about the immigration consequences stemming from their plea bargain. Applying this framework to immigration advice, counsel errs by not advising his or her client that a particular plea bargain carries a risk of deportation.5 The nature of the required advice depends on the immigration consequence’s certainty.6 Moreover, the duty to advise falls on the lawyer, and not the court, rendering boilerplate plea bargain admonishments by the court insufficient to satisfy the lawyer’s duty in situations where deportation is reasonably certain.7 Thus, previous counsel erred under Strickland by failing to provide the defendant with correct, available advice that the plea bargain (1) will result in deportation in situations where that result is reasonably certain; or (2) might so result in situations where the consequences are not easily determined or clear.8 Presuming that the client’s situation falls within this scenario, whether the error warrants relief depends on its effect on the client’s decision-making. In the context of a plea bargain, the outcome of the case would have been different, and, therefore, satisfy Strickland’s second prong, if a reasonable probability exists that the client would have rejected the plea bargain and exercised his or her right to a trial upon proper advice.9 The client must convince the court by a preponderance of the evidence that he or she would not have waived a trial and pled guilty if he or she had received correct immigration advice. Current counsel must look beyond the mere fact that the client did not understand the immigration consequences. It usually requires more than the client simply stating, “I wouldn’t have pled guilty if I had known.” To satisfy the prejudice prong, habeas counsel must fully investigate the client and the previous case. Proof of prejudice can be difficult for at least two reasons. First, the client almost always signed guilty plea admonishments advising him that he or she might suffer the consequences now being faced. The client must be prepared to show why he or she
would have rejected the plea bargain if the prior attorney had provided information that the consequences were certain. Second, although the client does not have to prove that he or she would have prevailed at trial,10 there must be proof that the client would have wanted a trial if his or her lawyer had provided proper advice. The court can consider how reasonable that position is in light of any evidence showing the strength of the State’s case and the defendant’s probable thoughts about same at the time of the plea. The defendant can more easily meet the burden if he or she can show any of the following: (a) the State’s case was weak; (b) a plausible defense to the charge; (c) the option of seeking conviction for a lesser-included offense; or (d) a guilty verdict would likely have resulted in a sentence similar to the plea bargain. To overcome these hurdles, habeas counsel must fully investigate the State’s case and the client’s living situation at the time of the guilty plea. Where possible, counsel should present evidence tending to show that the client’s current position that he or she would not have waived the right to a jury trial is reasonable, such as evidence showing that: (1) the client had been living in the United States for years with no remaining family in his or her home country, and, therefore, had nowhere to go if deported; (2) the client was married with children, and would never have voluntarily uprooted his or her family; or (3) the client’s children required medical care only available in the United States, and the client would easily risk his or her liberty for any chance that they might remain. Finally, habeas counsel must remember that a successful habeas action merely reopens the underlying case. In that event, the State might dismiss the case or might retry it. If there is a retrial, the prosecutor will likely use any of the client’s prior testimony against him or her. Habeas counsel must therefore be strategic when drafting affidavits, and must thoroughly prepare the client for crossexamination by the State if the court or-
ders an evidentiary hearing in the habeas corpus proceeding. B. If a valid Padilla argument exists, can the client raise it? (How Chaidez and De Los Reyes limit Padilla) The Court issued its opinion in Padilla on March 31, 2010, and any noncitizen whose case was pending on or after that date can raise a Padilla claim. But the question of whether defendants who pled guilty before March 31, 2010, can raise such claims has fueled many debates. The Supreme Court answered the question last year in Chaidez. Applying established retroactivity principles,11 the Court recognized that Padilla was novel, and therefore announced a “new rule,” because it was the first time it considered whether immigration advice fell within the standards for lawyer performance mandated by the Sixth Amendment.12 The Court accordingly held that Padilla’s rule was not retroactive as to convictions that were final on March 31, 2010.14 Subsequently, in De Los Reyes, the Court of Criminal Appeals of Texas wholly adopted Chaidez’s analysis.14 In doing so, the Court specifically declined to give retroactive effect to Padilla under Texas habeas corpus law.15 As a result of Chaidez and De Los Reyes, noncitizen defendants who pled guilty to a crime and received some sort of punishment prior to March 31, 2010, have an initial hurdle to presenting their claims’ merits. Habeas counsel should consider the following when deciding whether a Padilla claim can be brought in those cases. 1. Was the conviction actually final, thereby barring a Padilla claim under Teague? A conviction is “final” for retroactivity purposes where “[t]he judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before [the date of the opinion announcing a new rule].”16 Texas Rule of Appellate Proce-
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January/Februay 2014
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