Padilla v. Commonwealth of Kentucky

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Argued October 13, 2009.

Authorship: Anna Christensen of Howe & Russell (with Stanford student David Owens covering the cert.-stage proceedings)

Docket: 08-651

Issue: Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Contents

Briefs and Documents

Oral Argument

Transcript(October 13, 2009)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Oral Argument Recap

At oral argument, the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys. Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards. Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns. Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas. However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.

Arguing on behalf of the United States as amicus in support of affirmance, Michael Dreeben agreed with Mr. Kinnaird that if an attorney does elect to advise a defendant with regard to the consequences of a guilty plea, his affirmative misadvice constitutes deficient representation under Strickland. However, Mr. Dreeben went on to argue that the Sixth Amendment does not entitle a defendant to advice regarding potential immigration consequences in the first place.

Wm. Robert Long, in his argument on behalf of the Commonwealth of Kentucky, responded to a series of questions concerning the “professional norms” governing attorney conduct. Disputing Justice Breyer’s assertion that an attorney offering affirmative misadvice fails to meet professional norms, Mr. Long asserted that Strickland treats these norms as “guides…and does not set them as hard, fast rules.” Mr. Long also emphasized that a guilty plea must be “voluntary,” indicating that Mr. Padilla met this requirement because he “possess[ed] full knowledge of [the plea’s] direct consequences.”

In his rebuttal, Mr. Kinnaird asserted that (1) Strickland does not apply solely to trial consequences, as indicated in Hill’s application of the case to parole eligibility; (2) Brady v. United States, which governs the voluntariness of a plea, assumes that a defendant received competent advice from his attorney; and (3) courts which distinguish misadvice from failure to advise have not been overly burdened by their application of this practice. Responding to Justice Alito’s request that he identify the hypothetical circumstances which might fall into the same category as immigration consequences, Mr. Kinnaird indicated that the Court “should not draw lines” under Strickland, and that the Strickland inquiry should be applied on a case-by-case basis.

Pre-Argument Articles

Argument Preview

Merits brief for Padilla

In his brief on the merits, Padilla argues that the Court’s decision should be governed by the two-pronged test outlined in Strickland v. Washington, which establishes a two-pronged test for assessing Sixth Amendment ineffective-assistance claims: (1) did counsel’s performance “f[a]ll below an objective standard of reasonableness”; and, if so, (2) was the defendant prejudiced by his counsel’s deficient performance. The first prong’s “objective standard of reasonableness,” Padilla argues, “turns on whether counsel was professionally competent, not whether he was right,” and can therefore be governed by “prevailing professional norms” such as ABA standards. And his “counsel’s objectively unreasonable performance prejudiced him,” he explains, because it resulted in his making a guilty plea that he would not otherwise have made.

Although the Kentucky Supreme Court reasoned that Strickland did not apply because Padilla’s deportation constituted only a “collateral consequence” of his guilty plea, Padilla argues that the “collateral consequences” doctrine applies only to the obligations of the court accepting the guilty plea, and not to the duties of defense counsel. In other words, even though a court has no obligation to advise the defendant of the consequences of his plea, the Court’s opinion in Hill v. Lockhart “declined to import that doctrine into the Sixth Amendment to exempt defense counsel from any” duty to inform defendants of necessary information regarding their eligibility for parole.

Padilla argues in the alternative that, in any event, deportation should not be characterized as a mere “collateral consequence” of a guilty plea because “[f]or many immigrant defendants, the deportation consequences of conviction will matter much more than the criminal punishment.” And even if the Court does characterize his deportation as a “collateral consequence” of his guilty plea, its decision in Hill v. Lockhart would still require it to evaluate his claim under Strickland. He concludes by distinguishing his case from others implicating the “collateral consequences” doctrine by asserting that his attorney’s affirmative misadvice regarding the deportation consequences of a guilty plea (as opposed to silence on the issue) mandates a Sixth-Amendment remedy.

Merits brief for Kentucky

In its brief on the merits, Kentucky counters that federal circuits have consistently held that trial courts have a duty only to ensure a defendant’s understanding of the “direct” consequences of his guilty plea. While Padilla may have misunderstood the “collateral” matter of his deportation, the Commonwealth argues, this does not affect his constitutional ability to make a voluntary guilty plea, as it “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.” Citing Brady v. United States and Boykin v. Alabama, the Commonwealth argues that a defendant’s plea is considered voluntary as long as he understands the “direct consequences of conviction.” Because the trial court has no control over deportation proceedings, the Commonwealth continues, the potential of deportation must be viewed as collateral to the criminal proceedings against Padilla. Compelling defense counsel to advise defendants of all collateral consequences to conviction “would be overly burdensome and wholly impractical” because such an obligation would require defense counsel to address myriad potential outcomes, ranging from custody restrictions to an increased risk of contracting infectious disease. Further, Padilla’s distinction between “affirmative misadvice” and “failure to advise” is arbitrarily drawn, because the consequence in question is a “collateral consequence” in either case, and thus outside the scope of constitutionally mandated attorney representation.

Amicus brief for United States

The amicus brief filed by the United States in support of affirmance indicates that, because the majority of federal criminal prosecutions are resolved through guilty pleas, the outcome of the case will have direct implications for review of federal convictions. The United States agrees with Padilla that the Kentucky Supreme Court erred in holding that misadvice with regard to immigration consequences does not merit a Sixth Amendment analysis: although defense attorneys are under no obligation to advise defendants about the immigration consequences of a guilty plea, the United States asserts in its brief, an attorney who does provide such advice “has a duty to avoid doing so incompetently.” Because the decision to enter a guilty plea belongs to the defendant alone, and because incompetent advice (with regard to both direct and collateral consequences) might undermine this decision, affirmative misadvice with regard to immigration consequences may thus constitute a Sixth Amendment violation.

However, the United States continues, the Strickland analysis requires both deficient performance and prejudice, and Padilla cannot meet the second requirement. Because any defendant faced with deportation can allege, after the fact, that his defense counsel’s advice prejudiced their plea decision, the U.S. argues, courts must apply Strickland’s prejudice prong “rigorously,” using an objective test – established by the Court in Roe v. Flores-Ortega (2000) - that finds prejudice only when “a rational defendant [would have] insist[ed] on going to trial.” Because “the evidence of guilt was overwhelming” in Padilla’s case, and because going to trial might have exposed Padilla to a longer sentence than he would have received after pleading guilty, Padilla could not “rationally” have opted to forgo a guilty plea and proceed to trial.

Reply brief for Padilla

In his reply, Padilla contends that Kentucky’s reliance on the “collateral consequences” doctrine constitutes a per se rule which contravenes established professional standards. Distinguishing between the Due Process Clause and the Sixth Amendment, Padilla emphasizes that one refers to the duties of courts while the other pertains to the duty of defense counsel. Unlike the court, which need only advise a defendant of what consequences it may impose, defense counsel is obligated to “investigat[e] the relevant factors and advis[e] the defendant whether to plead guilty.” Indeed, Padilla notes, the United States confirms this distinction in its amicus brief supporting affirmance. But while the United States has argued in its brief that “a lawyer satisfies constitutional standards by partial investigation and disclosure” of the consequences of a guilty plea, Padilla contends that this argument has no constitutional foundation and that the imposition of such a rule is irreconcilable with Hill and Strickland.

The position of the Commonwealth and of the United States, Padilla argues, rests on the false premise that counsel must only advise a defendant on consequences relating to criminal liability and punishment. Pointing to the Court’s decision in Williams v. Kaiser, Padilla indicates that counsel is obligated to shield a defendant from becoming the “victim of overzealous prosecutors, of the law’s complexity, or of his own ignorance or bewilderment.” Finally, relying on amicus curiae briefs filed by the ABA and the National Association of Criminal Defense Lawyers, Padilla disputes the Commonwealth’s contention that a requirement to inform defendants of collateral consequences will overwhelm defense counsel, observing that comprehensive resources exist to enable attorneys to investigate and mitigate immigration consequences for their clients, “and competent lawyers are doing so.” And although respondents have argued that a ruling in Padilla’s favor would threaten to overturn countless criminal convictions, Padilla counters in his brief that the specificity of the Strickland test would render the majority of guilty pleas legitimate.

Grant Write-Up

In a case testing the limits of the Sixth Amendment’s guarantee of effective assistance of counsel for a relatively disfavored group (noncitizen criminal defendants), the Court recently granted cert. in Padilla v. Kentucky (08-651). While not one of the more high-profile cases thus far granted for the Court’s next Term, Padilla might be significant for thousands of noncitizen defendants. More generally, it may address the legal standards that all attorneys can be expected to follow regarding advice given to clients as to “collateral consequences” (such as voting rights or eligibility for parole) that flow from a particular plea. Specifically, Padilla presents two, related, questions: First, whether mandatory deportation consequence stemming from a drug trafficking plea is a “collateral consequence” of a criminal conviction, which relieves counsel from any affirmative duty to advise her clients. And, second, if mandatory deportation is indeed “collateral,” whether an attorney’s “gross misadvice” as to that collateral consequence can be grounds, under the Sixth Amendment, for setting aside a guilty plea that relied on such faulty advice. The dispute in Padilla, therefore, involves two distinctions: between “direct” and “collateral” consequences of an adjudication, and whether, in the “collateral” context, a distinction should be made for affirmative “gross misadvice” and nonadvice.

Background

Petitioner Jose Padilla is a legal permanent resident —not a citizen — originally from Honduras, who has resided in the United States for nearly 40 years, and served in the U.S. Armed Forces during Vietnam. In 2001, however, Padilla was indicted on three drug counts (two drug possession misdemeanors, and one drug trafficking felony) and one tax-related crime for an unmarked vehicle. Following negotiation, Padilla pleaded guilty to the drug offenses and the tax offense was dropped. Notably, following the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, Padilla’s felony is considered an “aggravated felony” under the Immigration and Nationalization Act (INA), and deportation following a guilty plea to such a charge was also made essentially mandatory by another statute enacted in 1996: the Illegal Immigration Reform and Immigration Responsibility Act (IRIRA).

Before agreeing to the plea, however, Padilla asked his counsel whether his plea might have any consequences for his immigration status, to which his attorney affirmatively responded that he “did not have to worry about immigration status since he had been in the country so long.” This advice, however, was wrong, leading Padilla to seek post-conviction relief to set aside the plea on the ground that he had received ineffective assistance of counsel. In a five-page opinion the Kentucky Supreme Court, by a vote of five to two, rejected Padillia’s request for relief and held that, even when mandatory, deportation is a “collateral consequence” of a conviction “outside the scope of the guarantee of the Sixth Amendment right to counsel.” This decision flowed from its earlier decision in Fuartado v. Commonwealth (2005), holding that attorneys have no duty to advise their client about the immigration consequences of a guilty plea. In Padilla’s case, 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. The dissenting justices, however, argued that Fuartado was “distinguishable in a small but critical way”: although an attorney may not have an “affirmative duty to inform his or her client of the impact of that a guilty plea will have on civil immigration status,” the situation is different – and ineffective assistance concerns may be triggered – when a defendant “specifically inquired of his counsel about this matter.”

Reasons for Granting the Writ

In his petition, Padilla painted a fairly broad conflict, involving both state and federal courts, between differing interpretations of what duty (or nonduty) an attorney has when giving advice to a noncitizen over immigration matters in a criminal context. Padilla highlights four potential approaches: first, some jurisdictions only reach the ineffective assistance issue if an attorney has volunteered incorrect advice; second, some jurisdictions rely on the “flagrant misadvice” theory, which permits attorneys to refuse to answer a question but holds them accountable when advice is given; third, some jurisdictions require attorneys to advise their clients of the immigration consequences of guilty pleas; and, finally, the Kentucky courts hold that erroneous advice of counsel is never a basis to set aside a plea.

The Commonwealth’s opposition relied principally on demarcating bright-line rules and asserting the correctness of Fuartado. Specifically, Kentucky’s argument proceeded in two steps. First, the Sixth Amendment does not entitle a criminal defendant to any advice from counsel concerning the collateral consequences of a guilty plea. Second, because potential deportation is a “collateral consequence,” the Sixth Amendment does not apply and, in this context, a failure to advise is indistinguishable from misadvice. Accordingly, though “defense attorneys should [not] feel free to misadvise their clients as to those collateral matters in an effort to placate those clients[,]—due to freestanding ethical obligations—courts have no obligation to extend the Sixth Amendment right to counsel to matters “wholly collateral to the criminal prosecution.”

Padilla’s reply, coupled with amicus support from criminal defense and immigration attorneys, forcefully urged the Court to see the issue in a different light. Padilla distinguished the due process (and Rule 11) standard applicable to courts in criminal proceedings from the two-pronged Strickland analysis applicable to defense counsel. The reply brief cited a case mentioned only once in the initial petition: Hill v. Lockhart (1985). In Hill the Court held that ineffective assistance claims stemming from counsel’s failure to advise him correctly regarding parole eligibility must be analyzed under Strickland’s standard. Thus, Padilla argued, Kentucky’s rule conflicts with Hill and accordingly deserves the Court’s attention.

Put in this light, Padilla pointed to a 27-3 split on the question whether counsel have no Sixth Amendment duty to advise immigrant defendants of the deportation consequences of their guilty plea, and argued that there now exists a 17-2 split on the second question presented, with Kentucky and the D.C. Circuit alone holding that even misadvice does not implicate the Sixth Amendment. Notably, Padilla argued, defense counsel’s duty evolves with the law (as evidenced in ABA standards) and, following the mandate of AEDPA and IRIRA, attorneys should advise noncitizen clients of the potentially harsh consequences of a guilty plea. Finally, emphasizing the broad numerical split described by the reply, amici made a more aggressive argument regarding the duty of counsel following AEDPA and IRIRA: Because deportation is now effectively mandatory, this action is not a “collateral” consequence of a criminal proceeding at all, but, instead, a direct and inevitable result, which makes the “collateral consequences” line of cases inapplicable.

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