4 Cir: Trial ct admonishment doesn’t cure attorney’s misadvice

The U.S. Court of Appeals for the Fourth Circuit granted an ineffective assistance of counsel claim where the defense attorney incorrectly told the defendant that deportation would not result from conviction and the trial court provided the usual admonishment about immigration consequences of conviction required by court rules. United States v. Akinsade, No. 09-7554, slip op. (4th Cir. July 25, 2012) (Traxler, Gregory, and Wynn, JJ.). Judge Gregory wrote the majority’s opinion from which Judge Traxler dissented.

This case involved an LPR charged with embezzlement by a bank employee, 18 U.S.C. § 656, a federal felony. After twice asking his defense attorney about the immigration consequences of conviction and being told “that he could not be deported based on this single offense,” Akinsade pleaded guilty. Akinsade, No. 09-7554, slip op. at 3. This advice proved wrong insofar as an immigration judge ordered Akinsade removed for having been convicted of a fraud or deceit type of aggravated felony—though only after DHS initiated removal proceedings nine years later—and the BIA affirmed. Akinsade, No. 09-7554, slip op. at 4.

At the crux of the Fourth Circuit’s decision is the plea-stage court’s admonishment about the immigration consequences of conviction. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the trial judge told Akinsade: “[I]f you are not a citizen, you could be deported.” Akinsade, No. 09-7554, slip op. at 3.

After the conviction became problematic Akinsade sought to vacate it on the basis of his plea-stage attorney’s wrong advice. Reviewing Akinsade’s petition for writ of error coram nobis, the post-conviction district court found that the plea-stage attorney’s advice was constitutionally deficient, thus meeting Strickland v. Washington’s first prong, 466 U.S. 668, 687 (1984), but no prejudice occurred, as required by Strickland’s second prong, because “its admonishment of the potential for deportation during the plea colloquy cured counsel’s affirmative misrepresentations.” Akinsade, No. 09-7554, slip op. at 5.

The Fourth Circuit panel’s majority began its explanation by acknowledging that several courts have held that a court’s admonishment cures a defense attorney’s deficient performance. Akinsade, No. 09-7554, slip op. at 8. But the only Fourth Circuit decision to follow this line of cases, the panel majority explained, is distinguishable. In that case, United States v. Foster, 68 F.3d 86 (4th Cir. 1995), the plea-stage court told the defendant the specific consequences he faced upon conviction. Akinsade, No. 09-7554, slip op. at 9. Here, in contrast, the plea-stage court’s admonishment was “general and equivocal” and thus “insufficient to correct counsel’s affirmative misadvice.” Akinsade, No. 09-7554, slip op. at 9.

“More importantly,” the panel continued, “the admonishment did not ‘properly inform’ Akinsade of the consequence he faced by pleading guilty: mandatory deportation. Thus, Akinsade could not have known that deportation was a legally mandated consequence of his plea.” Akinsade, No. 09-7554, slip op. at 10. The court doesn’t explain why it concludes that Akinsade’s conviction renders him mandatorily deportable. Is it because an IJ and the BIA found this to be an aggravated felony (a conclusion with which, as I explain below, the Second Circuit disagreed)? Would the panel have concluded the same had the conviction been a controlled substances offense that would have left Akinsade eligible for cancellation of removal?

So what admonishment would have cured the defense attorney’s wrong advice? The panel majority sets out a high bar: “The severity of the consequence at issue [deportation] and the clear error made by counsel in rendering the advice warrants a curative admonishment that is specific and unequivocal as to the deportation consequences of Akinsade’s conviction.” Akinsade, No. 09-7554, slip op. at 10-11.

Does this mean that the plea-stage court should have told Akinsade that his attorney was wrong? The panel seems to suggest this, though that would create an interesting dynamic in the courtroom: attorney and judge telling the defendant exactly the opposite.

One final aspect of the majority’s opinion is extremely important as Padilla v. Kentucky, 130 S. Ct. 1473 (2010), continues to unravel. The majority explains with absolute clarity that the Fifth Amendment’s due process guarantee is distinct from the Sixth Amendment right to counsel. Because the admonishment that federal courts give defendants pursuant to Rule 11 (and state courts acting pursuant to a state analogue do as well) is rooted in the Fifth Amendment Due Process Clause, “we have never suggested that the sufficient protection of one right automatically corrects any constitutional deficiency of the other.” Akinsade, No. 09-7554, slip op. at 11.

In other words, each constitutional provision stands or falls on its own feet: the obligation imposed on defense attorneys by the Sixth Amendment and the obligation imposed on judges by the Fifth Amendment. The implication for Padilla claims is that a defense attorney’s deficient advice shouldn’t be cured so easily simply by a court’s recital of a generic warning about immigration consequences.

As an interesting side note, the dissenting judge pointed out that the Second Circuit overturned the removal order while this case was pending but after oral arguments. The Second Circuit apparently concluded that, using the modified categorical approach, the government failed to show that Akinsade’s conviction required an intent to defraud. Akinsade, No. 09-7554, slip op. at 19-20 (Traxler, J., dissenting). Judge Traxler would have found that no prejudice existed even had the Second Circuit affirmed the removal order. Akinsade, No. 09-7554, slip op. at 28.

The majority doesn’t address the Second Circuit’s decision, but I think that there are adverse immigration consequences other than removal that may affect a defendant’s decision to plead. Maurice Hew (Texas Southern) recently argued in the Boston College Journal of Law and Social Justice that naturalization, the ability to petition for a family member, and other immigration consequences should be thought of just the same as removal when determining whether a defense attorney provided effective assistance. I think Hew’s onto something, but Judge Traxler clearly isn’t buying it.