IMMIGRATION LAW AND PROCEDURE
POST CONVICTION RELIEF FROM COLLATERIAL CONSEQUENCES OF DEPORTATION AFTER CRIMINAL CONVICTION.
By: William Marshall
Paralegal & Post Conviction Consultant
PREJUDICE FROM INEFFECTIVE ASSISTANCE OF COUNSEL IS SHOWN WHERE THE DEFENDANT WAS DEPRIVED OF THE OPPORTUNITY TO BENEFIT FROM A FAVORABLE EXERCISE OF DISCRETION.
In United States v. Kwan, 407 F.3d 1005 (9th Cir. May 12, 2005), the Ninth Circuit held that defense counsel rendered ineffective assistance of counsel, even though he correctly advised the defendant prior to entry of plea concerning immigration consequences of disposition of criminal case that deportation was not a serious possibility, where he failed to notify the defendant when, prior to sentence, the law changed on September 30, 1996, and deportation in fact became a near certainty, since the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences or attempted to persuade the court to impose a sentence of less than one year.
Under the Supreme Court's decisions, however, the IAC prejudice inquiry does not depend upon the particular biases or idiosyncrasies of a specific decisionmaker; it depends upon what a reasonable decisionmaker might well have done:
An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Strickland v. Washington, 466 U.S. 668, 695 (1984)(emphasis supplied).
Here, the essence of the prejudice is that counsel's error deprived the defendant of the opportunity to have discretion reasonably exercised in his favor. In Kwan, the Ninth Circuit affirmed that prejudice is shown where the defendant is deprived of this opportunity. The court stated:
In addition, Kwan explains that, had he been made aware of the deportation consequences of his conviction, he would have explored the option of renegotiating his plea agreement. That Kwan asked counsel about the immigration consequences of pleading guilty before agreeing to do so demonstrates clearly "that he placed particular emphasis on [immigration consequences] in deciding whether or not to plead guilty." Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Kwan has also gone to great lengths to avoid deportation and separation from his wife and children, who are all United States citizens. Taken together, these facts establish that but for counsel's deficient performance, there is a reasonable probability that Kwan would have moved to withdraw his guilty plea. After withdrawing his plea, Kwan could have gone to trial or renegotiated his plea agreement to avoid deportation; he could have pled guilty to a lesser charge, or the parties could have stipulated that Kwan would be sentenced to less than one year in prison.
As noted above, a sentencing court may exercise its discretion to permit a defendant to withdraw his guilty plea prior to sentencing if the defendant shows a fair and just reason for requesting the withdrawal. Fed.R.Crim.P. 32(e) (1996). There is a reasonable probability that the sentencing court in this case would have considered the significant change in the immigration consequences of Kwan's plea to be a fair and just reason for withdrawing his plea. While the sentencing court's decision to grant or deny a motion to withdraw is discretionary, "to show prejudice [Kwan] need only show 'a probability sufficient to undermine confidence in the outcome' " that he could have withdrawn his plea. United States v. Leonti, 326 F.3d 1111, 1122 (9th Cir. 2003) (holding that petitioner could establish prejudice by showing that counsel's deficient performance reduced likelihood that prosecution would make a substantial assistance motion, even though "the government has wide discretion in filing a substantial assistance motion, and the court has discretion in choosing to depart downward"). "A deprivation of an opportunity to have a sentencing court exercise its discretion in a defendant's favor can constitute ineffective assistance of counsel." Castro, 26 F.3d at 560 (holding that counsel's failure to request that sentencing judge exercise its discretion to make judicial recommendation against deportation was prejudicial under Strickland) (citing United States v. Golden, 854 F.2d 31, 32 (3d Cir. 1988)). United States v. Kwan (9th Cir. 2005) 407 F.3d 1005, 1017-1018.
Here, the defendant may have been deprived of several opportunities to have discretion reasonably exercised in his or her favor:
(a) The probation department might have reduced the recommended sentence by one day.
(b) The prosecution might in its discretion have agreed to a sentence of 364 days if it had been asked to do so. People v. Bautista (2004) 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (reasonable probability prosecution would have accepted non-deportable plea).
(c) The sentencing judge might well in its discretion have imposed a sentence of 364 days or less if the immigration disaster had been made known to him. People v. Barocio (1989) 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (reasonable probability sentencing court would have granted motion for non-deportable sentence).
As an independent paralegal and post conviction consultant with 43 years experience in criminal, correctional, parole, probation, and immigration law and procedures, William Marshall can serve to be a voluble asset to the pro se litigant in assisting in the preparation of that required to seek redress of convictions and/or sentences.
WILLIAM MARSHALL
Phone: 570-609-8800 - Email: mparalegal4u@aol.com
Web: http://www.geocities.com/marshall_wallin/paralegal.html?1181758798828
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Post Conviction Relief / Immigration
An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes
The long-standing rule is that a conviction vacated in criminal court as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[1] The conviction is viewed as illegal ab initio [2] and may not be used as a basis for deportation, removal, exclusion, statutory ineligibility to show good moral character, or any other immigration purpose.[3] Removal proceedings must be terminated immediately once a conviction is vacated as legally invalid, even if the original criminal charges are pending.[4]
However, convictions eliminated under state rehabilitative statutes without any claim of legal invalidity generally will continue to exist for immigration purposes. In Matter of Roldan,[5] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[6] to hold that a state court action to "expunge, dismiss, cancel, vacate, discharge or otherw by action of law.
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Avoiding Potentials of DeportationATTENTION IMMIGRANTS!
For 9th Circuit: Lots of Scrutiny and 9-0 Reversals by High Court
By: William Marshall
Paralegal & Post Conviction Consultant
07-01-2005
The 9th U.S. Circuit Court of Appeals fared worse in the latest Supreme Court session than it has in the past five years.
The circuit's reversal rate was 84 percent, the highest since the 1999-00 term.
Of the 19 9th Circuit cases that went to Washington, D.C., 16 were overturned, including two more Monday to end the term. In 10 of the 16 reversals, the vote was 9-0.
But court watchers say those statistics only tell part of the story.
"It's not fair to look at reversal rates," said Thomas Goldstein of Goldstein & Howe, a Supreme Court boutique in Washington, D.C. "The numbers are misleading. The 9th would look like any other circuit, except for a small number of underlying cases."
Because the high court takes such a small number of cases -- 80 in the session that ended Monday -- just two or three cases can dramatically shift the numbers. Although the latest session had some blockbusters, several matters were much more routine.
To Goldstein and others, what's much more significant than reversal rates is that the 9th Circuit continues to dominate the high court's docket.
In the latest session, the circuit contributed 19 of 80 cases at the Supreme Court. That's 24 percent of the total number of cases accepted for review.
The number goes even higher if you factor out original jurisdiction matters and appeals from state supreme courts. Although that's down a little from last year's 32 percent, it still seems disproportionate, even considering the 9th is the largest of the 13 circuits.
"What these cases show is that there are issues coming up [in the 9th Circuit] that just aren't coming from other places," said Arthur Hellman, a professor at the University of Pittsburgh School of Law.
He pointed to Gonzales v. Raich, 05 C.D.O.S. 4725, the medical marijuana decision that came out earlier this month, and Monday's two Internet-related decisions, National Cable Association v. Brand X Internet, 05 C.D.O.S. 5631, and Metro-Goldwyn-Mayer v. Grokster, 05 C.D.O.S. 5620.
But Chapman University School of Law professor John Eastman disagrees that novel legal issues simply pop up more in the west. He said 9th Circuit judges create the issues.
"They are just pushing the envelope on constitutional questions," Eastman said, pointing to the court's well-known liberals, Judges Stephen Reinhardt and Harry Pregerson.
Indeed, Pregerson authored two decisions the high court flipped, Raich and March's search warrant case Muehler v. Mena, 05 C.D.O.S. 2409. Judge Sidney Thomas was also overturned two times, in Grokster and in January's Commissioner v. Banks, 05 C.D.O.S. 644 on taxing attorney contingency fees.
By contrast, Judges Richard Tallman and Ronald Gould seem to have a sharper sense of what the Supreme Court wants. Both offered dissents in cases the high court then picked up and overturned.
A couple of those dissents were in en banc calls, when the 9th Circuit has a chance to correct its work before a case is appealed to the Supreme Court. Only one case that went to the high court overturned an en banc death penalty ruling, Brown v. Payton, 05 C.D.O.S. 2398, in March. The other 18 were three-judge panel decisions.
"The message is we should be hearing more cases en banc and settling more matters without bothering the Supreme Court," 9th Circuit Judge Diarmuid O'Scannlain said Monday.
The reversal rate for all circuits is around 75 percent. The 9th Circuit was in line with that in the 2003-04 session.
Goldstein and others believe the circuit's rate is inflated this year at least in part because the high court has been paying much closer attention to what's happening in the circuit because of past friction.
The circuit developed its liberal reputation because of repeated chastising from the high court, especially in criminal cases.
While it's true there are some novel legal issues coming out of the West Coast, if some of the others "came from other circuits, I feel pretty confident they would have been ignored," Goldstein said.
It is this author’s opinion and position, that the favorable decisions from the Ninth Circuit only reflects that they unlike the conservative Supreme Court Justices know the texture of civilized law. It has often been said that ignorance of the law is no excuse. Therefore, is this to say that the opposing Supreme Court Justices don’t know what the law is when the majority does not concur? Maybe it is the opposing Supreme Court Justices that are ignorant of the law and should take heed through learning of what the Justices of the Ninth Circuit assert.
As I am sure my readers are all to well aware, contrary to what some might believe federal law is not uniform when enterpreted by the different Circuit Court of Appeals whose decisions affect the states within their jurisdictions.
Based upon the civilized justice that has been dispensed through decisions of the Ninth Circuit Court of Appeals, it is obvious that such class of litigants such as prisoners and immigrants receive more favorable decisions on their claims than that derived from other Circuit Court of Appeals on identical issues before them. For example, an immigrant who is within the jurisdiction of the Ninth Circuit who is exposed to deportation proceedings, is much more likely to prevail on his/her claims for relief than had the same claims been reviewed by other Circuit Court of Appeals. For those immigrants confronted with such negative dispositions who are under the jurisdiction of other than the Ninth Circuit Court of Appeals, this author will through legal support services he provides can guide them as to how to acquire a change of venue to the Ninth Circuit jurisdiction. Such opportunity to seek a change of venue is only available to those who are still in the service of a state or federal sentence as result of a criminal conviction. For further information or to employ the services of this author, he may be contacted through the information provided below.
William Marshall
Paralegal & Post Conviction Consultant
Phone: 570-609-8800 - 7 Days A Week
Email: Mparalegal4u@aol.com