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[.]

I. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION. II. WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985). III. IF APPELLANT’S COUNSEL WAS INEFFECTIVE, WHAT RELIEF, IF ANY, IS APPROPRIATE.

Remember Denedo?

From the headnotes in Hill:

In the present case it is unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because petitioner’s allegations were insufficient to satisfy the “prejudice” requirement. He did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility [474 U.S. 52, 53] date, he would have pleaded not guilty and insisted on going to trial. Nor did he allege any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead guilty.

And from Padilla:

To satisfy Strickland ’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. , at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id. , at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the … right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr , 533 U. S. 289 . Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland ’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance.

A Fort Hood soldier accused of possession of child pornography has been sentenced. A General Court-Martial found Sgt. Donald Keith Whitten guilty of wrongful possession of child pornography earlier this week. Whitten has been sentenced to 16 months of confinement and reduction to Private E1.

Just five days before Ekaterine Bautista planned to become an American citizen, she got a call from the federal government: Her swearing-in ceremony had been canceled pending further investigation. Bautista was devastated. An illegal immigrant from Mexico, she had served six years in the U.S. military — including a 13-month tour of duty in Iraq — and was eligible to apply for naturalization under a decades-old law.

This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky. “Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction.” Here is the abstract: In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

Within the military we have seen this issue applied to sex offender registration.

The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction. But if that were all, it would not “mark a major upheaval in Sixth Amendment law,” as the concurring Justices warned. While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients. The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

So, to what extent does Padilla impact Denedo? Here is the SCOTUSWiki link to the Supreme Court litigation in Denedo. Here is a link to Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). Here is a link to United States v. Denedo, in which N-MCCA denied Denedo relief again.

Justice Stevens writes for the court, with Justice Alito writing in concurrence with the judgment for himself and Chief Justice Roberts. Justice Scalia writes in dissent for himself and Justice Thomas.

In this post conviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he“‘did not have to worry about immigration status since he had been in the country so long.’” 253 S. W. 3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous ad-vice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney. We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address. . . [C]hanges to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, some-times the most important part7—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. . . The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.

Slip op. at 9.

So, what else shall we see in the opinion? That if the advice is given it must be right? More later.

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.