An Ohio federal district court judge granted a motion to vacate a 1998 conviction based on the plea attorney’s incorrect advice regarding deportation. United States v. Reid, No. 1:97-CR-94, slip op. (S.D. Ohio Aug. 4, 2011) (Spiegel, J.). In his opinion and order, Judge Arthur Spiegel retroactively applied Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court decision recognizing a duty under the Sixth Amendment right to counsel to advise criminal defendants of the deportation consequences of conviction. Reid’s post-conviction attorney, Neil I. Fleischer of The Fleischer Law Firm LLC in Cincinnati, is a Capital Law grad.
This case involved an LPR who pleaded to multiple embezzlement offenses in 1998 upon advice of his trial attorney “that he would be exposed to deportation if he was convicted at trial but would not face deportation consequences if he entered the plea.” Reid, No. 1:97-CR-94, slip op. at 2. The plea attorney “also told Reid that his family would face deportation if he was convicted at trial.” Reid, No. 1:97-CR-94, slip op. at 2.
After pleading, Reid was placed in removal proceedings and charged with removability for having been convicted of a crime involving moral turpitude with five years of admission, INA § 237(a)(2)(A)(i), and an aggravated felony, INA § 237(a)(2)(A)(iii). Reid, No. 1:97-CR-94, slip op. at 2-3. Removal proceedings were pending at the time of the federal court’s decision. Reid, No. 1:97-CR-94, slip op. at 3.
Because Reid’s federal sentence had been completed he could not seek federal habeas relief. Instead, he petitioned the district court for a writ of coram nobis, a common law writ with three requirements that the petitioner must show: “(1) an error in fact; (2) [that was] unknown at the time of trial; and (3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding had it been known.” Reid, No. 1:97-CR-94, slip op. at 6.
The federal district court first addressed whether Reid satisfied each of these requirements. The court had no difficulty determining that the first and second requirements were met. The plea attorney’s “woefully incorrect advice was clearly an error in fact unknown to Reid at the time he entered his plea,” the court explained. Reid, No. 1:97-CR-94, slip op. at 7.
The court had no more difficulty concluding that the third requirement was met. It relied on Reid’s affidavit in which he stated that his primary concern during the criminal proceedings was to avoid deportation and that he would have gone to trial had he known that pleading was going to result in removal proceedings. Reid, No. 1:97-CR-94, slip op. at 6.
Having determined that the writ of coram nobis was available to Reid, the court turned to whether Padilla applies retroactively. Applying the Teague v. Lane, 489 U.S. 288 (1989), framework for determining whether a rule of criminal procedure is to apply retroactively (which I have discussed previously in greater detail), the court determined that “Padilla did not create a new rule, and thus the rule should be applied retroactively to Reid’s plea.” Reid, No. 1:97-CR 94, slip op. at 7.
In concluding that Padilla did not create a new rule of criminal procedure the court found persuasive the Third Circuit’s retroactivity discussion in United States v. Orocio, No. 10-1231, slip op. (3d Cir. June 29, 2011) (discussed in a previous post), in which the Third Circuit explained that Padilla “merely applied the existing Strickland analysis to a different set of facts originating from an ineffective assistance of counsel claim.” Reid, No. 1:97-CR-94, slip op. at 8 (discussing Orocio).
Having concluded that Padilla applies retroactively to Reid’s conviction, the federal district court then turned to whether Reid satisfied both prongs of the modern ineffective assistance of counsel test announced in Strickland v. Washington, 466 U.S. 668 (1984).
To prove an ineffective assistance claim, Strickland requires that a petitioner show that “counsel’s representation fell below an objective standard of reasonableness” (often described as the deficient performance prong) and that that deficient performance prejudiced the petitioner. Reid, No. 1:97-CR-94, slip op. at 9 (quoting Strickland, 466 U.S. at 688). The district court explained that the prejudice prong requires that “Reid must demonstrate a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Reid, No. 1:97-CR-94, slip op. at 9 (quoting Strickland, 466 U.S. at 694).
Regarding Strickland’s deficient performance prong, the court determined that the plea attorney “failed Reid in his duty to assist Reid and led him to believe he would not face deportation if he accepted the plea agreement. A reasonable attorney would not have made such erroneous promises, but rather would have properly researched the issue and accurately advised his client.” Reid, No. 1:97-CR-94, slip op. at 9.
Regarding Strickland’s prejudice prong, the court concluded
“The Court finds that Reid’s primary concern was the effect of his criminal charges on his immigration status rather than the length of any potential prison sentence. Therefore, he was directly prejudiced when he entered the plea after being informed incorrectly of the deportation consequences. Had Reid been informed that entering a plea would still subject him to deportation proceedings, he likely would have assessed his options differently and may have decided to stand before a jury of his peers rather than to enter the plea and subject himself to deportation proceedings.”
Reid, No. 1:97-CR-94, slip op. at 10-11.
Interestingly, the court reached this conclusion despite the government’s argument that Reid was not prejudiced because he “would not have decided to go to trial because he was risking conviction on all eight counts in the indictment with a maximum sentence of thirty years in prison.” Reid, No. 1:97-CR-94, slip op. at 10.
In effect, the government argued that it would have been irrational for Reid to go to trial where he faced up to 30 years imprisonment instead of accepting the plea that landed him in jail for 60 days. The district court, however, was not convinced in large part because Reid evidenced that his principal interest was knowing about and avoiding deportation.
This is one of the older convictions that I have seen vacated under Padilla.