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Criminal Practice – Habeas Ordered for Bad Immigration Advice

U.S. v. Swaby (Lawyers Weekly No. 001-091-17, 19 pp.) (Gregory, J.) No. 15-7616, April 24, 2017; USDC at Baltimore, Md. (Bennett, J.) 4th Cir.

Holding: A defendant, who pleaded guilty to trafficking in counterfeit goods based on his trial lawyer’s mistaken advice that he would not be guilty of an aggravated felony that made him automatically deportable to Jamaica, is entitled to habeas relief based on his lawyer’s Sixth Amendment violation of defendant’s right to constitutionally effective assistance of counsel; the 4th Circuit reverses the denial of defendant’s habeas petition.

The district court found that the trial lawyer’s reliance on an inapplicable version of the relevant statute and reassurance that pleading guilty to 18 U.S.C. § 2320(a)(1) would reduce defendant’s risk of deportation was clearly wrong, and the error constituted deficient performance. But the district court found that the lawyer’s deficient performance did not prejudice defendant’s proceedings because the court warned defendant that his guilty plea could lead to his deportation and thus remedied any misunderstanding that might have resulted from the lawyer’s deficient performance. The district court denied defendant’s coram nobis petition. He then filed this habeas petition under 28 U.S.C. § 2255.

Defendant was in custody, and habeas was available when he filed his coram nobis petition. As a result, we view his first petition as an invalid coram nobis petition and his titled habeas petition as a valid habeas petition for which defendant has filed a notice of appeal.

Counsel’s Failure

Counsel’s failure to advise a client about succinct, clear and explicit immigration consequences for a conviction is constitutionally deficient performance under the Sixth Amendment. Defendant’s circumstances here are identical to the claim in Padilla v. Kentucky, 55 U.S. 356 (2010), and similarly demonstrate deficient performance.

Like the error in Padilla, trial counsel here only needed to read the correct version of the statute to determine that the crime to which defendant pleaded guilty was an aggravated felony. Like the false assurances Padilla’s counsel made, the lawyer here structured the plea agreement to avoid an aggravated felony and advised defendant that the plea agreement presented only a risk, but not a certainty, of deportation.

We hold that the district court’s general warnings that referenced only a vague “risk” or possibility of deportation did not cure the lawyer’s deficient performance. Defendant’s case is identical to U.S. v. Akinsade, 686 F.3d 248 (4th Cir. 2012). Here, neither defendant’s trial lawyer nor the district court informed defendant that he was pleading to an aggravated felony rendering him categorically deportable.

Defendant also has shown he was prejudiced by the error. Our sister circuits have also, we believe correctly, recognized that a defendant is prejudiced if there is a reasonable probability that he could have negotiated a plea agreement that did not affect his immigration status.

We conclude defendant has shown a reasonable probability that he could have negotiated a plea agreement that avoided immigration consequences. His negotiations displayed a single-minded focus and acquiescence by the government in the goal of avoiding deportation. Given the government’s flexibility in responding to several of defendant’s requests with regard to the plea agreement, it is reasonably likely the government may have agreed to a loss amount below $10,000 in exchange for other concessions had defendant known the full importance of the loss amount.

Defendant also showed that he would have gone to trial rather than accept a plea agreement if he were aware of the agreement’s immigration consequences. Defendant has long familial ties to the U.S., including a wife and children. It is rational that a person in his situation, with such strong connections to this country, would rather risk a trial to reduce the loss amount than plead guilty and accept the certainty of deportation.

Defendant’s Sixth Amendment right to effective counsel was violated during his criminal proceedings.

Reversed, vacated and remanded for further proceedings.

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