Saturday, June 12, 2010

Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

By:  William J. Kovatch, Jr.
(703) 837-8832

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