When Rohan Coombs joined the Marine Corps, he never thought one day he would be locked up in an immigration detention center and facing deportation from the country he had vowed to defend. . . .

The estimates are of about 8000 non-U.S. citizens enlisting to serve in the U.S. armed forces in any given year.

Most immigrants serve with distinction. The Center for Naval Analyses, a federally funded research and development center for the Navy and the Marine Corps, found that non-citizens are far more likely to complete their enlistment obligations successfully than their U.S.-born counterparts. Coombs was one who did not make the grade. He spent 10 months in the Persian Gulf and lost friends to combat, he said. After the war, he felt depressed and anxious. His family was far away in New York, and he said “whining” to fellow Marines didn’t seem an option. Instead, he got involved with drugs, and he got caught. In 1992, he was court-martialed for possession of cocaine and marijuana with the intent to distribute, and was given 18 months of confinement and a dishonorable discharge. He continued to struggle with drugs.

And he’s awaiting deportation proceedings. The article sets out a push to get non-U.S. citizens who have served a special status which would limit their deportability.

Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

Stephanos Bibas, University of Pennsylvania Law School, U of Penn Law School, Public Law Research Paper No. 10-33, California Law Review, Vol. 99, Forthcoming

Abstract:
Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

For court-martials under the UCMJ, think United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006)(sex offender registration) and Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff’d and remanded, United States v. Denedo, 129 S. Ct. 2213, 2224 (2009)(immigration consquences). For further information about Denedo here is my post after the March 2010 action by NMCCA, and here is the denial of a grant by CAAF in September 2010. Sadly, Denedo lost his challenge at CAAF because his appellate defense counsel missed the filing deadline. So an appellate case that – Denedo alleges — began with trial defense counsel IAC ends with his appellate defense counsel missing a filing deadline.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court. [this is not good cause to waive the deadline] Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied[.]

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…

In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.

In light of Denedo and Padilla, defense counsel representing first term enlisted personnel at court-martial need to add “citizenship” to the check-list; along with, since Miller, sex offender registration if the charges relate to pornography or sex.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court. Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing. Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal. Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied, and that Appellee’s motion to file an answer to the writ-appeal petition, motion to file untimely answer to Appellant’s motion for leave to file the writ-appeal out of time, and motion to withdraw are denied as moot.

Essentially the court finds that even if there were IAC, petitioner has not established prejudice.

Back to CAAF?

As it stands, the case represents a good discussion of defense counsels obligations regarding advice to the client regarding collateral consequences. I find this interesting in light of CAAF’s apparent mandate from United States v. Miller to discuss sex offender registration issues with the client. Except for Miller, I don’t see that the law does not require a defense counsel to discuss collateral consequences with the client. However, if she does then she’s got to get it right.

How can Denedo be squared with Miller?

There is no need to look further than the first prong of the Polk analysis above to determine that Appellant did not receive ineffective assistance of trial defense counsel. Although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel’s failure to advise Appellant of this consequence does not rise to the level of ineffective assistance of counsel.

United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006).

However, later the court imposes this requirement of defense counsel and the military judge.

In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

Miller, 63 M.J. at 459.

I have commented some time ago about the number of foreign nationals enlisted into the military, are not the consequences of a conviction of strong importance to them if it entails the possibility of removal? Will CAAF impose a new requirement in such a case, in same way this was done in Miller? If not, why not?

Department of Homeland Security (DHS) Secretary Janet Napolitano commemorated the milestone of more than 52,000 American military service members becoming U.S. citizens since Sept. 11, 2001.

Homeland Security release, 10 September 2009, Speech of Secretary Gates, Fort Bragg, 23 October 2008,

Distinguished guests, and the families of our new citizens, thank you all for coming. It is a pleasure to be at Fort Bragg. And what an honor to be able to welcome into citizenship 41 men and women who have served and sacrificed for their country even before it officially was their country.

and prior posts here, here, and here.

ABSTRACT: In the 2009–2010 term, the U.S. Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence—every jurisdiction, that is, except Kentucky. The Supreme Court of Kentucky recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation. The collision of the collateral-consequences rule, which imposes no duty to warn, and the affirmative-misadvice exception, which imposes a duty to give accurate advice where a lawyer chooses to warn, leads to a perverse incentive structure that signals to defense lawyers (as well as to prosecutors and judges) that it is safest to say nothing at all about “collateral” matters. The Kentucky approach that the Supreme Court will review is equally troubling; it allows false information with no sanction or remedy. A cluttered and contradictory jurisprudence of informational rights in the guilty-plea process sits at this intersection of the collateral-consequences rule and affirmative-misadvice exception. So-called collateral consequences often overshadow the direct penal sentences in criminal cases. In addition to deportation, courts categorize many other severe consequences as collateral, including involuntary civil commitment, sex-offender registration, and loss of the right to vote, to obtain professional licenses, and to receive public housing and benefits. These consequences touch upon every important area of a convicted person’s life—for the rest of his or her life. They also matter enormously in the United States, which has more than 600,000 individuals exiting the prison system and millions more getting criminal records each year. These individuals enter a society that is struggling to find ways to integrate them despite facing considerable obstacles. The constitutional rule has not caught up to the current reality of the effect of these consequences on defendants, their families, and their communities. The Supreme Court has the opportunity to overcome the mythical divide between direct and collateral consequences and to protect the constitutional and ethical values which underlie a defendant’s right to decide whether to plead guilty based on full knowledge of the material consequences. The Court will consider important issues of professional responsibility, ethics, transparency, and the right to information in the guilty-plea process. This Article exposes the problems with the majority and Kentucky approaches. It argues that only a constitutional mandate that requires a complete and full informational disclosure about the serious collateral consequences of guilty pleas will avoid the problematic incentive structures we have now.

I did not see a reference to Denedo.

Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), cert. granted, 129 S. Ct. 1317 (2009). Padilla v. Kentucky [link is to SCOTUSWiki] was argued at the U.S. Supreme Court 13 October 2009, the decision is pending.