: : : : No : : MOTION OF IMMIGRANT DEFENSE PROJECT FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

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1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT x : The People of the State of New York, : : Respondent, : -v.- Churchill Andrews, : : : : No : : Defendant-Appellant. : : x MOTION OF IMMIGRANT DEFENSE PROJECT FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE The Immigrant Defense Project ( IDP ) respectfully requests leave of this Court under Rule of the Rules of Procedure of the Appellate Division to file the attached amicus curiae brief in support of Defendant-Appellant s appeal in the above-captioned case. A copy of the proposed amicus brief is attached hereto as Exhibit A. Proposed amicus seek leave to file the attached amicus brief because the lower court s decision conflicts with the plain language of Padilla v. Kentucky, 130 S. Ct (2010), incorrectly interprets the immigration law, and applies an incorrect prejudice standard. Decisions such as the one below deprive noncitizens, whose final plea-based convictions were procured in violation of longstanding professional norms of their Sixth Amendment right to effective assistance of counsel, as established by Strickland v. Washington, 466 U.S. 668 (1984), and as reiterated by Padilla. The proposed amicus brief would provide the Court with the relevant immigration statutes and case law that impact a noncitizen who pleads guilty in the deferred adjudication/ drug treatment setting, as well as the information about the prevailing professional

2 standards and resources available to defense counsel on this issue pre-padilla; provide this Court with an additional perspective on the real-world consequences of a plea in the deferred adjudication setting; and advocate adoption of a uniform state rule with respect to the retroactivity of Padilla and the proper prejudice standard to be applied. The attached brief draws upon the interest and special expertise of proposed amicus. IDP is a non-profit legal resource center that provides defense attorneys, immigration attorneys and immigrants with expert legal advice and training on issues involving the interplay between criminal and immigration law. Since 1997, IDP, with its former parent organization the New York State Defenders Association, has produced and maintained the only legal treatise for New York defense counsel representing immigrant defendants. See Manuel D. Vargas, Representing Immigrant Defendants in New York (5th ed. 2011). IDP regularly addresses the unique circumstances faced by noncitizen criminal defendants and is well aware of the harsh impact that immigration status can have on them. It has worked through the years to develop proper standards of conduct for defense counsel in this area and knows well the real-world implications of these standards. As an organization dedicated to improving the quality of justice for immigrants accused or convicted of crimes, IDP has a keen interest in a correct and fair resolution of the legal issues in this case that relate to the right of immigrant defendants to effective assistance of counsel. Numerous courts, including the United States Supreme Court and the New York Court of Appeals, have accepted and relied on amicus curiae briefs prepared and submitted by IDP (on its own or by its former parent, NYSDA) in many of the key cases involving the intersection of immigration and criminal laws. See, e.g., Brief of Amici Curiae IDP et al. in Support of Defendants-Appellants Ventura and Gardner in People v. Ventura, --- N.E.2d ----, 17 ii

3 N.Y.3d 675 (N.Y. 2011); Brief of Amici Curiae IDP et al. in Support of Petitioner in Carachuri- Rosendo v. Holder, 130 S. Ct (2010); Brief of Amici Curiae IDP et al. in support of Petitioner, in Padilla v. Kentucky, 130 S. Ct (2010). For these reasons, proposed amicus respectfully request leave of Court to file the attached amicus brief. Defendant-Appellant has consented to the filing of the brief, and amicus was unable to reach Respondent to ascertain his position. Dated: December 22, 2011 New York, New York Respectfully submitted, By: Alisa Wellek Staff Attorney IMMIGRANT DEFENSE PROJECT 3 West 29th Street # 803 New York, NY (212) awellek@immigrantdefenseproject.org Counsel for amicus curiae Immigrant Defense Project iii

4 TABLE OF CONTENTS STATEMENT OF INTEREST... 1 ARGUMENT... 3 I. Padilla applies retroactively to state cases on collateral review regardless of whether it is deemed an old or new rule... 3 A. Padilla is an old rule under Teague and Eastman... 4 i. An analysis of Padilla under Teague and Eastman compels the conclusion that Padilla is not a new rule... 4 ii. Courts around the country have held that, under Teague, the holding of Padilla is not a new rule iii. New York appellate courts have uniformly applied Padilla to convictions that were final when Padilla was decided B. If Padilla is a new rule, it must be applied to defendants similarly situated to Mr. Padilla i. If Teague applies, and Padilla stated a new rule, this Court must apply it to cases on collateral review ii. New York courts may apply broader retroactivity principles II. Padilla requires that a defense lawyer advise a noncitizen defendant that the federal government will treat a guilty plea to a drug trafficking offense, even if part of a deferred adjudication/drug treatment court disposition, as triggering mandatory deportation A. The federal government treats a guilty plea to a drug trafficking offense, even in the context of a deferred adjudication/drug treatment court disposition, as a conviction triggering mandatory deportation B. ICE could easily place a noncitizen defendant in removal proceedings following his plea to a controlled substance offense in the context of a deferred adjudication/drug treatment court disposition iv

5 III. A defendant satisfies Strickland s requirement of prejudice by demonstrating a reasonable probability that, but for the ineffective assistance of counsel, he would not have pleaded guilty A. Courts have deemed the decision to reject a plea agreement rational for noncitizen defendants facing deportation, even where the defendant risked lengthy imprisonment B. The calculus for a noncitizen defendant facing deportation must account for the conditions the deportee would face upon return CONCLUSION v

6 TABLE OF AUTHORITIES Cases Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir. 1990)... 6 Al Kokabani v. United States, 2010 WL (E.D.N.C.) Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006) Angulo v. Kelly, 1992 WL (S.D.N.Y.)... 6 Boria v. Keane, 99 F.3d 492 (2d Cir. 1996)... 5 Brown v. Artuz, 124 F.3d 73 (2d Cir. 1997)... 5 Bunkley v. Meacham, 68 F.3d 1518 (2d Cir. 1995)... 6 Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992)... 6 Commonwealth v. Clarke, 460 Mass. 30 (2011)... 4, 9, 19, 23 Cruz Garza v. Ashcroft, 396 F.3d 1125 (10th Cir.2005) Danforth v. Minnesota, 552 U.S. 264 (2008) Denisyuk v. State, 2011 WL (Md.)... 4, 9, 21 Frazer v. South Carolina, 430 F.3d 696 (4th Cir. 2005)... 5 Guaddarama-Melo v. United States, 2011 WL (E.D.Texas) Herrera Inirio v. INS, 208 F.3d 299 (1st Cir.2000) Hill v. Lockhart, 474 U.S. 52 (1985)... 10, 18 INS v. St. Cyr, 533 U.S. 289, 322 (2001) Jimenez v. Holder, 2011 WL (S.D. Cal.) Linkletter v. Walker, 381 U.S. 618 (1965) Mackey v. United States, 401 U.S. 667 (1971)... 5 Marroquin v. United States, 2011 WL (S.D.Tex.) vi

7 Murillo Espinoza v. INS, 261 F.3d 771 (9th Cir.2001) Newland v. Hall, 527 F.3d 1162(11th Cir. 2008)... 5 Ortiz v. United States, 2011 WL *3 (S.D. Texas)..22 Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008)... 5 Padilla v. Kentucky, 559 U.S., 176 L.Ed.2d 284 (2010)... passim People v. Andrews, 2011 N.Y. Misc. LEXIS 2173(N.Y. Sup. Ct. April 22, 2011)... 14, 16, 22 People v. Eastman, 85 N.Y.2d 265 (1995)... 4, 14, 16 People v. Feliciano, 2011 WL (Sup. Ct., App. Term, 1 st Dept Mar. 29, 2011) People v. McDonald, 1 N.Y.3d 109 (2003)... 6 People v. Nunez, 917 N.Y.S.2d 806 (2010) People v. Rauf, N.Y.S.2d, 2011 WL (1st Dept.) People v. Reynoso, 931 N.Y.S.2d 430 (2011)... 11, 21 People v. Turner, 5 N.Y. 3d 123 (2005)... 6 People v. Williams, 899 N.Y.S.2d 438 (2010)... 11, 22 Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) Pinho v. Gonzales, 432 F.3d 193 (3rd Cir.2005) Ramos v. Gonzales, 414 F.3d 800 (7th Cir.2005) Resendiz Alcaraz v. Ashcroft, 383 F.3d 1262 (11th Cir.2004) Roe v. Flores-Ortega, 528 U.S. 470 (2000)... 5 Rompilla v. Beard, 545 U.S. 374 (2005)... 5 Saleh v. Gonzales, 495 F.3d 17 (2d Cir 2007) Sears v. Upton, 561 U.S., 130 S. Ct (2010)... 7 See Amer v. United States, 2011 WL (N.D. Miss.) vii

8 Song v. United States, 2011 WL (C.D.Cal.) State v. Sandoval, 171 Wash. 2d 163 (2011) State v. Smart, 202 P.3d 1130 (Alaska 2009) Strickland v. Washington, 466 U.S. 668 (1984)... passim Tanner v. McDaniel, 493 F.3d 1135 (9th Cir. 2007)... 5 Teague v. Lane, 489 U.S. 288 (1989)... passim United States v. Hong --- F.3d ----, 2011 WL (10 th Cir. 2011) United States v. Chong, 2011 WL (S.D.Ga.) United States v. Dass, 2011 WL (D.Minn.) United States v. Hubenig, 2010 WL (E.D. Cal.) United States v. Krboyan, 2011 WL (E.D.Cal.)... 10, 19 United States v. Orocio, 645 F.3d 630 (3d Cir. 2011)... 4, 10, 19 United States v. Reid, 2011 WL (S.D.Ohio) United States v. Zhong Lin, 2011 WL (W.D.Ky.) Wiggins v. Smith, 539 U.S. 510, 522 (2003)... 5 Williams v, Taylor, 529 U.S. at 362 (2000)... 5, 15 Wright v. West, 505 U.S. 277 (1992)... 4, 7 Statutes 8 U.S.C. 1101(a)(43)(b) U.S.C. 1227(a)(2)(A)(iii) U.S.C. 1227(a)(2)(B)(i) N.Y. Crim. Proc. Law (1)(d)(ii) viii

9 Administrative Decisions Ditren v. Holder, A (BIA April 14, 2008) Matter of Cabrera, 24 I. & N. Dec. 459 (BIA 2008) Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) Matter of Roldan, 22 I. & N. Dec. 512 (BIA 2000) Matter of Salazar, 23 I. & N. Dec. 223 (BIA 2002) Regulations 8 C.F.R C.F.R C.F.R (b)(2) Other Authorities AFM ch. 26.1(f) AFM ch Amnesty International Press Release, Guyana: need for immediate inquiry into death squad killings (Feb. 6, 2004) Department of Homeland Security, Annual Report: Immigration Enforcement Actions 2008 (July 2009)..28 Department of Homeland Security, Privacy Impact Assessment for the Biometric Storage System (March 28, 2007) 17 GINA Government Information Agency, Several new anti-crime bills to be tabled (Feb. 16, 2007) ix

10 Guyana Human Rights and Crime Control: Not Mutually Exclusive (2003) Memorandum for Regional Directors, 2001 WL (Apr. 27, 2001).17 New York City Bar, Committee on Criminal Justice Operations, The Immigration Consequences of Deferred Adjudication Programs in New York City (June 2007) New York State Defenders Association Immigrant Defense Project, Immigrants & Pleas in Problem-Solving Courts: A Guide for Noncitizen Defendants & Their Advocates (August 2007) Julia Preston, Perfectly Legal Immigrants, Until They Applied for Citizenship, N.Y. TIMES (April 12, 2008) 17 x

11 As experts in immigration law affecting noncitizens convicted of crimes, amicus curiae the Immigrant Defense Project ( IDP ) respectfully offers this brief in support of Defendant- Appellant Churchill Andrews appeal of the Supreme Court s denial of his petition for postconviction relief. IDP submits this amicus curiae brief pursuant to 22 NYCRR Part Procedure in the Appellate Division, pending leave of Court. 1 STATEMENT OF INTEREST IDP is a non-profit legal resource center that provides defense attorneys, immigration attorneys and immigrants with expert legal advice and training on issues involving the interplay between criminal and immigration law. Since 1997, IDP, with its former parent organization the New York State Defenders Association, has produced and maintained the only legal treatise for New York defense counsel representing immigrant defendants. See Manuel D. Vargas, Representing Immigrant Defendants in New York (5th ed. 2011). IDP regularly addresses the unique circumstances faced by noncitizen criminal defendants and is well aware of the harsh impact that immigration status can have on them. It has worked through the years to develop proper standards of conduct for defense counsel in this area and knows well the real-world implications of these standards. As an organization dedicated to improving the quality of justice for immigrants accused or convicted of crimes, IDP has a keen interest in a correct and fair resolution of the legal issues in this case that relate to the right of immigrant defendants to effective assistance of counsel. Numerous courts, including the United States Supreme Court and the New York Court of Appeals, have accepted and relied on amicus curiae briefs prepared and submitted by IDP (on its 1 IDP confirms hereby that no party s counsel authored this amicus curiae brief in whole or in part; and no party, party s counsel or other person other than IDP, its members or its counsel contributed money intended to fund preparing or submitting the brief. 1

12 own or by its former parent, NYSDA) in many of the key cases involving the intersection of immigration and criminal laws. See, e.g., Brief of Amici Curiae IDP et al. in Support of Defendants-Appellants Ventura and Gardner in People v. Ventura, --- N.E.2d ----, 17 N.Y.3d 675 (N.Y. 2011); Brief of Amici Curiae IDP et al. in Support of Petitioner in Carachuri-Rosendo v. Holder, 130 S. Ct (2010); Brief of Amici Curiae IDP et al. in support of Petitioner, in Padilla v. Kentucky, 130 S. Ct (2010); Brief of Amici Curiae IDP et al. in support of Petitioner in Nijhawan v. Holder, 129 S. Ct (2009); Brief of Amici Curiae NYSDA Immigrant Defense Project, et al. in support of Respondent, cited in INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001); Brief of Amici Curiae NYSDA Immigrant Defense Project in support of Petitioner in Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008); Brief of Amicus Curiae NYSDA Immigrant Defense Project in support of Petitioner in Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008); Brief of Amici Curiae NYSDA in support of Petitioner in Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003). 2

13 ARGUMENT IDP presents the following three points that are relevant to a correct and fair disposition of this case under the standards elaborated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and Padilla. First, this Court should hold that Padilla applies retroactively to this case and all cases on collateral review because under Teague v. Lane, 489 U.S. 288 (1989), Padilla merely applied the well settled rule of Strickland to a new set of specific facts and, thus, did not announce a new rule of law. In the alternative, if this Court finds that Padilla is a new rule, and that Teague applies, then Padilla applies retroactively to defendants similarly situated to the Padilla defendant, that are challenging state convictions in state collateral review proceedings. Second, this Court should find that it is clear deficient performance under Padilla for a defense lawyer to fail to advise an immigrant defendant that the federal government will treat a guilty plea to a drug trafficking offense, as part of a deferred adjudication/drug treatment court disposition, as triggering mandatory deportation. Third, for claims arising under Padilla, a defendant satisfies Strickland s requirement of prejudice simply by demonstrating a reasonable probability that, but for the ineffective assistance of counsel, he would not have pleaded guilty. I. Padilla applies retroactively to state cases on collateral review regardless of whether it is deemed an old or new rule. Padilla v. Kentucky, 559 U.S., 176 L.Ed.2d 284 (2010) applies to Mr. Andrews ineffective assistance of counsel claim irrespective of whether this Court deems the holding an old or new rule. Under the analysis set forth in Teague v. Lane, 489 U.S. 288 (1989), Padilla merely applied the old rule of Strickland v. Washington, 466 U.S. 668 (1984) to the 3

14 unique facts of Jose Padilla s ineffective assistance of counsel claim. Thus, Padilla must be applied retroactively to state cases on collateral review. Alternatively, if Teague applies, and the Court created a new rule, it could not have applied it to Jose Padilla s case unless it applied to all other similarly situated defendants. Teague, 489 U.S. at 316. Mr. Andrews is similarly situated to Mr. Padilla and the new rule of Padilla operates to redress the denial of Mr. Andrews Sixth Amendment rights. Thus, no matter how this Court classifies Padilla s holding, it applies to Mr. Andrews claim that he was deprived of his Sixth Amendment right to effective assistance of counsel. A. Padilla is an old rule under Teague and Eastman. It is settled that when a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an old rule and is always retroactive. This retrospective application reflects the development and refinement of constitutional principles over time. People v. Eastman, 85 N.Y.2d, (1995)(citations omitted). This Court should hold that Padilla applies retroactively to this case and all cases on collateral review because, under Teague and Eastman, Padilla merely applied the well settled rule of Strickland to a new set of specific facts and, thus, did not announce a new rule of law. Accord United States v. Orocio, 645 F.3d 630 (3d Cir. 2011); Denisyuk v. State, 2011 WL (Md.); Commonwealth v. Clarke, 460 Mass. 30 (2011). i. An analysis of Padilla under Teague and Eastman compels the conclusion that Padilla is not a new rule. The Supreme Court does not announce a new rule for Teague purposes when it simply applie[s] a well-established constitutional principle to govern a case closely analogous to those which have been previously considered in the prior case law, as in the Strickland context. Wright v. West, 505 U.S. 277, 304 (1992) (O Connor, J., concurring) (quoting Mackey v. United 4

15 States, 401 U.S. 667, 695 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (internal quotation marks omitted and emphasis added)). Because the Strickland test is just such a rule of general application, id., and provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims, Williams v, Taylor, 529 U.S. at 362, 391 (2000), the Supreme Court has repeatedly held that decisions applying the clearly established principles of Strickland in new contexts do not announce new rules. See, e.g., Rompilla v. Beard, 545 U.S. 374, 394 (2005) (O Connor, J., concurring) ( [T]oday s decision simply applies our longstanding case-by-case approach to determining whether an attorney s performance was unconstitutionally deficient under [Strickland]. ); Wiggins v. Smith, 539 U.S. 510, 522 (2003) (stating Court made no new law in Williams because the merits of Williams claim are squarely governed by our holding in Strickland ). Other federal courts have done so as well. See, e.g., Brown v. Artuz, 124 F.3d 73, 76, (2d Cir. 1997) (extending Strickland to claim that counsel failed to properly advise client about right to testify at trial); Boria v. Keane, 99 F.3d 492, , 499 (2d Cir. 1996) (extending Strickland to claim that counsel failed to properly advise client about whether to accept plea bargain notwithstanding client s professed innocence); Osagiede v. United States, 543 F.3d 399, 408 n.4 (7th Cir. 2008) ( [E]ven if this particular application of Strickland had never before arisen, it would be of little legal consequence and would not create new rule); Newland v. Hall, 527 F.3d 1162, (11th Cir. 2008) ( Williams, Wiggins, and Rompilla are not new law under Teague. ); Tanner v. McDaniel, 493 F.3d 1135, (9th Cir. 2007) (holding Roe v. Flores-Ortega, 528 U.S. 470 (2000), which applied Strickland to failure to file notice of appeal, did not announce new rule); Frazer v. South Carolina, 430 F.3d 696, 706 (4th Cir. 2005) (same). 5

16 Federal Courts in New York have also applied Strickland to novel situations on collateral review of state convictions without even mentioning the Teague retroactivity analysis. Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992) held that the defendant was deprived of effective assistance by the failure of appellate counsel to rely on New York constitutional law during the pretrial appeal of the denial of a suppression motion in a state criminal case. The Claudio dissent labeled the majority opinion an unprecedented ruling, yet the majority made no mention of Teague. Id. at 806 (Newman, J., dissenting). The most likely explanation is that the Claudio court understood that applying Strickland to novel facts did not require a Teague analysis because it was merely applying an old rule in a different setting; if this were not the case, Teague would have prohibited the federal court from granting relief in a collateral challenge to a state conviction. See Teague, 489 U.S. at 316. Similarly, Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir. 1990) extended Strickland to the assistance of appellate counsel in a state criminal case without mentioning Teague. Just as in Claudio, the court could not have awarded relief after Teague unless it was merely applying an old rule to a novel situation. Subsequently, Angulo v. Kelly, 1992 WL (S.D.N.Y.) and Bunkley v. Meacham, 68 F.3d 1518 (2d Cir. 1995) applied Abdurrrahman on collateral review of state convictions that were final in 1990, with no mention of Teague. These cases demonstrate that an application of Strickland to a new set of facts is routinely viewed as the application of an old rule. New York state courts have likewise applied Strickland to novel factual situations with no mention of Teague or Eastman. People v. McDonald, 1 N.Y.3d 109 (2003) applied Strickland to erroneous advice regarding the immigration consequences of a guilty plea without addressing Teague or Eastman. People v. Turner, 5 N.Y. 3d 123 (2005) applied Strickland to appellate counsel s failure to raise trial counsel s ineffectiveness without mentioning Teague or Eastman. 6

17 These decisions are best understood in light of the principle that applying the old Strickland rule to a new set of facts does not create a new rule. The same principle operates in Padilla. The Court simply applied to the particular facts of the case before it the broad principle established in Strickland that proper measure of attorney performance remains simply reasonableness under prevailing professional norms, which principle has been applied to advice concerning guilty pleas since Hill v. Lockhart. See Padilla, 559 U.S. at, 130 S. Ct. at 1485 n.12 ( Whether Strickland applies to Padilla s claim follows from Hill.... ); Sears v. Upton, 561 U.S., 130 S. Ct. 3259, 3266 (2010) (noting Supreme Court has consistently explained that the Strickland inquiry requires... [a] probing and fact-specific analysis ). In doing so, the Court drew upon its earlier observation in St. Cyr, 533 U.S. at 323 n.50, that competent defense counsel, following the advice of numerous practice guides, would have affirmatively advised her client whether a conviction would impact the client s removability from the United States. Padilla, 559 U.S. at, 130 S. Ct. at The Court also relied upon the weight of prevailing professional norms that [f]or at least the past 15 years... have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client s plea. Id. at 1485 (emphasis added). Under these circumstances, the application of Strickland in Padilla was neither novel nor produced such a novel result that it can properly be said to have forge[d] a new rule. Wright, 505 U.S. at (Kennedy, J., concurring). See also Orocio, 645 F.3d at 641; Tanner, 493 F.3d at ( Each time that a court delineates what reasonably effective assistance requires of defense attorneys with respect to a particular aspect of client representation, it can hardly be thought to have created a new principle of constitutional law. ); Hubenig, 2010 WL , at *7 7

18 ( Considering both prior Supreme Court precedent and the prevailing professional norms, the result in Padilla is not novel. ). The Supreme Court s analysis of the potential impact of Padilla on future petitions for collateral review reinforces the conclusion that the decision applies retroactively. In response to concerns that Padilla might impair the finality of convictions obtained through guilty pleas and open the floodgates for new challenges to final convictions, the Court noted: There is no reason to doubt that lower courts now quite experienced with applying Strickland can effectively and efficiently use its framework to separate specious claims from those with substantial merit. It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client s plea. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Padilla, 559 U.S. at, 130 S. Ct. at 1485 (internal citations omitted and emphasis added). This discussion would have been superfluous if the Court intended that Padilla apply only prospectively. Padilla is best understood as merely applying the well-established old rule of Strickland and, under Teague and Eastman, should be applied retroactively to past convictions provided that professional norms at the time of conviction established a duty to advise about the immigration consequences of a plea. Jose Padilla entered his guilty plea in 2002, and Strickland requires an assessment of the reasonableness of counsel s challenged conduct... viewed as of the time of counsel s conduct. Strickland, 466 U.S. at 690. Therefore, the norms discussed in Padilla were firmly in place in March The lower court s reliance upon People v. Ford, 86 N.Y.2d 397 (1995) is misplaced because according to Padilla the professional norms informing that opinion had evolved by

19 ii. Courts around the country have held that, under Teague, the holding of Padilla is not a new rule. The courts that have decided whether Padilla applies retroactively are divided into two camps, some holding that it is an old rule, and some determining that it is a new rule. The only two state courts of last resort that have considered this issue have held that the Padilla is not a new rule, a holding echoed by the Third Circuit Court of Appeals. In Clarke and Denisyuk, the highest courts in Massachusetts and Maryland held that Padilla did not create a new rule. The Clarke Court acknowledged but dismissed the proposition that the existence of conflicting authority indicated that a rule was new. See Clarke, 460 Mass. at The Court then conducted a thoughtful analysis of the precise way in which Strickland governs ineffective assistance claims and ultimately determined that Padilla was merely an extension of the Strickland rule. Id. at Next, the Clarke Court proceeded to examine the reasoning and language of the Padilla decision itself and concluded that [a] fair reading of the Supreme Court s opinion in Padilla also suggests that the Justices themselves assumed that their holding would be retroactively applied. Id. at Based on the foregoing analysis, the Clarke Court held that Padilla applied retroactively to the defendant s conviction. See id. at 45. The Denisyuk Court adopted the reasoning of Orocio and Clarke and agreed that the holding of Padilla operated to provide redress for the defendant s Sixth Amendment violation. See Denisyuk, 2011 WL *7-11. In Orocio, the government argued that Padilla was a new rule because: 1) it extended Strickland s Sixth Amendment analysis to a non-criminal setting, and 2) it clearly broke new ground regarding counsel s duty to advise her client about [removal], and was not dictated by such that, although not explicitly overruled, Ford no longer articulated the correct application of the Strickland standard. 9

20 prior Supreme Court precedent. Orocio, 634 F.3d at (internal quotations omitted). The Orocio Court addressed the first argument by characterizing Padilla as recognizing that a plea agreement s immigration consequences constitute the sort of information an alien defendant needs in making important decisions affecting the outcome of the plea process. Id. at 638. The Court cited to Strickland and Hill v. Lockhart, 474 U.S. 52 (1985) in finding that instead of extending Strickland into a non-criminal area, Padilla reaffirmed defense counsel s obligations to the criminal defendant during the plea process, a critical stage in the proceedings. Id. As for the second argument, the Orocio Court found that Padilla followed from Strickland and Hill, which required counsel to advise criminal defendants at the plea stage in accordance with precedent and prevailing professional norms to ensure that the defendant makes an informed, knowing, and voluntary decision whether to plead guilty. Id. at 639. The Orocio Court also observed that [l]ower court decisions not in harmony with Padilla were, with few exceptions, decided before 1995 and pre-date the professional norms that, as the Padilla court recognized, had long demanded that competent counsel provide advice on the removal consequences of a client s plea. Id. at 640. Finally, the Orocio Court scrutinized the Padilla opinion and concluded that it was not unlikely that the justices anticipated that lower courts would apply the holding retroactively. Id. at 641. For all these reasons, the Orocio Court held that Padilla applied retroactively to the petitioner s Sixth Amendment claim. See id. Myriad other federal courts have conducted similar analyses and held that Padilla is an old rule requiring retroactive application. See Amer v. United States, 2011 WL , at *2 n.2 (N.D. Miss.); United States v. Hubenig, 2010 WL , at *5-8 (E.D. Cal.); Marroquin v. United States, 2011 WL (S.D.Tex.); United States v. Krboyan, 2011 WL (E.D.Cal.); United States v. Zhong Lin, 2011 WL (W.D.Ky.); Al Kokabani v. United States, 10

21 2010 WL (E.D.N.C.); Jimenez v. Holder, 2011 WL (S.D. Cal.); Song v. United States, 2011 WL (C.D.Cal.); United States v. Chong, 2011 WL (S.D.Ga.); United States v. Dass, 2011 WL (D.Minn.); United States v. Reid, 2011 WL (S.D.Ohio); Guaddarama-Melo v. United States, 2011 WL (E.D.Texas); But see, e.g., United States v. Hong, --- F.3d ----, 2011 WL (10 th Cir. 2011). Thus, this Court should follow suit and apply Padilla retroactively to collateral challenges to convictions that were final when Padilla was decided. iii. New York appellate courts have uniformly applied Padilla to convictions that were final when Padilla was decided. New York appellate courts have uniformly applied Padilla retroactively to 440 motions. In People v. Williams, 899 N.Y.S.2d 438 (2010) and People v. Reynoso, 931 N.Y.S.2d 430 (2011), the Appellate Division, Third Dept. reversed denials of 440 motions in cases presenting Padilla claims of ineffective assistance of counsel. In both cases, the convictions were final when Padilla was decided so the reversals strongly implied that the Court considered Padilla to apply retroactively to the petitioners claims. In People v. Nunez, 917 N.Y.S.2d 806 (2010), the Supreme Court, Appellate Term reasoned that Padilla was an old rule under Teague and applied it retroactively to petitioner s 440 motion. Counsel for appellant cites People v. Feliciano, 2011 WL (Sup. Ct., App. Term, 1 st Dept Mar. 29, 2011) for the holding that Padilla does not apply retroactively but this is patently incorrect. Feliciano holds that the norms described in Padilla do not extend back to 1988; the Court applied Padilla, thus implying retroactive application, but denied relief under Padilla due to the date of the conviction. This Court should follow the reasoning of these other NY appellate courts and hold that Padilla applies retroactively to N.Y. collateral review cases. 11

22 B. If Padilla is a new rule, it must be applied to defendants similarly situated to Mr. Padilla. The Teague Court held that it would refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated. Teague, 489 U.S. at 316. Therefore, if the Padilla Court created a new rule and awarded relief to Jose Padilla, and Teague applies, then the rule must be applied to all similarly situated defendants. See Ortiz v. United States, 2011 WL *3 (S.D. Texas) (because the rule in Padilla was announced on collateral review, its holding must apply retroactively to all cases on collateral review). i. If Teague applies, and Padilla stated a new rule, this Court must apply it to cases on collateral review. Teague was a federal collateral appeal of a state conviction, in which the Court decided to clarify how the question of retroactivity should be resolved for cases on collateral review. Id. at 300. Its analysis, focusing on comity, fairness to state courts attempting to resolve federal questions, and finality of state convictions, is uniquely tied to the context of federal collateral review of state convictions. See id. at It did not attempt to answer the question of retroactivity in the Padilla context of a direct appeal to the U.S. Supreme Court of a state highest appellate decision. Based on the foregoing considerations, the Teague Court forged a narrow retroactivity rule. 3 The Teague Court indicated that retroactivity was properly treated as a threshold question and that the Court would not even consider issuing a new rule unless it applied to the petitioner and retroactively to all who are similarly situated. Id. at 300. Therefore, to the extent that the narrow retroactivity rule of Teague even applies to Padilla, if the 3 Teague did not limit the power of the federal courts to adopt new rules on direct review of criminal convictions. See Beard v. Banks, 542 U.S. 406, 412 (2004) 12

23 Court created a new rule and applied it to Jose Padilla, it must be applied retroactively to all similarly situated petitioners. This understanding of Padilla accounts for the floodgates discussion and the Padilla Court s strong suggestion that its holding would apply to cases on collateral review. For these reasons, if the Court labels Padilla a new rule, it must apply it retroactively to cases on collateral review. ii. New York courts may apply broader retroactivity principles. Danforth v. Minnesota, 552 U.S. 264 (2008) held that Teague does not control the authority of state courts to give broader retroactive effect to new federal constitutional rules in the context of state criminal cases on collateral review. The state highest courts that have addressed the retroactivity of Padilla have either not applied Teague in favor of a state retroactivity statute, or opined that Teague does not necessarily apply but declined to address what broader principles might apply since Padilla applied retroactively under Teague. See Denisyuk, 2011 WL *7 (Md.); Clarke, 460 Mass.at 34 n.7. The Supreme Court of Alaska has expressly rejected Teague in favor of a broader retroactivity test. See State v. Smart, 202 P.3d 1130 (Alaska 2009). If this Court finds that Padilla is not retroactively applicable under Teague, this Court should follow the reasoning of the Smart Court, refuse to apply Teague, and apply the test articulated in Linkletter v. Walker, 381 U.S. 618 (1965) or other broader retroactivity principles. 4 4 People v. Eastman, 85 N.Y.2d 265 (1995) suggests that Teague applies in New York state convictions on collateral appeal but Eastman was decided before Danforth and contains language that indicates that the Eastman Court felt compelled to apply Teague. 13

24 II. Padilla requires that a defense lawyer advise a noncitizen defendant that the federal government will treat a guilty plea to a drug trafficking offense, even if part of a deferred adjudication/drug treatment court disposition, as triggering mandatory deportation. The lower court erred in finding that the immigration consequences of a deferred adjudication are unclear and uncertain for those defendants who successfully complete the court s treatment mandate and whose cases are ultimately dismissed and sealed. People v. Andrews, 2011 N.Y. Misc. LEXIS 2173, at **10 (N.Y. Sup. Ct. April 22, 2011). The court misapprehends how the federal government defines conviction under the Immigration and Nationality Act (INA). A. The federal government treats a guilty plea to a drug trafficking offense, even in the context of a deferred adjudication/drug treatment court disposition, as a conviction triggering mandatory deportation. The relevant immigration statute is clear that a plea to a drug trafficking offense subjects a defendant to deportation. See 8 U.S.C. 1227(a)(2)(B)(i). Furthermore, a plea to drug sale constitutes an aggravated felony, making a noncitizen ineligible for virtually all forms of relief. See 8 U.S.C. 1101(a)(43)(b); see also 8 U.S.C. 1227(a)(2)(A)(iii). The fact that the plea may later be vacated makes no difference to the federal government. The federal government treats the entry of a plea followed by court-mandated treatment as having the same immigration consequences as any other conviction, even when the plea is later withdrawn and sealed. Section 1101(a)(48)(A) of 8 U.S.C. provides: (48)(A) The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's 14

25 liberty to be imposed. Under this definition, a plea of guilty in conjunction with something satisfying the requirement of a restraint on the alien s liberty constitutes a conviction. The federal government takes the view that court-mandated treatment is a restraint on liberty. See, e.g., Ditren v. Holder, A (BIA April 14, 2008) (unpublished) (finding plea to sale of a controlled substance under New York law and placement in a court-ordered drug rehabilitation program, despite dismissal of plea following completion of program, to be a conviction for immigration purposes) (citing Matter of Roldan, 22 I. & N. Dec. 512 (BIA 2000)). Matter of Roldan held that no effect is to be given in immigration proceedings to a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure. 22 I. & N. Dec. at 512; Matter of Salazar, 23 I. & N. Dec. 223 (BIA 2002) (holding an alien whose plea to a controlled substance offense was to be vacated upon completion of probation was convicted for immigration purposes); cf. Matter of Cabrera, 24 I. & N. Dec. 459 (BIA 2008) (surcharge sufficient to constitute punishment, penalty, or restraint on the alien's liberty ). Once a noncitizen has been convicted of an offense as defined by the INA, the immigration court will not recognize any subsequent dismissal of the case on the basis of the defendant s rehabilitation or completion of specified conditions. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). The Second Circuit, along with numerous other Circuits, has agreed. See Saleh v. Gonzales, 495 F.3d 17, 20 n.4 (2d Cir 2007) (citing Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir.2006); Alim v. Gonzales, 446 F.3d 1239, (11th Cir. 2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3rd Cir.2005); Ramos v. Gonzales, 414 F.3d 800, (7th Cir.2005); Cruz Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir.2005); Resendiz Alcaraz v. Ashcroft, 383 F.3d 1262, 15

26 (11th Cir.2004); Murillo Espinoza v. INS, 261 F.3d 771 (9th Cir.2001); Herrera Inirio v. INS, 208 F.3d 299 (1st Cir.2000)). Therefore, a defendant who pleads guilty and whose liberty is restrained by the court prior to formal entry of a judgment of guilt is, in DHS s view, irrevocably convicted of the offense to which he or she pled guilty, no matter what later transpires. Practice advisories produced by amicus and others prior to March 2008 make clear the deportation consequences of pleading guilty to a controlled substance offense with court-ordered drug treatment regardless of the case s ultimate dismissal and sealing under state law. New York State Defenders Association Immigrant Defense Project, Immigrants & Pleas in Problem- Solving Courts: A Guide for Noncitizen Defendants & Their Advocates (August 2007); New York City Bar, Committee on Criminal Justice Operations, The Immigration Consequences of Deferred Adjudication Programs in New York City (June 2007). B. ICE could easily place a noncitizen defendant in removal proceedings following his plea to a controlled substance offense in the context of a deferred adjudication/drug treatment court disposition. The lower court opinion incorrectly held that [h]ad [Mr. Andrews] completed the mandated drug treatment program, his case would have been dismissed and sealed with potentially no immigration consequences, People v. Andrews, 2011 N.Y. Misc. LEXIS 2173, at **14-15 (N.Y. Sup. Ct. April 22, 2011). To the extent that the lower court may have been suggesting that a noncitizen defendant in Mr. Andrews position was unlikely to be apprehended by DHS had he finished drug treatment and had his plea vacated and sealed, factual enforcement probabilities are legally irrelevant under Padilla. Furthermore, it is the experience of amicus that there are many 16

27 ways in which a noncitizen with a deportable conviction under the INA, even if vacated under state law, can be placed in deportation proceedings. Any contact with DHS, including those contacts necessary to maintain valid proof of one s immigration status, may lead to removal proceedings. An application to naturalize would reveal the guilty plea to sale of a controlled substance and court-ordered drug treatment, even had it been sealed and vacated. According to the USCIS Adjudicator s Field Manual (AFM), the USCIS officer is told to ask the noncitizen in his naturalization interview, Have you ever had a criminal record diverted, expunged, or dismissed? Have you ever had a record sealed by a judge and been told that you did not have to reveal the criminal conduct? AFM ch The USCIS requires an applicant to bring in evidence of all convictions, even if the conviction has been dismissed or expunged. Memorandum for Regional Directors, 2001 WL (Apr. 27, 2001). Applicants with deportable convictions are then regularly placed in removal proceedings. See AFM ch. 26.1(f) ( If an alien became deportable as a result of an event which occurred after adjustment of status to lawful permanent residence, the case should be referred to the Investigations Branch for the possible institution of removal proceedings. ); see also Julia Preston, Perfectly Legal Immigrants, Until They Applied for Citizenship, N.Y. TIMES (April 12, 2008). Lawful permanent residents (LPRs) are required to periodically file for a replacement permanent resident card, bringing those with deportable convictions into contact with DHS. 8 C.F.R (b)(2). USCIS captures biometric data from applicants in part to conduct fingerprint-based background checks through FBI and other databases. See generally, Department of Homeland Security, Privacy Impact Assessment for the Biometric Storage System (March 28, 2007) at 5. DHS may file a motion with the court to obtain a copy of sealed records. 17

28 See N.Y. Crim. Proc. Law (1)(d)(ii). In March 2008, the most common category of offense for which noncitizens were deported, and a clear priority of the agency, was illegal drug activity. See Department of Homeland Security, Annual Report: Immigration Enforcement Actions 2008 (July 2009) at 4. Permanent residents who travel outside of the United States are similarly subjected to background checks and may be questioned regarding their criminal history. See 8 C.F.R U.S. Customs and Border Protection can require that they provide documentation proving that a prior arrest did not result in an inadmissible 5 conviction under the immigration law. See 8 C.F.R The existence of the Criminal Alien Program in New York City jails means that any jail time is likely to result in ICE apprehension. See Department of Homeland Security, Annual Report: Immigration Enforcement Actions 2008 (July 2009) at 4. These are only some of the myriad ways in which noncitizens with deportable convictions under the immigration law, though dismissed and sealed under state law, can find themselves in removal proceedings. III. A defendant satisfies Strickland s requirement of prejudice by demonstrating a reasonable probability that, but for the ineffective assistance of counsel, he would not have pleaded guilty. The U.S. Supreme Court has determined that one way to prove prejudice in a case where the defendant pled guilty is to show that there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant does not need to prove by a preponderance of the evidence that he would have gone to trial, only that a reasonable probability exists that he would have done so. See Strickland v. Washington, 466 U.S. 668, The government treats LPRs returning from abroad as seeking admission to the United States. See 8 U.S.C. 1101(a)(13)(C). 18

29 (1984). The defendant does not have to show that he would have prevailed at trial; he merely has to show that the decision to reject the plea and proceed to trial would have been rational under the circumstances. Padilla, 130 S.Ct. at Under the Hill analysis, it is relevant that the defendant faced special circumstances that caused him to place a particular emphasis on the area where the attorney failed to provide constitutionally adequate advice. Hill, 474 U.S. at 60; see also Commonwealth v. Clarke, 460 Mass. 30, (2011). It has been deemed rational for a defendant to decide to proceed to trial at the risk of a life sentence, or other very serious punishment, because of the severity of deportation. See State v. Sandoval, 171 Wash. 2d 163, (2011); accord United States v. Krboyan, 2011 WL (E.D.Cal.). The other ways that a defendant can demonstrate the rational nature of the decision to reject the plea agreement involve showing that (1) he had an available, substantial ground of defense that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; [or] (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated. Clarke, 460 Mass. at 47 (internal quotations omitted). A. Courts have deemed the decision to reject a plea agreement rational for noncitizen defendants facing deportation, even where the defendant risked lengthy imprisonment. In United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), a noncitizen defendant charged with drug trafficking pled guilty to a simple possession offense which rendered him deportable, with no advice from counsel as to the immigration consequences. See id. at 634. The defendant received a sentence of time served (it is unclear whether the defendant actually served one year or eighteen months) followed by two years of supervised release; his exposure after trial would have been an aggravated felony conviction and a minimum ten year sentence. See id. at 634, 645. The Orocio 19

30 Court found that it would have been a reasonable decision to go to trial even though the defendant faced a drug distribution charge constituting an aggravated felony with a ten-year minimum sentence. Id. at 645. The Court explained that the threat of removal provides a... powerful incentive to go to trial if a plea would result in removal anyway. Id. Furthermore, the Court found that the defendant rationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of single decade in prison. Id. Notably, the Court found the decision to reject the plea agreement rational even though the defendant risked a prison sentence ten times as long and also a more severe immigration consequence (an aggravated felony conviction, making him ineligible for virtually all forms of relief from removal). Sandoval, 171 Wash. 2d 163 also analyzed prejudice in a Padilla post-conviction relief case. The Sandoval defendant was charged with rape in the second degree, which carried a standard sentencing range of 78 to 102 month s imprisonment and a maximum sentence of life. See id. at 175. He pled guilty to rape in the third degree which carried a standard sentencing range of six to twelve months. See id. at 167. The Sandoval Court accepted the State s argument that the disparity in punishment ma[de] it less likely that Sandoval would have been rational in refusing the plea offer. Id. at 175. However, the Court noted that Sandoval had earned permanent residency and made this country his home. Id. The Court further noted that for criminal defendants, deportation no less than prison can mean banishment or exile, and separation from their families. Id. at (internal quotations omitted). Therefore, the Sandoval Court concluded that given the severity of the deportation consequence,... Sandoval would have been rational to take his chances at trial. Id. at