A U.S. District Court judge in Texas recently applied Padilla v. Kentucky, 130 S. Ct. 1473 (2010), retroactively, but then went on to conclude that the noncitizen was not prejudiced because the court’s admonishment cured any deficient performance by her attorney. Marroquin v. United States, 2011 U.S. Dist. LEXIS 11406 (Feb. 4, 2011) (Crane, J.). The noncitizen in this case sought to vacate a conviction for transporting an alien entered prior to the Supreme Court’s issuance of Padilla. An Immigration Judge found that this conviction rendered her inadmissible as an “alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” INA § 212(a)(6)(E).
Judge Randy Crane in the McAllen, Texas division of the Southern District of Texas first determined that a writ of coram nobis was an appropriate vehicle through which to raise a Padilla claim. In Padilla, the Supreme Court held that criminal defense attorneys must affirmatively and accurately advise their non-citizen clients of the risk of deportation stemming from pleading guilty as part of their Sixth Amendment obligation to provide effective assistance of counsel.
Crane explained that Padilla applies retroactively because the Padilla Court simply extended the ineffective assistance of counsel framework that it announced in Strickland v. Washington, 466 U.S. 668 (1984). Padilla may have “overruled virtually every lower courts’ conclusion regarding advice of immigration consequences,” Crane wrote, “but it did so based on the lower courts’ failure to even consider the underlying ineffective assistance of counsel claims under Strickland.” In other words, Padilla corrected the mistake made by virtually all lower courts; it did not establish a new rule or impose a new obligation on the states.
After concluding that Padilla is to apply retroactively, Judge Crane proceeded to discuss the two prongs of Strickland’s ineffective assistance of counsel test: was defense counsel’s performance deficient and, if so, did that deficient performance prejudice the defendant? Crane determined that the defendant here could not show that her defense attorney was deficient because the record of the plea colloquy showed that the defense attorney explained that the conviction would result in the defendant “los[ing] her papers”—a clear indication that she would lose her ability to remain in the country.
Though Crane could have denied the ineffective assistance of counsel claim for that reason alone, he chose to go on in a rather concerning fashion. Crane added, arguendo, that even if the attorney had performed below the reasonable level of competence required by the Sixth Amendment right to counsel, the noncitizen still could not show ineffective assistance of counsel because she was not prejudice.
The basis for this conclusion was that the she was made aware of the deportation consequences of her plea because “the Court informed her she would indeed be deported.” According to Crane’s decision, the court explained: “If I accept your guilt[y] plea you will be adjudged guilty of this felony offense, and this will have consequences to you…[I]f you’re not a citizen of this country, then this would require that your status here be revoked, and you would be deported back to your home country.”
The trial court’s admonishment would effectively cure the defense attorney’s failure to provide the defendant with the reasonable level of competency required by the Sixth Amendment as interpreted by Strickland and its progeny. According to Crane, “Even if Petitioner’s attorney failed to render competent advice, she was not prejudiced because the Court made sure she understood the immigration consequence of her plea before accepting it.”
The opinion does not explain how the trial court’s admonishment—rooted in the Fifth Amendment Due Process Clause’s requirement that a plea be entered knowingly—can cure a defense attorney’s Sixth Amendment obligation under the right to counsel. Crane certainly is not alone in reaching this conclusion, but it is worth asking whether he is correct. Can a trial court ever cure a constitutional violation performed by a different actor (i.e., the defense attorney) in the process?
In part Crane’s dicta about the trial court’s ability to cure the defense attorney’s failure only works because he implicitly concludes that the court’s admonishment regarding the likelihood of deportation gave the defendant notice that she would be inadmissible if she later left the country and sought to return or sought readjustment of status (it is unclear from the opinion which of these scenarios resulted in the IJ’s conclusion that she is inadmissible). It is concerning that Crane, a federal judge who sees many immigration-related cases, concludes that a warning about deportation can provide notice about a potential inadmissibility obstacle. Though the two function under the same removal umbrella, there remain important distinctions especially with regard to LPRs.