Padilla v. Kentucky: the effect of plea colloquy warnings on defendants' ability to bring successful Padilla claims.

• Author: Lang, Danielle M.

NOTE CONTENTS INTRODUCTION I. THE SIXTH AMENDMENT RIGHT TO COUNSEL AND FIFTH AMENDMENT PLEA COLLOQUIES: COMPLEMENTS, NOT SUBSTITUTES IN THE CONTEXT OF GUILTY PLEAS A. The Sixth Amendment Right to Effective Assistance of Counsel and the Fifth Amendment Voluntary Waiver Requirement B. The Sixth Amendment Right to Counsel and Fifth Amendment-Mandated Court Plea Colloquy: Complementary but Distinct Roles in Our Criminal Justice System C. The Collateral Consequences Rule: Inattention to the Distinct Roles of Courts and Counsel in the Plea Context Leading to the Padilla Challenge II. PADILLA V. KENTUCKY, REJECTING THE COLLATERAL CONSEQUENCES RULE AND THE DANGER THAT PLEA COLLOOUIES WILL BAR PREJUDICE A. Padilla v. Kentucky: Rejecting the Collateral Consequences Rule B. The Plea Colloquy Warning: An Effective Barrier to Successful Padilla Claims? III. A DESCRIPTIVE ACCOUNT: THE LOWER COURTS' IMPLEMENTATION OF PADILLA A. A Trend Towards Limiting Padilla's Reach B. Treatment of Plea Colloquies Under the Prejudice Prong 1. Cases in Which Plea Colloquy Warnings Did Not Bar Findings of Prejudice 2. Cases in Which Plea Colloquy Warnings Contributed to a Finding of No Prejudice IV. PADILLA COUNSELS AGAINST CONFLATING FIFTH AND SIXTH AMENDMENT PROTECTIONS IN THE PLEA PROCESS A. The Collateral Consequences Rule in Reverse: Courts Continue To Conflate Fifth and Sixth Amendment Protections to the Detriment of the Constitutional Structure B. The Ruling in Padilla Does Not Allow Plea Colloquies To "Cure" Prejudice V. PROTECTING THE PADILLA DECISION IS FUNDAMENTAL TO IMMIGRANT RIGHTS AND THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM A. The Prevalence of Plea Bargaining in the Criminal System B. The Harshness of Current Immigration Laws Concerning Deportation After Conviction C. The Lack of Representation for Immigrants in Removal Proceedings VI. FINAL STRATEGIC CONSIDERATIONS CONCLUSION INTRODUCTION

In 2020, the Supreme Court held in Padilla v. Kentucky' that a lawyer's failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel in violation of a defendant's Sixth Amendment rights. As with many landmark decisions, the ruling left several unanswered questions for the lower courts to decide. The answers to those questions have the capability to either considerably expand or limit the practical effects of the decision on litigants. The purpose of this Note is to analyze one unanswered question left in Padilla's wake that could have the effect of seriously circumscribing the protection that Padilla provides.

The test for ineffective assistance of counsel, established in Strickland v. Washington, has two parts: a defendant must first show that her counsel was constitutionally deficient and then show that the deficiency prejudiced the result of her case) In cases involving guilty pleas, a defendant must show that in the absence of deficient counsel she would have insisted on going to trial. (3) Defendants are also protected by the Due Process Clause, which requires that judges and defendants engage in a conversation regarding the consequences of the plea--the so-called "plea colloquy"--before defendants can enter valid guilty pleas. The plea colloquy is meant to ensure that the plea is knowing and voluntary. While not required by the Fifth Amendment, many states mandate that judges issue general warnings to defendants regarding the immigration consequences of a guilty plea. (4) Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Sixth Amendment Padilla violation. (5)

This Note argues that those rulings mistakenly conflate the role of the court in Fifth Amendment plea colloquies and the role of counsel under the Sixth Amendment, and, further, that they misread the clear directives of Padilla. Such circumscribing of Padilla's requirements is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants, and thus the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.

The Note proceeds in six parts. Part I discusses the Court's doctrines on the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment plea colloquy requirement. It argues that these two protections serve complementary but distinct functions in our constitutional structure-neither can replace the other, and the failure of either constitutes a breakdown in our system. Part I also discusses the background of Padilla v. Kentucky and highlights the constitutional concerns that arise when courts pay insufficient attention to the distinct roles of the court during the plea colloquy and counsel in the guilty plea context. Prior to Padilla, lower courts nearly uniformly imported the collateral consequences rule, designed to limit the requirements of the court in the Fifth Amendment plea colloquy, into the Sixth Amendment context to limit the responsibilities of counsel. The application of this rule then directed lower courts' holdings that counsel was not required to advise defendants regarding the immigration consequences of their pleas, leading to the challenge in Padilla.

Part II describes the Court's decision in Padilla, which rejected the importation of the collateral consequences rule into the Sixth Amendment context. Under Padilla, a defendant can establish that her counsel was deficient if her attorney failed to advise her of the immigration consequences of a guilty plea. However, the Padilla decision did not address the prejudice prong of the Strickland test, and therefore left many questions of application unanswered. Part II explains how courts may circumscribe Padilla's protections by using plea colloquy warnings to negate findings of prejudice in Sixth Amendment Padilla claims. Part III provides an in-depth account of how courts have implemented Padilla thus far, focusing particularly on how plea colloquies affect findings of prejudice. Part IV argues that the lower courts' use of plea colloquies to negate findings of prejudice in Padilla claims repeats the mistake made by lower courts regarding the importation of the collateral consequences rule into the Sixth Amendment by paying scant attention to the distinct functions of counsel and judge in the plea context. Given their distinct functions in the system, general plea colloquy warnings represent very weak evidence that the deficiency of counsel did not prejudice the defendant's decision to accept a guilty plea offer. Further, Part IV argues that both the language and logic of Padilla directly oppose the conclusion that a plea colloquy warning cures the deficiency of counsel.

Part V highlights the particular importance of maintaining the robust protection mandated by Padilla for noncitizen defendants facing possible deportation if they plead guilty to a crime. Padilla's mandate is all the more crucial given the prevalence of guilty pleas, the harshness of the current

immigration laws, and the low rates of representation for noncitizens in removal proceedings. Finally, Part VI concludes by outlining possible strategic considerations for litigators challenging the lower court decisions.

1. THE SIXTH AMENDMENT RIGHT TO COUNSEL AND FIFTH AMENDMENT PLEA COLLOQUIES: COMPLEMENTS, NOT SUBSTITUTES IN THE CONTEXT OF GUILTY PLEAS

   1. The Sixth Amendment Right to Effective Assistance of Counsel and the Fifth Amendment Voluntary Waiver Requirement

      A defendant entering into the plea bargaining stage is protected by both the Sixth Amendment right to effective assistance of counsel, which entitles him to the guidance of a proficient defense attorney, and the Fifth Amendment Due Process requirement that a valid guilty plea be "knowing," "intelligent," and "voluntary." (6) These two rights, both well-established in Supreme Court jurisprudence, work in tandem to ensure that the adversarial process functions fairly, not only in trials, but in plea bargains as well.

      Since 1970, the Supreme Court has recognized that the Sixth Amendment right to counsel is the right "to the effective assistance of competent counsel," (7) because it "envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." (8) In its 1984 decision in Strickland v. Washington, the Court outlined a two-part test for ineffective assistance of counsel claims. In order to prevail, a defendant must show: (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) that "the deficient performance prejudiced the defense." (9) As to the first requirement, the Court held that counsel's performance should be analyzed under an "objective standard of reasonableness," relying on benchmarks for prevailing norms of practice such as the American Bar Association standards. (10) The Strickland threshold is difficult to meet. In applying the first prong, courts should be "highly deferential" in scrutinizing counsel's performance in order to mitigate the effects of hindsight. (11) Further, where the defendant successfully demonstrates deficient performance, he must also "affirmatively prove prejudice." (12) Where lack of prejudice is clear, courts need not first determine whether the performance was deficient. (13)

      One year after Strickland, in Hill v. Lockhart, (14) the Court applied the Strickland analysis to ineffective assistance of counsel claims in the guilty plea context. The Court held that in order to satisfy the prejudice requirement where a defendant pled guilty, "the defendant must show 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." (15) This test erects a...