This case is before us on appeal from the denial of the defendant's second motion for a new trial in which he sought to vacate guilty pleas he entered in 2005, on the ground that he was deprived of his right under the Sixth Amendment to the United States Constitution to the effective assistance of counsel as that right recently has been explicated in Padilla v. Kentucky, 130 S.Ct. 1473 (2010) (Padilla). In Padilla, the United States Supreme Court held that defense counsel's failure to advise a client that a consequence of his guilty plea likely would be deportation constituted ineffective assistance of counsel. Id. at 1483. The defendant asserts that he was similarly ill served by his counsel and asks us to vacate his guilty pleas. We transferred the case to this court on our own motion.
To decide this case, we must determine whether Padilla applies retroactively to the defendant's collateral challenge to his convictions, and, if so, whether he has demonstrated that he was prejudiced by counsel's shortcomings. For the reasons that follow, we conclude that Padilla is to be applied retroactively on collateral review of guilty pleas obtained after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (eff. April 1, 1997). We also conclude that the defendant has made an insufficient showing that had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different. Therefore, we affirm the denial of his motion for a new trial.
1. Facts. The following facts are drawn from the motion judge's findings of fact and the incident report filed by the police. On February 16, 2004, two Boston police officers were monitoring the Mattapan Square area of Boston when they observed a group of teenagers standing at the corner of Babson Street and Crossman Street. As they drove by, the defendant made eye contact with one officer and then began walking away from the group. The officers turned their vehicle around and noticed the defendant standing on the front porch of a house with his hands in his pockets. The officers pulled up to the home and asked the defendant if they could speak with him. The defendant met the officers on the sidewalk, and the officers noticed a strong odor of alcohol. The defendant admitted to
On February 2, 2005, the defendant pleaded guilty to possession of a class B substance with intent to distribute, G. L. c. 94C, § 32A; possession of a class D substance with intent to distribute, G. L. c. 94C, § 32C; and underage possession of liquor, G. L. c. 138, § 34C. In return, the Commonwealth agreed to the dismissal of two counts of school zone violations, G. L. c. 94C, § 32J, each of which carried a mandatory minimum two-year house of correction sentence and, if charged in an indictment, a maximum fifteen-year prison term. The defendant was sentenced to two years in a house of correction, with five months to be served and the balance suspended, and two years' probation.
On December 15, 2009, the United States Department of Homeland Security served the defendant with a notice to appear, stating that he was subject to removal from the United States for being convicted of an aggravated felony and for being convicted of a violation of a law relating to a controlled substance.
In support of his second motion, the defendant filed an affidavit of counsel who represented him at the plea hearing, in which she averred that she had been unaware that the defendant was not a United States citizen, and had no memory of discussing any immigration consequences that might arise from his pleas of guilty. The defendant also submitted an affidavit stating that he was not told that his guilty pleas would result in deportation. Although the tape recording of the plea hearing was no longer available,
The Supreme Court in Teague acknowledged the difficulty of determining when a rule is new, and chose not to define a "new rule" except to state that, "[i]n general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." (Citations omitted.) Teague, supra at 301. In fairness, the Supreme Court, since Teague, has given broad articulation to the meaning of when a rule is "new," thus limiting review in collateral challenges, and "validat[ing] reasonable, good-faith interpretations of existing precedents made by state courts" even though they are "contrary to later decisions." Butler v. McKeller, 494 U.S. 407, 414 (1990). See Beard v. Banks, 542 U.S. 406, 411 (2004), quoting Graham v. Collins, 506 U.S. 461, 468 (1993) (court must ascertain "legal landscape" existing at time conviction became final); O'Dell v. Netherland, 521 U.S. 151, 156 (1997) ("we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court"); Graham v. Collins, supra at 467, quoting Saffle v. Parks, 494 U.S. 484, 488 (1990) (holding is new and thus not ordinarily retroactive "unless reasonable jurists hearing petitioner's claim at the time his conviction became final `would have felt compelled by existing precedent' to rule in his favor").
It is thus not surprising that the Commonwealth argues that the rule announced in Padilla is a "new" rule because it was not "dictated" by precedent and "abrogated both widespread federal and stated precedent." Indeed, in concluding that defense counsel was ineffective by failing to advise her client of the virtually automatic deportation consequences of his guilty plea,
However, as the Supreme Court has also stated: "Even though we have characterized the new rule inquiry as whether `reasonable jurists' could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is `objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." Williams v. Taylor, 529 U.S. 362, 410 (2000), quoting Wright v. West, 505 U.S. 277, 304 (1992) (O'Connor, J., concurring). Of particular relevance to the claim of ineffective assistance of counsel raised in Padilla, Justice Kennedy has noted that it may be harder to find a "new rule" in a case where the existing precedent established a general standard that can only be applied after analysis of the facts of a given case:
Wright v. West, supra at 308-309 (Kennedy, J., concurring).
With this framework in mind, we look more specifically to the holdings and reasoning of Padilla and of the watershed Sixth Amendment case of Strickland v. Washington, 466 U.S. 668 (1984) (Strickland), on which it relies. There is no question that the holding in Padilla is an extension of the rule in Strickland, which articulated the two steps required for establishing ineffective assistance of counsel:
Id. at 687. See Padilla, supra at 1482-1483. Nor is there any question that the Supreme Court was applying the first prong of the Strickland standard when it concluded that the failure of counsel to provide her client with available advice about an issue like deportation was constitutionally deficient.
Id. The Supreme Court went on to explain that a court reviewing an ineffective assistance claim "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690.
Thus, the Strickland case "[b]y its very terms . . . provides a general standard which calls for some examination of the facts." Wright v. West, supra at 308 (Kennedy, J., concurring). The beginning point is a rule of general application designed for the specific purpose of evaluating a myriad of factual contexts. Id. at 308-309 (Kennedy, J., concurring). The Supreme Court's analysis in subsequent cases applying Strickland lends further support to the proposition that such claims present the sort of
In Williams v. Taylor, supra at 390, the Supreme Court held that the question whether the defendant was seeking to apply a "rule of law that was clearly established" when his conviction became final was "easily answered because the merits of his claim are squarely governed by our holding in Strickland."
The Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (Flores-Ortega), also illustrates that
A conclusion that Padilla is not a "new rule" but merely an application of Strickland is also informed by the reasoning and language of the Padilla decision itself.
Finding Strickland applicable, the Supreme Court went on to apply Strickland to the context of advice about immigration consequences. Id. at 1482-1483. Noting that the standard for constitutionally deficient representation was "necessarily linked to the practice and expectations of the legal community," id. at 1482, the Court cited to numerous practitioner sources and a prior Supreme Court case, Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001), as evidence that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla, supra at 1482. In the case of the defendant in Padilla, the removal statute made clear that a conviction would make him removable, and his counsel affirmatively misadvised him, making it an easily identified case of deficient representation. Id. at 1483. However, in light of the prevailing norms it had recognized and described, the Court went further to articulate more specifically the requirements of constitutionally adequate counsel in the representation of noncitizens facing immigration law consequences:
Id.
A fair reading of the Supreme Court's opinion in Padilla also suggests that the Justices themselves assumed that their holding would be retroactively applied. For example, the Court's opinion spoke specifically to the Solicitor General's concern that its decision would open the "floodgates" and disturb the finality of convictions, id. at 1484, in terms that would have been superfluous if the holding were not applicable to convictions already final. Id. at 1485 ("It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains"). See, e.g., United States vs. Hubenig, No. 6:03-mj-040 (E.D. Cal. July 1, 2010); People v. Ramirez, 29 Misc.3d 1201(A) (N.Y. Crim. Ct. 2010). The Court pointed out that as a practical matter its ruling would not undermine the finality of large numbers of convictions that had already been obtained by plea bargains for several reasons. First, because for "at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." Padilla, supra at 1485.
In sum, the opinion in Padilla relies primarily on citation to Strickland itself; Strickland controls ineffective assistance claims by providing a broad rule of reasonableness grounded in professional norms and applied with regard to the factual circumstances of each case. See Wright v. West, 505 U.S. 277, 308-309 (1992) (Kennedy, J., concurring); United States v. Chaidez, 730 F.Supp.2d 896, 901 (N.D. Ill. 2010). In asking the Court to rule that the affirmative misadvice that he received from his lawyer presented a case of ineffectiveness, the defendant in Padilla sought only an application of Strickland that several courts had already reached. See Padilla, supra at 1493-1494 n.4 (Alito, J., concurring). Although the Court articulated its holding more broadly, in what Justice Alito believed was a "dramatic departure from precedent," id. at 1488 (Alito, J., concurring), it simply held that, given the growing importance of immigration consequences of criminal convictions, reasonable attorneys following professional standards would not fail to advise their clients of these consequences and ultimately concluded that a failure to notify a defendant about immigration consequences clearly satisfies Strickland's test for ineffectiveness. See id. at 1484. Finally, the Court plainly contemplated collateral challenges to prior guilty pleas based on its ruling.
3. Ineffective assistance of counsel. The standard for ineffective assistance of counsel in Massachusetts was articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Since the Supreme Court's decision in Strickland, we have held that satisfying the Saferian standard necessarily satisfies Strickland. Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985) ("Consideration of the Massachusetts test of ineffective assistance of counsel ... leads us to the conclusion that if the Saferian test is met, the Federal test is necessarily met as well"). We must determine "whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, supra.
The defendant asserts that he was never told of the immigration consequences of his plea. He has presented an affidavit of his counsel at the plea hearing, stating that she was not aware that the defendant was not a United States citizen and had no memory of discussing immigration consequences with him. The Commonwealth argues that the defendant's evidence is insufficient to show that he was not advised of the deportation consequences of his guilty pleas.
Under Padilla, "[constitutionally competent] counsel must inform her client whether his plea carries a risk of deportation." Padilla, supra at 1486. Central to the Court's decision was its reference to the professional standards of the legal community. Id. at 1482-1483. National and Massachusetts performance guidelines require criminal defense counsel to interview a defendant and gather significant personal information in order to represent
Here, as in Padilla, the consequences of the defendant's plea were clear. See id. at 1483. Pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (2006 & Supp. III 2009), "Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, ... other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." The defendant pleaded guilty to possession of a class B substance, to wit, crack cocaine, with intent to distribute, G. L. c. 94A, § 32A, and possession of a class D substance, to wit, marijuana, with intent to distribute, G. L. c. 94C, § 32C, either of which made him subject to deportation under 8 U.S.C. § 1227(a)(2)(B)(i). That the defendant's counsel failed to ascertain that the defendant was not a United States citizen may be sufficient to satisfy the first prong of the Saferian standard because effective representation requires counsel to gather at least enough personal information to represent him. As the Supreme Court in Padilla recognized, "[i]t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so `clearly satisfies the first prong of the Strickland analysis.'" Padilla, supra at 1484. If counsel was unaware of her client's immigration status when she represented him and has no memory of discussing any immigration consequences of his plea, it is highly unlikely that she ever informed him that his guilty pleas carried a substantial risk of deportation. Considering existing professional norms, and the holding in Padilla, the defendant has made a sufficient showing that counsel's failure satisfies the first prong of Saferian.
To succeed on an ineffective assistance of counsel claim, the
In the context of a guilty plea, in order to satisfy the "prejudice" requirement, the defendant has the burden of establishing that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra at 59. See Premo v. Moore, 131 S.Ct. 733, 743, 744 (2011). At a minimum, this means that the defendant must aver that to be the case. Hill, supra at 60.
The record in this case suggests that the driving factor in the defendant's decision to plead guilty was the avoidance of the mandatory minimum jail (or prison) sentences that would have attached to the two school zone charges that were subsequently dismissed as part of the plea bargain. The evidence stacked against the defendant left little prospect of escaping those sentences, after which, of course, he would have faced the same deportation consequence that he faces now. Warnings of possible deportation given to him orally by the judge, and in a writing that he signed at the time of the plea, apparently gave him no pause.
4. Conclusion. For the foregoing reasons, although we hold that Padilla v. Kentucky, 130 S.Ct. 1473 (2010), is to be retroactively applied to convictions obtained on or after April 1, 1997, the defendant here has failed to demonstrate that, but for his counsel's failure to advise him of the immigration consequences of his plea, there is a reasonable probability that the outcome of the proceeding would have been different.
Order denying motion for a new trial affirmed.