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Sixth Circuit Holds IAC When Counsel Fails to Warn of Possibility of Deportation as Result of Plea Bargain

by Dale Chappell

In a case where defense counsel, the Government, and the court all dropped the ball and led a 28 U.S.C. § 2255 movant to believe he did not face the possibility of deportation, his guilty plea based on that advice is invalid, the U.S. Court of Appeals for the Sixth Circuit held. The Court held that prejudice was shown because, absent counsel’s deficient legal advice, the movant could have bargained for a better plea deal that would not have exposed him to deportation. 

Daynel Rodriguez-Penton was indicted for conspiracy to distribute and possess Oxycodone. He is a Cuban national and a legal permanent resident of the U.S. who has lived in Kentucky for nearly 15 years. He eventually pleaded guilty. 

The issue of his Cuban citizenship arose on multiple occasions during the plea negotiations. The sentencing court conceded it didn’t know whether “this conviction would result in deportation” during sentencing. His attorney reportedly advised him that he didn’t “have to worry about deportation because the Government would not return him to Cuba.” And the Government stated that deportation is rare for Cuban defendants.

Rodriguez-Penton alleged that he first learned of the risk of deportation during his initial meeting with his prison counselor. Thereafter, he filed a § 2255 motion to vacate, set aside, or correct his sentence. The district court determined that his attorney’s “performance was deficient,” but concluded he failed to demonstrate that he was prejudiced by the deficient legal advice. Thus, the district court denied his motion and dismissed the case with prejudice. 

On appeal, the Sixth Circuit granted Rodriguez-Penton a certificate of appealability on whether, “had he been advised that he could be deported, he might have accepted a similar plea offer especially if it contained a non-deportation clause, particularly in light of the prosecutor’s acknowledgement that citizens of Cuba are generally not deported following a guilty plea.”

While the appeal was getting underway, the U.S. Supreme Court held in Lee v. United States, 137 S. Ct. 1958 (2017), that even with a high improbability of being found not guilty at trial, a person facing certain deportation by pleading guilty might still go to trial for that slim chance of an acquittal. The Lee opinion follows a line of cases based on the Court’s seminal decision in Hill v. Lockhart, 474 U.S. 52 (1985), which extended ineffective assistance of counsel claims to the guilty-plea context and held the prejudice requirement under Strickland requires a showing of “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.”

In the plea-bargain context, the defendant need not prove that he or she would have gone to trial in order to establish prejudice. Missouri v. Frye, 566 U.S. 134 (2012). The defendant can satisfy the prejudice prong by proving a reasonable probability of a different outcome (prejudice) by showing he or she would have negotiated a better plea deal, such as one that would not require deportation. The Frye Court explained that “Hill does not … provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations.” Frye instructs that the prejudice prong can be satisfied without establishing that the defendant would have gone to trial but for counsel’s deficient performance. 

The Sixth Circuit pointed to “sound” opinions in five sister circuits that have recognized prejudice can be established by demonstrating a “reasonable probability of a difference outcome by showing that [the defendant] would have negotiated a plea deal that did not carry adverse immigration consequences (citing opinions from the D.C., Second, Fourth, Seventh, and Ninth Circuits).

Agreeing with the reasoning and conclusion of those opinions, the Court announced “we now likewise hold that Rodriguez-Penton may demonstrate prejudice if he can show that, had he known about the risk of adverse immigration consequences, he would have bargained for a more favorable plea.”

The Court explained that the district court applied only the Hill analysis, so it “applied an incomplete analytical framework” to the prejudice inquiry. Accordingly, the Court reversed the district court’s decision and remanded for additional proceedings consistent with this opinion. See: Rodriguez-Penton v. United States, 905 F.3d 481(6th Cir. 2018). 

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