Personal Restraint Petition Of Muhammadou Jagana (Order)
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In re the Personal Restraint Petition of
No. 66682-7-1
MUHAMMADOU JAGANA.
ORDER WITHDRAWING
OPINION
This case was remanded to this court by a special department of the
supreme court "for reconsideration in light of Chaidez v. United States. 133 S. Ct.
1103 (2013)." Having reconsidered the case, as ordered by the supreme court, it
is hereby
ORDERED that this court's opinion, filed on August 13, 2012, is
withdrawn.
DATED this 2^ day of
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Personal Restraint Petition of
No. 66682-7-
MUHAMMADOU JAGANA.
DIVISION ONE
PUBLISHED
FILED: August 13. 2012
Cox, J. — Muhammadou Jagana seeks collateral review of his final
judgment and sentence that was based on his guilty plea to possession of
cocaine. His request is more than four years after the entry of his June 2006
final judgment and sentence. Based on Padilla v. Kentucky.1 which was decided
in March 2010, Jagana argues that he was denied effective assistance of
counsel because his attorney did not inform him of the immigration
consequences of his guilty plea. He also claims that his plea was not knowing
and voluntary for the same reason.
Jagana has borne the burden ofshowing that his ineffective of counsel
claim falls within RCW 10.73.100(6). Thus, this claim is an exception to the one
U.S.
, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
No. 66682-7-1/2
year bar against collateral review of final judgments. Accordingly, we reach the
merits of his claim.
On the merits, we hold that the ineffective assistance of counsel rule
applied in Padilla is not a "new" rule, as defined in Teague v. Lane2 and
subsequent cases.3 Based on Padilla. Jagana has demonstrated that his plea
counsel's representation fell below the objective standard of reasonableness that
Strickland v. Washington4 requires. We remand to the superior court for a
determination whether he can also establish prejudice under the second prong of
Strickland.5
In 2006, the State charged Jagana with one count of violation of the
uniform controlled substances act (VUSCA): possession of cocaine. He met with
his appointed attorney several times. Jagana states that his attorney did not
advise him of any immigration consequences of pleading guilty to the felony
charge.6 Moreover, his attorney did not tell him to contact an immigration
2489 U.S. 288, 109 S. Ct. 1060, 103 L Ed. 2d 334 (1989) (O'Connor, J.,
plurality opinion).
3 See Schriro v. Summerlin. 542 U.S. 348, 352, 355, 124 S. Ct. 2519,
2523, 159 L. Ed. 2d 442 (2004) (adopting and refining the analysis of Teague).
4466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
5 Roe v. Flores-Ortega. 528 U.S. 470, 480\ 486, 120 S. Ct. 1029, 145 L.
Ed. 2d 985 (2000) (defendant must show that counsel's unreasonable advice
actually prejudiced him and that he is rational in challenging such advice on
appeal); In re Pers. Restraint of Crace. No. 85131-0, slip op. at 15 (Wash. July
19, 2012) ("a petitioner who shows prejudice under Strickland necessarily meets
his burden to show actual and substantial prejudice on collateral attack").
6Affidavit of Defendant in Support of Motion to Withdraw Guilty Plea at 2.
No. 66682-7-1/3
attorney before pleading guilty. His attorney told him to plead guilty, and he did.
The felony judgment and sentence was entered on June 9, 2006. Jagana did not
appeal.
In November 2010, Jagana moved, pursuant to Criminal Rule (CrR) 7.8, to
withdraw his guilty plea and for the court to vacate the judgment and sentence.
First, he argued that his defense counsel in the VUCSA prosecution did not
inform him of the immigration consequences of his guilty plea, in violation of
Padilla. Second, he argued that his plea was not intelligently and voluntarily
made, based on the lack of proper advice of his attorney as to the immigration
consequences of his plea.
The State moved to transfer Jagana's motion to this court for
consideration as a personal restraint petition. The trial court granted the State's
motion.
COLLATERAL REVIEW OF FINAL JUDGMENT
Jagana seeks to withdraw his guilty plea on two bases. First, he argues
that he was denied effective assistance of counsel under Padilla. Second, he
argues that his plea was not intelligently and voluntarily made. We address the
first argument and need not reach the second.
A personal restraint petition is not a substitute for direct appeal and
availability of collateral relief is limited.7 In order to obtain relief, Jagana must first
7 In re Pers. Restraint of Grasso, 151 Wn.2d 1, 10, 84 P.3d 859 (2004)
(citing In re Pers. Restraint of St. Pierre. 118 Wn.2d 321, 328-29, 823 P.2d 492
(1992)).
No. 66682-7-1/4
overcome statutory and rule based procedural bars.8 Then, in order to
successfully argue a claim not previously raised, Jagana must demonstrate by a
preponderance of the evidence either a constitutional error that worked to his
actual and substantial prejudice, or a non-constitutional error that constitutes a
fundamental defect inherently resulting in a complete miscarriage ofjustice.9
A motion to withdraw a plea may be transferred to the appellate court for
treatment as a personal restraint petition.10 A personal restraint petition is a
collateral attack on a judgment.11 Generally, a defendant may not collaterally
attack a judgment and sentence in a criminal case more than one year after it
becomes final.12 Ajudgment and sentence generally becomes final either on
entry or on the day an appellate court issues its mandate disposing of a timely
direct appeal from the conviction.13
There are exceptions to RCW 10.73.090(1)'s one-year time bar. Jagana
relies on RCW 10.73.100, which states in pertinent part:
The time limit specified in RCW 10.73.090 does not apply to
a petition or motion that is based solely on one or more of the
following grounds:
8]d\ See RCW 10.73.090; RAP 16.4(d).
9 Grasso. 151 Wn.2d at 10-11 (citing St. Pierre, 118 Wn.2d at 328: In re
Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990)).
10 See CrR 7.8(c)(2).
11 RCW 10.73.090(2).
12 RCW 10.73.090(1).
13RCW10.73.090(3)(a), (b).
No. 66682-7-1/5
(6) There has been a significant change in the law,
whether substantive or procedural, which is material to the
conviction, sentence, or other order entered in a criminal or civil
proceeding instituted by the state or local government, and either
the legislature has expressly provided that the change in the law is
to be applied retroactively, or a court, in interpreting a change in
the law that lacks express legislative intent regarding retroactive
application, determines that sufficient reasons exist to require
retroactive application ofthe changed legal standard.1141
Jagana has satisfied these requirements.
Significant Change in the Law
The first requirement of RCW 10.73.100(6) is that there must be a
"significant change in the law."15 We hold that there is such a change here.
Our supreme court discussed the "significant change in the law"
requirement in In re Personal Restraint ofGreening.16 There, the court
considered whether Greening's personal restraint petition was time barred under
RCW 10.73.090.17 He claimed that RCW 10.73.100(6) exempted his claim from
that one year time bar.18
14 (Emphasis added.)
15 State v. Abrams. 163 Wn.2d 277, 291, 178 P.3d 1021 (2008).
16 141 Wn.2d 687, 9 P.3d 206 (2000).
17 id at 691.
18 Id. at 694-95.
No. 66682-7-1/6
In considering Greening's argument, the supreme court referred to its
emphasis of the "'[bjroad exceptions'" provided in RCW 10.73.100 when it earlier
upheld the constitutionality ofthis statute.19 More specifically, the court stated:
These exceptions are broader than is necessary to preserve the
narrow constitutional scope of habeas relief. The Legislature, of
course, is free to expand the scope of collateral relief beyond that
which is constitutionally required, and here it has done so to include
situations which affect the continued validity and fairness of
the petitioner's incarceration.[20]
The Greening court held that "where an intervening opinion has effectively
overturned a prior appellate decision that was originally determinative of a
material issue, the intervening opinion constitutes a 'significant change in the law'
for purposes of exemption from procedural bars."21
The question here is whether the Supreme Court decision in Padilla is a
"significant change in the law" for purposes of this statute.
The Court described Padilla as a native of Honduras who was a lawful
permanent resident of the United States for over 40 years.22 Following his guilty
plea to possessing marijuana in a state case, he faced federal deportation
proceedings.23 In response to this, Padilla sought relief in state court based on
19 Id at 695 (quoting In re Pers. Restraint of Runvan. 121 Wn.2d 432, 440,
853 P.2d 424 (1993)).
20 ]d at 695 (quoting Runvan. 121 Wn.2d at 445).
21 Id at 697.
22 Padilla. 130 S. Ct. at 1477.
23 Id.
No. 66682-7-1/7
the claimed ineffectiveness of his plea counsel.24 Specifically, he claimed
counsel did not advise him of the potential adverse immigration consequences of
pleading guilty to the charged offenses.25 The Kentucky Supreme Court denied
his request for post-conviction relief.26 The denial was based on the rationale
that the Sixth Amendment right to effective assistance of counsel did not include
the duty to advise a client about deportation because it is a collateral, not a
direct, consequence ofa conviction.27
Reversing and remanding for further proceedings, the Supreme Court held
that, under the Sixth Amendment and Strickland, "advice regarding deportation is
not categorically removed from the ambit of the Sixth Amendment right to
counsel."28 To the contrary, such advice falls within that domain.29
The Court reasoned that deportation is "intimately related to the criminal
process" and that "recent changes in our immigration law have made removal
nearly an automatic result for a broad class of noncitizen offenders."30 The Court
stated that it "ha[d] long recognized that the negotiation of a plea bargain is a
critical phase of litigation for purposes of the Sixth Amendment right to effective
24 Id at 1478.
25 \±
26 Id
21 \±
28 ]d
at 1482.
29 ]d
30 id. at 1481.
No. 66682-7-1/8
assistance of counsel."31 The Court also observed that the "weight of prevailing
professional norms supports the view that counsel must advise" a client of the
risk of deportation as part of the plea process.32
Before Padilla. many other courts, including the Washington State
Supreme Court, believed that the Sixth Amendment right to effective assistance
of counsel did not include advice about the immigration consequences of a
criminal conviction.33 This was based on the rationale that there was a distinction
between "direct" and "collateral" consequences of a plea bargain.34
For example, in In re Personal Restraint of Yim.35 the Washington
Supreme Court noted that immigration consequences to a plea are merely
collateral to the plea.36 Thus, the court stated there was no duty for counsel to
31
Id. at 1486.
32 Id at 1482 (citing Nat'l Legal Aid &Defender Assn., Performance
Guidelines for Criminal Representation § 6.2 (1995); G. Herman, Plea
Bargaining § 3.03, at 20-21 (1997); Chin & Holmes, Effective Assistance of
Counsel and the Consequences of Guilty Pleas. 87 Cornell L. Rev. 697, 713-18
(2002); A. Campbell, Law of Sentencing § 13:23, at 555, 560 (3d ed. 2004);
Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for
Indigent Defense Systems, Standards for Attorney Performance, at D10, H8-H9,
J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA
Standards for Criminal Justice, Prosecution Function and Defense Function 4-
5.1(a), at 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty
14-3.2(f), at 116 (3d ed. 1999).
33 State v. Sandoval. 171 Wn.2d 163, 169-70, 249 P.3d 1015(2011)
(citing Padilla, 130 S. Ct. at 1481 n.9).
34 Padilla. 130 S. Ct. at 1481.
35 139 Wn.2d 581, 588, 989 P.2d 512 (1999).
36 Id. at 588.
8
No. 66682-7-1/9
advise a client of the possibility of deportation.37 Under this rationale, defense
counsel only had a duty to warn clients of direct consequences of a criminal
conviction, which did not include deportation—a civil consequence deemed
collateral to the criminal proceeding.38
The Padilla Court addressed this claimed distinction, stating:
We, however, have never applied a distinction between
direct and collateral consequences to define the scope of
constitutionally "reasonable professional assistance" required under
Strickland. Whether that distinction is appropriate is a question we
need not consider in this case because of the unique nature of
deportation.
Deportation as a consequence of a criminal conviction is,
because of its close connection to the criminal process, uniquely
difficult to classify as either a direct or a collateral consequence.
The collateral versus direct distinction is thus ill-suited to evaluating
a Strickland claim concerning the specific risk of deportation. We
conclude that advice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.
Strickland applies to Padilla's claim.1391
Thus, Padilla made clear that the Supreme Court had never recognized
the validity of the direct versus collateral distinction that some lower federal
courts, our state supreme court, and many other jurisdictions had recognized for
purposes of applying the Strickland standard. The Court also stated that it was
not deciding whether such a distinction was generally appropriate because, in the
37 ]d
38 See U.S. v. Amador-Leal. 276 F.3d 511, 514-15 (9th Cir. 2002) (holding
that attorneys were not required to advise clients about immigration
consequences of a plea because deportation was simply a "collateral
consequence" of the plea).
39
Padilla. 130 S. Ct. at 1481-82 (internal citations omitted).
No. 66682-7-1/10
case of deportation, such a distinction was ill-suited to evaluate a Strickland
claim.
In State v. Sandoval,40 our supreme court recognized that Padilla changed
the law:
Before Padilla, many courts believed that the Sixth
Amendment right to effective assistance of counsel did not include
advice about the immigration consequences of a criminal
conviction. However, in Padilla. the United States Supreme Court
rejected this limited conception of the right to counsel. The Court
recognized that deportation is intimately related to the criminal
process and that recent changes in our immigration law have made
removal nearly an automatic result for a broad class of noncitizen
offenders. Because of deportation's close connection to the
criminal process, advice about deportation consequences falls
within the ambit ofthe Sixth Amendment right to counsel.1411
There can be no question that Padilla was a "significant change in the
law," as RCW 10.73.100(6) requires. Before that case was decided, Yjm was the
law in this state.42 As described above, that case held that deportation was a
collateral consequence ofa guilty plea.43 Thus, anything short of affirmative
misadvice by counsel was not sufficient to set aside a plea.44
The supreme court noted that "Padilla has superseded Yim's analysis of
how counsel's advice about deportation" affects a plea.45 Padilla rejects any
40 171 Wn.2d 163, 170, 249 P.3d 1015 (2011).
41 Id at 169-70 (internal quotations and citations omitted).
42
Sandoval, 171 Wn.2d at 170 n.1.
43 Yim. 139Wn.2dat588.
44 Id
45 Sandoval. 171 Wn.2d at 170 n. 1.
10
No. 66682-7-1/11
distinction between direct and collateral consequences of a plea where
immigration consequences are at issue. This effectively overturned Yim, a prior
appellate decision that was originally determinative of this issue and its impact on
the right to effective assistance of counsel. Accordingly, Padilla is a "significant
change in the law" for the purposes of RCW 10.73.100(6).
Materiality
We turn to the next requirement to qualify for exemption from the one year
bar: materiality of the change in law to the challenged conviction. We hold that
Padilla is material to Jagana's conviction.
RCW 10.73.100(6) requires that a significant change in the law be
"material to the conviction, sentence, or other order entered in a criminal or civil
proceeding instituted by the state or local government."46 The term "material" is
not defined in the statute. Therefore, we may turn to a definition found in a
standard dictionary.47 In the context ofthis statute, the word "material" most
closely means "[hjaving some logical connection with the consequential facts
<material evidence^"48 Generally, the terms "material" and "consequential" in a
legal context mean outcome-determining.49
46 (Emphasis added.)
47 State v. Taylor. 150 Wn.2d 599, 602, 80 P.3d 605 (2003).
48 Black's Law Dictionary 1066 (9th ed. 2009).
49 See State v. Gregory, 158 Wn.2d 759, 791, 147 P.3d 1201 (2006)
("Evidence is material only if there is a reasonable probability that it would impact
the outcome of the trial."); In re Davis, 152 Wn.2d 647, 680, 101 P.3d 1 (2004)
("'A material fact is one upon which the outcome ofthe litigation depends.'"
(quoting Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298
11
No. 66682-7-1/12
Applying that meaning here, the change in the law from Padilla. requiring
defense counsel to inform a defendant of the immigration consequences of a
plea bargain, must impact the outcome of the plea at issue. Where pleading
guilty to a crime could put the defendant's immigration status at risk, Padilla is
clearly material. Here, Jagana's guilty plea did result in deportation proceedings
being initiated against him. Therefore, we conclude that Padilla is material to his
conviction
Sufficient Reasons to Require Retroactive Application
The final requirement of RCW 10.73.100(6) is that there are "sufficient
reasons" to require retroactive application of the "significant change in the law."
We hold that there are sufficient reasons to apply Padilla retroactively here.
Jagana's request for collateral review comes over four years after his
sentencing on June 9, 2006. Whether Padilla, which was decided in March
2010, may be applied retroactively is at issue.
Our retroactivity analysis under RCW 10.73.100(6) is controlled by the
decisions of our state supreme court. The court has made clear that "[It has]
attempted to maintain congruence in [its] retroactivity analysis with the standards
articulated by the United States Supreme Court."50
(1993))); In re Estate of Black. 153 Wn.2d 152, 160-61, 102 P.3d 796 (2004) ('"A
material fact is one upon which the outcome of the litigation depends.'" (quoting
Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963))); Ohlerv.
TacomaGen. Hosp.. 92 Wn.2d 507, 511, 598 P.2d 1358 (1979) ("A 'material fact'
is one on which the litigation's outcome depends."), overruled on other grounds
bv Wood v. Gibbons, 38 Wn. App. 343, 685 P.2d 619 (1984).
50 In re Markel, 154 Wn.2d 262, 268, 111 P.3d 249 (2005).
12
No. 66682-7-1/13
More recently, the state supreme court reiterated that "RCW 10.73.100(6)
allows collateral relief from judgment even after the normal time bar has lapsed
based on a 'material' change in the law when the court or the legislature finds
'sufficient reasons' for retroactive application. The statutory language has
been interpreted along the lines of Teague."5'
In In re Markel,52 the court applied the federal retroactivity analysis
articulated in the plurality opinion ofJustice O'Connor in Teague.53 Amajority of
the Supreme Court adopted and refined the Teague analysis in Schriro v.
Summerlin.54
Teague and its progeny first require identifying whether a constitutional
rule is "new" or "old."55 An "old" rule applies both to direct and collateral review.56
But a "new" rule is generally applicable only to cases that are still on direct
review.57 There are two limited exceptions to applying a "new" rule to collateral
review, as outlined by our supreme court in Markel. There, the court
51 State v. Evans. 154 Wn.2d 438, 448, 114 P.3d 627 (2005) (emphasis
added).
52 154 Wn.2d 262, 111 P.3d 249 (2005).
53 jd at 268-69.
54 542 U.S. 348, 352, 355, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).
55 Teague. 489 U.S. at 299-301; Summerlin. 542 U.S. at 351-52.
56 Com, v. Clarke. 460 Mass. 30, 34-35, 949 N.E. 2d 892 (2011) (quoting
Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 167 L. Ed. 2d 1
(2007)).
57 Id (quoting Whorton, 549 U.S. at 416).
13
No. 66682-7-1/14
characterized the federal common law retroactivity analysis applicable to "new"
rules as follows:
(1) A new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in which
the new rule constitutes a clear break from the past.
(2) A new rule will not be given retroactive application to
cases on collateral review except where either: (a) the new rule
places certain kinds of primary, private individual conduct beyond
the power of the state to proscribe, or (b) the rule requires the
observance of procedures implicit in the concept of ordered
liberty.1581
Here, we must first decide whether the rule of Padilla is "old" or "new." As
the Teague Court stated, "[i]t is admittedly often difficult to determine when a
case announces a new rule."59
In State v. Evans.60 our supreme court quoted the test from Teague and
later Supreme Court authority:
"New" cases are those that "break[] new ground or impose[]
a new obligation on the States or the Federal government [or].. .
if the result was not dictated by precedent existing at the time
the defendant's conviction became final." If before the opinion
is announced, reasonable jurists could disagree on the rule of law,
the rule is new.[611
58 Markel, 154 Wn.2d at 268-69.
59 Teague. 489 U.S. at 301.
60154Wn.2d438, 114 P.3d 627 (2005).
61 ]d at 444-45 (quoting Teague, 489 U.S. at 301; citing Beard v. Banks.
542 U.S. 406, 124 S. Ct. 2504, 2510, 159 L. Ed. 2d 494 (2004)) (emphasis
added).
14
No. 66682-7-1/15
As we previously discussed in this opinion, the Supreme Court held in
Padilla that, under the Sixth Amendment and Strickland, "advice regarding
deportation" falls within "the ambit of the Sixth Amendment right to counsel."62
Thus, the failure of defense counsel to advise his or her client of the immigration
consequences of a plea agreement falls below the objective standard of
reasonableness, as required by the first prong of Strickland.63 The Court
reasoned that removal is nearly automatic for many offenses, plea negotiations
are a critical phase of litigation, and "prevailing professional norms" require
counsel to advise a client ofthe risk of deportation during the plea process.64
Because immigration law can be complex, the precise advice required
under Padilla depends on the clarity ofthe law.65 If it "is truly clear" that an
offense is deportable based on the applicable immigration law, the defense
attorney must correctly advise the defendant that pleading guilty to a particular
charge would lead to deportation.66 If "the law is not succinct and
straightforward!,]" counsel must provide only a general warning that "pending
criminal charges may carry a risk of adverse immigration consequences."67
62 Padilla, 130 S.
Ct. at 1482.
63 Id
64 id
at 1481-82, 1486.
65 id
at 1483.
66 id
67 Id.
15
No. 66682-7-1/16
Significantly, Padilla did not expressly decide whether its rule should be
applied retroactively. That question is currently the subject of debate among the
federal circuit courts and the state appellate courts.68
Among the conflicting authorities on the question whether Padilla is
retroactive for purposes of collateral review of final judgments, we conclude that
two are most persuasive. They are the Third Circuit decision in United States v.
Orocio69 and the Massachusetts decision in Commonwealth v. Clarke.70
Accordingly, we join those two courts in concluding that Padilla applies an "old"
rule: the standard dictated by Strickland.71 We hold that Padilla is to be applied
retroactively under the Teague analysis that controls our reading of RCW
10.73.100(6)'s last requirement.
68 See U.S. v. Orocio. 645 F.3d 630 (3d Cir. 2011) (Padilla is not a "new"
rule); Chaidez v. U.S.. 655 F.3d 684 (7th Cir. 2011) (Padilla is a "new" rule), certgranted. _ U.S. _, 2012 WL 1468539, 132 S. Ct. 2101 (Apr. 30, 2012); U.S. v.
Chang Hong, 671 F.3d 1147 (10th Cir. 2011) (Padilla is a "new" rule); U.S. v.
Amer, 681 F.3d 211 (5th Cir. 2012) (Padilla is a "new" rule); U.S. v. Mathur. _
F.3d _, 2012 WL 2819603 (4th Cir. 2012) (Padilla is a "new" rule);
Commonwealth v. Clarke. 460 Mass. 30, 949 N.E. 2d 892 (2011) (Padilla is not a
"new" rule): Campos v. State, __ N.W. 2d _, 2012 WL 2327962 (Minn. 2012)
(Padilla is a "new" rule); Denisvuk v. State, 422 Md. 462, 30 A.3d 914 (2011)
(Padilla is not a "new" rule); State v. Gaitan, 209 N.J. 339, 37 A.3d 1089 (2012)
(Padilla is a "new" rule). See also U.S. v. Hubenig, 2010 WL 2650625, at *6
(E.D. Cal. 2010) (Padilla is not a "new" rule); Luna v. U.S., 2010 WL 4868062, at
*3 (S.D. Cal. 2010) (Padilla is not a "new" rule).
69 645 F.3d 630 (3d Cir. 2011).
70 460 Mass. 30, 949 N.E. 2d 892 (2011).
71 See State v. Chettv. 167 Wn. App. 432, 443-44, 272 P.3d 918 (2012)
(without deciding whether Padilla should be applied retroactively, this court
recognized that professional norms of at least the past 15 years have required an
attorney to advise his client about deportation consequences of a plea).
16
No. 66682-7-1/17
Orocio noted the distinction in Teague between "old" rules, applicable to
both direct and collateral review, and "new" rules, applicable in much more
limited circumstances.72 The court rejected the government's argument that
Padilla announced a new rule. In response to the argument that the case
extended Strickland to a non-criminal setting, the court reasoned that was too
narrow a view of the rule of Strickland.73 In light of Strickland and Hill v.
Lockhart,74 a plea bargain case, the court held that immigration consequences
represented an "important decision" at a critical phase and Padilla merely
"reaffirmed defense counsel's obligations to the criminal defendant during the
plea process . . . ."75
The Orocio court was not persuaded that Padilla "broke new ground" in
the sense stated in Teague. Rather, the court concluded that the Supreme Court
"straightforwardly applied the Strickland rule[,]" and the norms of the legal
profession, to the facts of Padilla's case.76 Furthermore, the court explained that
an application of new facts to the Strickland standard "is not in each instance a
'new rule,' but rather a new application of an 'old rule' in a manner dictated by
72 Orocio. 645 F.3d at 637.
73 id at 637-39.
74 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
75 Orocio, 645 F.3d at 638.
76 id
17
No. 66682-7-1/18
precedent."77 Accordingly, the court concluded that the application ofthe facts of
Padilla's case to Strickland was not a new rule under Teague.78
In Clarke, the Supreme Judicial Court of Massachusetts reached the same
conclusion. The court quoted the general test stated in Teague for a "new" rule:
that the result was not dictated by existing precedent when the conviction was
final.79 The court then considered the government's argument that Padilla is a
"new" rule because "it was not 'dictated' by precedent and 'abrogated both
widespread federal and state[] precedent.'"80 In rejecting that argument, the
court quoted Justice O'Connor and Justice Kennedy in two other Supreme Court
cases analyzing Teague. Justice O'Connor 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."[81]
This statement in the concurring opinion of Justice O'Connor states her
view that the mere existence of conflicting authority does not mean that a rule is
new for purposes of retroactivity. This view is telling, coming from the author of
Teague.
77 id at 640-41.
78 id
79 Clarke, 460 Mass. at 34-35.
80 id at 35.
81 id at 36 (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000) (quoting Wright v. West. 505 U.S. 277, 304, 112
S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (O'Connor, J., concurring))).
18
No. 66682-7-1/19
The Clarke court went on, quoting Justice Kennedy:
... 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:
"Whether the prisoner seeks the application of an old rule in
a novel setting . . . depends in large part on the nature of the rule.
Ifthe rule in question is one which of necessity requires a case-bycase examination of the evidence, then we can tolerate a number
of specific applications without saying that those applications
themselves create a new rule. . . . Where the beginning point is a
rule of this general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it will be the
infrequent case that yields a result so novel that it forges a new
rule, one not dictated by precedent."1821
The Clarke court reasoned that Strickland established a general rule that
is to be applied in a variety of factual situations.83 As Justice Kennedy stated in
his concurring opinion in Wright, that view of Strickland undercuts any argument
that a new rule exists in such a situation.84
The Clarke court made additional observations of note on the question of
retroactivity. It cited the Supreme Court's decision in Roe v. Flores-Ortega.85
That case settled a conflict among the federal circuit courts regarding counsel's
duty under Strickland to inform a client about his or her appellate rights.86
82 id (quoting Wright. 505 U.S. at 308-09 (Kennedy, J., concurring)).
83 id at 38-39.
84 Wright, 505 U.S. at 308-09 (Kennedy, J., concurring).
85 528 U.S. 470, 120 S. Ct. 1029, 145 L Ed. 2d 985 (2000).
86 id at 478.
19
No. 66682-7-1/20
Notwithstanding the split, the Supreme Court rejected the bright line rule
articulated by several of the circuits.87 Rather, it held that "the performance
inquiry [under the first prong of Strickland] must be whether counsel's assistance
was reasonable considering all the circumstances."88
Even though there was a conflict among the federal circuits on the scope
of the duty under Strickland before Roe, Roe is generally viewed not to be a
"new" rule.89 This treatment of the case by most courts supports the conclusion
that the constitutional rule of Strickland remains the same. Only the factual
circumstances under which that rule is applied change.
Clarke also discusses Padilla itself as an additional source of support for
the retroactive application of its holding. Clarke notes the reference in Padilla to
the Solicitor General's concern that the decision would "open the 'floodgates' and
disturb the finality of convictions."90 The Clarke court stated:
The Court pointed out that as a practical matter its ruling would not
undermine the finality of large numbers of convictions that had
87 id
88 id
89 See Tanner v. McDaniel, 493 F.3d 1135, 1143-44 (9th Cir. 2007) ("Each
time that a court delineates what 'reasonably effective assistance' requires of
defense attorneys with respect to a particular aspect of client representation
[under Strickland] it can hardly be thought to have created a new principle of
constitutional law."); Frazer v. South Carolina. 430 F.3d 696, 704-05 (4th Cir.
2005) ("[Roe] simply crystalizes [stet] the application of Strickland to the specific
context presented by [the defendant's] claim."); Lewis v. Johnson, 359 F.3d 646,
655 (3rd Cir. 2004) (Strickland is a "rule of general applicability," and
identification of "particular duty" to consult regarding appeal options is not a basis
for classifying a rule as "new").
90 Clarke, 460 Mass. at 43.
20
No. 66682-7-1/21
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." Second, because
in the then twenty-five years since Strickland, claims of ineffective
assistance of counsel at the plea stage are far "less frequently the
subject of collateral challenges than convictions obtained after a
trial," in large measure because the relief to be obtained, a new
trial, "imposes its own significant limiting principle"—the loss of the
benefit of the bargain obtained through the plea. Third, because to
obtain relief under Strickland, the defendant must also meet the
high bar of demonstrating prejudice resulting from counsel's belowstandard performance, that is, "that a decision to reject the plea
bargain would have been rational under the circumstances."'911
As the above passage makes clear, the Clarke court viewed Padilla's
reliance on Strickland's statement of the test for ineffective assistance of counsel
claims as a broad rule of reasonableness. That rule depends on professional
norms and is applied to factual situations that will vary according to individual
cases. The growing importance of immigration consequences to pleas in
criminal cases requires effective assistance of counsel at this critical stage of a
case.
It is also noteworthy that the Padilla Court was well aware that its rule
would have some impact on collateral review in future cases, although it
concluded that impact would be minimal:
Likewise, although we must be especially careful about
recognizing new grounds for attacking the validity of guilty pleas, in
the 25 years since we first applied Strickland to claims of ineffective
assistance at the plea stage, practice has shown that pleas are less
frequently the subject of collateral challenges than convictions
obtained after a trial. Pleas account for nearly 95% of all criminal
convictions. But they account for only approximately 30% of the
habeas petitions filed. The nature of relief secured by a successful
91 jd at 43-44 (quoting Padilla, 130 S. Ct. at 1485).
21
No. 66682-7-1/22
collateral challenge to a guilty plea—an opportunity to withdraw the
plea and proceed to trial—imposes its own significant limiting
principle: Those who collaterally attack their guilty pleas lose the
benefit of the bargain obtained as a result of the plea. Thus, a
different calculus informs whether it is wise to challenge a guilty
plea in a habeas proceeding because, ultimately, the challenge
may result in a less favorable outcome for the defendant, whereas
a collateral challenge to a conviction obtained after a jury trial has
no similar downside potential.'921
For all of these reasons, Orocio and Clark are persuasive.
In contrast to those cases, in Chaidez v. United States93 the Seventh
Circuit concluded that Padilla announced a "new" rule of law and was not
retroactive on collateral review.94
First, it noted that the lack of unanimity in the Padilla opinion indicated that
a "new" rule was announced.95 Second, it pointed out that the lower courts were
split on the issue, meaning that it was susceptible to reasonable debate before
the Supreme Court's decision.96 Third, it explained that Padilla should not be
considered an "old" rule because it "was not dictated by precedent," but was
simply informed, controlled, and governed by precedent that led "general
support" to the rule established.97 Finally, the court determined that Padilla was
92 Padilla. 130 S. Ct. at 1485-86.
93 655 F.3d 684 (7th Cir. 2011).
94 jd at 694.
95 id at 689 (citing Beard, 542 U.S. at 414-15; Sawyer v. Smith, 497 U.S.
227,236-37, 110 S. Ct. 2822, 111 L. Ed. 2d 193(1990)).
96 id at 689-91.
97 Id. at 689-90.
22
No. 66682-7-1/23
a "new" rule because it categorized an attorney's duty to advise a client on
immigration consequences based upon whether those consequences were clear
or uncertain.98 The court stated that such a "nuanced, new analysis cannot, in
our view, be characterized as having been dictated by precedent."99
The Supreme Court recently granted review of Chaidez.100 As of this
writing, the Supreme Court has not resolved this conflict within the federal circuit
courts on whether Padilla is a new rule or an old one.
Here, the State argues that Padilla sets forth a new rule that was not
dictated by precedent and apparent to all reasonable jurists.101 Forthe reasons
that we have already explained in our discussion of Orocio and Clarke, we
disagree.
There are additional bases for our conclusion that Padilla should be
applied retroactively to this collateral review of Jagana's final judgment and
sentence.
In Padilla. the Supreme Court characterized the case as a "postconviction
proceeding."102 An examination ofthe history ofthe case reveals more
specifically what type of "postconviction proceeding" it was.
98 Id. at 693.
99 jd
100 _ U.S. _, 2012 WL 1468539 (Apr. 30, 2012).
101 State's Response to Personal Restraint Petition at 8.
102 Padilla. 130 S. Ct. at 1478.
23
No. 66682-7-1/24
Padilla, who was represented by counsel, entered a guilty plea to three
drug related charges in exchange for dismissal of a remaining charge and a total
sentence often years on all charges.103 Final judgment on the reduced charges
was entered on October 4, 2002.104
On August 18, 2004, Padilla moved for relief from the conviction. He
claimed his counsel was ineffective for misadvising him about the potential for
deportation as a consequence of his guilty plea.105
Rule 12.04 of the Kentucky Rules of Criminal Procedure provides that a
notice of appeal of a judgment must generally be filed within 30 days of entry.
There is no evidence of any appeal by Padilla of the October 2002 judgment.
Thus, that judgment was final as of that date. Accordingly, his August 2004
application for relief—characterized by the Supreme Court as a "postconviction
proceeding"—was one for collateral review of a final judgment.
We also note that the Padilla Court applied Strickland despite substantial
conflicting authority in lower federal courts and many state courts. Nevertheless,
the Court had no difficulty in applying Strickland, an old rule, to that case.
We acknowledge the obvious. The Supreme Court did not expressly
decide in Padilla whether the rule of that case would be applied retroactively.
Nevertheless, the Supreme Court did just that. Padilla's judgment was final in
103
Com, of Kentucky v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008).
104 Id.
105 |d_
24
No. 66682-7-1/25
October 2002. His request for relief, almost two years later, was one for
collateral relief of a final judgment.
It is difficult to see why the Supreme Court, particularly after the Court's
heavy reliance on Strickland, would conclude that Padilla is anything other than
an "old" rule, retroactively applicable to cases on collateral review of final
judgments. Presumably, that question will be settled when the Court decides
Chaidez.
Moreover, Padilla's rejection of the distinction between direct and
collateral consequences of a plea when applying Strickland supports the
conclusion that the case should be applied retroactively under our state statute.
For all of these reasons, we conclude that the Strickland rule applied in
Padilla is an "old" rule, not a "new" one. The result in that case was dictated by
Strickland. The existence of conflicting authority before Padilla was decided
does not require a different conclusion.
Accordingly, there are sufficient reasons to apply Padilla retroactively, to
Jagana's claim of ineffective assistance of counsel. This fulfills the final
requirement of RCW 10.73.100(6).
INEFFECTIVE ASSISTANCE OF COUNSEL
Because the one year bar does not apply to Jagana's claim that he
received ineffective assistance of counsel, we reach the merits. We hold that he
has demonstrated, under Padilla, that his counsel failed to properly advise him
under the first prong of Strickland.
25
No. 66682-7-1/26
The Sixth Amendment right to effective assistance of counsel
encompasses the plea process.106 Counsel's faulty advice can render a guilty
plea involuntary or unintelligent.107 In evaluating such a claim, an ordinary due
process analysis does not apply.108 Rather, "[t]o establish the plea was
involuntary or unintelligent because of counsel's inadequate advice, the
defendant must satisfy the familiar two-part fStricklandl test for ineffective
assistance claims—first, objectively unreasonable performance, and second,
prejudice to the defendant."109
In satisfying the prejudice prong, a petitioner must show that there is a
reasonable probability that, but for counsel's error, he would not have pled guilty
and would have insisted on going to trial.110 A"reasonable probability" exists if
he "'convince[s] the court that a decision to reject the plea bargain would have
been rational under the circumstances.'"111 "[A] petitioner who shows prejudice
under Strickland necessarily meets his burden to show actual and substantial
106 Sandoval, 171 Wn.2d at 169 (citing In re Pers. Restraint of Riley. 122
Wn.2d 772, 780, 863 P.2d 554 (1993); McMann v. Richardson, 397 U.S. 759,
771, 90 S. Ct. 1441, 25 L Ed. 2d 763 (1970)).
107 jd (citing HE 474 U.S. at 56; McMann, 397 U.S. at 770-71).
108 id (citing H\\\, 474 U.S. at 56-58).
109 id
110 id at 174-75 (citing Riley. 122 Wn.2d at 780-81 (citing HE 474 U.S. at
59)).
111 id at 175 (alteration in original) (quoting Padilla, 130 S. Ct. at 1485).
26
No. 66682-7-1/27
prejudice on collateral attack."112 In the absence of one prong of the Strickland
test, it is unnecessary to consider the other.113
In Padilla. the Supreme Court held that a constitutionally competent
defense attorney must give advice about immigration consequences during the
plea process.114 As noted above, if the immigration law "is truly clear" that an
offense is deportable, the attorney must correctly advise the defendant that
pleading guilty to a particular charge would lead to deportation.115 But, if "the law
is not succinct and straightforward," counsel must only generally warn that
"pending criminal charges may carry a risk of adverse immigration
consequences."116
In Padilla. the Court did not reach the prejudice prong of Strickland.117 It
remanded to the state court for a determination of that question at a proper
hearing.118
In Sandoval, the defendant claimed that his defense counsel was
ineffective for failing to advise him of the deportation consequences of his guilty
112 Crace, No. 85131-0, slip op. at 15.
113 In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086
(1992).
114 Padilla. 130 S. Ct. at 1483.
115 id
116 id
117idat1487.
118 Jd
27
No. 66682-7-1/28
plea.119 Applying Padilla, the supreme court held that the immigration law at
issue was "straightforward enough for a constitutionally competent lawyer to
conclude that a guilty plea . . . would have subjected Sandoval to deportation."120
Here, Jagana pled guilty to one count of violation of the uniform controlled
substances act: possession of cocaine. Under 8 U.S.C. § 1227(a)(2)(B)(i), this
crime is clearly deportable:
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, the United States, or a foreign country relating
to a controlled substance (as defined in section 802 of Title 21),
other than a single offense involving possession for one's own use
of 30 grams or less of marijuana, is deportable.
Therefore, under Padilla and Sandoval, Jagana's counsel was required to advise
him of the correct deportation consequence of his guilty plea. Counsel's failure
to do so was unreasonable and satisfies the first Strickland prong.
In Padilla. the Court stated the prejudice standard required that "a
petitioner must convince the court that a decision to reject the plea bargain would
have been rational under the circumstances."121
Jagana presents several arguments that he suffered prejudice. First, he
argues that boilerplate language in his guilty plea form regarding immigration
consequences did not waive defense counsel's duty to inform him directly of
those consequences. He also argues that emails exchanged between the
119 Sandoval, 171 Wn.2d at 174, 176.
120 id at 172.
121 Padilla. 130 S. Ct. at 1485 (citing Roe, 528 U.S. at 480, 486).
28
No. 66682-7-1/29
prosecutor and defense counsel referencing the immigration consequences of
his plea are not evidence that he was so informed. Finally, he opposes the
State's argument that it would have been irrational for him to proceed to trial and
risk conviction with a greater prison sentence.
Here, the record is inadequate to decide the question of prejudice. That
question should be decided by the trial court on remand at an evidentiary
hearing.
To summarize, we hold that this request for collateral relief of a final
judgment falls within the exception to the one year bar, as codified in RCW
10.73.100(6). Jagana has also demonstrated that his plea counsel failed to fulfill
his duty under the first prong of Strickland.
We remand for an evidentiary hearing to determine whether Jagana can
demonstrate prejudice due to his counsel's failure to advise him of adverse
immigration consequences arising from his guilty plea.
Co^fy.
WE CONCUR:
jL~/ <z.j{.
^Awiih,
29
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