6 Cir: In ineffective assistance claim, no prejudice where evidence of guilt is strong; avoids deciding Padilla retroactivity

The U.S. Court of Appeals for the Sixth Circuit held that an ineffective assistance claim based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), failed where the evidence of guilt was “overwhelming” and the defendant faced a longer prison term if convicted after trial. Pilla v. United States, No. 10-4178, slip op. (6th Cir. Feb. 6, 2012) (Boggs, Kethledge, and Collier, JJ.). Judge Kethledge wrote the panel’s decision.

This case involved a non-citizen (the court doesn’t specify what type of non-citizen, though it implies she was authorized to be in the United States) who pleaded guilty to making false, misleading, or fraudulent statements to the FBI in violation of 18 U.S.C. § 1001. Pilla, No. 10-4178, slip op. at 2, 3. Pilla pleaded guilty upon her criminal defense attorney’s “encouragement” and after consultation between the criminal defense attorney, an immigration attorney, and the defendant. Pilla, No. 10-4178, slip op. at 3. The immigration attorney advised that, “in all likelihood,” violation of § 1001 was not an aggravated felony. Pilla, No. 10-4178, slip op. at 3.

As the Sixth Circuit explains in rather subdued language, this “advice turned out to be incorrect.” Pilla, No. 10-4178, slip op. at 3. In a separate unpublished opinion the same Sixth Circuit panel affirmed the IJ and BIA’s determination that Pilla’s conviction does constitute an aggravated felony. Pilla, No. 10-4178, slip op. at 3 (citing Pilla v. Holder, No. 09-4577 (6th Cir. Feb. 6, 2012)).

After first explaining that Pilla’s writ of coram nobis should not be construed as a motion for habeas corpus relief under 28 U.S.C. § 2255 because Pilla was not in custody when she filed her petition, Pilla, No. 10-4178, slip op. at 5, the Sixth Circuit turned to the merits of Pilla’s Padilla-based claim that her attorney’s incorrect advice about the immigration consequences of conviction violated her Sixth Amendment right to effective assistance of counsel. Pilla, No. 10-4178, slip op. at 6.

Rather than determine whether such incorrect advice is sufficient to meet the deficient performance required by Strickland v. Washington, 466 U.S. 668 (1984), the case which announced the modern test of ineffective assistance of counsel, the court denied Pilla’s claim on Strickland’s second prong: that the defense attorney’s deficient performance prejudiced Pilla. Pilla, No. 10-4178, slip op. at 6.

The evidence of Pilla’s guilt, the court explained, was “overwhelming.” Pilla, No. 10-4178, slip op. at 6. Indeed, the district court determined that Pilla “‘had no realistic chance of being acquitted at trial’ and that, if she had proceeded to trial, she ‘had no rational defense, would have been convicted and would have faced a longer term of incarceration.’” Pilla, No. 10-4178, slip op. at 6. These conclusions, the Sixth Circuit added, “were not clearly erroneous, or indeed erroneous at all.” Pilla, No. 10-4178, slip op. at 6.

In other words, it would not have been rational for Pilla to go to trial because she would have been convicted and faced more prison time than she faced by pleading. Pilla, No. 10-4178, slip op. at 6. Though the Sixth Circuit did not say as much, its decision tracks the Rhode Island Supreme Court’s conclusion that no prejudice exists if the defendant could have received a longer sentence at trial than was actually received by pleading. Neufville v. State, 13 A.3d 607 (R.I. 2011). (I wrote about Neufville some time ago.)

The Sixth Circuit also refused to decide whether Padilla applies retroactively. Pilla, No. 10-4178, slip op. at 6.