No. 2015-01

IN THE

Supreme Court of the United States of America

TOMAS HAVERFORD,

Petitioner,

v.

STATE OF EAGLETON,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT

OF EAGLETON

BRIEF FOR RESPONDENT

*Counsel of Record

Team 16

COUNSEL FOR RESPONDENT*

February 1, 2016

  i

QUESTIONS PRESENTED

I. Was the evidence against the petitioner admissible pursuant to the Fourth Amendment where it was obtained after the conclusion of an extended lawful traffic stop, where the petitioner was told he was free to go after the stop, and where the search was conducted pursuant to consent?

II. Did the petitioner receive effective assistance of counsel under the Sixth Amendment

where his conviction subjected him to deportation under the Immigration and Nationality Act and where his counsel informed him that deportation was a strong risk of pleading guilty?

  ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................................... i TABLE OF CONTENTS ............................................................................................................. ii

TABLE OF AUTHORITIES ...................................................................................................... iv CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED ....................................... v

STATEMENT OF THE CASE .................................................................................................... 1 SUMMARY OF THE ARGUMENT .......................................................................................... 5

ARGUMENT ................................................................................................................................. 7 I. THE PAWNEE DISTRICT COURT PROPERLY DENIED THE PETITIONER’S MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE SEARCH AND SEIZURE OF PETITIONER TOMAS HAVERFORD AND HIS VEHICLE BY DEPUTY SANDERSON WERE CONSTITUTIONAL AND LAWFUL. .................................................................................................................................................. 7

A. Deputy Sanderson Had Reasonable Suspicion to Extend the Lawful Traffic Stop of Tomas Haverford to Investigate Whether He Was Under the Influence of Drugs in the Operation of His Vehicle. ..................................................................................................................... 7

1. A Law Enforcement Officer May Extend a Traffic Stop to Investigate Additional Suspicious Factors That Come to the Officer’s Attention. ................................................................................................. 8 2. The Totality of the Circumstances Test Includes Consideration of Innocent Activity. ......................... 10

B. Petitioner’s Consent for Deputy Sanderson to Search His Vehicle Was Valid and Lawful. ............................................................................................................................................... 11

1. Haverford Was Not Being Illegally Seized When He Consented to Deputy Sanderson’s Search of His Vehicle. .................................................................................................................................... 12 2. Evidence that is Obtained Illegally May Still Be Allowed as Evidence in Court if it is Sufficiently Attenuated From the Illegal Gathering Activity. ............................................................................................ 14

a. A Short Temporal Proximity Between The Official Misconduct and the Seizure of Evidence is Not Dispositive of Taint. ....................................................................................................................... 15 b. Haverford’s Consent is a Sufficient Intervening Act of Free Will to Dissipate the Taint from Any Previous Fourth Amendment Violations. .......................................................................................... 16

II. THE PAWNEE DISTRICT COURT PROPERLY REFUSED THE PETITIONER’S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE ATTORNEY MARK BRENDANAWICZ’S PERFORMANCE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT. ............................................................................................................................. 18

A. Haverford Cannot Prove Ineffective Assistance of Counsel because he was Not Subject a Constitutionally Deficient Performance. ............................................................................................ 18

  iii

1. Mr. Brendanawicz Possessed and Provided the Level of Competence Necessary to Ensure Fundamental Fairness and a Just Result. ........................................................................................................ 19 2. Mr. Brendanawicz’s Warning to Haverford that there was a “Strong Risk” of Deportation was Reasonable because the Immigration Consequences of Pleading Guilty were Not Truly Clear. .................. 21

a. The Specificity of Advice that is Required by Counsel Depends on the Clarity of the Consequences. ........................................................................................................................................... 21 b. Immigration Law is Inherently Complex, and it is Beyond the Average Criminal Defense Attorney’s Scope of Knowledge and Practice. .......................................................................................... 22 c. This Case Presents a Question that Requires the Court to Look Beyond its Holding in Padilla. ..... 24

B. Even if Mr. Brendanawicz’s Performance was Constitutionally Deficient, Haverford was Not Prejudiced. ................................................................................................................................... 24

1. A Defendant Who Seeks to Withdraw a Guilty Plea can only Prove Prejudice if a Rational Defendant would have Rejected the Plea Bargain. ........................................................................................ 25 2. Where there is Overwhelming Evidence Against a Defendant and No Viable Defenses, Prejudice is Unlikely to be Proven. ................................................................................................................................ 26 3. A Judge’s Plea Colloquy that Warns a Defendant of Immigration Consequences Supports a Finding against Prejudice. .............................................................................................................................. 28

CONCLUSION ........................................................................................................................... 30

  iv

TABLE OF AUTHORITIES

UNITED  STATES  SUPREME  COURT  CASES  

Alabama v. White, 496 U.S. 325 (1990)  ...............................................................................................................................................  8,  9  Brown v. Illinois, 422 U.S. 590 (1975)  ....................................................................................................................................  14,  15,  16  California v. Hodari, 499 U.S. 621 (1991)  ...........................................................................................................................................  12  Florida v. Bostick, 501 U.S. 429 (1991)  ................................................................................................................................................  12  Hill v. Lockhart, 474 U.S. 52 (1986)  ...............................................................................................................................................  19,  25  I.N.S. v. Delgado, 446 U.S. 210 (1984)  ..................................................................................................................................................  13  Lafler v. Cooper, 132 S. Ct. 1376 (2012)  ......................................................................................................................................  25,  26  Nardone v. United States, 308 U.S. 338 (1939)  ..................................................................................................................................  14  Navarette v. California, 134 S. Ct. 1683 (2014)  ..................................................................................................................  7,  8,  9,  10  Padilla v. Kentucky, 559 U.S. 356 (2010)  ...................................................................................................................................  passim  Premo v. Moore, 562 U.S. 115 (2011)  ....................................................................................................................................................  19  Schneckloth v. Bustamonte, 412 U.S. 218 (1973)  .......................................................................................................................  11,  12  Strickland v. Washington, 466 U.S. 668 (1984)  ........................................................................................................................  passim  Terry v. Ohio, 392 U.S. 1 (1968)  ................................................................................................................................................................  8  United States v. Arvizu, 534 U.S. 266 (2002)  ...............................................................................................................................  10,  11  United States v. Cortez, 449 U.S. 411 (1981)  ....................................................................................................................................  7,  8  United States v. Mendenhall, 446 U.S., 544 (1980)  .................................................................................................................  passim  United States v. Sokolow, 490 U.S. 1 (1989)  .................................................................................................................................  7,  8,  9  Whren v. United States, 517 U.S. 806 (1996)  .........................................................................................................................  8,  12,  13  Wong Sun v. United States, 371 U.S. 471 (1963)  ...................................................................................................................  7,  15,  16  

UNITED  STATES  COURT  OF  APPEALS  CASES  

Haddad v. United States, 486 Fed.Appx. 517 (6th Cir. 2012)  ................................................................................................  27,  28  Pilla v. United States, 668 F.3d 368, 371 (6th Cir. 2012).  ...............................................................................................................  27  United States v. Campbell, 511 Fed.Appx. 424 (6th Cir. 2013)  ...............................................................................................  9,  10  United States v. Fazio, 795 F.3d 421 (3rd Cir. 2015)  ................................................................................................................  28,  29  United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)  .................................................................................................................  16,  17  United States v. Kayode, 777 F.3d 719 (5th Cir. 2014)  ....................................................................................................................  27  United States v. Liss, 103 F.3d 617 (7th Cir. 1997)  ...........................................................................................................................  16  United States v. Newland, 246 Fed.Appx. 180 (4th Cir. 2007)  .................................................................................................  9,  10  United States v. Pack, 612 F.3d 341 (5th Cir. 2010)  ....................................................................................................................  9,  10  United States v. Pettit, 785 F.3d 1374 (10th Cir. 2015)  ...............................................................................................................  9,  10  United States v. Salzano, 158 F.3d  .............................................................................................................................................................  9  United States, v. Reed, 349 F.3d. 457 (7th Cir. 2003)  .......................................................................................................................  15  

CONSTITUTIONAL  PROVISIONS  

U.S. Const. amend. IV  ................................................................................................................................................................................  v,  7  U.S. Const. amend. VI.  ...........................................................................................................................................................................  v,  18  

STATUTES  

Eagleton Statute § 841(b)  .......................................................................................................................................................................  v,  26  Eagleton Statute §841(a)(1).  .................................................................................................................................................................  v,  22  Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2008)  ............................................................................  v,  21,  22  

OTHER  AUTHORITIES  

The American Bar Association's Criminal Justice Standards for the Defense Function § 4-1.1 (4th ed. 2015)  ...........  20  The American Bar Association's Criminal Justice Standards for the Defense Function § 4-6.3 (4th ed. 2015)  ...........  20  

  v

CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED The Fourth Amendment to the United States Constitution provides in relevant part: “The

right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .”

The Sixth Amendment to the United States Constitution provides in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for

his defence.”

The Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i), provides, in relevant

part: “Any alien . . . admitted to the United States shall, upon the order of the Attorney General,

be removed if . . . 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 . . . .”

The Eagleton Controlled Substance Act, Eg. Stat. § 841(a)(1), provides in relevant part:

“It shall be unlawful for any person to knowingly or intentionally [m]anufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]”

The Eagleton Controlled Substance Act, Eg. Stat. § 841(b), provides in relevant part: “In

the case of a violation of subsection (a) involving 5 grams or more of methamphetamine . . . such

a person shall be sentenced to a term of imprisonment which may not be less than 5 years and

not more than 40 years.”

  1

STATEMENT OF THE CASE

The Traffic Stop On May 20, 2013 at 6:10 in the evening, Deputy David Sanderson of the Pawnee County

Sheriff’s Department pulled over a maroon Chevy truck because it had a burnt out headlight. R.

at 3-4. The driver of that vehicle was Tomas Haverford. R. at 4. When the deputy approached the

truck, he noticed that Haverford appeared to be very nervous, that he was shaking, and that his

pupils were restricted. R. at 4. Based upon Deputy Sanderson’s training and fifteen years of

experience as a sheriff’s deputy, he knew that these were indicators of drug use. R. at 4. The

deputy took Haverford’s information back to his vehicle where he began issuing a ticket for the

burnt out headlight. R. at 5. While doing that, the deputy also recorded his observations in his

audio log. R. at 11.

Deputy Sanderson was suspicious that Haverford was operating his vehicle while under

the influence of drugs. R. at 4. After issuing Haverford a ticket, the deputy requested that

Haverford perform field sobriety tests. R. at 5. Haverford agreed and followed all of the

instructions that the deputy gave him. R. at 13-14. After Haverford completed all of the field

sobriety tests to the satisfaction of the deputy, Deputy Sanderson told him, “Okay. Alright,

you’re okay to go. I’ll let you get on your way then.” R. at 14. Haverford responded, “Okay. You

have a good day.” R. at 14. To which, the deputy then said, “Take care.” R. at 14. Both of them

then walked back to their respective vehicles. R. at 5.

The Consensual Search

After letting Haverford leave, the deputy was not satisfied that Haverford was not under

the influence of drugs. R. at 5. Twelve seconds after ending the traffic stop, the deputy re-

approached Haverford’s car and asked to speak to him a second time. R. at 5. The deputy asked,

  2

“Hey, Tom, can I talk to you again?” R. at 14. After Haverford responded in the affirmative, the

deputy asked, “Do you have anything that I need to know about?” R. at 14. When Haverford

denied this, the deputy politely asked, “May I search your vehicle?” R. at 14. Haverford

responded, “Why not. Yeah. Go ahead.” R. at 14. To be certain that Haverford was agreeing to

the search, the deputy asked, “That’s fine?” R. at 14. And Haverford stated that it was. R. at 14.

The deputy then proceeded to search Haverford’s vehicle. R. at 14.

In Haverford’s truck, the deputy found methamphetamine, bottles full of ammonium

lactate, muriatic acid, rubber gloves, coffee filters, fuel for a heating canister, syringes and some

glass drinking glasses. R. at 5-6, 14. He believed that Haverford had a portable

methamphetamine lab in his vehicle. R. at 14. The deputy immediately placed Haverford under

arrest for possession with intent to manufacture methamphetamine and read him his Miranda

rights. R. at 14.

Initial Pawnee District Court Proceedings

On June 19, 2013, Haverford was heard in the Pawnee District Court on a motion to

suppress the evidence that was seized from his vehicle. R. at 2. Attorney Mark Brendanawicz

represented Haverford. The only witness that was called was Deputy Sanderson. R. at 2. During

his cross-examination of the deputy, Mr. Brendanawicz asked questions that suggested

Haverford’s nervousness and shaking may have been normal mannerisms of his. R. at 7. The

attorney also suggested that the deputy’s emergency lights caused Haverford’s pupil restrictions.

The judge, for his part, suggested Haverford was only nervous because the deputy had pulled

him over and wrote that many people are nervous when they get pulled over. R. at 17. The judge

did not mention in his ruling that Haverford may have been particularly nervous because he had

a mobile methamphetamine lab in his car. R. at 17. The judge ruled that the extension of the

  3

traffic stop was unlawful, but nonetheless denied the petitioner’s motion to suppress finding that

Haverford’s consent to search his vehicle was valid. R. at 17, 21. Judge Hapley found that

Haverford was not being constructively seized, and that his consent was sufficiently attenuated

from the taint of the illegal detention. R. at 19-20.

Petitioner Haverford appeared at his plea hearing on August 21, 2013, alongside Mr.

Brendanawicz. R. at 23. As soon as Judge Hapley commenced the hearing, Mr. Brendanawicz

requested an adjournment in order to better address Haverford’s concerns about the

consequences of his plea. R. at 24. Mr. Brandanawicz said, “I’m trying to figure it out, but it’s

difficult.” R. at 24. His request was denied and the proceeding resumed a half hour later. R. at

25. Upon returning, Brendanawicz again expressed his hesitancy to proceed with the hearing, but

nonetheless had to acquiesce. R. at 25. Mr. Brendanawicz explained, “Mr. Haverford is still

concerned with deportation, but he has decided to plead guilty based on the state’s offered plea

deal.” R. at 25. Judge Hapley then addressed Haverford directly, warning that, “if found guilty of

this crime . . . you may be deported or denied admission. Knowing this, how do you plead?” R.

at 25. “Guilty,” replied Haverford. R. at 25. “And you understand you may be deported?” Judge

Hapley asked for good measure. R. at 25. “Yes. I am worried, but I understand,” Haverford

confirmed. R. at 25. Thus, Haverford was convicted with possession with intent to manufacture

methamphetamine, which required a sentence between five and forty years. R. at 25-26. The

State recommended a ten year sentence; Mr. Brendanawicz requested five. R. at 25-26. Judge

Hapley sentenced Haverford to ten years in prison. R. at 26. Following the plea, Mr.

Brendanawicz explained that he sought “deferred prosecution,” but that the State was

unreceptive to negotiation. R. at 26.

Post-Conviction Motion Hearing

  4

A month after his conviction, Haverford received a “Notice to Appear” from the U.S.

Department of Justice, which explained that since he was a non-citizen who was convicted of a

felony, he was “deportable.” R. at 22. Petitioner made a motion in the Pawnee District Court to

withdraw his guilty plea. R. at 31. On October 16, 2013, Haverford again appeared in the district

court accompanied by a new attorney. R. at 27-28. Mr. Brendanawicz testified about his

recollections of the plea hearing. R. at 28. He said that he informed Haverford that there was a

“strong risk” and a “strong chance” that he would be deported if he pleaded guilty. R. at 29. He

said he knew Haverford’s crime would subject him to deportation, but he was unaware that

deportation was mandatory. R. at 28. He said that he did not research or read the statute, but that

he arrived at that conclusion after consulting federal prosecutors who explained that conviction

“may” result in deportation. R. at 28-29. The district court denied Petitioner’s motion. R. at 37.

Procedural History

Petitioner appealed both of the Pawnee District Court’s rulings to the Supreme Court of

Eagleton who affirmed the denials. R. at 50. The Court held that the extension of the stop was

lawful, and that Haverford’s consent was valid. R. at 42-45. The court, therefore, did not need to

address attenuation doctrine. R. at 45-46. Additionally, the court held that Mr. Brendanawicz’s

performance was not deficient. R. at 48-50. Since a lack of deficiency is dispositive, the court did

not need to address the issue of prejudice. R. at 50. Justices Knope and Swanson dissented. R. at

38.

   

  5

SUMMARY OF THE ARGUMENT

Petitioner has neither shown a violation of his Fourth Amendment rights, nor has he

shown a violation of his Sixth Amendment rights. Accordingly, Petitioner’s challenge to the

Supreme Court of Eagleton’s ruling affirming the denial of his motion to suppress and the refusal

of his motion to withdraw his guilty plea must fail.

First, Petitioner has failed to establish that the search of his vehicle was a violation of his

Fourth Amendment rights. The Court has intentionally kept a low standard of proof for the

extension of a traffic stop in order to allow officers to do their sworn duty and protect the public.

An officer needs only reasonable suspicion of some illegal activity in order to detain a suspect

longer than would be required for a normal traffic stop. Deputy Sanderson had reasonable

suspicion in this case based on his concrete, articulable observations.

Furthermore, Petitioner has failed to establish that the extension of the traffic stop negates

his consent to search his vehicle. In order for his consent to be invalid, it must have been

involuntary. Petitioner contends and fails to prove that he was being constructively seized when

he consented, and that the search of his vehicle was not sufficiently attenuated from the alleged

illegal extension of the traffic stop. Petitioner fails to establish constructive seizure because the

record shows that Deputy Sanderson ended the traffic stop before he politely asked Haverford if

the he could search the vehicle. Petitioner cannot prevail by suggesting that every time an armed,

uniformed police officer asks a citizen to do something, they are illegally seizing the citizen.

Petitioner has also failed to show that there was insufficient attenuation from the

allegedly illegal seizure. While temporally proximate, there was a sufficient intervening factor by

way of Haverford’s consent. Haverford consented to the search of his own free will. Further, the

deputy was not acting purposefully or flagrantly to violate the constitutional rights of the

  6

petitioner. Suppressing the evidence against Haverford would do nothing to further the goals of

the exclusionary rule, which is to deter police misconduct because the deputy was not

misconducting himself. For these reasons, Petitioner’s Fourth Amendment claim must fail.

Second, Petitioner has failed to establish that he was denied effective assistance of

counsel in violation of his Sixth Amendment rights. Assistance is constitutionally effective so

long as it does not put in peril the fundamental fairness of legal proceedings and the results that

they reach. Here, Attorney Brendanawicz upheld his responsibility to the petitioner when he

advised him that his guilty plea carried a strong risk of deportation. Petitioner’s claims do not

pass the long-standing test established in Strickland v. Washington for assessing effective

assistance of counsel claims. 466 U.S. 668 (1984).

Petitioner cannot prove that Mr. Brendanawicz’s performance was constitutionally

deficient when he was told that deportation was a likely result of his guilty plea. Deficiency is

assessed according to an objective standard of reasonableness. Mr. Brendanawicz’s warning that

deportation was a “strong risk” was reasonably sufficient seeing that the controlling statute

contained ambiguity and that he did not have any experience with immigration law in the past.

Furthermore, Petitioner cannot prove that the allegedly deficient performance prejudiced

him. In order to establish prejudice, Petitioner must show that a rational defendant would have

rejected the guilty plea in light of the circumstances. Petitioner faced overwhelming evidence

and severely limited options at his plea hearing. He likely would have faced deportation even if

he had not submitted a guilty plea. Since the outcome of the proceeding would not have changed

absent Mr. Brendanawicz’s allegedly erroneous advice, prejudice cannot be proven.

Accordingly, we respectfully request that this Court affirm the decision of the Eagleton Supreme

Court.

  7

ARGUMENT I. THE PAWNEE DISTRICT COURT PROPERLY DENIED THE PETITIONER’S MOTION TO

SUPPRESS THE EVIDENCE BECAUSE THE SEARCH AND SEIZURE OF PETITIONER TOMAS HAVERFORD AND HIS VEHICLE BY DEPUTY SANDERSON WERE CONSTITUTIONAL AND LAWFUL.

The Fourth Amendment guarantees every citizen the right to be free from unreasonable

searches and seizures, however, “[it] permits brief investigative stops—such as the traffic stop in

[Navarette]—when a law enforcement officer has ‘a particularized and objective basis for

suspecting the particular person stopped of criminal activity.’” U.S. Const. amend. IV; Navarette

v. California, 134 S. Ct. 1683, 1687, (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-

18 (1981)). Accordingly, Petitioner can only succeed if he proves two claims. First, he must

prove that Deputy Sanderson had no reasonable suspicion to extend the traffic stop, which is a

standard that requires “considerably less than proof of wrongdoing by a preponderance of the

evidence,” and “obviously less” than is necessary for probable cause. Navarette, 134 S. Ct. at

1687 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Second, Petitioner must prove

that Haverford’s consent to the search of his vehicle was invalid, either because it was tainted by

the alleged illegal extension of the traffic stop, or because he was illegally constructively seized

when he consented; neither of which are meritorious claims. United States v. Mendenhall, 446

U.S., 544, 553 (1980); Wong Sun v. United States, 371 U.S. 471, 488 (1963). Petitioner cannot

prevail on his challenge to the holding of the Supreme Court of Eagleton because he cannot

prove either of these claims.

A. Deputy Sanderson Had Reasonable Suspicion to Extend the Lawful Traffic Stop of Tomas Haverford to Investigate Whether He Was Under the Influence of Drugs in the Operation of His Vehicle.

“Long before the law of probabilities was articulated as such, practical people formulated

certain common sense conclusions about human behavior; jurors as factfinders are permitted to

  8

do the same—and so are law enforcement officers.” Cortez, 449 U.S. at 418. Law enforcement

officers are able to draw reasonable conclusions based on articulable observations: dilated pupils,

shaking, and nervous speech. Id. “[T]he evidence thus collected must be seen and weighed not in

terms of library analysis by scholars, but as understood by those versed in the field of law

enforcement.” Id. Deputy Sanderson’s observations of Haverford indicated to him that Haverford

was operating his vehicle under the influence of narcotics. The deputy needed nothing more to

form reasonable suspicion and ask Haverford to perform field sobriety tests. R. at 5.

1. A Law Enforcement Officer May Extend a Traffic Stop to Investigate Additional Suspicious Factors That Come to the Officer’s Attention.

Deputy Sanderson lawfully extended the traffic stop because he had clearly articulable

suspicions that Haverford was operating his vehicle under the influence of narcotics. Id. There is

no debate that the initial stop of Haverford’s vehicle was lawful. R. at 4. A police officer may

stop a vehicle when he has probable cause to believe that a traffic violation has occurred. Whren

v. United States, 517 U.S. 806, 810 (1996). An officer may expand the scope of the inquiry and

extend the time of the traffic stop longer than would have been needed for the original stop if he

has reasonable suspicion of some other illegal activity. Navarette, 134 S. Ct. at 1687.

Reasonable suspicion is determined to exist based on a totality of the circumstances, and

“is dependent upon both the content of information possessed by police and its degree of

reliability.” Cortez, 449 U.S. at 690; Alabama v. White, 496 U.S. 325, 330 (1990). Reasonable

suspicion is more than a “hunch.” Terry v. Ohio, 392 U.S. 1, 27 (1968). But, it is the lowest

standard of proof required, being “considerably less” than a preponderance of the evidence, and

“obviously less” than probable cause. Sokolow, 490 U.S. at 7.

This Court has set a low bar for fulfilling the reasonable suspicion standard. Navarette,

134 S. Ct. at 1688. In Navarette v. California, the defendant was initially stopped based on a 911

  9

call claiming that Navarette had run the caller off the road. Id. at 1686. Once he stopped the

defendant’s truck, the officer smelled marijuana. Id. at 1687. Viewing the totality of the

circumstances, the Court upheld the search because the 911 call and the marijuana odor were

enough to establish reasonable suspicion. Id. at 1686. The Court went one step further in its

holding, writing that even “an anonymous tip can demonstrate ‘sufficient indicia of reliability to

provide reasonable suspicion to make [an] investigatory stop.’” Id. at 1688 (quoting White, 496

U.S. at 329); see Sokolow, 490 U.S. at 2 (finding that Drug Enforcement Administration agents

did have reasonable suspicion for an investigative stop where the defendant paid for two airplane

tickets from a roll of 20 dollar bills, traveled under a false name, came from a known source city

for illicit drugs, stayed only 48 hours, appeared nervous, and checked no luggage).

The Federal Circuit Courts have addressed cases with similar facts to the case at hand,

and have given great deference to the police. Several of the Circuits considered the drivers’

nervousness to be a crucial factor when assessing reasonable suspicion to extend a traffic stop.

See United States v. Campbell, 511 Fed.Appx. 424, 426 (6th Cir. 2013); United States v. Pack,

612 F.3d 341, 352 (5th Cir. 2010); United States v. Newland, 246 Fed.Appx. 180, 190 (4th Cir.

2007). Even the Tenth Circuit, which held in 1998 that nervousness, alone, was insufficient to

make a finding of reasonable suspicion, has since changed its stance. United States v. Salzano,

158 F.3d 1107, 1113 (10th Cir. 1998). As recently as 2015, the Tenth Circuit considered

nervousness to be the deciding factor in finding reasonable suspicion. United States v. Pettit, 785

F.3d 1374, 1378 (10th Cir. 2015). This case can be further differentiated from Salzano, however,

because nervousness was not the only factor Deputy Sanderson observed and considered when

deciding to extend the traffic stop. Id. He also appraised Haverford’s excessive shaking and

dilated pupils. R. at 5.

  10

Deputy Sanderson’s observations during the lawful traffic stop of Haverford were enough

to establish reasonable suspicion. Id. The officer recorded in his audio log, during the traffic

stop, that Haverford seemed particularly nervous. R. at 11. The Circuit Courts found this to be a

major factor in determining whether or not an officer has reasonable suspicion, but the deputy

observed more than just nervousness. Id.; Pettit, 785 F.3d at 1378; Campbell, 511 Fed.Appx. at

426; Pack, 612 F.3d at 352; Newland, 246 Fed.Appx. at 190; Haverford was shaking

uncontrollably and his pupils were restricted to approximately two or three millimeters. R. at 11.

Deputy Sanderson knew that this pupil size indicated drug use based on his experience and a

pupilometer, which is even stronger evidence of reasonable suspicion than was used in

Navarette. R. at 8; 134 S. Ct. at 1688. These are real articulable observations: shaking, dilated

pupils, nervousness. R. at 11. All of the officer’s observations were recorded in his audio log and

discussed in the officer’s testimony, and all of them contribute enough to create reasonable

suspicion. Id.; Navarette, 134 S. Ct. at 1688.

2. The Totality of the Circumstances Test Includes Consideration of Innocent Activity.

Reasonable suspicion may exist even if there is an innocent explanation for each of the

articulable facts that contribute to an officer’s suspicions. United States v. Arvizu, 534 U.S. 266,

277 (2002). “A determination that reasonable suspicion exists, however, need not rule out the

possibility of innocent conduct.” Id.

The Court in United States v. Arvizu reaffirmed that the determination of reasonable

suspicion must be made based upon a totality of the circumstances. Id. They further held that a

totality of the circumstances necessarily includes any suspicious activity that may be explained

away by innocent conduct. Id. Particularly, the Court took into account such innocent conduct as

the fact that the defendant, while driving past the officer in a minivan, did not look over at the

  11

officer and wave. Id. at 270. The Court also noted that the apparent destination of the minivan

was accessible by paved road, however, the defendant had opted to take a 40 to 50 mile trip on

dirt roads. Id. at 272. While these actions could have innocent explanations, they still contributed

to a determination of reasonable suspicion. Id. at 277.

At trial, the petitioner attempted to explain away the observations of Deputy Sanderson,

implying that Haverford may have been shaking because he was nervous or else that shaking is

just a normal mannerism of his. R. at 7. He tried to dismiss the officer’s pupil observation

because perhaps the officer’s emergency lights caused the dilation. Id. The District Court

suggested that Haverford may have been nervous simply because he had been pulled over for a

faulty headlight. R. at 17. But none of these seemingly innocent explanations for the officer’s

observations matter. Arvizu, 534 U.S. at 277. Just as in Arvizu, where not looking or waving at a

police officer, or else taking the scenic route may be innocent on its own, it is still taken into

account when making a finding of reasonable suspicion. Id. All of the officer’s clearly articulable

observations must be taken into account. Id.

Haverford was “real nervous.” R. at 11. He was “shaking real bad.” Id. His pupils were

restricted. Id. Taken together, all of these observations supplied the officer with enough

reasonable suspicion to extend the traffic stop and have Haverford complete field sobriety tests.

Arvizu, 534 U.S. at 277.

B. Petitioner’s Consent for Deputy Sanderson to Search His Vehicle Was Valid and Lawful.

Consent is an exception to the warrant requirement that is broader in scope than any other

exception, and it is even broader than warrants. Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973). Valid consent must be obtained voluntarily, meaning it cannot be coerced or obtained

pursuant to duress. Id. at 224. To determine if consent was given voluntarily, the Court looks at

  12

the totality of the circumstances. Id. at 227. These circumstances commonly include the age,

intelligence, and education of the citizen, as well as, the conduct of the police officer. Id. at 245.

Even if consent is found to be voluntary, it is still invalid if obtained by illegal police conduct.

Id. at 226.

1. Haverford Was Not Being Illegally Seized When He Consented to Deputy Sanderson’s Search of His Vehicle.

An officer has not seized a person merely by asking them questions. Florida v. Bostick,

501 U.S. 429, 434 (1991). “The purpose of the Fourth Amendment is not to eliminate all contact

between the police and the citizenry.” Mendenhall, 446 U.S., at 553. If a reasonable person feels

free “to disregard the police and go about his business,” then the person is not being seized.

California v. Hodari, 499 U.S. 621, 628 (1991). Such an encounter is consensual and does not

require reasonable suspicion. Bostick, 501 U.S. at 434. A seizure by a police officer occurs when

a citizen’s “freedom of movement is restrained,” “by means of physical force or show of

authority”. Mendenhall, 446 U.S. at 552. A show of authority, without the application of physical

force, to which the subject does not yield, is not a seizure. Hodari, 499 U.S. at 625. A traffic

stop, however, is undoubtedly a seizure. Whren, 517 U.S. at 809.

This is clearly not a case of seizure by physical force. R. at 3-10. Deputy Sanderson did

not even place a hand on Haverford until arresting him after the search. Id. at 14. The only

argument left is constructive seizure, but this also fails because there was no show of authority

by the deputy. Mendenhall, 446 U.S. at 553; R. at 3-10. This Court in Mendenhall, specifically

differentiated between an officer requesting information or the performance of a task, which is

not a seizure, and an officer commanding that a citizen do something. 446 U.S. at 554; see

Hodari, 499 U.S. at 625 (holding that an officer did attempt to seize the subject by a show of

authority by commanding him to halt, but that the seizure was unsuccessful because the suspect

  13

did not yield). The Court also gave several examples of seizure without physical force: “the

threatening presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554.

Haverford was not seized when the deputy requested to search his vehicle. The traffic

stop itself was undeniably a seizure, however, the seizure from the traffic stop had ceased. R. at

14; Whren, 517 U.S. at 809. The Court held in I.N.S. v. Delgado that a casual encounter between

the police and a citizen can become a seizure if a reasonable person feels they are not free to

leave. 446 U.S. 210, 215 (1984). It stands to reason, then, that a seizure can become a consensual

encounter once a person feels they are free to leave. See id. Deputy Sanderson clearly stated, in

no confusing language, “Alright, you’re okay to go. I’ll let you get on your way then.” R. at 14.

It appears that Haverford understood that the traffic stop had ceased by responding with a

traditional farewell, “Okay. You have a good day.” Id. A reasonable person would certainly have

felt free to leave. There can be no doubt that Haverford was perfectly free to leave, thus, he was

no longer seized.

After a brief lapse of time, the deputy, still troubled by his observations, initiated new

contact with Haverford, asking him if he could search his vehicle. Id. The deputy made a request;

he did not command Haverford. Id. There was one officer present, with his weapon holstered, his

hands to himself, and his tone polite. Id. Any reasonable person would have felt free to decline

the deputy’s request and go about his day. The petitioner would have this Court believe that the

encounter was coercive because the deputy had his emergency lights on, was wearing a police

uniform, and was armed. R. at 19. These arguments have no merit. The officer must always have

his emergency lights on when making a traffic stop for his and the public’s safety. If simply

  14

having the emergency lights on was coercive to the point of negating consent, no consent would

ever be valid in a traffic stop. The same can be said of the fact that the officer was armed and in

uniform. Every officer in the field is armed, and most are in uniform. These quintessential

characteristics of being a police officer cannot possibly negate consent. See Mendenhall, 446

U.S. at 554. “[C]haracterizing every street encounter between a citizen and the police as a

‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose

wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices.” Id.

The deputy was not seizing Haverford, either physically or constructively, at the time of

the search. R. at 14. The evidence obtained from the search was lawful and must not be

suppressed.

2. Evidence that is Obtained Illegally May Still Be Allowed as Evidence in Court if it is Sufficiently Attenuated From the Illegal Gathering Activity.

Attenuation doctrine is not applicable in this case because the initial conduct by the

deputy did not violate the Fourth Amendment. If, however, this court finds that the extension of

the traffic stop was unconstitutional, the evidence must still not be suppressed because it is

sufficiently attenuated from the extension of the traffic stop. Nardone v. United States, 308 U.S.

338, 341 (1939). For evidence gathered following a violation of the Fourth Amendment to be

admissible, the connection between the illegal activity and the seizure of the evidence must be

“so attenuated as to dissipate the taint.” Id. The application of attenuation doctrine looks at three

factors: (1) the temporal proximity between the official misconduct and the seizure of evidence;

(2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official

misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975).

  15

As the petitioner has not alleged that the deputy’s conduct was flagrant or purposeful,

only the first two conditions are discussed in order below. The fact that flagrancy was not argued

is significant because it has been considered to be the most important factor for determining

attenuation. See United States, v. Reed, 349 F.3d. 457, 464-65 (7th Cir. 2003) (holding the

purpose and flagrancy of the official misconduct to be the most important factor because “it is

tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.”)

If this Court were to determine attenuation is not present, it would do nothing to further the

interests of the Constitution because there was no flagrant or purposeful conduct.

a. A Short Temporal Proximity Between The Official Misconduct and the Seizure of Evidence is Not Dispositive of Taint.

While the Court uses three factors as guiding principles to determine if attenuation is

sufficient, the Court in Wong Sun held that attenuation must be assessed according to the facts of

each case. 371 U.S. at 413. In Brown v. Illinois, the Court also held that “[n]o single fact is

dispositive.” 422 U.S. at 603.

The Court held in Brown that a temporal proximity of merely a couple hours is

insufficient to dissipate the taint of a flagrant violation of the Fourth Amendment. Id. at 604.

Brown was illegally arrested, Mirandized, and then confessed within the scope of only a few

hours. Id. The short time frame was insufficient on its own to dissipate the taint of the illegal

arrest. Id. However, the Court did not stop its analysis there. Id. There were several other factors

that could have dissipated the taint of the illegal arrest. Id.

The close temporal proximity between the allegedly illegal seizure of Haverford and the

consensual search of his vehicle is admittedly not enough to dissipate the taint of any illegal

activity. Id. It would be a mockery of this Court to argue that twelve seconds is sufficient time to

separate these events. See R. at 14. However, the closeness of these events is not dispositive in

  16

determining attenuation. Brown, 422 U.S. at 604. Although the seizure and search occurred only

twelve seconds apart, the search is still effectively separate from the seizure when viewed in light

of the other two factors set forth in Brown. Id.; R. at 14.

b. Haverford’s Consent is a Sufficient Intervening Act of Free Will to Dissipate the Taint from Any Previous Fourth Amendment Violations.

A sufficient act of free will can purge the taint of previous illegal police conduct. Wong

Sun, 371 U.S. at 486. Attenuation analysis is not a “but, for” test; as in, but, for the illegal

conduct of the police, the evidence would not have been found. Id. at 488. Instead, the Court

looks to the facts of the case to determine if there were sufficient intervening factors. Id.

A sufficient intervening factor can be an act of free will. Id. at 486. In Wong Sun, the

defendant was released from police custody, and then he voluntarily returned to make a

confession. Id. at 476. The court held that this act of free will was sufficient to dissipate the taint

of the initial illegal arrest. Id. at 486; see United States v. Liss, 103 F.3d 617, 621 (7th Cir. 1997)

(holding that the defendant’s consent to search his home following an illegal search of his barn

was a sufficient intervening activity to purge the taint of the illegal activity).

There was an act of free will that serves as a sufficient intervening factor in this case.

Deputy Sanderson told Haverford that he was free to leave. R. at 14. Then, after a short lapse of

time, the deputy requested to search Haverford’s car. Id. Haverford agreed to the deputy’s

request of his own free will. Id. The fact that Haverford was clearly free to leave and freely

agreed to the deputy’s request are sufficient factors to dissipate the taint of any alleged

constitutional violation. Wong Sun, 371 U.S. at 486. The Seventh Circuit, when addressing a

factually similar case, held that consent to search is not valid when it follows immediately after

an illegal seizure. United States v. Jerez, 108 F.3d 684, 686 (7th Cir. 1997). However, United

  17

States v. Jerez is distinguishable from the present case because there were no intervening factors

between the illegal seizure and the consensual search. Id. at 688. In fact, Jerez’s consent to

search is practically indistinguishable from the illegal seizure. Id. That is not the case here. R. at

14. Here, there is a clear intervening time, though short, that separated the allegedly illegal

seizure from the consensual search. Id.

The petitioner suggests that the unequal power balance between Deputy Sanderson and

Haverford, the officer’s lights, his uniform, and his gun, preclude Haverford from agreeing under

free will. R. at 19. He claims he was coerced into agreeing to the search. Id. These staples of

everyday police work, however, cannot be argued, in all seriousness, to have been coercive. This

was a short, routine stop in the middle of the day by a uniformed police officer on a public street.

R. at 3-10. Haverford was not coerced. His agreement to the search of his vehicle was an act of

free will.

Justice Knope of the Eagleton Supreme Court argues in her dissent that if a reasonable

person were not coerced, he would not have agreed to the search knowing that illegal contraband

was in his car. R. at 54. But, as this Court said in Mendenhall, “It may happen that a person

makes statements to law enforcement officials that he later regrets, but the issue in such cases is

not whether the statement was self-protective, but rather whether it was made voluntarily.” 446

U.S. at 555-56. The standard here is not whether a reasonable person would agree to a search,

but rather whether Haverford actually did agree to the search. Id.; R. at 54. The fact that

Haverford was injudicious to agree to a search is not indicative of coercion. See id.

The time that lapsed between the end of the traffic stop and the beginning of the search

was brief, however, the fact that Deputy Sanderson was acting neither purposefully nor

flagrantly to violate the constitution coupled with Haverford’s intervening act of free will means

  18

that, even if the extension of the traffic stop had been unconstitutional, it would not have tainted

the search of Haverford’s vehicle.

II. THE PAWNEE DISTRICT COURT PROPERLY REFUSED THE PETITIONER’S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE ATTORNEY MARK BRENDANAWICZ’S PERFORMANCE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT. The Sixth Amendment guarantees the right to effective assistance of counsel to all

criminal defendants. U.S. Const. amend. VI. The guiding concern at the core of any

ineffectiveness claim is whether an attorney’s performance affected the “fundamental fairness”

of a proceeding, thus preventing a “just result.” Strickland v. Washington, 466 U.S. 668, 696

(1984). To establish ineffectiveness, Haverford must prove both elements of a two-pronged test

that was introduced by the Court in Strickland. Id. at 687. First, he must show that his counsel’s

performance was constitutionally “deficient.” Id. Second, he must show that the allegedly

deficient performance “prejudiced” him. Id. The Court extended the reach of Strickland in

Padilla v. Kentucky, holding that counsel is ineffective where an attorney fails to inform a client

that his or her guilty plea “carries a risk of deportation.” 559 U.S. 356, 374 (2010). In the present

case, Mr. Brendanawicz was required to present a harsh reality to a defendant with severely

limited options. The undesirability of Haverford’s position, however, is no reason for the Court

to find in his favor. This Court should uphold the decision of the Supreme Court Eagleton, which

affirmed the denial of Petitioner’s motion to withdraw his guilty plea because he cannot establish

ineffective assistance of counsel in light of the holdings in Strickland and Padilla.

A. Haverford Cannot Prove Ineffective Assistance of Counsel because he was Not Subject a Constitutionally Deficient Performance.

To establish ineffective assistance of counsel, Haverford must prove that Mr.

Brendanawicz’s performance was “deficient.” Strickland, 466 U.S. at 687. Such a determination

  19

requires a fact-based inquiry; the conduct at issue must be evaluated from the “counsel’s

perspective” while considering the circumstances as they occurred at the time of the alleged

ineffectiveness. Id. at 689. Ultimately, whether the performance was constitutionally deficient

depends on whether or not it fell “below an objective standard of reasonableness.” Id. at 687.

The circumstances here show that Mr. Brendanawicz sufficiently informed Haverford about the

impending immigration consequences he faced.

1. Mr. Brendanawicz Possessed and Provided the Level of Competence Necessary to Ensure Fundamental Fairness and a Just Result.

The voluntariness of a plea depends on whether or not counsel’s advice was within the

“range of competence demanded by the circumstances.” Hill v. Lockhart, 474 U.S. 52, 56

(1986). An attorney’s performance must be analyzed according to the “skill and knowledge” that

a reasonable attorney would be expected to possess and provide. Strickland, 466 U.S. at 688.

Counsel must be afforded substantial deference when professional judgment is called into

question. Premo v. Moore, 562 U.S. 115, 126 (2011); Strickland, 466 U.S. at 688.

In Strickland, the defendant claimed that he did not receive effective assistance of

counsel because his attorney did not fulfill his “duty to investigate.” 466 U.S. at 672, 690. His

attorney did not gather character evidence or request a psychiatric examination to help build a

defense for use at trial. Id. at 672. The Court set out to “reconstruct the circumstances of

counsel’s challenged conduct” in order eliminate any bias that “hindsight” might potentially

impose. Id. at 689. Analyzing the circumstances, the Court determined that it was a reasonable

strategic choice for the attorney to forego investigation because the results could have proven to

be detrimental to the defendant’s case. Id. at 699. One of the main facets that supported the

Strickland holding was the Court’s determination that “scrutiny of counsel's performance must

be highly deferential.” Id.; see Premo, 562 U.S. at 126 (holding that an attorney’s advice for a

  20

client to accept a guilty plea without attempting to suppress his confession was not

constitutionally deficient largely because of the “substantial deference” afforded to counsel).

Finally, the Court assessed Strickland’s counsel’s performance in comparison to the “prevailing

professional norms” of criminal defense. Strickland, 466 U.S. at 688. The Court stressed,

however, that published norms of practice are “only guides” rather firm requirements. Id.

The American Bar Association’s Criminal Justice Standards for the Defense Function

suggests that, “counsel should investigate and be knowledgeable about . . . collateral

consequences and likely outcomes . . . and advise the client on these topics . . . .” § 4-6.3 (4th ed.

2015). These standards are “intended to provide guidance . . . [but] are not intended to modify a

defense attorney’s obligations under applicable rules, statutes or the constitution.” Id. § 4-1.1

(4th ed. 2015). Here, Mr. Brendanawicz informed Haverford that a guilty plea carried a “strong

risk of deportation. R. at 29. Regardless of the ABA’s standards, this warning was sufficiently

within the broad range of competence afforded to attorneys. It is apparent that Haverford was

well aware of the immigration consequences. He said as much at his plea hearing. R. at 25.

Arguably, Haverford possessed a better understanding of his immigration consequences than

Strickland understood the details of his sentence and probation. Haverford admitted that he was

“worried” about being deported and that he “understood” that conviction would make him

eligible for deportation. Id. Haverford’s position is weakened even further by the Court’s high

standard for establishing ineffectiveness of counsel. The latitude that was afforded to

Strickland’s counsel in determining what he should and should not investigate must be extended

to Mr. Brendanawicz here.

  21

2. Mr. Brendanawicz’s Warning to Haverford that there was a “Strong Risk” of Deportation was Reasonable because the Immigration Consequences of Pleading Guilty were Not Truly Clear.

Counsel must inform clients whether their plea “carries a risk of deportation.” Padilla,

559 U.S. at 374. “When the deportation consequence is truly clear… the duty to give correct

advice is equally clear.” Id. at 369. Counsel’s duty is “more limited” when the immigration

consequences are unclear. Id. A closer look at the Immigration and Nationality Act demonstrates

that the immigration consequences Haverford faced were not truly clear.

a. The Specificity of Advice that is Required by Counsel Depends on the Clarity of the Consequences.

When an attorney advises a client about a legal issue where the law is not “succinct and

straightforward,” counsel is only required to advise that a conviction “may carry a risk of adverse

immigration consequences.” Id. The defendant in Padilla was charged with an aggravated felony

when he was caught transporting a sizable amount of marijuana during a traffic stop. Id. at 359.

“[A]ny alien who… has been convicted of a violation of (or a conspiracy or attempt to violate)

any law… relating to a controlled substance… is deportable.” Immigration and Nationality Act,

8 U.S.C. § 1227(a)(2)(B)(i) (2008). Padilla submitted a guilty plea, but he was completely

unaware that his plea rendered him “deportable” under the Immigration and Nationality Act.

Padilla, 559 U.S. at 359. In fact, prior to entering his plea, Padilla’s counsel explicitly told him

that he “did not have to worry about immigration status.” Id. The Court determined that the

language in this statute was “succinct” and “explicit” because a simple reading of the text

showed that conviction under the statute makes non-citizens “eligible” for deportation. Id. at 368.

The parallels between Padilla and the present case are numerous and stark. Like Padilla,

Haverford is a legal non-citizen who was arrested and charged with an aggravated felony for

possession of a controlled substance. Haverford was charged with possession of

  22

methamphetamine under Eagleton Statute §841(a)(1). R. at 31, 58. Likewise, Padilla and

Haverford each pleaded guilty to their charges and faced the possibility of deportation under 8

U.S.C. § 1227(a)(2)(B)(i). The distinguishing factor that severs these two cases is the sufficiency

of the warnings provided by the attorneys involved and the knowledge each defendant possessed

as a result. Mr. Brendanawicz, unlike his counterpart in Padilla, performed reasonably when he

explained to Haverford that his guilty-plea carried a “strong risk” of deportation. R. at 29. In

Padilla, the Court explained that conviction under the Immigration and Nationality Act made

deportation “presumptively” mandatory, but never said it is in fact mandatory. Id. at 368; 8

U.S.C. § 1227(a)(2)(B)(i). A reading of the statute highlights this ambiguity. The statute says

that a conviction makes a non-citizen “deportable”, but does not offer any inclination about the

likelihood, certainty, or probability that deportation will actually occur. 8 U.S.C. §

1227(a)(2)(B)(i). In addition to the ambiguity present in the statute at issue, the complex nature

of immigration law makes it significantly more difficult to establish deficient performance.

b. Immigration Law is Inherently Complex, and it is Beyond the Average Criminal Defense Attorney’s Scope of Knowledge and Practice.

The intricacy of immigration law makes it “a legal specialty of its own.” Padilla, 559

U.S. at 369. The complexity of the discipline makes it inevitable that the immigration

consequences of convictions involving immigration laws are often “unclear or uncertain.” Id. It

is “unrealistic” to expect average criminal defense attorneys to provide “expert advice” in areas

of the law where they do not possess expertise. Id. at 375-76. (Alito, J., concurring).

The fact that Mr. Brendanawicz is not an immigration specialist is not dispositive, but it

is an essential consideration in determining the reasonableness of his performance. The counsel’s

perspective must be evaluated in light of all the circumstances. Strickland, 466 U.S. at 688-89.

  23

Mr. Brendanawicz was very forthcoming with the court at Haverford’s plea hearing. R. at 24. He

requested an adjournment after he admitted to the court that he was having a “difficult” time

determining the consequences of Haverford’s plea, but the court denied his request. Id. Next, he

reached out to several federal prosecutors who explained that deportation was a possibility. R. at

28-29. Finally, he advised Haverford that there was a “strong risk” of removal that would

accompany a guilty plea. R. at 29. He told him that there was a “strong chance of being

deported.” Id.

The Court’s reasoning in Padilla could be read to make Mr. Brendanawicz’s conduct

appear unreasonable, but a closer reading demonstrates that this is not the case. Mr.

Brendanawicz did not investigate immigration consequences or read the statute prior to the plea

hearing, but this does not necessarily mean that he acted unreasonably or gave unsound advice.

Furthermore, a failure to read the statute does not affect reasonableness here because the statute

itself is ambiguous. Mr. Brendanwicz was clearly limited by his lack of experience in the

specialty of immigration law, but this argues in favor a more relaxed, deferential view of his

conduct. R. at 24. Here, he was only required to provide limited advice because the law was not

totally clear from his perspective. The lack of precision in his advice was not because he failed to

consult available resources or possess the knowledge and skill the court expects of counsel. Id.

Even if Mr. Brendanawicz read, considered, and researched the statute, it’s likely that he would

give Haverford the exact same advice. The law is difficult to interpret which makes the outcome

difficult to predict. Further, “strong risk” is a completely reasonable way to describe likely

negative consequences of any action. The ambiguity present in the statute and Mr.

Brendanawicz’s lack of experience working with immigration law should be considered

  24

determinative factors that lower the objective standard of reasonableness used to assess

effectiveness of counsel in this case.

c. This Case Presents a Question that Requires the Court to Look Beyond its Holding in Padilla.

In Padilla, the Court was only presented with a question involving an attorney’s

incorrect, affirmative misadvice. 559 U.S. at 370. When deciding the case, however, it extended

the reach of its holding to include all unreasonable acts and omissions. Id. The Court provided

little guidance as to the level of certainty attorney’s must provide in situations like the present

case, which does not involve affirmative misadvice or an omission.

In Padilla, the Court held that counsel violated his duty to inform the defendant about the

deportation risks he faced. Id. at 1486. Not only did the attorney fail to inform his client, he

erroneously told the defendant that he “did not have to worry about immigration status.” Id. at

373. This erroneous advice created a “false assurance” that Padilla would not be deportable if he

pled guilty. Id. 368. It was clearly an unreasonable error, and the Court ruled that the attorney’s

performance was constitutionally deficient. Id. at 373. Here, however, Mr. Brendanawicz told

Haverford that there was a “strong risk” his plea would render him deportable, which was a firm,

accurate warning sufficient to alert Haverford to the immigration consequences he faced. R. at

29.

B. Even if Mr. Brendanawicz’s Performance was Constitutionally Deficient, Haverford was Not Prejudiced.

To establish prejudice, a defendant must show a “reasonable probability” that, but for

counsel's allegedly unsatisfactory performance, “the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. This prong, thus, can only be satisfied if there is an

affirmative showing that counsel’s conduct jeopardized arrival at a just result. Id. at 696. In

  25

effectiveness claims, prejudice turns on whether or not the attorney’s performance was

detrimental enough to “undermine confidence in the outcome.” Id. at 694. The circumstances

here do not objectively show that the defendant would have chosen to reject the plea in the

absence of counsel’s alleged misconduct.

1. A Defendant Who Seeks to Withdraw a Guilty Plea can only Prove Prejudice if a Rational Defendant would have Rejected the Plea Bargain.

When it comes to pleadings, this prong hinges on “whether counsel's constitutionally

ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 54. A

defendant must show the outcome would have been different with competent advice. Lafler v.

Cooper, 132 S. Ct. 1376, 1384 (2012). A defendant must have an opportunity to secure a more

favorable outcome, but for ineffective counsel. Strickland, 466 U.S. at 694. Furthermore,

prejudice is only established when a decision to reject the plea would have been rational despite

the rest of the circumstances. Padilla, 559 U.S. at 372.

The defendant in Hill was unable to prove that he was prejudiced where his counsel

erroneously informed him about the details of his expected parole eligibility. 474 U.S. at 53. Hill

pled guilty believing that parole would be available to him after serving one-third of his

sentence, when in reality he would not become eligible until halfway into his sentence. Id. at 53-

54. The Court held that Hill could not prove prejudice because he failed to allege that he would

have chosen to go to trial absent his attorney’s error. Id. at 59. If Hill had in fact rejected his plea

bargain and decided to go to trial, he stood the chance of facing an even harsher sentence. Id. at

53-54. It would be irrational for him to reject the plea, which precludes a finding of prejudice. Id.

On the other hand, in Lafler, the attorney’s misadvice had a substantial effect on the

outcome. 132 S. Ct. at 1385. The defendant was offered a plea that would have dropped two of

  26

his four charges, but he ultimately turned down the offer and went to trial based on his counsel’s

advice that he could get an even lower sentence. Id. at 1383. His attorney erroneously based his

advice on the incorrect legal rule, and the respondent received a sentence over three times longer

than the initial plea. Id. at 1386. This is a clear case of unconstitutional prejudice because an

objective, rational defendant would obviously prefer to take the plea. Id. at 1391.

The case at hand is analogous to Hill and distinguishable from Lafler. A rational

defendant faced with Haverford’s predicament would not have necessarily rejected the plea deal.

Mr. Brendanawicz attempted to bargain with the prosecution for a more favorable plea, but they

were unwilling to comply. R. at 29. The fact of the matter was that Haverford was in a precarious

position. There was a strong likelihood that if he went to trial, he would be convicted and would

be deportable anyway. This coupled with the fact that the prosecution was unwilling to bargain,

would make it irrational to reject the plea bargain. Id. By doing so, Haverford would run the risk

of receiving even more prison time while facing the same likelihood of being deported at the

conclusion of his sentence. His plea resulted in a ten year sentence with a possibility of

deportation at the conclusion of his sentence. R. at 26. But if he declined the plea and went to

trial, he would have likely faced worse. He faced five to forty years for his violation of Eagleton

Statute § 841(b). R. at 58.

2. Where there is Overwhelming Evidence Against a Defendant and No Viable Defenses, Prejudice is Unlikely to be Proven.

A defendant is unlikely to prove prejudice where “aggravating factors” supporting the

outcome significantly outweigh the “mitigating circumstances” used to argue that the outcome

was unjust. Strickland, 466 U.S. at 699. This balance is best measured through a totality of the

circumstances analysis that considers factors such as whether (1) a defendant is willing to go to

trial, (2) the evidence that would likely arise at trial, and (3) the defendant’s prospects for

  27

winning at trial. United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014). Where there is

“overwhelming evidence” against the defendant, the result of the pleading is given great weight.

Id. at 726.

The defendant in Kayode was arrested and charged with numerous fraud violations. Id. at

721. He pled guilty but was completely unaware that this conviction had any immigration

consequences – not the least of which was potential deportation. Id. The court determined that

Kayode’s attorney performed deficiently because he never even suggested the possibility of

deportation. Id. at 723-24. The court then turned to the Strickland prejudice analysis. Id. at 724.

The evidence against Kayode was that he illegally possessed over 350 credit cards, stole mail

from over 250 people, and defrauded nearly 100 banks. Id. at 725. Even considering the

undesirability of deportation, the court found it unlikely that a “rational person” in Kayode’s

position would have proceeded to trial because of the overwhelming evidence against him. Id. at

727.

The facts in Kayode are similar to two cases reviewed by the Sixth Circuit. Pilla v.

United States involved a non-citizen defendant who was subject to deportation for committing

fraud. 668 F.3d 368, 371 (6th Cir. 2012). The court determined that she was not prejudiced by

her counsel’s advice to accept a plea deal for a lighter sentence and that no rational defendant

would have chosen to go to trial given the overwhelming evidence against her. Id. at 373.

Additionally, Haddad v. United States dealt with a non-citizen defendant who was subject to

deportation for drug possession, much like Haverford and Padilla. 486 Fed.Appx. 517, 518. (6th

Cir. 2012). The court determined that Haddad, like Pilla, was not prejudiced by his attorney’s

failure to warn him about immigration consequences. Id. Haddad was caught “red-handed”

passing through an airport with LSD. Id. at 521. The court found that the strength of the

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evidence, lack of defenses, and likelihood that Haddad would be deportable even after trial made

rejecting the plea irrational. Id. at 522.

The evidence against Haverford in this case is equally overwhelming. He was caught red-

handed. R. at 6. When Deputy Sanderson searched Haverford’s vehicle, he found

methamphetamine and a variety of equipment and chemicals – a combination that the deputy

identified as a “portable meth lab.” R. at 14. This was likely the primary reason why the

prosecution was unwilling to negotiate a more favorable plea bargain with him. R. at 29. Further,

having lost his motion to supress, it does not appear that Haverford had any viable defenses that

would have saved him at trial; Mr. Brendanzwicz stated as much. Id. In light of Pilla, Haddad,

and Kayode, it is unreasonable to expect that Haverford would have reached a more favorable

outcome if he had rejected the plea bargain.

3. A Judge’s Plea Colloquy that Warns a Defendant of Immigration Consequences Supports a Finding against Prejudice.

The circuits have varying opinions on the weight that should be given to plea colloquies

when determining whether or not the outcome of a plea was fair and just. Some circuits have

held that colloquies are sufficient to remedy constitutionally deficient performance. United States

v. Fazio, 795 F.3d 421, 428-29 (3rd Cir. 2015). Another approach is to treat the presence of a

plea colloquy as another factor in the totality of the circumstances analysis. In Kayode, the court

ruled that, “warnings from a judge during a plea colloquy… are relevant under the second

Strickland prong in determining whether a defendant was prejudiced by counsel's error.” 777

F.3d at 728-29.

In Fazio, the Third Circuit held that where a non-citizen defendant who faced potential

deportation had the immigration consequences of his conviction explained by a judge during a

plea colloquy was not prejudiced. Id. During the colloquy, the presiding judge asked Fazio,

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“knowing this [risk], do you nevertheless want to plead guilty regardless of any immigration

consequences that your plea of guilty may entail, even if the consequence is your automatic

removal from the United States?” Id. at 728. Fazio agreed and indicated that he understood. Id.

The plea colloquy in Fazio served as a way to confirm that the defendant was “willing to plead

guilty even if that plea would lead to automatic deportation.” Id. Though his attorney failed to

warn his client about the immigration consequences, the Padilla requirement that a defendant

must be informed of his risk was fulfilled by the conversation between the judge and the

defendant. Id. The rationale behind adding plea colloquies to the Strickland prejudice analysis is

that even if an attorney performs deficiently, the presence of a judge’s warning has the potential

to “cure” or make-up for any prior errors. Id.

Here, Haverford, like Kayode and Fazio, received a plea colloquy prior to admitting guilt.

During the plea hearing, Judge Hapley asked him, “Mr. Haverford, there is a risk, if found guilty

of this crime, that you may be deported or denied admission. Knowing this, how do you plead?”

Haverford responded, “Guilty.” R. at 25. But Hapley went one step further, asking again for

good measure, “And you understand that you may be deported?” Id. Haverford confirmed, “Yes.

I am worried, but I understand.” Id. Here, the judge cured the alleged deficient performance of

Mr. Brendanwicz. Id. If Haverford was improperly warned of the risk of his plea as he entered

the courtroom that day, Judge Hapley’s admonishments are certainly enough to demonstrate he

was in fact informed and aware of the consequences of his decision. At the very least, this should

be seen as another piece to a well-completed puzzle. The totality of the circumstances illustrates

that Haverford was not prejudiced by ineffective assistance of counsel in this case.

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CONCLUSION

The evidence in the case against the petitioner was obtained pursuant to a constitutional,

consensual search of his vehicle because the deputy had reasonable suspicion to extend the

traffic stop, and the petitioner’s consent was valid. The petitioner was not being constructively

seized, and the consent was not tainted by the previous seizure. Furthermore, the petitioner’s

Sixth Amendment rights were not violated because Mr. Brendanawicz provided constitutionally

sufficient assistance that did not prejudice the defendant or worsen the outcome of the case. For

these reasons, we respectfully request that this Court affirm judgment of the Supreme Court of

the state of Eagleton.

Team 16 Counsel for Respondent