Wednesday, August 26, 2009
[This is the fourth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.
Factual and Procedural History: Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury 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. Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.
Two years later, petitioner filed a motion for post-conviction relief, alleging his attorney was ineffective by misadvising him about the potential for deportation as a consequence of his guilty plea. The state circuit court denied the motion on the basis that a valid guilty plea does not require the defendant be informed of every possible consequence of a guilty plea.
On appeal, the state Court of Appeals reversed, remanding the case for an evidentiary hearing. The Court of Appeals concluded that counsel’s wrong advice in the trial court regarding deportation could constitute ineffective assistance of counsel.
The Kentucky Supreme Court rejected petitioner’s request for relief and held that, even when mandatory, deportation is only a “collateral consequence” of a conviction “outside the scope of the guarantee of the Sixth Amendment right to counsel.” The Kentucky Supreme Court reasoned that a situation of “gross misadvice,” rather than mere silence or an omission, similarly failed to trigger Strickland and the Sixth Amendment.
Petitioner filed a writ of certiorari, which was granted. Oral argument is scheduled for October 13, 2009.
Summary of Petitioner’s Argument: Petitioner argues that the Kentucky Supreme Court’s collateral consequences rule has no foundation in the Sixth Amendment and contradicts Supreme Court precedent. According to petitioner, the collateral consequences doctrine arose and was created to define the duties of a court with regard to accepting guilty pleas under Federal Rule of Criminal Procedure 11, not with regard to the much broader issue of defense counsel’s effectiveness. Thus, the Kentucky Supreme Court’s use of the collateral consequences doctrine was in error.
Moreover, according to petitioner, the collateral consequences doctrine is contrary to Strickland, the “most basic ethical rules of the profession,” and specific professional standards of the American Bar Association and public defenders’ organizations requiring criminal defense counsel to investigate and advise clients about the collateral consequences of conviction (especially deportation). According to petitioner, on any of these grounds, “Kentucky’s aberrant collateral-consequences rules should fall, and this case should be remanded for a determination of Padilla’s entitlement to an evidentiary hearing under state law.”
Summary of Respondent’s Argument: Respondent argues that neither the Supreme Court nor the federal circuits have ever held that the “trial court or defense counsel must inform defendants of all possible consequences flowing from a guilty plea.” Consequently, a defendant’s misunderstanding of a collateral matter “does not affect that defendant’s understanding of the right to trial by jury, right of confrontation, the protection against self-incrimination, or any other right waived when pleading guilty.”
According to respondent, the near impossibility of cataloguing all potential collateral consequences of a criminal conviction illustrates that an ineffective assistance of counsel inquiry should be limited to whether the defendant voluntarily entered a guilty plea. Advice about potential consequences collateral to a criminal prosecution, according to respondent, “is not a cognizable basis for claiming counsel ineffectiveness.”
Even if the Court decides to expand the protections of the Sixth Amendment to petitioner, according to respondent, the claim still fails as petitioner has “not demonstrated and cannot demonstrate how the criminal proceeding was fundamentally unfair or that he suffered prejudice necessitating reversal under the second prong” of Strickland.