Written by: Stephen Manning
By Rebecca Sharpless (AILA Amicus 11th Circuit Monitor), Natalie Garrett, and Brittany Young, Immigration Clinic, University of Miami School of Law
Interpreting the prejudice requirement for ineffective assistance claims under Padilla v. Kentucky, the Third District Court of Appeal for the State of Florida has ruled that a generic judicial warning about possible deportation fails to cure defense counsel’s ineffective assistance. Hernandez v. State, No. 3D10-2462 (Fla.App. 3 Dist., April 6, 2011). In so doing, the court disagreed with a prior decision of another Florida appellate court. See Flores v. State, —So.3d—, 2010 WL 2882465 (Fla.App. 4 Dist. 2010), pet. for reh’g and reh’g en banc pending. The court, however, ruled against appellant Hernandez by characterizing Padilla v. Kentucky as creating a “new rule” that should not be applied retroactively. Both issues have been certified to the Florida Supreme Court. AILA members Sui Chung of Sui Chung, P.A. and Michael Vastine of the Immigration Clinic at St. Thomas University School of Law represented the appellant.
JUDICIAL IMMIGRATION WARNINGS
The Florida court’s ruling on the inadequacy of standard judicial warnings about immigration consequences is a model ruling that we hope will survive review by the Florida Supreme Court. The specific judicial warning at issue was the standard warning under the Florida Rule of Criminal Procedure 3.172(c)(8) to a defendant pleading guilty that deportation is possible. The court carefully analyzed the scope of defense counsel’s duty in Padilla v. Kentucky, concluding that “neither the plea colloquy nor Hernandez’s counsel’s advice . . . conveyed the warning that deportability was a non-discretionary and ‘truly clear’ consequence of his plea.” The court went further to recognize that the test is not whether someone has been convicted of an aggravated felony, but whether the person “became deportable,” stating that both “scenarios” require defense counsel to “furnish a ‘will subject you,’ not a ‘may subject you’ warning to his or her client.”
It is important to keep in mind, however, that the court’s ruling was limited to a scenario involving “truly clear” immigration consequences—defined as cases in which the noncitizen clearly falls within a ground of removal. The court did not go so far as to say that a judicial warning can never cure defective representation by defense counsel. In particular, the court did not rule on whether judicial warnings about the possibility of deportation could cure prejudice in cases where there is some question about whether a conviction falls within a removal ground. Moreover, the court suggests that a “will subject you” to deportation warning might cure ineffective assistance of counsel (emphasis added).
AILA, South Florida Chapter, filed an amicus brief in Hernandez v. State on the prejudice issue, authored by Tania Galloni, Florida Immigrant Advocacy Center, and Rebecca Sharpless, Immigration Clinic, University of Miami School of Law. The brief is available for download.
In contrast to its ruling on judicial warnings, the court’s ruling on retroactivity is disappointing. Although the court recognized that the U.S. Supreme Court had strongly implied that defendants could use its decision in Padilla to challenge preexisting pleas, it went on to conclude otherwise. The court held that Padilla v. Kentucky established a non-retroactive new rule, but failed to even consider the threshold question of whether Padilla even establishes a new rule requiring a retroactivity analysis. As other courts have found, Padilla involved the application of an existing rule (the Strickland v.Washington test for ineffective assistance) to a new set of facts (pleas involving immigration consequences). See People v. Bennett, 903 N.Y.S.2d 696 (N.Y.City Crim. Ct. 2010); People v. Garcia, 907 N.Y.S.2d 398 (N.Y.City Crim Ct. 2010). See also D. Kesselbrenner, “Practice Advisory: Retroactive Applicability of Padilla v. Kentucky,” available here. The 3rd DCA’s failure to engage with this argument softens the impact of losing the retroactivity claim and we remain optimistic that the Florida Supreme Court will deliver a a better-reasoned decision.
Please contact AILA Amicus for assistance with Padilla claims pending before any of the State appeals courts or the Federal appeals courts at firstname.lastname@example.org.