Here is the case that is likely to hash all of this out: Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008). In that case, the 5th Circuit said that defense counsel did not have a duty to tell the defendant anything regarding deportation, much less give advice that he most certainly faced deportation. (The defense attorney gave the standard advice, tracking the Texas admonishment, that the defendant faced "possible" deportation.)

Well, the defendant argued that he received ineffective assistance because advice as to a "possibility" was inaccurate. Defendant says he should have received advice as to the "certainty" of deportation.

The SCOTUS, relying no doubt on Padilla, vacated the case and sent it back to the 5th Circuit. So, now the very issue troubling us is going to have to be addressed.

If a defense attorney is held to provide deficient representation simply because he told the defendant deportation was "possible" rather than "certain", then I fear for the bar cards of all of us. That is an absurd standard. SCOTUS is going to have to reconsider this nonsense at some point.

Meanwhile, we are left to figure out how to protect a guilty plea from a defense attorney who provides the wrong level of advice or no advice at all. About the only way to do that is to ask the defendant, "So, would you be pleading guilty even if deportation was certain to take place?"

If the defendant answers, "Yes," then any deficient advice would not have prejudiced the defendant. If the defendant answers, "No," then an issue remains until someone, somewhere says the defense attorney gave proper advice in saying deportation was only "possible".

I predict that all of this will eventually return to SCOTUS. The judges will see that their new standard introduces extraordinary ambiguity in the finality of guilty pleas, and they will perhaps realize that the 6th Amendment right to counsel provision does not require the sort of detailed advice announced in Padilla.

[This message was edited by JB on 06-13-10 at .]

Sigh.

How 'bout we amend the admonition statute to add the following:

"Art. 26.13. Plea of Guilty
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
* * *
(6) the fact that if the defendant is found guilty of the offense, lots of really, really bad sh*t will happen--but it could be even worse if you are found guilty after demanding a trial, so choose carefully. Don't say we didn't warn you."

Maybe a similar warning could replace the DIC-24 warnings on breath/blood samples, too.

Works for me.

When Congress ramped up the anti-immigration laws, deporting for all sorts of new crimes, they made much of that stuff retroactive.

So, was it ineffective representation when those lawyers didn't predict deportation, even though at that time it was clear that deportation could not occur?

Shannon, that's why your admonition needs to make it clear that some of that s__t could be stuff we can't even imagine yet.

I'm all in favor of any admonition that allows a judge to warn defendants of "unimaginable bad sh*t."

I don't think that the criminal plea should be effected at all by an allegation of faulty admonitions. Seems appropriate to have that argument in the hearing determining whether to implement the collateral consequence. In other words, if those attempting to implement a collateral consequence can't demonstrate that necessary admonitions were made in the criminal plea when a challenge is made, then implementation of the collateral consequence of that plea is effected, not the plea and sentence itself. If handled in that fashion, then there exists no involuntariness issue in the criminal plea.
Then again, such a common sense approach would require some federal agencies to have to deal with this issue rather than us at the local level, wouldn't it?

i've got a habeas writ dealing with exactly this issue in Comanche County. The defendant claims that his trial attorney incorrectly informed him that he would not be deported by accepting regular probation, and is relying on Padilla to obtain a reversal. I have countered by stating that Padilla does not apply because Ky trial court did not admonish defendant like a Tx trial court. I'll post an update when the court of appeals gives a decision.

And Mark....never try to interject common sense into the federal government. The system won't be able to handle the strain.

Mark's idea makes far too much sense to be implemented by any government, not just the feds. But if it worked that way, then all the interest groups in question would get their favorite legislator to make us admonish on so many things that it would easier to just try the guys rather than let them plead guilty.

You've got a good point there.

my case involving this issue is set for submission on the briefs to the 11th Court of Appeals on July 22, 2010. Hopefully, the Court can give us some workable guidelines

Now that some time has passed since we were favored with this ivory tower decision:

what have you been seeing in the way of claims under this case?

what protocols have you implemented as a result of the decision?

If you would rather not post, feel free to email me at: stride@tdcaa.com

Thankfully the decision in Gilpen is not published and therefore will control only what happens in that case. But, it is frightening that the court would reconstruct "bad" advice about a potential collateral consequence into an involuntary plea without regard to what normally renders a plea involuntary (as described in Brady v. United States). My definition of "collateral" in this instance includes a consequence the imposition of which "is controlled by an agency which operates beyond the direct authority of the trial judge." United States v. Kikuyama, 109 F.3d at 537.

Moreover, it is quite clear that Gilpin, who has apparently remained in the country for many years after his plea, was not necessarily subject to deportation as result of his decision. To me this opinion represents a misinterpretation of art. 11.072 as well (depending, of course, on what "legal validity of the conviction" actually means). The statutory admonishments about immigration consequences must take the place of bad advice from counsel or there are a great many plea proceedings now in jeopardy (and it may become very difficult to obtain guilty pleas from aliens).

In addition, there has been no decision yet on whether Padilla is retroactive.

thank you for posting the link, Martin. I had hoped that the Court would discuss how the decision in Padilla reconciles with the statutory warning re: immigration consequences, that is required by the code, but such was not the case.

Padilla was certainly treated as retroactive and the giving of "conflicting" advice by the court was considered immaterial in Saldana, No. 03-09-00403-CR (Jul. 16, 2010, no pet. h.). Much mischief is about to occur if this is the final answer.

1. The Third Court of Appeals case made no attempt to discuss whether Padilla was applied retroactively. And it doesn't appear the State presented that argument.

2. "The State presented no controverting evidence as to counsel's effectiveness. In addition, the record shows that both parties had repeatedly attempted to secure the presence of Saldana's trial counsel in the prior proceeding. Neither had been successful in speaking to the attorney despite repeated attempts."

3. The trial court made a finding in the defendant's favor, presumably finding his claim to be credible.

Details of opinion.

In most cases, there should be written admonitions, showing that defendant was told he could be deported (even in misdemeanor cases). In addition, there should be a statement of facts from the plea, reflecting that the defendant acknowledged receiving and understanding those admonitions.

If the above happens, your judge should be encouraged to find that (1) the defendant's affidavit, if any, is not credible and (2) the defendant was properly warned. If defense attorney refuses to cooperate, ask judge to issue order requiring attorney to provide affidavit or issue a subpoena.

For details on how to document a guilty plea and avoid such problems, see the new edition of The Perfect Plea.

[This message was edited by JB on 08-11-10 at .]

[This message was edited by JB on 08-11-10 at .]

[This message was edited by JB on 08-11-10 at .]

Is this the rational, predictable system about which he thinks it is so easy to advise defendants?

Feds moving to dismiss some deportation cases

Critics assail the plan as a bid to create a kind of backdoor 'amnesty'

By SUSAN CARROLL
HOUSTON CHRONICLE
Aug. 24, 2010, 9:00PM

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Culling the immigration court system dockets of noncriminals started in earnest in Houston about a month ago and has stunned local immigration attorneys, who have reported coming to court anticipating clients' deportations only to learn that the government was dismissing their cases.

The full article

And what if those same people who have their cases dismissed now, suddenly get picked back up after thinking they were free and clear? Very predictable, indeed!

So, is Padilla's lawyer off the hook for ineffective assistance if Padilla is no longer going to be deported? Retroactive restoration of competency of the lawyer. Amazing. [This is why appellate judges should get in the courtroom every now and then.]

I revised a portion of the written admoniton form we use for pleas as follows:

"Effect on citizenship status. If you are not a citizen of the United States of America, a plea of guilty or nolo contendre (no contest) for the offense charged will result in deportation, the exclusion from admission to this country, and the denial of naturalization under federal law."

Despite my change, if an attorney does the same as Padilla's lawyer and tells the defendant not to worry, there would still be grounds for reversal based on ineffective assistance of counsel.

I would be concerned that a defendant could later complain that such advice is patently incorrect. Perhaps better to say, "Regardless of the current state of the law or any advice you might receive from your lawyer, mother or the guy in the cell next to you, Congress and ICE may well find some way to use your plea of guilty or no contest to kick your butt out of the U.S."