Padilla v. Kentucky

In Padilla v. Kentucky, 559 U.S. 356 (2010), the high court ruled the defendant, a permanent resident, successfully stated a claim for ineffective assistance by alleging his counsel both failed to advise him his guilty plea on drug charges would result in his deportation and told him he would not be deported because he had been a resident for a long time. The court stated it had never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance, but it chose not to address that issue because deportation was an integral part of a penalty imposed on a noncitizen resident. (Id. at pp. 359, 364-365.) Because deportation was "uniquely difficult to classify as either a direct or a collateral consequence," the distinction did not apply to a claim of ineffective assistance concerning the risk of deportation. (Id. at p. 366.) The defendant, a native of Honduras and lawful permanent resident of the United States, faced deportation after pleading guilty to the transportation of a large amount of marijuana (id. at 359). His attorney not only failed to advise him of the risk of automatic deportation but assured him that he " did not have to worry about his immigration status since he had been in the country so long'" (id.). Since "the consequences of the plea could easily be determined from reading the removal statute," which "specifically commanded removal for all controlled substances convictions except for the most trivial of marijuana possession offenses," it was "not a hard case in which to find" counsel's performance deficient (id.). Where the "deportation consequences of a particular plea are unclear or uncertain," counsel's duty "is much more limited" (id.). Thus, "where the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a client that pending criminal charges may carry a risk of adverse immigration consequences" (id. at 369). In other words, where it is unclear whether a certain conviction meets the statutory criteria for mandatory removal, defense counsel is not required to inform his client that he is subject to automatic deportation. Rather, the attorney need only caution the defendant that his plea may have negative immigration consequences. For example, it may be uncertain "whether a particular crime is an aggravated felony' or a crime involving moral turpitude'" (id. at 378 Alito, J., concurring) or "whether a particular state disposition will result in a conviction' for purposes of federal immigration law" (id. at 380). Recognizing that "deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes," the United States Supreme Court held that constitutionally competent counsel must advise a defendant whether his conviction subjects him to automatic deportation (id.). The court observed that under contemporary immigration law, "if a noncitizen has committed a removable offense . . . his removal is practically inevitable" (id. at 363-364). It characterized deportation as a "drastic measure" (id. at 360) and a "particularly severe penalty" (id. at 365) which is the "equivalent of banishment or exile" (id. at 373-374). While acknowledging that many courts have held generally that defense counsel need not advise his client about collateral consequences, the Supreme Court declined to distinguish between direct and collateral consequences to define the scope of effective assistance, noting that deportation is "uniquely difficult to classify" (Padilla, 559 U.S. at 373-374). Accordingly, it held that where the terms of the immigration statute are "succinct, clear and explicit" (id. at 368) in stating the deportation consequence of a conviction, defense counsel's "duty to give correct advice is equally clear" (id. at 369). Hence, where the risk of automatic deportation as a consequence of a conviction is "truly clear from reading the text of the removal statute" (id.), defense counsel must advise his client specifically about it. The United States Supreme Court had occasion to review a claim of ineffective assistance of counsel in the context of a case similar to the instant setting. Defendant Padilla, a lawful permanent resident of the United States for more than forty years, pleaded guilty to transporting a large quantity of marijuana. Upon his subsequent receipt of a deportation notice, he sought to vacate his conviction upon the alleged ground "that his counsel not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long'" (130 S Ct at 1478). Defendant Padilla also "alleged that he would have insisted on going to trial if he had not received incorrect advice from his attorney" (id.). The Supreme Court "agreed with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that the Court did not address" (id.). Noting that a defendant is entitled to effective assistance of counsel before deciding to enter a guilty plea (id. at 1480-1481), the Supreme Court observed that, "under strickland v. washington, we first determine whether counsel's representation fell below an objective standard of reasonableness'. The first prong - constitutional deficiency - is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" (id. at 1482). "The weight of prevailing professional norms supports the view that counsel must advise his or her client regarding the risk of deportation. . . . Authorities of every stripe - including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . ." (id.). In Padilla v. Kentucky, the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the defendant's Sixth Amendment right to counsel. Though Defendant does not raise this line of argument, and the People assert that the Padilla decision cannot be applied retroactively, given that this is the second time Defendant has sought vacature of his plea, the Court will address this issue at this time. In Padilla, a lawful permanent resident of the United States was informed by his counsel that "he did not have to worry about his immigration status" if he plead guilty to transporting a large quantity of marijuana "since he had been in the country" for approximately 40 years. See, 130 S. Ct. at 1477-1478. This advise was incorrect, and defendant was subjected to removal proceedings. 130 S. Ct. at 1477. The defendant was affirmatively mis-advised that he would not be deported, where his deportation was certain under the law. This, the Supreme Court found to constitute ineffective assistance of counsel, but the High Court did not reach the question of whether the defendant had established prejudice as a result of counsel's incorrect advice and would be thereby entitled to relief. The United States Supreme Court simply held that "counsel must inform her client whether his plea carries a risk of deportation," and found that the defendant's counsel was deficient for failing to do so. (Padilla, supra, 559 U.S. at pp. 373-374.) However, counsel in that case not only failed to advise the defendant of immigration consequences prior to entering his plea, but also told him that he "did not have to worry" about his immigration status, since he had been in the United Stated for so long. (Id. at p. 359.) The United States Supreme Court found defense counsel's performance deficient. Although the consequences of the defendant's plea could have easily been determined from reading the applicable statute, counsel failed to advise the defendant in accordance with the statute. Furthermore, his counsel's advice was incorrect. (Id. at pp. 368-369.) The court stated: "It is our responsibility under the Constitution to ensure that no criminal defendant--whether a citizen or not--is left to the 'mercies of incompetent counsel.' . To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation." (Id. at p. 374.) The Court was worried that limiting its holding "to affirmative misadvice would invite two absurd results." (Id. at p. 370.) "First, it would give counsel an incentive to remain silent on matters of great importance . . . Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available." (Id. at pp. 370-371.) The Court held that constitutionally competent counsel must advise their noncitizen clients whether their guilty plea carries a risk of deportation. The Supreme Court noted that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under strickland v. washington." The Court went on to conclude that even if deportation is a collateral consequence of a guilty plea, the failure to advise a client of the risk of deportation in pleading guilty constitutes deficient performance, given the "unique nature of deportation," which has been "long recognized as a particularly severe penalty, although not, in a strict sense, a criminal sanction," and which is "uniquely difficult to classify as either a direct or a collateral consequence."