We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

I SAID IT, BUT I DIDN’T MEAN IT

Just about anyone who has pled guilty has suffered through a  change-of-plea hearing under Rule 11 of the Federal Rules of Criminal Procedure – in which they were required to say they were happy with their lawyers, they fully understood the charges, and that no one had pressured them to sign the deal. Some of the answers are uninformed: How, for example, does anyone know whether defense counsel got things right? Others are outright lies: of course, counsel or family or even the government has applied pressure that would make Tommy Torquemada envious.

Later, when the defendant discovers his lawyer’s incompetence or the government’s connivance, he or she files a post-conviction habeas corpus motion under 28 USC 2255. And then, the defendant gets hit over the head with answers given at the Rule 11 hearing. No one reasonably believes that the Rule 11 plea answers have any validity, but that’s the game.

When Sergio Murillo signed his plea agreement, he had his lawyer get a lot of references to deportation taken out of the document. His lawyer bargained his charge down to conspiracy, which she told him would not lead to automatic deportation. But the plea agreement still had Sergio agreeing in one section that “because removal and other immigration consequences are the subjects of a separate proceeding, [Appellant] understands that no one, including [Appellant’s] attorney or the District Court, can predict to a certainty the effect of [Appellant’s] conviction on [Appellant’s] immigration status. [Appellant] nevertheless affirms that [Appellant] wants to plead guilty regardless of any immigration consequences that [Appellant’s] plea may entail, even if the consequence is [Appellant’s] automatic removal from the United States.”

Later, Sergio learned he would be deported, and he filed a 2255 motion arguing that his lawyer was ineffective for telling him otherwise. He wanted to take his plea back and go to trial. The district court cited what Sam had agreed to in the plea agreement, and denied the 2255 without a hearing.

Two weeks ago, the 4th Circuit reversed, and ordered the district court to hold an evidentiary hearing. The Court ruled that the district court erred by giving dispositive weight to the one sentence in Sergio’s plea agreement. Instead of weighing evidence that Sam would have rejected the plea agreement had he known it required deportation against evidence that he would have accepted it nonetheless, the district court found that single sentence “dispositive.”

“Giving dispositive weight to boilerplate language from a plea agreement is at odds with Strickland [v. Washington]’s fact-dependent prejudice analysis,” the Circuit ruled. “To determine whether a defendant was prejudiced by an attorney error, Strickland requires courts to undertake an individualized examination of the proceedings in which the error is alleged… A categorical rule affording dispositive weight to a prior statement is ill suited to an inquiry that demands a ‘case-by-case analysis.’”

United States v. Carillo Murillo, 2019 U.S. App. LEXIS 18725 (4th Cir. June 24, 2019)

– Thomas L. Root