United States v. Chan, No. 14-55239 (D.W. Nelson
with Bybee; dissent by Ikuta) --- The Ninth Circuit held that a defendant is
entitled to postconviction relief (here, in the form of coram nobis relief and
an opportunity to withdraw her guilty plea) if counsel affirmatively gave
incorrect advise about the immigration consequences, not just whether the
conviction would lead to deportation, of a guilty plea, thus rendering
ineffective assistance under Ninth Circuit precedent that preceded Padilla v. Kentucky, 559 U.S. 356
(2010).
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/09/14-55239.pdf
The petitioner here
is a citizen of the United Kingdom who has been a lawful permanent resident of
the United States since 1973. In 1993
she pleaded guilty to perjury and was sentenced to two months' imprisonment followed
by three years of supervised release.
Before pleading guilty, she averred in her petition for coram nobis, she
specifically asked her lawyer whether she would suffer any adverse immigration
consequences from the guilty plea.
Counsel told her she would not.
In 2012, she was stopped by customs agents at LAX, and her green card
was confiscated. She was later placed in
removal proceedings, charging that her perjury conviction was a crime of moral
turpitude and she was inadmissible as a result.
She then moved to set aside her perjury conviction through a writ of
coram nobis, but the district court concluded that she was not entitled to
relief because she was relying on a new rule of law that did not apply
retroactively.
That new rule was the
Ninth Circuit's 2005 decision in United
States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), which held that
affirmatively incorrect advise about immigration consequences of a guilty plea
made a viable IAC claim. This particular
holding distinguished a particular kind of incompetence on the part of defense
counsel from the then-prevailing general rule that failure to advise a
defendant about the collateral consequences of a guilty plea was not deficient
performance under Strickland v.
Washington, 466 U.S. 668 (1984), because there was no Sixth Amendment duty
to advise about the collateral consequences of a guilty plea. That rule was changed in Padilla v. Kentucky, 559 U.S. 368 (2010), which imposed a limited
duty under Strickland to advise if a guilty plea could lead to deportation (as
opposed to other adverse immigration consequences). But in Chaidez
v. United States, 133 S. Ct. 1103 (2013), the Supreme Court held that
Padilla didn't apply retroactively under Teague because it was a "new
rule."
So the panel had to answer
whether, in light of Padilla and Chaidez, the Kwan rule was a "new
rule" that wouldn't apply retroactively.
The panel concluded that it wasn't.
Both Padilla and Chaidez, the majority reasoned, said
that a holding that affirmative misadvice about immigration consequences
wouldn't be "new" for Teague purposes. Most federal courts of appeals had held that
"affirmative misadvice" about "collateral consequences" of
a guilty plea was deficient performance under Strickland. Thus the
district court erred when it held that Kwan did not apply retroactively to this
case, and reversed the denial of the petition for a writ of coram nobis.
Judge Ikuta disagreed
with this analysis and said that Kwan was a "new rule" in light of Padilla and Chaidez.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/09/14-55239.pdf
0 Comments:
Post a Comment
<< Home