Lee v. United States, USSC No. 16-327, cert. granted 12/14/16
Question presented (based on the cert. petition):
To establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), a defendant who has pleaded guilty based on deficient advice from his attorney must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Under this standard, is it always irrational for a noncitizen defendant with longtime legal resident status and extended family and business ties to the United States to reject a plea offer despite strong evidence of guilt because the plea would result in mandatory deportation or permanent exclusion?
As explained in Lee’s petition and the amicus briefs in support of the petition filed by NACDL, a group of immigrants’ rights organizations, and the Center on the Administration of Criminal Law (all available at the Scotusblog page), there’s a split in the circuits when it comes to applying Lockhart to noncitizen defendants who accept a plea deal but then seek to withdraw their plea under Padilla v. Kentucky, 559 U.S. 356 (2010), because they later find out the conviction results in deportation, inadmissibility, or both. The plea deal probably looked good because it involved a shorter sentence, and the likelihood of conviction at a trial was high. But for defendants who’ve lived in the country a long time and have family and a career here, the immigration consequences can be harsh and long-lasting. The question, then, is whether those consequences are bad enough to show that, in the hope of avoiding them, the defendant would have gone to trial despite the strong evidence of guilt—perhaps on a more serious charge, and with the possibility of a longer sentence?
In this case, the Sixth Circuit said “no.” Because the evidence of guilt was “overwhelming,” deportation would have followed just as readily from a jury conviction as from a guilty plea; so, “aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time.” The court did not doubt Lee’s contention that “many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.” But that decision wouldn’t be “rational” under Lockhart so “being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.” 825 F.3d at 313. The Second, Fourth, and Fifth circuits take the same approach.
The Third, Seventh, Ninth, and Eleventh, however, have come to the opposite conclusion. The Seventh Circuit case is DeBartolo v. United States, 790 F.3d 775 (7th Cir. 2015), discussed here, which stressed “the usual understanding of the criminal process, which is that a criminal defendant … has a right to jury trial no matter how slight his chances of prevailing,” id. at 778.
As we also noted in our DeBartolo post, there are Wisconsin decisions going both ways on applying Lockhart. In the immigration context, there’s State v. Mendez, 2014 WI App 57, ¶17, which relied on Third Circuit case law to hold that the proper analysis is “not merely whether Mendez would have won his trial but whether in his particular circumstances, given his family in the United States and his fear of return to Mexico, he might rationally have decided to reject the plea and risked four and one-half years in prison, so as to preserve a chance of avoiding deportation.” See also State v. Shata, 2013AP1437-CR (Wis. Ct. App. July 15, 2014) (unpublished), reversed on other grounds, 2015 WI 74. But in a non-immigration context, the court of appeals has held that a defendant didn’t show prejudice based on trial counsel’s failure to investigate a defense, when that defense was less than compelling and the defendant got a “sweet deal” in which some serious charges were dismissed. State v. Clarmont, 2014AP1043-CR (Wis. Ct. App. May 19, 2015) (unpublished).
The Court will now resolve or, at least, give more guidance in how to apply Lockhart‘s standard in cases raising plea withdrawal claims under Padilla. And because Lockhart applies to all plea withdrawal claims based on ineffective assistance of counsel, the decision could have ramifications beyond the Padilla context.