In The. Supreme Court of the United States

Transcription

1 NO In The Supreme Court of the United States Tomas Haverford, Petitioner, v. State of Eagleton, Respondent. On Writ of Certiorari to the Supreme Court of Eagleton Brief for the Petitioner Team 25 Counsel for Petitioner

2 QUESTIONS PRESENTED I. Does the Court have an obligation to suppress the evidence against Haverford when the evidence was obtained by a consenting search but Haverford s consent was tainted by an unlawfully extended stop and the consenting party was constructively seized? II. Does Haverford have a right to withdraw his guilty plea when his counsel gave deficient advice and Haverford was prejudiced by the deficient advice? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... vi STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF EAGLETON AND FIND THAT THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE IT WAS GATHERED AS PART OF AN UNLAWFULLY PROLONGED STOP, HAVERFORD WAS UNDER CONSTRUCTIVE SEIZURE, AND HIS CONSENT WAS TAINTED BY UNCONSTITUTIONAL POLICE ACTION a. The Extension of the Stop for Sobriety Tests Was Unreasonable and Unlawful because There Was No Reasonable Suspicion to Support the Conducting of the Tests b. Haverford s Consent to the Search of His Vehicle Was Invalid Because He Was Under Constructive Seizure and It Was Tainted by the Traffic Stop s Extension i. Haverford was under constructive seizure because a reasonable person would believe the stop was still ongoing ii. The causal connection between the unconstitutional, prolonged stop and the search was not attenuated and, therefore, tainted Haverford s consent II. THE DISTRICT COURT S DENIAL OF HAVERFORD S MOTION TO WITHDRAW GUILTY PLEA IS IMPROPER BECAUSE HAVERFORD DID NOT KNOW THE MAGNITUDE OF HIS PLEA AND HAVERFORD WAS PREJUDICED BY HIS TRIAL ATTORNEY S DEFICIENT PERFORMANCE WHICH IMPLICATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL a. Haverford s Motion to Withdraw Guilty Plea Should Have Been Granted Because He Did Not Know That He Would Be Deported If He Plead Guilty b. The District Court s Denial of Haverford s Motion to Withdraw Guilty Plea Is Improper Because Haverford Was Prejudiced by His Trial Attorney s Deficient Performance Which Implicated the Sixth Amendment Right to Effective Assistance of Counsel i. Mr. Brendanawicz s performance was deficient because the advice he gave Haverford regarding the likelihood of deportation fell below an objective standard of reasonableness ii. Haverford was prejudiced as a result of Mr. Brendanawicz s deficient performance because Haverford would not have pled guilty if Mr. Brendanawicz provided accurate advice regarding the risk of deportation ii

4 CONCLUSION iii

5 TABLE OF AUTHORITIES United States Supreme Court Cases Boykin v. Alabama, 395 U.S. 238 (1969) , 13, 14 Brown v. Illinois, 422 U.S. 590 (1975) California v. Hodari D., 499 U.S. 621 (1991)... 9 Florida v. Bostick, 501 U.S. 429 (1991)... 9 Hill v. Lockhart, 474 U.S. 52 (1985)... 13, 21 Hinton v. Alabama, 134 S. Ct (2014) Jackson v. Denno, 378 U.S. 368 (1964) Lafler v. Cooper, 132 S. Ct (2012)... 13, 16, 21 McMann v. Richardson, 397 U.S. 759 (1970)... 16, 17 Navarette v. California, 134 S. Ct (2014)... 4, 6 Padilla v. Kentucky, 559 U.S. 356 (2010)... passim Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) Rawlings v. Kentucky, 448 U.S. 98 (1980) Rodriguez v. United States, 135 S. Ct (2015)... 4, 7 Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 9 Strickland v. Washington, 466 U.S. 668 (1984)... passim Terry v. Ohio, 392 U.S. 1 (1968)... 7 United States v. Mendenhall, 446 U.S. 544 (1980)... 5, 8, 9 Wong Sun v. United States, 371 U.S. 471 (1963)... passim United States Circuit Court Cases United States v. Johnson, 58 F.3d 356 (8th Cir. 1995)... 6, 7 United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) United States v. Orocio, 645 F.3d 630 (3d Cir. 2011)... 21, 22 United States v. Perez, 37 F.3d 510 (9th Cir. 1994)... 7 United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) United States v. Ward, 518 F.3d 75 (1st Cir. 2008) Constitutional Provisions U.S. CONST. amend. IV... 5, 6 iv

6 U.S. CONST. amend. VI. 5, 16 Statutory Provisions 8 U.S.C. 1227(a) (2012) U.S.C. 1227(a)(2)(B)(i) (2012)... passim 21 U.S.C. 841(a)(2) (2012)... 3 Eagleton Rule of Crim. Proc. 11(c), (d) Other Authorities MODEL RULES OF PROF L CONDUCT r. 1.1 (AM. BAR ASS N. 1983).. 18 v

7 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Chapter 8 of the United States Code 1227(a) in relevant part provides: Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens. Chapter 8 of the United States Code 1227(a)(2)(B)(i) provides: Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one s own use of 30 grams or less of marijuana, is deportable. Chapter 21 of the United States Code 841(a)(2) provides: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. Eagleton Rule of Criminal Procedure 11 in relevant part provides: (c) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding. (d) If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal. vi

8 STATEMENT OF THE CASE 1. Haverford s Background Tomas Haverford, ( Haverford ), is a 31-year-old resident of Eagleton. R. at 39. In 2003, he immigrated to the United States from Venezuela and gained status as a lawful permanent resident. R. at 31. After being charged with possession with intent to manufacture methamphetamine under the Controlled Substances Act, Haverford pled guilty unaware that his deportation would be mandatory under relevant immigration laws. R. at 29. Haverford was not informed by his attorney that he could be automatically deported because of his charge. R. at 29. Instead, Haverford was advised that he would only be deported if he went to jail. R. at 30. If Haverford knew that his deportation was automatic, he would not have pled guilty and would have decided to go to trial. R. at The Traffic Stop On May 20, 2013, at approximately 6:10 PM, Haverford was stopped by Deputy David Sanderson ( Deputy Sanderson ) for a burnt out headlight. R. at 3-4. Haverford pulled over right after Deputy Sanderson activated his emergency lights. R. at 7. Haverford was issued a citation for the burnt out headlight. R. at 12. Deputy Sanderson observed that Haverford was shaking from his upper body and appeared to have restricted pupils. R. at 4. Deputy Sanderson learned about pupil restriction and changes in size during law enforcement training, however, he relied on his own experience to conclude that restricted pupils is an indication of drug use. R. at 4. When asked about his medication use, Haverford informed Deputy Sanderson that he used Aderall. R. at 12. Deputy Sanderson questioned Haverford because in his experience, Aderall consumers, never appeared as nervous as Haverford was during this traffic stop. R. at 12. Deputy 1

9 Sanderson never had previous contact with Haverford to have knowledge of his general mannerisms. R. at 7. Haverford informed Deputy Sanderson that he in fact was not nervous, but upset that he was being questioned and delayed from returning home because he was tired. R. at 12. Haverford did not exhibit symptoms of drug use, such as, erratic or impaired driving, slurred speech, nor any visible intoxicants or paraphernalia. R. at 6. However, Deputy Sanderson asked Haverford to attempt a field sobriety test and Haverford obliged. R. at 12. Haverford was asked to identify the color of a pen and then follow it with his eyes as Deputy Sanderson moved it; then he was asked to balance on one leg and count; then he was asked to walk on a line in the road while counting his steps; and finally, he was asked to touch the tip of his nose with the hand that Deputy Sanderson called out. R. at After Haverford successfully completed all of these sobriety exercises, Deputy Sanderson concluded that Haverford was not impaired and told Haverford he was free to leave. R. at 5. Haverford got into the driver s seat of his vehicle, but Deputy Sanderson stood by the driver s side of his vehicle. R. at 9. Twelve seconds after both men returned to their vehicles, Deputy Sanderson re-approached Haverford s vehicle asking if he could conduct a search. R. at 14. Haverford responded Why not. Yeah. Go ahead, and Deputy Sanderson began to search the vehicle. R. at 14. Deputy Sanderson believed he discovered a portable meth lab. R. at 14. Haverford was placed under arrest and informed of his rights. R. at Procedural History On July 10, 2013, Judge Perd Hapley ( Judge Hapley ) presiding in the Pawnee District Court for the State of Eagleton denied Haverford s Motion to Suppress the evidence obtained from the vehicle search on May 20, Judge Hapley found that the extension of the stop was 2

10 unlawful because Deputy Sanderson did not have reasonable suspicion to ask to conduct a field sobriety test. R. at 17. However, Judge Hapley held that Haverford was not constructively seized at the time he consented to the search and therefore Deputy Sanderson did not need a reasonable suspicion to request consent to a search. R. at 21. On August 21, 2013, Haverford was sentenced to ten years imprisonment after entering a conditional guilty plea to the charge of possession with intent to manufacture methamphetamine under the Controlled Substances Act. R. at 25-26, 38. During this hearing, Haverford s counsel, Mark Brendanawicz ( Mr. Brendanawicz ), notified the court that Haverford was concerned about the consequences of his plea and the risk of being deported. R. at 24. Mr. Brendanawicz stated that he told Haverford deportation is a strong possibility. R. at 25. The court also notified Haverford that if he is found guilty he may be deported or denied admission. R. at 25. Haverford was convicted of violating Controlled Substances Act, 21 U.S.C. 841(a)(2). R. at 25. On August 23, 2013, Haverford received a Notice to Appear from the U.S. Department of Justice Immigration and Naturalization Services. R. at 22. The Notice alleged that Haverford was convicted of violating the Controlled Substances Act and subsequently subjected to removal from the United States under 237(a)(2)(B)(i) of the Immigration and Nationality Act and 8 U.S.C (a)(2)(b)(i) (West 2016). R. at 22. Haverford filed a Motion to Withdraw Guilty Plea under Eagleton Rule of Criminal Procedure 11 alleging that Mr. Brendanawicz did not correctly inform him of the deportation risks of his guilty plea. R. at 28. On October 16, 2013, during a Post-Conviction Motion hearing, Mr. Brendanawicz stated that he was aware that Haverford s guilty plea subjected him to deportation but he was unaware that deportation was mandatory. R. at 28. Therefore, he did not use the term mandatory when advising Haverford. R. at 28. Mr. Brendanawicz also stated that he did not research the 3

11 immigration consequences to determine if deportation was mandatory. R. at 28. Instead, he spoke with several federal prosecutors about Haverford s charge and plea and was unanimously informed that Haverford may be subject to deportation. R. at 29. On November 1, 2013, Judge Hapley denied Haverford s Motion to Withdraw Guilty Plea finding that Haverford failed to show either that his counsel performed deficiently or that Haverford was prejudiced because of his counsel s failure. R. at 31. On November 15, 2013, Haverford appealed the trial court s denial of both motions. R. at 41. The Supreme Court for the State of Eagleton on appeal affirmed the trial court s denial of Haverford s Motion to Suppress. R. at 50. The state Supreme Court reversed the trial court s finding that Mr. Brendanawicz performed deficiently but affirmed the dismissal of Haverford s Motion to Withdraw Guilty Plea. R. at 50. SUMMARY OF THE ARGUMENT Haverford has presented sufficient evidence to support his Motion to Suppress Evidence and his Motion to Withdraw Guilty Plea, therefore, this court should reverse the decision of the Supreme Court of Eagleton and grant Haverford s Motions. First, this Court should grant Haverford s Motion to Suppress Evidence. Haverford suffered from an unlawful extension of a traffic stop when Deputy Sanderson expanded the scope of the search and the length of the stop without reasonable suspicion. Deputy Sanderson pulled Haverford over for a burnt out headlight, but then conducted sobriety tests. R. at 3 4, 14. This was beyond the scope of the stop because a burnt out headlight is not related to sobriety and was not supported by reasonable suspicion. See Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015); Navarette v. California, 134 S. Ct. 1683, 1687 (2014). 4

12 Further, Haverford could not consent to a search because he was under constructive seizure and his consent was tainted by the misconduct of the unlawful extension of the stop. Haverford was under constructive seizure because in the totality of his circumstances a reasonable person would not feel free to leave. See United States v. Mendenhall, 446 U.S. 544, (1980). Also, the misconduct by Deputy Sanderson was purposeful and flagrant, and was close enough in temporal proximity to the consent that the consent was not free from the taint of the misconduct. See Wong Sun v. United States, 371 U.S. 471, (1963). Therefore, Deputy Sanderson did not have consent to search the vehicle. Second, this Court should grant Haverford s Motion to Withdraw Guilty Plea. The Sixth Amendment s guarantee of the right to counsel can be implicated if a defendant is ignorant of the consequences of a guilty plea. Boykin v. Alabama, 395 U.S. 238, 242 (1969). Additionally, the Sixth Amendment can also be implicated if deportation is a consequence and counsel has failed to provide effective representation. See Strickland v. Washington, 466 U.S. 688, 687 (1984). Haverford suffered from ineffective counsel because Mr. Brendanawicz did not properly inform Haverford that he would be deported if he plead guilty to a drug charge. R. at Haverford was prejudiced by Mr. Brendanawicz s ineffective representation because Mr. Brendanawicz s advice fell below the objective standard of reasonableness. The standard of the reasonableness of counsel s performance is based on the prevailing norms at the time of the conduct. See Strickland, 466 U.S. at 690. Mr. Brendanawicz did not conduct any independent research, which is clearly against the prevailing norm of reasonable performance. R. at 30. In sum, there is sufficient evidence for both motions to be granted. 5

13 ARGUMENT I. THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF EAGLETON AND FIND THAT THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE IT WAS GATHERED AS PART OF AN UNLAWFULLY PROLONGED STOP, HAVERFORD WAS UNDER CONSTRUCTIVE SEIZURE, AND HIS CONSENT WAS TAINTED BY UNCONSTITUTIONAL POLICE ACTION. The evidence found in Haverford s car should be suppressed because it was obtained through an unlawful search. The Fourth Amendment guarantees protection against unlawful search and seizure. U.S. CONST. amend IV. Allowing in the evidence found from this unlawful search would encourage other officers to obtain evidence through unlawful means. The stop was unlawful because Deputy Sanderson unconstitutionally extended the length and scope of the stop by performing sobriety tests without reasonable suspicion. Further, Haverford was under constructive seizure and the misconduct of extending the stop was temporally proximate enough to taint the consent to search. a. The Extension of the Stop for Sobriety Tests Was Unreasonable and Unlawful because There Was No Reasonable Suspicion to Support the Conducting of the Tests. An extension of a stop and expansion of the scope of inquiry is unreasonable if the police officer does not have the support of reasonable suspicion. It is lawful for a police officer to stop a vehicle if he reasonably believes there is a violation of a traffic law. United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995). However, an officer can only extend the time of the stop if it is supported by reasonable suspicion. Navarette v. California, 134 S. Ct. 1683, 1687 (2014). For example, in Navarette, it was lawful for the officers to search the defendants vehicle because the vehicle matched the description from a 911 call of a woman who was run off the road and the officers could smell marijuana. Id. at

14 Additionally, a seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015). In Rodriguez, the officer initiated the stop because the defendant s vehicle had swerved into the shoulder of the road, but after issuing a warning for driving in the shoulder, the officer extended the stop to allow a drug-sniffing dog to smell the car without the defendant s consent. Id. at This extended both the time of the stop and the scope. Further, the scope of the inquiry must be reasonably related to the justification for the stop unless there are additional suspicious factors that are particularized and objective. United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994). A seizure becomes unlawful if the officer conducts unrelated checks during the stop without reasonable suspicion. Rodriguez, 135 S. Ct. at Many traffic stops are compared to Terry v. Ohio, in which an officer, who was an expert on daytime robbery, used his knowledge to stop a man who was going to commit a robbery and frisk him to find weapons, which diffused a dangerous situation. 392 U.S. 1, 4 8 (1968). In that case, the officer used his expertise to initiate a stop and the additional suspicious factors allowed for the frisk to diffuse the situation. Id. at Here, Deputy Sanderson stopped Haverford because of a burnt out headlight, but extended the stop on insufficient evidence of drug use. R. at 3 4. The original stop was justified because there was a violation of a traffic law due to the burnt out headlight. See Johnson, 58 F.3d at 357. However, after issuing a citation for the headlight, Deputy Sanderson extended the length and scope of the stop by making Haverford perform field sobriety tests without reasonable suspicion. R. at The sparse evidence relied on for this extension was that Haverford was 7

15 acting nervous and his pupils were restricted. R. at 4. This is very similar to Rodriguez because Deputy Sanderson unlawfully extended the stop in both length and scope without reasonable suspicion. In both Rodriguez and here, the defendants were given the citation for the reason they were stopped, but the investigation continued and the scope of the investigation expanded from a traffic violation. The extension of the stop is unlawful and distinguishable from Navarette because Deputy Sanderson did not have reasonable suspicion to support his decision to continue the stop. Unlike Navarette where there were multiple factors that would allow an officer to reasonably suspect there was marijuana in the car, here there was sparse evidence. Further, Deputy Sanderson is not an expert on drug use nor pupil size. R. at 4. This is not enough for reasonable suspicion because Deputy Sanderson is not a drug expert unlike the officer in Terry. Therefore, the extension of the stop and the expansion of the scope of investigation was unlawful because the purpose for the stop had ended but Deputy Sanderson continued without reasonable suspicion. b. Haverford s Consent to the Search of His Vehicle Was Invalid Because He Was Under Constructive Seizure and It Was Tainted by the Traffic Stop s Extension. A person cannot consent to search if they are already seized by an officer. Further, a consent to search can be tainted by officer misconduct and, therefore, inadmissible as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, (1963). In this case, Haverford was constructively seized because a reasonable person in his position would not feel free to leave under the totality of the circumstances. See United States v. Mendenhall, 446 U.S. 544, (1980). Additionally, Haverford s consent was tainted by Deputy Sanderson s unlawful extension of the stop. Therefore, the evidence found by the search is fruit of the poisonous tree and should not be allowed in court. 8

16 i. Haverford was under constructive seizure because a reasonable person would believe the stop was still ongoing. If a person is not seized, a police officer can receive consent to search even if he does not have reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 431 (1991). However, if a person is seized, he cannot willing consent to a search because there is coercion. A seizure requires that the officer use physical force. California v. Hodari D., 499 U.S. 621, 626 (1991). However, a constructive seizure can take place when an officer shows authority the show of authority is a necessary element of constructive seizure, but is not sufficient for totality of the circumstances. Id. at 628. A person is constructively seized if, in the totality of those same circumstances, a reasonable person would not feel free to leave. Mendenhall, 446 U.S. at By looking at the totality of the circumstances, the court takes many factors into consideration to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests to search or otherwise terminate the encounter. Bostick, 501 U.S. at 439. In Bostick, officers boarded a bus and asked defendant if they could search his luggage and after he consented the officers found drugs. Id. at 431. The Bostick court held that this could be considered a seizure because the defendant could not leave the bus for fear of being stranded and the officers did not tell him he could leave without consequence. Id. at 439. The court also takes the psychological impact the circumstances had on the person being seized and whether his/her consent was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In this case, Haverford was constructively seized, therefore, Deputy Sanderson could not obtain consent like he would from a non-seized person. It is evident that Haverford was under constructive seizure because under these circumstances, a reasonable person would not feel free 9

17 to leave. First, Deputy Sanderson showed his authority, one of the requisite elements of constructive seizure, as explained in Hodari D. Deputy Sanderson had pulled Haverford over earlier and was re-approaching his car while his car lights were still flashing. R. at 7, 9, 14. Deputy Sanderson also showed his authority by issuing Haverford a citation. R. at 12. Second, only 12 seconds passed between Deputy Sanderson telling Haverford to leave and him re-approaching the car. R. at 14. Similar to the defendant in Bostick who could not exit the bus, Haverford could not have felt free to leave to leave because he did not have an opportunity to leave. Twelve seconds is barely enough time to buckle a seatbelt, let alone to drive away. The 12 seconds did not even give Deputy Sanderson enough time to re-enter his vehicle. R. at 14. Third, Deputy Sanderson did not get back into his vehicle. R. at 14. Typically, after stops end, officers return to their vehicles. Using the reasonable person standard from Mendenhall, it is illogical to think that a stop would be over before the officer returned to his vehicle and turned off his emergency lights. Finally, the psychological impact of Haverford being tired (which he repeatedly said to Deputy Sanderson) and having to complete sobriety tests, probably made Haverford consent to a search. R. at 12, 14. The psychological effects of the circumstances must be taken into account as stated in Schneckloth. Under all these circumstances, a reasonable person would not feel free to leave, therefore, Haverford was constructively seized. ii. The causal connection between the unconstitutional, prolonged stop and the search was not attenuated and, therefore, tainted Haverford s consent. Evidence that is gathered by exploitation of illegal police conduct or by means tainted by illegal police conduct should not be admissible. Wong Sun, 371 U.S. at However, the 10

18 evidence is admissible if the causal connection between the misconduct and seizure of the evidence are too attenuated. United States v. Terzado-Madruga, 897 F.2d. 1099, 1113 (11th Cir. 1990). Three factors should be taken into consideration when evaluating if there was taint of illegal police conduct: 1) the temporal proximity of the misconduct and the seizure of the evidence; 2) any intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, (1975). Not all evidence obtained through misconduct must be considered as fruit of the poisonous tree, but the question is whether the evidence gathered was purged of the taint of the illegal police conduct. Wong Sun, 371 U.S. at For example, in Wong Sun, a man gave incriminating statements after narcotic agents broke into his room without probable cause, and those statements were considered inadmissible because they were tainted by the unlawful conduct. Id. at , 490. Further, in temporal proximity, the court has held that, generally, if only a few minutes has passed the misconduct is considered to taint the consensual search. See Rawlings v. Kentucky, 448 U.S. 98, 107 (1980). Additionally, the purpose and flagrancy of the misconduct is a very important consideration. In Brown, the defendant gave inculpatory statements after an illegal arrest, but was still read his Miranda rights, however, the court held that the Miranda rights were not enough to protect his Fourth Amendment rights because the misconduct was so blatantly unlawful that it was flagrant and purposeful. Brown, 422 U.S. at Here, the temporal proximity was very brief, there were important intervening circumstances, and the misconduct was flagrant. First, a few minutes can pass and the consent can still be tainted by the misconduct. Rawlings, 488 U.S. at 107. For Haverford, there was only 12 seconds. R. at 14. Not enough time had elapsed for Haverford to have forgotten the 11

19 misconduct. Therefore, the misconduct was still close enough in temporal proximity to taint his consent. Next, the intervening circumstances between the misconduct and the consent are key, significant facts to the case. Deputy Sanderson told Haverford he could leave. R. at 14. While this is important, it does not absolve Deputy Sanderson of the misconduct because Haverford still felt afraid to refuse his request to search the car. Similar to how the officers telling the defendant in Brown of his Miranda rights did not erase the taint of the misconduct, this one act cannot absolve Deputy Sanderson of his misconduct of unlawfully extending the stop. Finally, it is evident that Deputy Sanderson wanted to extend the stop, unlawfully, to find a reason to search Haverford s car. Similar to the officers in Brown performing a blatantly unlawful arrest, Deputy Sanderson purposefully and flagrantly extended the stop to perform sobriety tests. Deputy Sanderson had very few reasons to perform the sobriety tests only that Haverford was nervous and his pupils were restricted, but he still expanded the scope and length of the stop. R. at 4, 12. This is flagrant misconduct and taints the consent. While considering all these factors together, it is clear that Deputy Sanderson s misconduct is not too attenuated from Haverford s consent to have tainted it. II. THE DISTRICT COURT S DENIAL OF HAVERFORD S MOTION TO WITHDRAW GUILTY PLEA IS IMPROPER BECAUSE HAVERFORD DID NOT KNOW THE MAGNITUDE OF HIS PLEA AND HAVERFORD WAS PREJUDICED BY HIS TRIAL ATTORNEY S DEFICIENT PERFORMANCE WHICH IMPLICATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. Under Eagleton Rules of Criminal Procedure 11, a defendant may ask the court to vacate the judgment, discharge, grant the defendant a new trial, or correct the sentence when they believe their sentence is subject to a collateral attack. A defendant must specifically state all 12

20 grounds on which the sentence is being challenged and the facts relied on to support such grounds. Eagleton Rule of Crim. Proc. 11(c), (d). Courts have recognized the weightiness and severity of guilty pleas and subsequently have required that admissions be made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969); Jackson v. Denno, 378 U.S. 368, 377 (1964). Ignorance or incomprehension of the magnitude and consequences of a guilty plea may result in the implication of the Sixth Amendment s guarantee of the right to counsel. Boykin, 395 U.S. at 243. See Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012) ( Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. ); Hill v. Lockhart, 474 U.S. 52, 58 (1985) (reasoning that while Strickland examined a claim of ineffective counsel under the Sixth Amendment in a capital sentencing proceeding, the same application is appropriate in claims arising out of a plea process). When deportation is a potential consequence, the Sixth Amendment may be triggered when counsel fails to provide effective advice to a lawful permanent resident. Strickland v. Washington, 466 U.S. 668, 687 (1984). In such an instance, the defendant must show that his attorney s performance was deficient and such performance was prejudicial to the defendant. Id. a. Haverford s Motion to Withdraw Guilty Plea Should Have Been Granted Because He Did Not Know That He Would Be Deported If He Plead Guilty. Haverford was unaware that his acceptance of the guilty plea would result in deportation from the United States under 8 U.S.C. 1227(a)(2)(B)(i) (West 2016). This lack of knowledge should have been sufficient for the lower court to conclude that Haverford s guilty plea was inadmissible and that his Motion to Withdraw Guilty Plea under Eagleton Rules of Criminal Procedure 11 was meritorious. 13

21 Courts evaluate whether a plea was offered knowingly and voluntarily when examining a defendant s motion to withdraw guilty plea. Boykin, 395 U.S. at 241. The record must provide evidence showing that the defendant intelligently and understandingly had knowledge regarding the guilty plea. Id. at 242. A plea may be considered as offered without knowledge when the defendant is ignorant of the consequences of his plea. Id. at 246 (Harlan, J., dissenting). A plea is considered to be provided voluntarily when it is made without any force coercion, undue promises, or threats. United States v. Ward, 518 F.3d 75, 84 (1st Cir. 2008). Courts give heavy consideration to the explicit text in proceeding transcripts to determine if the defendant had knowledge regarding their plea. Boykin, 395 U.S. at 242. In Boykin, an armed robber pled guilty on five charges of robbery and was sentenced to death. Id. at 240. On automatic appeal, the Court held there was reversible error because the record failed to disclose that the defendant voluntarily and understandingly entered his pleas of guilty. Id. at 244. Unconvinced by the majority s finding, Justice Harlan in his dissenting opinion stated that because the defendant did not make any effort to withdraw his plea, personally raise any questions concerning his voluntariness or knowledge in making the plea, nor asserted that the plea was coerced or made in ignorance of the consequences, then it was appropriate to conclude that defendant s guilty plea was made knowingly and voluntarily. Id. at The Boykin court used the term understandingly interchangeably with the term knowingly when describing the required elements necessary to withdraw a guilty plea. Boykin, 395 U.S. at 242, 244, 248. Such action suggests that the Court wanted the requirement of knowledge to be understood and interpreted as more than just defendant s acknowledgement that he is providing a plea. Instead the court wanted to ensure defendants had a thorough and accurate 14

22 understanding of the consequences so they could make a thoughtful and well-informed decision regarding his legal choices. Here, Haverford was aware that there was a strong possibility of deportation, however, he was unaware that deportation was mandatory under applicable immigration laws. R. at 30. Considering that Mr. Brendanawicz himself as Haverford s counsel failed to independently or with the assistance of others, interpret the full scope of the statute, it is logical to conclude Haverford did not know that being convicted of violating the Controlled Substance Law would directly result in deportation. R. at Haverford relied on his attorney s inaccurate understanding of the immigration law and on a passing warning provided by the trial judge during the plea hearing to conclude that there was a possibility, albeit small, that he would not be deported. The trial judge s vague warning that Haverford...may be deported was not a concrete enough cautioning for Haverford to have been able to conclude that his deportation was mandatory. R. at 25. Furthermore, Haverford s lack of knowledge of the consequences of his plea is reflected explicitly in the Post-Conviction Motion Hearing Transcript. R. at 30. When asked about his knowledge of the mandatory deportation statute pertaining to the crime he committed, Haverford stated he would not have plead guilty had he known that his deportation was automatic and would have alternatively decided to proceed with a trial. R. at 30. Unlike in Boykin where Justice Harlan was unconvinced that the defendant lacked knowledge because he did not take personal action challenging the guilty plea, Haverford himself brought forth his Motion to Withdraw Guilty Plea. R. at 31. Additionally, Haverford stated that had he known that 8 U.S.C required deportation, he would not have pled guilty. R. at 30. This affirmative action taken by 15

23 Haverford suggests that he did not have complete knowledge of the consequences of his guilty plea at the time the plea was made. Haverford s Motion to Withdraw Guilty Plea should have been granted because the plea was not made with knowledge of the automatic risk of deportation. b. The District Court s Denial of Haverford s Motion to Withdraw Guilty Plea Is Improper Because Haverford Was Prejudiced by His Trial Attorney s Deficient Performance Which Implicated the Sixth Amendment Right to Effective Assistance of Counsel. Under the Sixth Amendment, a defendant in a criminal prosecution has a right to the assistance of counsel. U.S. CONST. amend. VI. The guaranteed right to counsel does not just promise the availability of counsel, but instead guarantees that the defendant has counsel that is effective. McMann v. Richardson, 397 U.S. 759, 771 (1970) (stating that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel ). Courts have extended this right to deportation and removal proceedings even though they are not criminal in nature because deportation is nevertheless intimately related to the criminal process. Padilla v. Kentucky, 559 U.S. 356, 365 (2010). Moreover, the Court has acknowledged that a defendant s Sixth Amendment right extends to the plea bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) ( during plea negotiations defendants are entitled to the effective assistance of competent counsel) (citations omitted). To claim that their counsel s assistance was so defective as to implicate the Sixth Amendment, the convicted defendant must show that counsel s performance was deficient and the defendant was prejudiced because of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel s performance was deficient when the errors made were so serious that it was as though the defendant did not have counsel. Id. Counsel s performance was prejudicial to the defendant when the defendant was deprived of a fair trial. Id. 16

24 Mr. Brendanawicz s representation did not constitute as effective assistance of counsel as guaranteed by the Sixth Amendment because his performance was deficient and prejudicial towards Haverford. i. Mr. Brendanawicz s performance was deficient because the advice he gave Haverford regarding the likelihood of deportation fell below an objective standard of reasonableness. A defendant seeking to implicate their Sixth Amendment right must demonstrate that counsel s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. See also McMann, 397 U.S. at 771. The reasonableness of counsel s performance is determined on a case by case basis in light of prevailing professional norms at the time of counsel s conduct. Strickland, 466 U.S. at 688, 690. This Court has previously acknowledged that counsel must advise a defendant of the risks of deportation when the defendant s issue deals with criminal prosecutions and immigration law. Padilla, 559 U.S. at 367. In Padilla, a lawful permanent resident of the United States challenged his deportation after pleading guilty to violating a Controlled Substance Law. Id. at 359. The permanent resident argued that his attorney failed to notify him of the virtually mandatory deportation consequences and as a result, he pled guilty. Id. The Court held that the permanent resident s counsel was incompetent and did not provide effective counsel because counsel failed to advise him that he was subject to automatic deportation as a result of his drug conviction. Id. at 360. The Court emphasized the importance of accurate legal advice for noncitizens because immigration law increases the consequences potentially faced by a noncitizen in a criminal case. Id. at 364. Furthermore, the Court reasoned that it is a prevailing professional norm that counsel notifies their client about applicable deportation risks. Id. at 367. The Court stated that because the language of the immigration statute was succinct, clear and explicit in demonstrating the 17

25 consequence of deportation, the attorney should have known that the permanent resident would be subject to deportation. Id. at Similar to the present instance, the immigration statute evaluated by this Court in Padilla was 8 U.S.C (a)(2)(b)(i). Id. at 368. Here, Mr. Brendanawicz s performance fell below the reasonable objective standard expected from effective counsel. He failed to attempt to independently research the immigration consequences of Haverford s crime and as a result, failed to realize deportation is mandatory under the immigration statute. R. at 28. According to Rule 1.1 of the American Bar Association: Model Rules of Professional Conduct, a lawyer must provide competent representation to a client by having the thoroughness and preparation necessary for the representation. MODEL RULES OF PROF L CONDUCT r. 1.1 (AM. BAR ASS N. 1983). Comment 1.2 of the Model Rules of Professional Conduct expressly states that a lawyer can provide adequate representation in a wholly novel field through necessary study or through the association of a lawyer of established competence in the field in question. These rules were implemented as professional norms prior to and during the Pawnee District Court trial date of August 21, See (indicating that the most recent changes to the Model Code were applied in February 2013 and did not pertain to Rule 1.1 and subsequently are applicable in the present case). Mr. Brendanawicz s poor attempt to provide adequate representation in a presumptively wholly novel field did not include even a modicum, let alone the necessary amount, of study required for Haverford s case. Mr. Brendanawic s did not research the immigration consequences to determine the potential likelihood of deportation. R. at 28. If he had, Mr. Brendanawicz likely would have noticed that 8 U.S.C (a)(2)(b)(i) explicitly requires that any non-citizen who has been convicted of a violation of any Controlled Substance Law other 18

26 than a single offense in possession of marijuana of 3 grams or less for their own use is deportable. 8. U.S.C (a)(2)(b)(i) (West 2016). When the risk of deportation in immigration law is clear, succinct and straightforward, an attorney representing a defendant in a criminal case must provide equally clear advice to their client. Padilla, 559 U.S. at 369. Here, even if Mr. Brendanawicz was unsure as to whether the deportation was mandatory based on a reading of the entire provision in its entirety, a reading of 8 U.S.C (a) in isolation explicitly states that deportation is mandatory. The statute states that any alien in and admitted to the United States shall, upon the order of the Attorney General be removed if the alien is within one or more of the following classes of deportable aliens. 8. U.S.C. 1227(a) (emphasis added). A person with a basic understanding in statutory interpretation upon reading this statute would have concluded that use of the term shall indicated that removal was mandatory. See Shall, THE LAW DICTIONARY, org/shall/ (last visited Jan. 30, 2016) ( As used in statutes and similar instruments, this word is generally imperative or mandatory ). Furthermore, evaluation of relevant case law such as Padilla would have identified that the exact immigration statute relevant to Haverford s crime had been deemed clear and succinct by the Court and interpreted as requiring mandatory deportation. Padilla, 559 U.S. at 368 (stating that the terms of 8 U.S.C (a)(2)(b)(i) are "succinct, clear and explicit in defining the removal consequence... and upon reading the text of the statute, counsel could have easily determined that his plea would make him eligible for deportation ). The State Supreme Court s reasoning that deportation is not mandatory because the U.S. Attorney General may not actually enforce it does not preclude a finding that Mr. Brendanawicz acted within the objective standard of reasonableness required of effective counsel. R. at

27 Contrarily, it is unreasonable for counsel to provide his client with a false sense of assurance relying on happenstance that a law may not enforced. Such an excuse, even if found appropriate, should not be afforded to Mr. Brendanawicz because he did not even research the immigration statute s explicit text or precedent interpretation to argue that lack of enforcement was a possibility. Instead, his actions were motivated by his ignorance and not through use of a clever statutory interpretation canon. This Court has previously refused to excuse defense counsel s ignorance when it is fundamental to the case they are handling. See Hinton v. Alabama, 134 S. Ct. 1081, 1089 ( An attorney s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland ). The federal prosecutors who advised Mr. Brendanawicz are not established in the field of immigration law to be considered as a sufficient source of research. R. at 28. Perhaps if Mr. Brendanawicz contacted immigration defense attorneys, Immigration and Naturalization Services attorneys and officers, or immigration law professors and scholars, his research could reasonably be perceived as sufficient. However, such is not the case in this instance. Mr. Brendanawicz s performance was deficient because he did not meet the reasonable standard of objectiveness expected from attorneys when he failed to research the 8 U.S.C (a)(2)(b)(i) or obtain advice from established lawyers in the field. ii. Haverford was prejudiced as a result of Mr. Brendanawicz s deficient performance because Haverford would not have pled guilty if Mr. Brendanawicz provided accurate advice regarding the risk of deportation. To show that counsel s deficiency was prejudicial to a defendant, the defendant must show that counsel s errors were so serious that the defendant was deprived of a fair trial. 20

28 Strickland, 466 U.S. at 687. When challenging counsel s performance during a plea process, the defendant must show that the result of the plea proceeding would have been different if counsel had not provided advice which was deficient and there was a reasonable probability that defendant would not have pled guilty but for counsel s performance. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012); Hill v. Lockhart, 474 U.S. 52, 59 (1985). Courts have acknowledged that a defendant subject to deportation may find a right to remain in the United States more important than any potential jail sentence. Padilla, 559 at 368. See also United States v. Orocio, 645 F. 3d 630, 643 (3rd Cir. 2011). In Hill, petitioner pleaded guilty in trial court to first degree murder and theft of property. Id. at 368. More than two years later, petitioner sought relief on the grounds that prior to him pleading guilty his attorney failed to advise him that he was required to serve one-half of his sentence before being eligible for parole. Id. The Court held that the petitioner failed to prove prejudice as a result of his counsel s advice because he failed to allege that he would have pleaded guilty if his counsel had provided him with accurate information about his parole eligibility. Id. at 371. Here, unlike in Hill, there is explicit evidence that Haverford would have rather gone to trial than pleading guilty. R. at 30. At the Post-Conviction Motion Hearing, Haverford expressly stated that if he had known his guilty plea would have resulted in deportation he would have tried to find some way to stay in the United States and would have told his attorney he wanted to pursue a trial. R. at 30. Haverford explained that Venezuela is a dangerous country and being deported there would result in him losing his family and livelihood. R. at 30. Based on these circumstances, a decision to go to trial and potentially endure jail time would have been a rational choice considering Haverford would lose access to his family if deported. The State 21

29 Supreme Court of Eagleton s rationale that going to trial would be an irrational choice under the circumstances is unsupported because it is not obvious that Haverford would have been unsuccessful at trial. R. at 36. See United States v. Orocio, 645 F.3d 630, 643 (3rd Cir. 2011) (noting that a rational decision not to plead guilty does not focus solely on whether a defendant would have been found guilty at trial ). Even if Haverford was unsuccessful at trial and faced the maximum forty year sentence as permitted in Eagleton Statute 841 (b), such a sentence would have been a better alternative then returning to Venezuela. If Haverford was to be deported to Venezuela even after serving forty years, such an outcome could still be more desirable to Haverford as he would have more time to defer his return to the dangerous country. The factors relied on by Eagleton Supreme Court to conclude whether counsel s performance was prejudicial weigh in favor of Haverford s claim. In Kayode, the circuit court considers the totality of the circumstances including evidence to support the defendant s assertion, his likelihood of success at trial, the risks faced at trial, defendant s connection to the United States, representation about a defendant s desire to retract his plea and judicial admonishments regarding possible deportation. U.S. v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014). In this case, Haverford expressly stated that if he had been properly advised by counsel, he would have gone to trial instead of offering a guilty plea. R. at 30. The risk of imprisonment faced at trial would have been less than the risk of deportation assumed in pleading guilty based on Haverford s concerns. R. at 30. Even the worst case scenario at trial in receiving forty years imprisonment, could have been the best case scenario for Haverford. In Kayode, the court recognized such a concern and reasoned that significant ties to the United States could make a defendant less likely to accept a plea agreement that could result in deportation and more likely to risk trial in hopes of avoiding exile from the United States. Haverford has strong ties to the 22