench have been abuzz with discussion of what this decision means to providing effective assistance of counsel to noncitizens, and whether this decision applies retroactively. Guidance on both issues is needed.
Deportations for criminal convictions have dramatically increased in recent years. This can help explain why the United States Supreme Court has raised the bar on what constitutes effective assistance of counsel for noncitizens.
Padilla includes a brief history of criminal convictions and their immigration consequences in the United States, explaining that under contemporary law, “… if a noncitizen has committed an offense after … 1996 … his removal is practically inevitable.”1 From 1917 until 1990, a procedure to allow a discretionary judicial recommendation against deportation or “JRAD” existed, meaning no conviction was an automatically deportable offense. After the 1996 amendments to immigration law, certain offenses that were clearly deemed deportable did not have the prior mechanisms of judicial discretion or the attorney general’s authority to provide relief from deportation.2 Padilla noted that these changes raised the stakes for immigrants when pleading guilty, and found that:
When the law is not succinct and straightforward (as it is in many scenarios posited by Justice Alito), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it is in this case, the duty to give correct advice is equally clear.3
This appears to mean that the duty of an attorney to let a client know that there “might be” immigration consequences, up to and including deportation, still remains in cases where the immigration judge retains discretion in deciding the ramifications of a guilty plea. But when deportation is mandatory, a lawyer must advise the client that pleading guilty will lead to deportation.
No Longer a Collateral Sanction
In Padilla, the state of Kentucky argued that deportation was a collateral matter, one not within the sentencing authority of the state. Minnesota similarly has held deportation to be a collateral consequence of a guilty plea.4 Padilla states:
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the 6th Amendment right to counsel. Strickland applies to Padilla’s claim.5
While Padilla declines to address directly whether deportation is a direct or collateral consequence of a guilty plea, the Supreme Court states that it has never applied a distinction between a direct or collateral consequence under Strickland, and expands the right to reasonable professional assistance by finding Padilla had sufficiently alleged constitutional deficiency under the first prong of the Strickland analysis.6 The court must first determine whether counsel’s representation “fell below an objective standard of reasonableness.”7
Padilla found that it had, noting:
In the instant case, the terms of the relevant immigration statute [8 U.S.C. §1227(a)(2)(B)(i)] are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction … . Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substance convictions except for the most trivial of marijuana possession offenses.8
Padilla did not address the second prong of Strickland, whether or not Padilla suffered prejudice, but left that determination to the state of Kentucky.9
Although a client charged with an offense that mandates deportation must be advised accordingly, it may not be so simple with certain crimes, such as those “involving moral turpitude,” which are only partially defined by case law and statute, and have less certain consequences.
Crimes Involving Moral Turpitude
A crime of moral turpitude (CMIT), “refers generally to conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general. … Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”10 Many crimes have been held to be deportable as CMITs, but with a definition such as “inherently base and vile,” many CMITs may not meet the standard provided in Padilla to bring a successful ineffective-assistance-of-counsel motion, though there may be exceptions where case law had clearly defined a crime as a deportable CMIT after 1996.
If a noncitizen pleads guilty to a crime that is not defined by immigration statute as deportable, but is deemed such by case law that a lawyer could have “simply read,” what are the limits of an attorney’s duty to the client under Padilla? These more detailed issues will likely be dealt with by state courts as the issues arise.
Padilla has no doubt exposed to immigration judges the ignorance of many involved in state criminal proceedings about immigration consequences, and this may influence their judicial discretion where it exists.
Retroactivity of Padilla
Minn. Stat. §590.01 governs motions for post-conviction relief. Section 590.01, Subd. 4(3) specifically provides that relief shall be available where the petitioner asserts a new interpretation of a federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court and the petitioner establishes that this interpretation is retroactively applicable to the petitioner’s case.11
The notion that a defense attorney has a duty to advise his client properly before a plea is not new; after all, Strickland was decided in 1984. But expanding the rights of noncitizens at the time of plea based upon a definitive deportation consequence is a new interpretation of effective assistance of counsel.
Because Padilla is a new interpretation of the United States Constitution, we believe that the Padilla decision is applicable retroactively.
The Padilla decision seems to set 1996 as the point after which immigration law changed to require removal for convictions of certain offenses.12 To that extent, Padilla motions based on pleas before the 1996 amendments are not likely to be valid. The question of retroactivity of constitutional decisions is complex, however, and involves a number of actions and considerations.
The Minnesota Supreme Court has followed the traditional federal rule articulated in Teague v. Lane in deciding whether a United States Supreme Court decision is retroactive.13 The federal rule provides that a final judgment is not retroactive unless “(1) when the rule places certain specific conduct beyond the power of the criminal lawmaking authority to proscribe it, or (2) when the rule is a ‘watershed’ rule of criminal procedure, and is a rule without which the likelihood of accurate conviction would be seriously diminished.”14
In State v. Houston, the appellant argued that a new constitutional rule regarding sentencing was retroactive and applied to his case.15 The Minnesota Supreme Court declined to apply the new constitutional rule retroactively, stating: “While the right to a jury trial implicated by Blakely is fundamental to our system of criminal procedure, Blakely does not impact the accuracy of an underlying determination of guilt or innocence.”16 The court added: “To be a watershed rule, the new rule must be one without which ‘the likelihood of an accurate conviction is seriously diminished.’”17
The right to effective assistance of counsel is a watershed rule of criminal procedure. Without effective assistance of counsel, the likelihood of an accurate criminal conviction is seriously diminished. A legal permanent resident is much more likely to plead guilty, even if he is innocent, if he incorrectly believes from counsel’s representations that he will be able to remain in the United States, which certainly calls the accuracy of the conviction into question.
In Danforth v. State, Minnesota argued that Teague limited the effect of new rules of criminal procedure. The United States Supreme Court reversed the original Minnesota decision, holding: “The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.”18 The Minnesota court then noted that it is not bound by the United States Supreme Court’s determination of fundamental fairness in its remanded decision.19
Teague has been criticized for being applied so strictly by the United States Supreme Court “that decisions defining a constitutional safeguard rarely merit application on collateral review.”20 The Minnesota Supreme Court stated:
… Teague allows for the possibility that eventually there may be a new rule that is critical to fundamental fairness. That there have been no ‘watershed’ rules announced in the 19 years since Teague does not mean Teague is unyielding or unworkable. It simply means that such cases are rare.21
Because Padilla is a new interpretation of the United States Constitution, expanding 6th Amendment rights guaranteed under Strickland, it appears that the Padilla decision is a watershed rule of fundamental fairness, and should be applied retroactively.22
Minnesota Rule of Criminal Procedure 15.05, subd. 1, allows a defendant to withdraw his guilty plea after sentencing if the motion is timely and if he can prove that withdrawal is necessary to correct a manifest injustice. While there are no time limits on motions to withdraw guilty pleas, such motions are expected to be “made with due diligence, considering the nature of the allegations therein.”23 The requirement that the plea be intelligent is designed to ensure that the defendant understands the charges, the rights being waived, and the consequences of the guilty plea.24
Attorneys must advise noncitizen clients when guilty pleas require automatic deportation. For judges wary of an influx of “Padilla motions,” take heart. As the United States Supreme Court noted, many attorneys have been practicing “effectively” since the 1996 amendments. Even when there are valid claims, defense attorneys are still governed by the Strickland test, the Minnesota Rules of Criminal Procedure, statutes, case law, and the merits of each case.
1 Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 03/30/10) [hereinafter “Padilla”], at 1480.
3 Padilla at 1483.
4 Alanis v. State, 583 N.W.2d 573, 578 (Minn.1998).
5 Padilla at 1482. Strickland v. Washington, 466 U.S. 688 (1984), clarified the 6th Amendment right to effective assistance of counsel, and applied a two-prong test to determine whether counsel was effective.
6 Id. at 1481, 1483.
7 Id. at 1482.
8 Id. at 1483.
9 Id. at 1482-1483.
10 Matter of Franklin, 20 I &N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995).
11 A recent unpublished opinion by the Minnesota Court of Appeals, Edwards v. State, 2010 WL 1753327 (Minn. App. 05/04/10), states in a footnote that Padilla does not apply to the record in Edwards. At the time this article was written, this was the only Minnesota case addressing the Padilla ruling.
12 See Padilla at 1480.
13 Danforth v. State, 761 N.W.2d 493 (Minn. 2009) [“Danforth II”]; Teague v. Lane, 489 U.S. 288, 311-12 (1980) [“Teague”].
14 Teague 311-312, q. in Danforth II, at 496.
15 State v. Houston, 702 N.W.2d 268 (Minn. 2005) [“Houston”].
16 Id. at 273.
17 Houston at 273, quoting Teague at 313.
18 Danforth v. State, 552 U.S. 264, 266, 128 S.Ct. 1029, 1033 (U.S. Minn. 2008) [Danforth I].
19 Id. at 500.
20 Colwell v. State, 118 Nev. 807, 59 P.32d at 471 (2002).
21 Danforth II, at 500.
22 As stated earlier, the Padilla decision seems to set a guideline of 1996 as to when immigration law changed to the point that convictions of certain offenses required mandatory removal. (Other considerations, such as the timeliness of the motion and its merits will also affect a court’s willingness to hear and grant future Padilla motions.)
23 Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968).
24 State v. Trott, 338 N.W.2d 248, 251 (Minn.1983).
The Hon. John L. Holahan currently presides over the Hennepin County DWI and Drug courts. He has been a district court judge in Hennepin County since 1995. He is a 1974 graduate of William Mitchell College of Law.
Shauna Faye Kieffer has clerked for the Hon. John L. Holahan since 2008. She is a 2008 graduate of St. Thomas School of Law. She recently accepted a new job and will be practicing criminal defense with attorney Andrew Howard in Maple Grove.