- Is a defense attorney required to research and advise a defendant about the possible immigration consequences that may result from entering a guilty plea?
- If a defense attorney affirmatively misadvises the defendant of the possible immigration consequences of entering a guilty plea, can the defendant later claim he received ineffective assistance of counsel?
In 2002, Jose Padilla (“Padilla”; not the terrorism detainee), a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel’s advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claims that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contends that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The outcome of this case will affect the duty a defense counsel has to a non-citizen client when advising a client regarding a guilty plea and the rights of a non-citizen to claim ineffective assistance of counsel when not advised or misadvised of immigration consequences.
Questions as Framed for the Court by the Parties
- Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
- Assuming immigration consequences are "collateral,” whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
Petitioner, Jose Padilla (“Padilla”), is a native of Honduras and a Legal Permanent Resident of the United States. See Padilla v. Kentucky, 253 S.W.3d 482, 483 (2008). He came to the United States from Honduras in the 1960s and served in the United States military during the Vietnam War.See Id. In September 2001, Padilla, a licensed commercial truck driver, was arrested for transporting marijuana. See Brief of Petitioner, Jose Padilla at 9. In October 2001, a Hardin County Grand Jury indicted him for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number. See Padilla,253 S.W.3d at 483. Under Kentucky law, trafficking in five pounds or more of marijuana is a Class C felony punishable by five to ten years of imprisonment. See Ky. Rev. Stat. Ann. §§ 218A.1421(4)(a), 532.060(2)(c).
While represented by counsel, Padilla pled guilty to the three drug charges in exchange for dismissal of the last charge and a sentence of ten years on all charges. See Padilla,253 S.W.3d at 483. As part of the plea agreement, Padilla agreed to serve five years of the sentence and to remain on probation for the remaining five years. See Id. Padilla claims that he pled guilty in reliance on his defense counsel’s advice that “he did not have to worry about immigration status since he had been in the country so long.” See Brief of Petitioner at 11. In fact, under federal law, Padilla’s felony drug conviction is an aggravated felony and a deportable crime. See 8 U.S.C. §§§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), 1227(B)(i).
On August 18, 2004, Padilla filed a motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure 11.42.See Padilla,253 S.W.3d at 483. He alleged that he had received ineffective assistance of counsel in that his attorney had misadvised him regarding the potential for deportation as a result of his guilty plea. See id.Padilla claimed that but for his attorney’s misadvice, he would not have accepted the plea agreement. See Brief of Petitionerat 11.
The Hardin County Circuit Court denied Padilla’s motion for relief, finding that a valid guilty plea does not require that the defendant be informed of every possible consequence of a guilty plea. See Padilla, 253 S.W.3dat 483. On appeal, the Court of Appeals reversed the Hardin Circuit Court’s decision and remanded the case for an evidentiary hearing. See Id. at 483–84. The Court of Appeals found that although the Sixth Amendment does not require criminal attorneys to advise clients of collateral consequences of criminal convictions, such as deportation, the affirmative act of grossly misadvising a client of collateral consequences can justify post-conviction relief. See Id.
The Supreme Court of Kentucky reversed the Court of Appeals’ decision, and reinstated the final judgment of the Hardin Circuit Court. See Padilla, 253 S.W.3dat 485. The Supreme Court of Kentucky ruled that neither counsel’s failure to advise a client of collateral consequences nor counsel’s misadvice regarding collateral consequences of conviction provide a basis for post-conviction relief. See id.Following the Supreme Court of Kentucky’s decision,Padilla petitioned the United States Supreme Court for a writ of certiorari. Brief for Petitioner at 2. On February 23, 2009, the Court granted Padilla’s petition.
The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” Over the last century, the U.S. Supreme Court has interpreted the Sixth Amendment to require that indigent defendants be appointed counsel and that all defendants receive “effective assistance of counsel.” See e.g., Gideon v. Wainwright, 372 U.S. 335; McMann v. Richardson, 397 U.S. 759 (1970). This case presents the U.S. Supreme Court the opportunity to further clarify the definition and scope of “effective assistance of counsel.” Specifically, the Court must decide whether defense attorneys have an obligation to counsel their clients on collateral consequences resulting from a criminal conviction, and whether incorrect advice about a collateral consequence constitutes ineffective assistance of counsel.
In the landmark case Strickland v. Washington, the U.S. Supreme Court adopted a two-prong test to determine whether a defendant received ineffective assistance of counsel. First, the defendant must establish that his counsel’s representation was objectively unreasonable. See Strickland v. Washington, 446 U.S. 668, 687 (1984). Second, the defendant must demonstrate that he was prejudiced as a result of his counsel’s deficient representation. See id. To satisfy this prong, the defendant must show that counsel’s errors were serious enough to undermine confidence in the result of the trial. See id.The Strickland standard also applies to the entry of guilty pleas. See e.g., Hill v. Lockhart, 474 U.S. 52 (1985). There, the prejudicial error test is satisfied if there is a reasonable probability that the defendant would not have pleaded guilty but for his counsel’s unreasonable errors. See id. at 57.
Does Defense Counsel Have a Constitutional Obligation to Advise a Defendant of Collateral Consequences Arising from a Criminal Conviction?
According to Petitioner, Jose Padilla (“Padilla”), defense counsel has a Sixth Amendment obligation to advise clients about the direct and collateral consequences of a guilty plea. See Brief for Petitioner, Jose Padilla at 34. Padilla asserts that deportation should be considered a direct consequence because it has a “direct immediate and largely automatic effect” on a defendant’s punishment. See id. at 50. He states thatrecent changes in statutory law have made deportation a “largely automatic” process following conviction. See id. at 53.
In response, Respondent, the Commonwealth of Kentucky (“Kentucky”), indicates that it is "widely accepted [that] deportation is collateral to a criminal proceeding.See Brief for Respondent, the Commonwealth of Kentucky at 37. Kentucky argues that every circuit has addressed this issue and each has determined that deportation is a collateral consequence.See id. at 37. In support, Kentucky cites the First Circuit in United States v. Gonzalez, which explained that "[w]hat renders the plea's immigration effects collateral is not that they arise virtually by operation of law, but the fact that deportation is not the sentence of the court which accepts the plea."See Brief for Respondent at 37. Finally, Kentucky argues that deportation is not a "largely automatic" consequence, as evidenced by the fact that Padilla was released from prison in November 2004 and has not yet been deported. See id. at 38.
Arguing that defense counsel has no obligation to advise a client about collateral consequences, Kentucky contends that the fundamental purpose of the Sixth Amendment is to protect a defendant’s right to a fair determination of guilt. See Brief for Respondent at 12. Kentuckyargues that the effectiveness of defense counsel’s representation must be judged solely according to counsel’s performance during the criminal proceeding. See id. at 20. As long as the defendant is aware of the direct consequences of a guilty plea, Kentucky argues, he has received effective assistance of counsel.See id. at 14. In support of its position,Kentucky cites to several U.S. Supreme Court cases, including Brady v. United States and Boykin v. Alabama, holding that a defendant must only understand the direct consequences of a guilty plea.See Brief for Respondent at 21. Kentucky maintains that this rule strikes a fair balance between the defendant’s Sixth Amendment rights and the state’s interest in the finality of guilty pleas.See id. at 27.
In support of this position Padilla notes that half of the states in the nation require trial courts to provide general advice about potential deportation consequences following guilty pleas.See Brief for Petitioner. at 54. Kentucky counters that every circuit has determined that defense counsel does not have an affirmative duty to advise defendants about collateral consequences.See Brief for Respondent at 22.
Padilla contends that the collateral consequences doctrine defines only the court’s duty in obtaining a voluntary plea, not the "distinct and more far-reaching duties of defense counsel."See Brief for Petitioner at 25. According to Padilla, the collateral consequences doctrine derives from Rule 11 of the Federal Rules of Criminal Procedure, which requires courts to advise defendants about the direct consequences of a guilty plea. See id. at 28. He contends that this requirement only applies to courts and does not define defense counsel’s Sixth Amendment obligations.See id. at 29.
Rather, Padilla argues, the interests of the client define defense counsel’s Sixth Amendment obligations. See Brief for Petitioner at 33. In this vein, he argues, the distinction between collateral and direct consequences is irrelevant, because “[t]he defendant is concerned with all significant consequences of conviction upon him and his family.”See id. Padilla emphasizes the fact that a client does not care whether it is a criminal court or a federal administrative court that will render the consequence of conviction. See id. The immigrant’s interest, Padilla stresses, is in minimizing all harms of conviction. SeeId. Thus, he reasons, a defense counsel who does not investigate and advise a client of all significant collateral consequences, simply because the consequences will occur in civil courts rather than criminal courts, cannot render effective assistance.
Both sides argue that language inStrickland regarding the use of the American Bar Association’s standards of practice supports their respective positions. See Strickland at 688-89; Brief for Petitioner at 36; Brief for Respondent at 26. Padilla argues that ethical and professional standards require criminal defense counsel to advise defendants about the relevant collateral consequences of conviction, such as deportation. See Brief for Petitioner at 39–40. Thus, Padilla concludes, courts should require defense counsel to advise clients about collateral consequences as part of effective representation.Kentucky counters that, under Strickland, the Court cannot interpret professional standards as per se requirements for effective representation. See Brief for Respondent at 26. Kentucky also argues that a failure to meet ethical obligations does not necessarily amount to a violation of a defendant’s Sixth Amendment rights. See Id.
Does Misadvice Concerning Collateral Consequences Constitute Objectively Unreasonable Representation?
Padilla argues that defense counsel’s misadvice regarding a collateral consequence is objectively unreasonable in almost all circumstances. See Brief for Petitioner at 55. According to Padilla, the majority of courts that apply the collateral consequences doctrine also hold that the doctrine does not apply when defense counsel misadvises his or her client.See id. Padilla contends that a defendant’s plea is not voluntary if it is made in reliance on erroneous advice from his attorney. See id.at 58. Even if defense counsel has no affirmative obligation to investigate and advise on collateral consequences, Padilla insists that misadvice should be treated differently. See Id. at 59. When defense counsel make an effort to advise on any matter, Padilla contends that this effort must be made reasonably and competently. See id.
In response, Kentucky argues that a distinction between failure to advise and misadvise about collateral consequences is arbitrary. See Brief for Respondent at 29. It asserts thatneither misadvice nor lack of advice concerning collateral consequences affect a defendant’s understanding of the direct consequences of his guilty plea.See id.at 30.
In Strickland, the Supreme Court established that to succeed on a claim of ineffective assistance of counsel a defendant must demonstrate that his attorney's representation was objectively unreasonable and that he suffered "prejudicial error" as a result. See Strickland at 687. Kentucky argues that the goal of the “prejudicial error” prong of the Strickland standard is to ensure that the criminal proceeding is reliable and fundamentally fair. See Brief for Respondent at 43. According to Kentucky, Padilla was fully aware of the direct consequences of his plea and thus did not suffer a fundamentally unfair proceeding.See id. at 44. Padilla does not claim he suffered "prejudicial error," but asserts that, under Kentucky procedural law, he is entitled to an evidentiary hearing to determine whether he would not have pleaded guilty but for his counsel’s misadvice.See Brief for Petitioner at 60-61.
This case will determine whether defense counsel for a non-citizen has a duty to advise his or her client of the possible immigration consequences of a guilty plea prior to that client entering a plea. Additionally, the Court will consider whether counsel’s affirmative misadvice regarding the possibility of deportation constitutes grounds for post-conviction relief for ineffective assistance of counsel. The Court’s decision will affect non-citizens, defense counsel, and the criminal justice system as a whole.
Padilla and his supporters contend that if the Court rules in favor of Kentucky and finds that defense counsel has no duty to advise his or her client of the immigration consequences of a guilty plea, the Court will limit an immigrant's ability to make informed decisions regarding his or her defense. See Brief for Petitioner, Jose Padilla at 15–16; Brief of Amici Curiae Asian American Justice Center, et al. in Support of Petitioner at 5. Padilla states that deportation can only be avoided if addressed during the criminal prosecution. See Brief of Petitioner at 38. He fears that if defense counsel has no duty to advise his or her client of immigration consequences, an immigrant may miss his or her only chance to obtain a sentence that will avoid deportation. See id. If, however, defense counsel were required to address immigration issues during the criminal proceeding, defense counsel would be able to more fully address the client’s interests by bargaining for a sentence that will not lead to deportation. See Brief of Amicus Curiae the American Bar Association in Support of Petitioner at 20–21.
Padilla contends that defense counsel should be required to inform immigrants about possible deportation as a result of a guilty plea, because deportation is such a harsh consequence. See Brief for Petitioner at 51–52. He notes that, for many immigrants, the right to remain in the United States is more important than any potential jail sentence. See Brief for Petitioner at 2. His supporters explain that deportation has devastating consequences for an immigrant and his or her family. See Brief of Asian American Justice Center in Support of Petitioner at 14–16.
As much as Padilla and his supporters are concerned about the effect of the Court’s decision on immigrants, Respondent, the Commonwealth of Kentucky (“Kentucky”), is concerned about the effect of the Court’s decision on the criminal justice system. Kentucky argues that requiring defense counsel to advise immigrant defendants about the possible consequences of their plea bargains would spur litigation and overly strain the judicial system. See Brief for Respondent, the Commonwealth of Kentucky at 39–40. Kentucky contends that citizens would seek similar protection by arguing that a particular collateral consequence is just as important to them as deportation is to a non-citizen. See id. at 39–40. It warns that any attempt to carve out an exception for deportation, as opposed to other types of collateral consequences, would “open the Pandora’s box of collateral matters that will have to be addressed individually by the courts, thereby further overburdening an overtaxed judicial system.” SeeId.
Padilla’s supporters respond that a decision in favor of Padilla would not unduly burden the judicial system. See Brief of Amici Curiae Legal Ethics, et al. in Support of Petitioner at 28–29. They argue thatdefense counsel would not need to advise each client of every possible consequence of a guilty plea. See Id. at 33. Rather, defense counsel could quickly consult a number of resources that are already widely available to learn about immigration law and advise clients accordingly.See Brief of Amici Curiae the National Association of Criminal Defense Lawyers, et al. in Support of Petitioner at 24–32.
The State of Louisiana, et al. (“Louisiana”) counter that the judicial system would, indeed, be overburdened, becausethe costs of providing indigent defense would increase, as states would be required to provide counsel competent to advise a defendant on a variety of collateral consequences. See Brief of Amici Curiae the State of Louisiana, et al. (“Louisiana”) in Support of Respondent at 6. Furthermore, Louisiana argues that allowing an exception for defense counsel’s misadvice creates an incentive for defendants to lie about the advice they received from court-appointed attorneys. See Id. at 8. Louisiana maintains that lengthy and expensive collateral proceedings would be necessary to disprove such lies. See id. at 8.
Kentucky insists on a clear-cut rule that defense counsel has no duty to advise a client of collateral consequences to a guilty plea, even if the collateral consequence is deportation. See Brief for Respondent at 22. Kentucky argues that differentiating between different types of collateral consequences would only serve to invite a multitude of challenges to plea agreements and threaten the finality of the plea bargaining system, which accounts for the overwhelming majority of convictions in the United States. See Brief for Respondent at 19; Brief of Louisiana at 1.
The U.S. Supreme Court’s decision in Padilla v. Kentucky will determine the scope of a criminal defendant’s right to effective assistance of counsel. Kentucky argues that a criminal defendant is only entitled to effective assistance of counsel regarding direct consequences of conviction or a guilty plea. Padilla argues that a defendant should also be entitled to effective assistance of counsel regarding collateral consequences. The Court’s decision will clarify the duty of defense counsel in criminal proceedings involving immigrants.