Thoughts on Padilla

Wow. It has taken me all day to really digest this case.

As mentioned in an earlier post the U.S. Supreme Court issued a ground-breaking decision today. In Padilla vs. Kentucky, the Supremes held that constitutionally effective counsel must provide their non-citizen clients immigration advice. How accurate and thorough the advice must be depends upon the particular facts of the case. Further, only defendants who can show prejudice caused by the lack of correct advice will state a claim for ineffective assistance of counsel. The case involved a long-term Lawful Permanent Resident (LPR or Permanent Resident Alien) who plead guilty to a drug offense that is an “aggravated felony” under the Immigration and Nationality Act. Any aggravated felony makes nearly every LPR deportable and statutorily ineligible for relief from deportation. In Padilla, the defendant specifically asked his lawyer if the conviction would affect his immigration status. The defense attorney told the defendant that deportation was unlikely due to the defendant’s long residence in the United States.

Many attorneys following case law discussing the intersection of effective assistance of counsel, the collateral consequences doctrine and immigration law thought the Supremes would hold that only where a defense attorney provides affirmative misadvice, such as the case in Padilla, is ineffective. Oh no; the Court went further: “We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment Right to Counsel.” Strickland applies. The Court explains that there is a continuum of the accuracy and amount of immigration advice to be provided by effective counsel. Where the law is clear that the conviction will result in deportation, the advice must be clear. Where the law is unclear that a conviction will result in deportation, the Court suggests that advising the defendant that the criminal charge “may” present a risk to their immigration status would be sufficient. This is one of those situations where remaining silent is not the most prudent course of action--at least not for defense counsel.

While I applaud the decision, I do not underestimate the difficulty that a lawyer unfamiliar with immigration law will have determining if a particular client’s conviction will definitely cause deportation or just make deportation possible. Nevertheless, there are untold numbers of people who plead guilty to offenses that guaranteed their deportation on the advice of counsel. Having had to explain the difference between criminal and immigration law to numerous parents, wives and children of people who unknowingly agreed to their own permanent banishment from the U.S., I look forward to fewer of these conversations.

SCOTUS Holds That Defense Attorney Must Inform Non-Citizen Clients of Possible Immigration Consequences

The Court issued its opinion in Padilla v. Kentucky this morning. Padilla alleged in a post-conviction petition that his counsel "not only failed to advise him of [the immigration] consequence[s of pleading guilty] prior to his 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.'" Padilla alleged that he had relied on this erroneous advice when he pleaded guilty. He also alleged that he would have gone to trial had he received correct advice from his attorney.

The question before the Court was "whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country."

The Court concluded: "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. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less." (Internal quotations and citations omitted.)

The Court thus found the first prong of the Strickland v. Washington test for ineffective assistance of counsel, assuming Padilla's allegations were true. It then remanded the case to determine whether Padilla was prejudiced by counsel's deficient performance.

Here's a link to the opinion: http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

Wendell Juvenile Curfew Upheld

The Court rejected several constitutional challenges to the Wendell juvenile curfew ordinance today. Doe argued that the ordinance was void for vagueness, overbroad, and violative of both equal protection and of the fundamental right of a parent to direct the upbringing of his or her child.
The magistrate and district court both rejected the constitutional challenges, but the Court of Appeals found that the Ordinance was unconstitutionally overbroad.

The Supreme Court rejected the first three challenges and found that Doe did not have standing to assert his parents' right. State v. Doe, http://www.isc.idaho.gov/opinions/John%20Doe%20Opinion.pdf

Revised Cobler Opinion Issued

The Court issued an amended opinion in State v. Cobler today. (This is the case where the Court held that the district court abused its discretion in denying a motion to modify a no contact order, but upheld the sentence imposed and the denial of the Rule 35 motion.)

There was some language in the original opinion that suggested (1) that the district court could not consider good conduct while incarcerated as grounds in support of a sentence reduction, and (2) that the information that could properly be considered was had to be something that could serve “as an underlying basis for the sentence.” This could be read to mean that the new and additional information submitted in support of a Rule 35 motion had to be available but not presented at the time of sentencing.

In today's opinion the following language from the original is missing: "Furthermore, prison behavior is not the type of new or additional information that will support a Rule 35 motion, as it could not serve as an underlying basis for Cobler’s sentence." Thus, it is now clear that post-sentencing behavior can be considered by the Court as a basis for a reduction of sentence under Rule 35. It is equally clear, however, that the sentencing court does not need to give much weight to that evidence. ("Furthermore, the district court did not abuse its discretion in giving little or no weight to Cobler’s good behavior while in prison.")

Overall, this is good news. To read the amended opinion: http://www.isc.idaho.gov/opinions/CoblerSUB.pdf

Couldn't Happen to a Nicer Guy

Please join me in raising a cerveza or, if you prefer, a mezcal, to toast SCOIDBlog contributor and good guy JD Hallin who is getting married on Saturday. The bride to be is the lovely Elizabeth Carter formerly of Ketchum, Idaho.

And take a look at the hotel in Cabo San Lucas where the wedding will be. Nicely done, JD.

The wedding celebration includes several pool-side, alcohol-laden get-togethers prior to the big event. Of course, this is no surprise to those who know JD, but it sounds like they make a fun couple too. I gather this from a quick review of the wedding registry, which runs heavily towards cocktail shakers, martini glasses and champagne flutes. (Oh to be young again.)

Congratulations Elizabeth and JD and best wishes from SCOIDBlog.

To check out the wedding website: http://weddings.theknot.com/pwp/pwp2/view/MemberPage.aspx?coupleid=8411921446398403&pid=5990905

Ada County Deputy PD Honored

Congratulations to Amil Myshin on being inducted as a Fellow of the American College of Trial Lawyers! Amil is one of only four Idaho criminal defense lawyer in the College (the esteemed Fred Hoopes, Keith Roark and David Nevin are the other three). Amil has been with the Ada County Public Defenders since 1985.

Successive Capital PCP Dismissed

Today the Court affirmed the dismissal of a successive post-conviction petition in a capital case finding that it was barred under I.C. § 19-2719. Pizzuto v. State, http://www.isc.idaho.gov/opinions/State%20v.pdf.

Idaho Code § 19-2719 governs post-conviction petitions in capital cases to the extent they conflict with the UPCPA. Subsection (3) gives the defendant only 42 days after "the filing of the judgment imposing the punishment of death" to "file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known." If the defendant fails to do so, the defendant "shall be deemed to have waived such claims for relief as were known, or reasonably should have been known." I.C. § 19-2719(5). In capital cases, therefore, "a successive petition is allowed only where the petitioner can demonstrate that the issues raised were not known or could not reasonably have been known within the forty-two day time frame." (The non-capital post-conviction statute, by contrast, requires a waiver be knowing, voluntary, and intelligent. I.C. § 19-4908.)

Here, the Court found that none of Pizzuto's claims fell within the exception to the 42 day rule. It also found that 19-2719 was constitutional.