Is there
any Filipino who has accused his criminal defense attorney of ineffective
assistance and won? If you know of any, I would like to meet you, the winning
Filipino, and his lawyer and treat all of you to dinner in the best steak house
in Honolulu.
Why? (1) Lawyers are reluctant to accuse a
colleague of ineffective assistance lest the accused gets back at the accuser,
(2) The chances of winning are very slim, and (3) It takes time, money, and
considerable effort.
Last Monday (December 9) my son Noel and I
won a case in the U.S. Court of Appeals, Ninth Circuit on behalf of a Filipino
by charging his criminal defense attorney with ineffective assistance that
resulted in the removal of the alien. Case No. 10-72815, U.S. v. Ramiro. We
wrote about the oral argument we made in the case in “Arguing successfully in appellate
courts” in the November 2013 issue of this publication.
Ramiro, an Ilocano from Bacarra, Ilocos
Norte, was with his “barkada” (Filipino slang for “group of friends”) when one
of them shouted that somebody wanted to buy drugs. Ramiro did not want to
become involved and threw away a plastic packet. Another picked it up and gave
it to the one who shouted. The latter then gave it to the buyer who turned out
to be an undercover agent.
Ramiro and his barkada were charged with
drug distribution before a federal court. Ramiro pleaded not guilty. Since he
appeared without a lawyer, the judge appointed a lawyer for Ramiro. The
court-appointed lawyer told Ramiro that if he fought and lost he would get
20-40 years but if he pleaded guilty counsel would negotiate a term of 12 to 18
months. Ramiro, terror-stricken, agreed to change his plea to “guilty.” Ramiro
asked the lawyer about the possibility of deportation. The lawyer told Ramiro
that he “may” be deported. He did not tell Ramiro that drug distribution is an
“aggravated felony” and that an alien convicted of an aggravated felony is
subject to mandatory deportation and therefore he “will” be deported. At
sentencing the lawyer was negotiating with the judge to sentence Ramiro to less
than one year so it will look better when he appears before the immigration
judge. It was obvious that the lawyer did not know that a conviction for drug
distribution will result in mandatory deportation regardless of the length of
the sentence. The judge suggested a recess so that the lawyer could consult
with someone. The lawyer refused the suggestion. The judge sentenced Ramiro to
12 months and one day. The lawyer also told Ramiro that after he serves his
sentence, he will be released. The lawyer did not tell Ramiro that he will
continue to be detained pending his removal proceedings.
Discarding
not distributing drugs
While
in jail, Ramiro learned through the prison grapevine that drug distribution is
an aggravated felony and that he will be deported. Ramiro contacted us. We filed
a 28 U.S.C. § 2255 petition to vacate a sentence of a person in federal
custody. We alleged that his counsel was ineffective by misadvising Ramiro
before changing his plea to guilty that (1) he “may” be deported when the
correct advice should have been that he “will” be deported, and (2) he would be
released after serving his sentence when the correct advice should have been
that after serving his sentence he will continue to be detained pending removal
proceedings. We alleged that if Ramiro had been told the truth that he “will”
be deported if he pleaded guilty and that the maximum sentence he could get was
24 months if he went to trial and lost, he would have gone to trial and might
have won because a reasonable juror could conclude that he was “discarding” not
“distributing” drugs. We contended that Ramiro was prejudiced because he gave
up his right to a jury trial and was convicted and served a prison sentence,
and faced continued detention pending removal proceedings. We argued that but
for the deficient performance of his attorney, the result of the case would
have been different. The judge summarily dismissed our § 2255 petition, saying
that the criminal defense counsel’s performance was not ineffective and that
Ramiro did not show prejudice.
We appealed to the U.S. Court of Appeals
which held: The district court erred by summarily dismissing Ramiro’s motion
under 28 U.S.C. § 2255. Ramiro is entitled to relief if his counsel
“effectively misled” him about the immigration consequences of his guilty plea
and he was prejudiced by that misleading advice. Prejudice requires
establishing that, but for counsel’s errors, there is a reasonable probability
“he would not have pleaded guilty and would have insisted on going to trial.” “Because Ramiro has adequately alleged that
his counsel’s performance was both objectively unreasonable and prejudicial,
his § 2255 motion should not have been summarily dismissed.” The court vacated
the district court judge’s dismissal and remanded the case for further proceedings.
While this case was pending DHS filed
removal proceedings against Ramiro and he was ordered removed. The court
refused to hold in abeyance his removal pending the outcome of this case. DHS
deported Ramiro without notifying his counsel. We will ask the court to order
the DHS to bring Ramiro back so that he can continue to fight his case.
(Atty.
Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws
degree from the University of the Philippines. He specializes in immigration
law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI
96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com.
He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration
Officer. He is co-author of “Immigration Law Service, 1st ed.,” an
8-volume practice guide for immigration officers and lawyers. Listen to the
most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM
dial every Thursday at 7:30 a.m. and Sunday at 8 a.m. This article is a general
overview of the subject matter discussed and is not intended as legal advice.
No attorney-client relationship is established between the writer and readers
relying upon and/or acting pursuant to the contents of this article.)
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