Unites States v. Rodriguez-Vega, No. 13-56415 (8-14-15)(Reinhardt with Fernandez and Clifton).  When the consequences of a guilty plea is a conviction that makes it a "virtual certainty" that the defendant will be deported or removed, the defendant MUST be advised.  It is not enough to advise that it is "probable," or that there are immigration consequences; when it is explicit and clear that a conviction to a certain offense leads to removal, the lawyer must so advised.  Here, the failure of the lawyer to so advise was IAC.

 

The defendant was born in Mexico.  She came to the United States with her family when she was 12 and became a permanent resident when she was 13.  When she was 22 years old, she was charged with Attempted Transportation of Illegal Aliens and aiding and abetting in violation of 8 USC 1324(a)(1)(A)(ii) and (v)(II). She rejected the first plea that stipulated removal.  She eventually pled to a misdemeanor of Transportation of an Illegal Alien.  The plea stated that she faced immigration "consequences" if she pled and that she had discussed this with her counsel.  The court also stated that she faced probable removal.  After sentencing, and when she received a Notice to Appear for removal for an aggravated felony, she filed a petition alleging IAC.

The court asked for a declaration from counsel.  He responded that he had told her there was a "potential to be deported" and that he felt a misdemeanor would set her up better for seeking relief.  The court denied the petition.

The 9th granted the petition for IAC.  First, counsel had to inform petitioner that it was a virtual certainty she would be removed.  The immigration statute lists the conviction was removable.  The theoretical possibility that removal might be withheld, or relief under first-time offenses, or asylum because of torture.  These are rarely granted.  If she pled, she would certainly be removed.  Counsel should have advised her of that.  There was no uncertainty in the provisions.

The advice fell below objective standards of professionalism.  It was prejudicial because the petitioner could have gone to trial or negotiated a better deal.  Indeed, as to the latter, petitioner showed that others received deals to accessory after the fact. As to trial, she was only facing 10 to 16 months (she received 60 days) and that was worth the risk. 

This is an important case for duty of counsel to know immigration law and to advise defendants of the exact immigration consequences if it is clear and explicit.  It is not enough to say that a conviction has immigration consequences, or that it is probable the defendant will be deported, or highly probable, if it is virtually certain.

Congrats to Deputy Federal Defender Doug Keller of San Diego for this important win.

 

Crace v. Herzog, No. 13-35650 (8-14-15)(Bybee with Paez; dissent by Callahan).  Even under AEDPA, the 9th grants relief on an IAC basis for failure of the trial lawyer to submit a lesser included offense.  The petitioner was convicted of second degree assault; and because of priors, was sentenced to LWOP under the state's three strikes program.  The 9th agreed with petitioner that trial counsel should have asked for "unlawful display of a weapon" which would have spared him from the third strike.  Here, the petitioner with obvious mental issues had run out of his house with a sword, hearing voices, and screaming for help and had a confrontation with police, which lead to his arrest and conviction.  Under the facts, and even with AEDPA deference, the state supreme court's determination of facts were unreasonable.  Callahan dissents, arguing that AEDPA requires deference, and the state supreme court had a reasonable basis.

 

Reyes v. Lewis, No. 12-56650 (8-14-15)(Fletcher with Bybee; concurrence by Singleton).  Even under AEDPA, the 9th grants relief because of a Siebert "two-step "interrogation procedure by the police in which they got the 15 year old to confess without Miranda warnings, and then gave him Miranda warnings to clarify the statements. The 9th found this violated clear Supreme Court precedent, and the state court's Siebert analysis was contrary to law.  The police had acted intentionally and deliberately to avoid Miranda.  Singleton, concurring, thought the state court had tried a Siebert analysis.  It receives deference in finding, under the second prong, that adequate curative steps were taken.  However, the first prong showed a clear avoidance, and thus was an unreasonable determination of facts.