Practice Advisory July 15, 2014 Strategies to Achieve Post-Conviction Relief for Immigrant Defendants in New York after People v. Baret On March 31, 2010, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. On June 30, 2014, the N.Y. Court of Appeals held in People v. Baret, No. 105 (N.Y. June 30, 2014) that Padilla is a “new rule” that does not apply retroactively to New York State convictions that were final before Padilla. This advisory describes strategies for achieving post- conviction relief for immigrant defendants in New York after Baret. This advisory was authored by Immigrant Defense Project Staff Attorney Dawn Seibert and intern Mohammad M. Haque, with input and assistance from IDP Senior Counsel Manuel D. Vargas and Co-Executive Director Andrea Panjwani. IDP promotes fundamental fairness for immigrants accused or convicted of crimes by working to transform unjust deportation laws and policies and by educating and advising immigrants, their criminal defense attorneys, and other advocates. IDP is a founding partner of the Defending Immigrants Partnership, a national collaboration that works with public defenders and others to ensure that immigrants facing criminal charges are provided effective counsel to avoid or minimize immigration consequences of their criminal cases. IDP also partners with New York State Defender Association in training and advising NYS defenders to represent immigrant clients in a way that minimizes harsh immigration consequences. www.immigrantdefenseproject.org
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Practice Advisory July 15, 2014
Strategies to Achieve Post-Conviction Relief for Immigrant Defendants in New York after People v. Baret
On March 31, 2010, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. On June 30, 2014, the N.Y. Court of Appeals held in People v. Baret, No. 105 (N.Y. June 30, 2014) that Padilla is a “new rule” that does not apply retroactively to New York State convictions that were final before Padilla. This advisory describes strategies for achieving post-conviction relief for immigrant defendants in New York after Baret.
This advisory was authored by Immigrant Defense Project Staff Attorney Dawn Seibert and intern Mohammad M. Haque, with input and assistance from IDP Senior Counsel Manuel D. Vargas and Co-Executive Director Andrea Panjwani.
IDP promotes fundamental fairness for immigrants accused or convicted of crimes by working to transform unjust deportation laws and policies and by educating and advising immigrants, their criminal defense attorneys, and other advocates. IDP is a founding partner of the Defending Immigrants Partnership, a national collaboration that works with public defenders and others to ensure that immigrants facing criminal charges are provided effective counsel to avoid or minimize immigration consequences of their criminal cases. IDP also partners with New York State Defender Association in training and advising NYS defenders to represent immigrant clients in a way that minimizes harsh immigration consequences.
I. Background ........................................................................................................................................................................ 2
II. People v. Baret Decision ................................................................................................................................................ 2
III. Strategies to achieve post-conviction relief for immigrant defendants after Baret ............................ 6
A. Pursue any argument that the conviction at issue was not final on March 31, 2010. ................... 6
B. Seek D.A. consent to filing of a Padilla claim pertaining to a judgment that was final on March 31, 2010. ......................................................................................................................................................................... 7
C. Assert that counsel gave inaccurate advice or otherwise misled the defendant regarding immigration consequences. ................................................................................................................................... 7
1. Defense counsel misrepresented the risk of deportation attached to a guilty plea. ................ 8
2. Defense counsel did not explicitly or specifically misadvise regarding immigration consequences, but otherwise misled the defendant into believing that there were no immigration consequences. ....................................................................................................................... 10
D. Argue that failure to advise regarding immigration consequences violated the state constitution. ................................................................................................................................................................ 12
E. Seek vacatur based on the court’s failure to notify the defendant of immigration consequences. ............................................................................................................................................................ 13
F. File a coram nobis petition to reinstate the defendant’s direct appeal. ............................................ 14
G. Argue that an initial 440 motion is the equivalent of a direct appeal for purposes of the Padilla claim. .............................................................................................................................................................. 15
H. Pursue ineffective assistance of counsel claims unrelated to Padilla. ................................................ 16
1. Failure to comply with duty to negotiate effectively .......................................................................... 16
a) To avoid deportation ................................................................................................................................... 17
b) To consider the impact of an ICE detainer when negotiating a sentence. ............................ 17
c) To avoid prolonged and indefinite immigration detention......................................................... 18
d) To use immigration consequences to achieve a lesser prison sentence. ............................... 19
2. Ineffective assistance of counsel claims unrelated to the immigration consequences ........ 19
a) Failure to pursue a viable motion to suppress ................................................................................. 20
b) Conflict of interest relative to co-defendant representation ...................................................... 20
c) Failure to seek a Youthful Offender disposition .............................................................................. 21
d) Various other grounds pertaining to trial or sentencing preparation, or plea negotiations ................................................................................................................................. 21
IV. Conclusion ........................................................................................................................................................................ 21
2
I. Background
On March 31, 2010, Padilla v. Kentucky held that the Sixth Amendment requires criminal
defense counsel to advise a noncitizen defendant regarding the risk of deportation arising from a
guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of
counsel. 559 U.S. 356 (2010). The question immediately arose whether the Padilla rule applied
retroactively to collateral review of convictions that became final prior to Padilla. In October 2012,
the Appellate Division held that Padilla was an application of Strickland v. Washington, 466 U.S. 668
(1984), and thus an “old” rule that applied to collateral review pursuant to federal retroactivity
principles as described in Teague v. Lane, 489 U.S. 288 (1989). See People v. Baret, 99 A.D.3d 408
(1st Dep’t 2012); accord People v. Rajpaul, 100 A.D.3d 1183 (3d Dep’t 2012). Subsequently, the
United States Supreme Court disagreed, holding that Padilla articulated a new rule that, under
Teague, was not applicable to collateral review of federal judgments that were final when Padilla
was decided. Chaidez v. U.S.,133 S.Ct. 1103 (2013). Chaidez did not decide the question of Padilla
retroactivity under state retroactivity principles, nor did it decide whether Padilla fit within any of
Teague’s exceptions to the non-retroactivity of new rules. On June 5, 2013, the N.Y. Court of
Appeals granted the People’s application for leave to appeal in Baret. 21 N.Y.3d 1002 (2013).
II. People v. Baret Decision
Majority Opinion
The majority held that Padilla established a new rule under Teague that did not fall within
an exception to the non-retroactivity of new rules, and that the state test articulated in People v.
Pepper, 53 N.Y.2d 213 (1981) also disfavored the retroactive application of Padilla. Thus, under
either test, Padilla did not apply to convictions that became final prior to March 31, 2010. People v.
Baret, No. 105 (N.Y. June 30, 2014).
The majority declined to interpret Teague more broadly as a matter of state law, although it
recognized that adherence to Teague was not required. Id. at 26-28. The majority characterized
3
deportation as a “collateral” consequence of a criminal case unrelated to a defendant’s guilt or
innocence and explained that pre-Padilla, New York did not require defense attorneys to inform
their clients of potential immigration consequences. Id. at 5-6 (citing People v Ford, 86 N.Y.2d 397
(1995). The majority echoed the Supreme Court’s observation in Chaidez that the majority of state
and federal appellate courts considered advice about the immigration consequences of a conviction
to be outside the scope of the Sixth Amendment at the time Padilla was decided; thus, it created a
new rule. Id. at 26-28.1
After concluding that Padilla established a new rule under Teague, the Court then analyzed
whether Padilla was subject to Teague’s “watershed exception” to the non-retroactivity of new
rules. Id. at 21-26. To qualify as watershed, a rule must “be necessary to prevent an impermissibly
large risk of an inaccurate conviction . . . [and] must alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406,
418 (2007) (internal quotations and citations omitted). The majority found that the Padilla rule
met neither of those requirements. Baret, slip op. at 26. Padilla simply imposed a “modest duty”
that is “not critical to an accurate determination of guilt or innocence.” Id. at 24.2
The majority also found Padilla non-retroactive under People v. Pepper, which allows for
retroactive application of a new rule under state law if it meets a three-prong test.3 Baret, slip op. at
1 The majority did, however, acknowledge that “inaccurate advice about a guilty plea's immigration consequences
constituted ineffective assistance under the Federal Constitution” prior to Padilla. Id. at 5 (citing to People v
McDonald, 1 N.Y.3d 109, 111 (2003)). 2 Although the majority used the term “modest,” it quoted directly from Padilla in defining counsel’s duty and did
not elucidate the duty further. Baret, slip op. at 24. The quote from Padilla has been interpreted in some lower
courts as creating a clear/unclear distinction concerning the immigration consequences arising from a criminal
disposition, with the duty of counsel varying accordingly. This distinction reflects an incorrect interpretation of
Padilla, and can be unhelpful when attempting to define the duty for purposes of seeking post-conviction relief. For
a more nuanced interpretation, see Kathy Brady & Angie Junck, How Much to Advise: What are the Requirements
of Padilla v. Kentucky? Defending Immigrants Partnership (April 20, 2010), immigrantdefenseproject.org/wp-
content/uploads/2014/07/how_much_to_advise.pdf. 3 Pepper has been used to decide the retroactive application of new state rules. See, e.g., People v. Favor, 82
N.Y.2d 254 (1993). The majority does not explain its decision to apply Pepper to a new rule of federal criminal
procedure, although it states that it would have elected to apply Pepper instead of Teague in People v. Eastman, 85
N.Y.2d 265 (1995) if it had recognized that option. The majority indicates that Padilla would apply retroactively if
it met the requirements of either Teague or Pepper. As Pepper allows for broader retroactive application of new
rules, it would seem to render the Teague analysis irrelevant to the retroactivity of federal rules on state collateral
The contours of this type of claim remain largely undefined, leaving room for vigorous
advocacy for a broad definition of “inaccurate” or “misleading” advice prohibited by the federal and
state constitutions.6 Besides cases where the defense counsel assures the defendant that a
deportable plea actually avoids deportation, there are at least two other categories of affirmative
misrepresentations regarding immigration consequences: 1) defense counsel misrepresented the
risk of deportation attached to the guilty plea; and 2) defense counsel refrained from advising the
defendant regarding immigration consequences, but otherwise misled the defendant into believing
that there were no immigration consequences.
1. Defense counsel misrepresented the risk of deportation attached to a guilty plea.
These claims typically involve an assertion that defense counsel underestimated the risk of
deportation arising from a guilty plea. See People v. McKenzie, 4 A.D.3d 437, 439 (2d Dep’t 2004)
(finding the first prong of McDonald/Strickland satisfied relative to a 1997 plea where the attorney
incorrectly advised the defendant that deportation was a possible consequence of the plea, and that
there were things he could do to avoid deportation, when it was in fact mandatory); People v.
Worrell, Dckt. No. 2003QN024434 (Queens Crim. March 24, 2014, Lopez, J.)7 (vacating plea where
attorney told defendant that plea could impact citizenship application, when plea also rendered
defendant deportable, because defendant was misled by reference to only citizenship); People v.
Paredes, No. 1104/04, 2010 WL 3769234, at *3 n.1 (Sup. Ct., N.Y. County Sept. 21, 2010) (in the
6McDonald raised only a federal claim, and the Court did not address the question under state law. See Baret, slip
op. at 6 n.3. There is a strong argument that inaccurate advice regarding deportation would constitute ineffective
assistance under the N.Y. Constitution, under the standard articulated in People v. Baldi, 54 N.Y.2d 137, 147 (1981)
(“[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time
of the representation, reveal that the attorney provided meaningful representation, the [state] constitutional
requirement will have been met”). 7 People v. Worrell available at: immigrantdefenseproject.org/wp-content/uploads/2014/07/Yovanni-Worrell-Official-Decision.pdf
a period of twenty-two months by Director of Immigration and Customs Enforcement John Morton,
describing shifts in enforcement policy). Advice that a defendant may avoid enforcement,
therefore, presents an unacceptably high risk of misleading the defendant into failing to apprehend
the accurate risk of deportation presented by the guilty plea. If “enforcement” was not discussed,
and defense counsel underestimated the risk of deportation arising from the plea, practitioners can
argue that the case is distinguishable from Glasgow and Obeya and that McDonald and McKenzie
support a finding of deficient performance.
2. Defense counsel did not explicitly or specifically misadvise regarding immigration consequences, but otherwise misled the defendant into believing that there were no immigration consequences.
New Jersey attorneys have been arguing that silence can constitute “misadvice” since 2012,
when the New Jersey Supreme Court found Padilla nonretroactive. See State v. Gaitan, 209 N.J. 339,
379-81 (2012) (finding Padilla nonretroactive but excluding misadvice claims from its holding); see
also, e.g., State v. Michel, A-6258-12T1, 2014 WL 1257136, at *2 (N.J. Super. Ct. App. Div. Mar. 28,
2014) (defense counsel did not mention immigration consequences, but circled “N/A” in response
to Question Seventeen of the standard plea form,12 thus “creat[ing] the false impression that
deportation was not in the realm of possible consequences of entering the plea”); State v. Morris, A-
1621-11T3, 2013 WL 869503, at *5 (N.J. Super. Ct. App. Div. Mar. 11, 2013) (similar factual
scenario, court held that “the [plea] form itself constituted affirmative misadvice”); State v.
10
Between fiscal years 2008 and 2011, ICE removed more convicted criminal aliens from the United States than
ever before, with the number of convicted criminals that ICE removed from the United States increasing by 89
percent. See Secure Communities, http://www.ice.gov/secure_communities/ (last visited July 11, 2014) 11 http://www.fairus.org/morton-memos 12
Question Seventeen of the standard NJ plea form asked, “Do you understand that if you are not a United States
citizen or national, you may be deported by virtue of your plea of guilty?”
For an example of this argument, see IDP’s Model Memorandum of Law for a Padilla 440
Motion, p. 8-11, 17-19, immigrantdefenseproject.org/wp-content/uploads/2012/04/Model-
Motion-Doc-3-Memorandum-of-Law-combined.final_.pdf (last visited July 12, 2014). Since the
publication of the Model Motion, the Second Department has issued a decision finding Padilla non-
retroactivity dispositive of this claim:
[I]nsofar as the defendant contends that his attorney’s failure to negotiate a plea and sentence that would have put him in a better position to fight deportation fell short of the professional norms of the day, his contention is without merit. Even if his attorney’s representation fell short of the professional norms of the day, prior to Padilla a “breach of those norms was constitutionally irrelevant because deportation was a collateral consequence” of the plea (Chaidez v. United States, ––– U.S. at ––––, 133 S.Ct. at 1113 n. 15).
People v. Clarke, 116 A.D.3d 786 (2d Dep’t 2014).19 To try to avoid a similar result, practitioners
who press this argument should emphasize that its conceptual underpinnings lie in Lafler and Frye,
not Padilla.
b) To consider the impact of an ICE detainer when negotiating a sentence.
Failure to identify a disposition that triggers mandatory ICE detention can derail any
criminal sentence that depends on actual release from custody, and thus violates criminal counsel’s
longstanding duty to get the client out of criminal custody as early as possible. An ICE detainer may
result in a longer state sentence, because the detainer typically acts to prevent the immigrant’s
participation in early release programs such as Shock Incarceration. Therefore, a practitioner may
be able to argue that the defense attorney’s failure to appreciate the impact of an ICE detainer on
the length of time that the defendant would serve, and to use this information in plea negotiations,
constituted ineffective assistance of counsel.
19
The Clarke defendant has sought leave to appeal. Also, this issue is pending in the First Department in People v.
Gonzalez, New York County Ind. No. 01467/08 (opening brief filed in March 2014). Check the IDP post-conviction
relief website for updates: http://immigrantdefenseproject.org/criminal-defense/padilla-pcr.
c) To avoid prolonged and indefinite immigration detention.
If the plea at issue carried the penalty of mandatory deportation, and there was an
alternative plea that avoided both mandatory detention and the immigration consequence at issue,
practitioners may be able to argue that the defense attorney violated the duty to negotiate to avoid
additional incarceration. Minimizing jail time is a long-recognized duty of defense counsel. See
Glover, 531 U.S. 198 (2001). Peque recognized the indefinite, often lengthy nature of immigration
detention, stating that it resembles criminal incarceration although the conditions are generally
worse. 22 N.Y.3d at 188-89. This argument may be particularly attractive if the defendant went
directly from state custody to immigration custody. See, e.g., State v. Garcia, 727 A.2d 97 (N.J. App.
Div. 1999) (attorney’s misinformation not only misled Garcia about the possible deportation
consequences of his guilty plea, but also indirectly resulted in lengthening the period of Garcia’s
incarceration).
In a not-yet-filed amici brief, IDP has drafted the following section, detailing the
immigration law aspect of this argument:
In addition to deportation, broad categories of offenses require mandatory immigration detention while administrative authorities and courts determine whether an immigrant is deportable or has available relief. See 8 U.S.C. § 1226(c). Immigration detention, although labeled “civil,” is in practice indistinguishable from, if not worse than, criminal detention. See Dora Schriro, Improving Conditions of Confinement for Criminal Inmates and Immigrant Detainees, 47 Am. Crim. L. Rev. 1441, 1445 (2010) (observing that “in general, criminal inmates fare better than do civil detainees”).20 Immigration as well as criminal detainees are “ordinarily detained in secure facilities with hardened perimeters in remote locations that are considerable distances from counsel and their communities.” Id. at 1444-45. Immigration incarceration can last for months or years, vastly exceeding the jail time associated with the criminal case. In 2012, the Department of Homeland Security detained an all-time high of 477,523 non-citizens, far more than the U.S. Bureau of Prisons or any state or local correctional system.21 Also, detained New Yorkers, almost two-thirds of whom are transferred to out-of-state prisons,
20
See also Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. 42, 43 (2010) (coining the term
“immcarceration” to describe the quasi-punitive system of excessive immigration detention practices in the U.S.);
New York University School of Law Immigrant Rights Clinic, Immigration Incarceration, The Expansion and
Failed Reform of Immigration Detention in Essex County, NJ, 4 (March 2012),
http://www.afsc.org/sites/afsc.civicactions.net/files/documents/ImmigrationIncarceration2012.pdf (finding that “the
lack of liberty and conditions of immigrant detainees in Essex County, NJ mirror those of inmates in prison facilities
for serious crimes”). 21
See id. at 1446 n.42; John F. Simanski & Lesley M. Sapp, Annual Report Immigration Enforcement Actions:
experience substantially lower rates of success in removal proceedings than their non-detained counterparts.22 Many New Yorkers who are detained and deported leave behind U.S. citizen children.23
d) To use immigration consequences to achieve a lesser prison sentence.
Practitioners may be able to argue that the defense attorney’s failure to pursue a lesser
prison sentence through plea negotiations, due to the serious immigration consequences of the
D.A.’s offer, constituted ineffective assistance of counsel. For example, if the plea at issue
constituted an aggravated felony because it carried a one year sentence, then the defense attorney
could have argued that subjecting the defendant to mandatory deportation was a disproportionate
penalty for the offense, and persuaded the D.A. to agree to a 364-day sentence. See, e.g., People v.
Gomez, Ind. No. N10911/96 (Queens Crim. May 17, 2012, Camacho, J.)24 (vacating plea pursuant to
Lafler and Frye where defense attorney failed to use information in mitigation, including
immigration consequences, to persuade the D.A. to fashion a more “just” disposition). Practitioners
could advocate for the following general duty: “Counsel must use all reasonably available
information to advocate for a less serious disposition.” See id. Specifically, in neglecting to use the
consequence of virtually mandatory deportation attached to the disposition as a negotiation tool,
defense counsel failed to secure a lesser jail sentence.
2. Ineffective assistance of counsel claims unrelated to the immigration consequences
It is imperative to investigate all possible claims of ineffective assistance of
counsel under the state and federal constitutions prior to filing the 440 motion, to
maximize the chance of success, and because claims not raised in an initial 440 motion may
22
See N.Y. Immigrant Representation Study, Study Grp. on Immigrant Representation, Accessing Justice: The
Availability and Adequacy of Counsel in Immigration Proceedings, 363-64 (2011), available at
http://www.cardozolawreview.com/Joomla1.5/content/33-2/NYIRS%20Report.33-2.pdf. The Study Group reported
that 73 % of non-detained immigrants in New York City have counsel, as opposed to 21% of detainees transferred
out of state. The data also indicated that represented and non-detained immigrants have successful outcomes 74% of
the time, as opposed to 3% of the time for unrepresented and detained immigrants. 23
See NYU School of Law Immigrant Rights Clinic, et al., Insecure Communities, Devastated Families, 17-19 (July
attorney focused singly on his own interests . . .particularly [due to] the potential immigration
concerns that Mr. Jaikaran faced”).27
c) Failure to seek a Youthful Offender disposition
If the defendant was eligible for a Youthful Offender (YO) disposition, and the attorney
failed to zealously seek a YO, this may present a ground for vacatur. See People v. Chou, Ind. No.
1770/1998 (Sup. Ct., Bronx County Dec. 11, 2013, Newbauer, J.).28 This error is critical in the case
of an immigrant defendant because a YO disposition is not a conviction for immigration purposes.
See Matter of Devison-Charles, 22 I. & N. Dec.1362 (B.I.A. 2000).
d) Various other grounds pertaining to trial or sentencing preparation, or plea negotiations
Various other grounds exist to argue for vacatur based on ineffective assistance of counsel.
These include the failure to conduct a diligent factual and legal investigation, see Wiggins v. Smith,
539 U.S. 510 (2003), failure to investigate or present a viable defense or sentencing argument,
Porter v. McCollum, 558 U.S. 30 (2009), and failure to advise of a plea offer which the defendant
would have accepted if competently advised. See Missouri v. Frye, 132 S.Ct. 1399 (2012). This list is
non-exhaustive; defense practitioners should attempt to put themselves in the position of defense
counsel at the inception of the case, and ascertain whether counsel failed to take any steps in trial
or sentencing preparations, or negotiations, that might have proved fruitful. Evaluating such a
claim generally involves going back and performing the steps omitted to see whether there is a
reasonable probability that the client was prejudiced by the error.
IV. Conclusion
Post-conviction relief for certain immigrant defendants may be more difficult in light of
Baret, but it is still possible to vacate a problematic conviction or sentence. IDP is available to
support aggressive litigation of post-conviction relief issues affecting immigrant defendants, and is
27 People v. Jaikaran available here: http://immigrantdefenseproject.org/wp-content/uploads/2014/07/People-v.-Jaikaran.pdf 28 People v. Chou available here: http://immigrantdefenseproject.org/wp-content/uploads/2014/07/Chou.pdf