The Lawletter Vol 37 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

A recent decision from the Fourth Circuit Court of Appeals illustrates both the reach of our immigration laws over even long-term lawful immigrants to this country and the need for criminal defense counsel to familiarize themselves with the impact a criminal conviction may have on one's immigrant status.  The case also provides guidance on the correct standard for addressing a petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651.  See United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012).  The case came to the Fourth Circuit on appeal of the district court's denial of Temitope Akinsade's petition.

Akinsade was a 30-year-old Nigerian citizen who legally came to the United States in July 1988 at the age of seven and became a lawful permanent resident in May 2000.  When he was employed as a bank teller in 1999, at the age of 19, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account.  He eventually reported the transactions to his supervisor, who then contacted the FBI.  He cooperated with the FBI and was neither arrested nor taken into custody at that time.  In March 2000, Akinsade was charged by a bank employee with embezzlement in the amount of $16,400, and he subsequently agreed to plead guilty after twice asking his attorney about the immigration consequences of a guilty plea and twice being advised that he could be deported only if he had two felony convictions.  The attorney's advice was erroneous.  See 8 U.S.C. § 1101(a)(43)(M)(i) (aggravated felony includes offense involving fraud or deceit and loss to victim in excess of $10,000); id. § 1227(a)(2)(A)(iii) (any alien convicted of an aggravated felony after admission is deportable).  Finding that the charged behavior was out of character for Akinsade, the court gave him the minimum sentence under the Sentencing Guidelines.

Nine years later, after Akinsade had served his sentence, after he had earned both a bachelor's degree in computer science and a master's degree from the University of Maryland, graduating with a 3.9 GPA, after he had received a fellowship from the National Science Foundation, and after he had entered into a leadership program at General Electric Company and moved to upstate New York, he was arrested by immigration authorities and threatened with deportation based on his embezzlement conviction.  He then filed a petition for writ of coram nobis, alleging a violation of his Sixth Amendment right to counsel due to his attorney's misadvice.  The district court denied the petition, concluding that although counsel's representation was constitutionally deficient under the first prong of Strickland v. Washington, 466 U.S. 668, 687 (1984), Akinsade did not meet the second prong of establishing prejudice. 

August 14, 2012

Doug Plank, Senior Attorney, National Legal Research Group

It is well established that the Sixth Amendment to the U.S. Constitution provides to a criminal defendant the constitutional right to counsel and that this right encompasses the right to effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668 (1984).  Because a determination of whether a defendant's trial counsel has provided effective assistance at trial can rarely be made prior to the end of the trial or prior to the issuance of the judgment of the court, a defendant's first opportunity to raise the issue of ineffective assistance of counsel is on appeal.  However, most States prohibit the litigation of ineffective-assistance-of-counsel claims on direct appeal and, instead, require defendants to bring such claims in a collateral habeas corpus proceeding, usually following the termination of the appeal process.  Such collateral proceedings have their own limiting rules, as most States require all issues that can be raised in postconviction proceedings to be brought in one proceeding and hold that issues not raised in the initial proceeding will be forever barred unless the defendant can show both good cause for the failure to have raised them and actual prejudice from that failure.  Moreover, the U.S. Supreme Court squarely held in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), that an attorney's errors in a postconviction proceeding do not qualify as cause for a default, and the Court refused to find that a defendant has a constitutional right to counsel in postconviction relief actions, thus barring ineffective-assistance-of-counsel claims for attorney errors in those proceedings.  Under 28 U.S.C. § 2254, the federal statute governing the procedures for bringing a federal habeas corpus action to contest a judgment in a state court criminal proceeding, a defendant is entitled to bring only one proceeding and can only raise issues in that proceeding that were previously raised either in the state trial or in state postconviction relief proceedings.

These limitations have created a situation in which a defendant has no remedy when he has plainly been denied his constitutional right to effective assistance of counsel at trial and yet his attorney has also failed to raise that issue in his initial state postconviction relief action.  Under the principles discussed above, the defendant would simply be unable to get relief for his deprivation of the right to counsel, because he would be foreclosed from bringing up the issue in a successive habeas corpus action and could not raise the issue in a federal proceeding under § 2254 because it had not been raised at the state level.

The Supreme Court recently addressed this problem and decided in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a fiercely contested 7-2 decision, that a federal habeas corpus action was indeed available to remedy ineffective assistance of counsel at a state court trial, even where that issue had not been properly raised in the defendant's state postconviction actions.  The reasoning of the Court in Martinez would appear to open the door to many more successful federal habeas corpus proceedings for criminal defendants alleging ineffective assistance of counsel.

The Lawletter Vol 37 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

"It ain't over 'til it's over."—Yogi Berra 

The U.S. Supreme Court recently considered whether a federal appellate court has the authority to address sua sponte the timeliness of a state prisoner's federal habeas petition.  Relying on prior precedent holding that a federal district court may consider a statute of limitations, Day v. McDonough, 547 U.S. 198, 202 (2006), or exhaustion, Granberry v. Greer, 481 U.S. 129, 134 (1987), defenses not raised by the State in answering the habeas petition at issue in Wood v. Milyard, 132 S. Ct. 1826 (2012), the Court held in an opinion written by Justice Ginsburg that an appellate court has the authority to consider, on its own motion, a forfeited timeliness defense.  However, the Court concluded that the U.S. Court of Appeals for the Tenth Circuit had abused its discretion in denying the petition on the ground of timeliness because the State did not merely forfeit the defense by inadvertent omission, but it knowingly waived the defense by affirmatively declining to assert the statute of limitations defense.  

            Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which applied to the petition in Milyard, a state prisoner has one year to file a federal petition for habeas corpus relief, starting from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."  28 U.S.C. § 2244(d)(1)(A).  For a prisoner whose judgment became final before the AEDPA was enacted, the one‑year limitations period runs from the AEDPA's effective date, that is, April 24, 1996.  The one‑year clock is stopped during the time a properly filed application for state postconviction relief is pending.  Id. § 2244(d)(2). 

In Milyard, the state judgment became final on direct review in early 1990.  Thus, the time for filing a federal petition began to run on April 24, 1996 and would expire on April 24, 1997 unless a properly filed application for state postconviction relief was pending in Colorado state court during that period.  The prisoner maintained that he had had such an application pending on April 24, 1996, that is, a motion for postconviction relief that he had filed in 1995 and that remained pending until he filed a second petition in August 2004.  The prisoner argued that the second petition had further tolled the limitations period until February 5, 2007, exactly one year before he filed the federal petition at issue in Milyard. 

In its preanswer response to the federal petition for writ of habeas corpus, the State acknowledged that it was arguable that the 1995 petition had been abandoned before 1997 and therefore did not toll the AEDPA statute of limitations.  However, the State informed the federal district court that it would not challenge the petition on the ground of timeliness.  The State reasserted its position in its full answer and defended on the merits, and the district court issued an opinion denying the petition, in part on the merits and in part for failure to exhaust.  On appeal, the Tenth Circuit directed the parties to brief the timeliness issue and then ruled that the petition was time-barred without addressing the merits.

April 17, 2012

Doug Plank, Senior Attorney, National Legal Research Group

In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony.  Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial.  The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result.  In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test.  Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.

However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty.  By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea.  Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'"  Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver).