02/12/2013 04:57:28 PM EST
Habeas / Coram Nobis Victory in Indiana: Montes-Flores v. USA
"For the reasons explained in this Entry, the motion of Sandra Montes-Flores for relief pursuant to 28 U.S.C. § 2255 or, in the alternative, for a writ of error coram nobis, must be granted. ... Montes-Flores was prejudiced by counsel's failure to inform Montes-Flores that a conviction under § 1001 would result in presumptively mandatory deportation. ... To avoid this situation in the future, defense counsel, counsel for the government, and the Court can all benefit from learning the valuable lessons of this case. Defense counsel must read Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and become familiar with the circumstances under which 8 U.S.C. § 1227 renders a convicted defendant presumptively deportable. As Padilla holds, when the deportation consequences are truly clear, the duty of counsel to give correct advice is equally clear. 130 S. Ct. at 1483. The lesson for counsel for the Government is to include language in plea agreements resulting in deportable offenses under § 1227 to make it clear that the defendant will be likely be subject to automatic deportation as a result of the resulting conviction . In so doing, it will foreclose any claim that a plea is not knowing and voluntary. For an example of such language, see United States v. Flores-de la Rosa, Cause No. 2:12-cr-163-JMS-DML-1, dkt. 23 at 3. And finally, a lesson the Court can learn is that the colloquy provided by the Court's Benchbook may need to be enhanced if a defendant is pleading guilty to a crime that will result in a presumptively deportable conviction. See Benchbook for U.S. District Court Judges at 75 ("Do you understand that your plea of guilty [to a felony offense] may affect your residency or your status with the immigration authorities?), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbk5.pdf/$file/Benchbk5.pdf. Counsel for the Government and defense counsel would be well served to alert the Court when a non-citizen is pleading guilty to a crime that will subject him to the presumptively automatic deportation requirements of 8 U.S.C. § 1227 so that the plea colloquy can be altered accordingly." - Montes-Flores v. USA, Feb. 4, 2013.
[Hats off to Baker & McKenzie attorneys (pro bono, I assume) Catherine O. Suilleabhain, Robert W. Kent and Kathleen Sanderson.]