No. 2015-01 IN THE SUPREME COURT OF THE UNITED STATES
TOMAS HAVERFORD,
Petitioner,
v.
STATE OF EAGLETON,
Respondent.
On Writ of Certiorari to the Supreme Court for the State of Eagleton
BRIEF FOR THE PETITIONER
Team #15
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS…………………………………………………………….. i TABLE OF AUTHORITIES………………………………………………………… iii QUESTIONS PRESENTED FOR REVIEW………………………………………... 1 STATEMENT OF THE CASE………………………………………………………. 2 SUMMARY OF THE ARGUMENT………………………………………………… 4 STANDARD OF APPELLATE REVIEW…………………………………………... 6 ARGUMENT………………………………………………………………………… 6
I. THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF THE STATE OF EAGLETON AND HOLD THAT THE TRIAL COURT IMPROPERLY DENIED HAVERFORD’S MOTION TO SUPPRESS THE EVIDENCE OF ILLEGAL ACTIVITY WHERE THE POLICE OFFICER LACKED REASONABLE SUSPICION TO EXTEND THE TRAFFIC STOP, HAVERFORD’S CONSENT WAS TAINTED BY PRIOR ILLEGALITY, AND HAVERFORD WAS CONSTRUCTIVELY SEIZED AT THE TIME OF GRANTING CONSENT. …………………………… 7
A. Deputy Sanderson lacked reasonable suspicion to extend a traffic stop for a
burnt-out headlight after he issued a citation because his observations had logical, innocent explanations consistent with an uncommon experience, even if taken in their totality. …………………………………………… 8
i. The traffic stop was concluded by issuing a citation………... 9
ii. There was no reasonable suspicion to conduct field sobriety tests 9
B. Since the traffic stop was not lawfully extended to conduct field sobriety
tests, Haverford’s consent, occurring twelve seconds later, after no significant intervening event or the presence of a congenial atmosphere, was so tainted by prior illegality so as to make the evidence seized inadmissible. ……………………………………………………….. 12
i. Temporal proximity…………………………………………. 13
ii. Intervening circumstances…………………………………... 14
ii
iii. Purpose and flagrancy of the official misconduct ………….. 15
C. Haverford was constructively seized without reasonable suspicion when the deputy re-approached Haverford’s vehicle in uniform and with his emergency lights activated. ……………………………………….. 16
i. Constructive Seizure of Haverford………………………….. 16
ii. Haverford was not informed of his right to refuse the search. 17
II. THE SUPREME COURT FOR THE STATE OF EAGLETON ERRED
WHEN IT DENIED HAVERFORD’S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE HE WAS PREJUDICED WHEN HE DID NOT RECEIVE EFFECTIVE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT……………………………………………….. 18 A. Brendanawicz’s assertion that Haverford’s conviction for possession of a
controlled substance only led to a risk of deportation was constitutionally deficient…………………………………………………………….. 19
B. When Brendanawicz failed to properly inform Haverford of the deportation
consequences that would flow from his plea agreement, Haverford was prejudiced by this ineffective assistance of counsel……………… 25
CONCLUSION……………………………………………………………………… 29
iii
TABLE OF AUTHORITIES
Page
Cases:
Brown v. Illinois, 422 U.S. 590 (1975)……………………………………………… 7, 12-15
Commonwealth v. Escobar, 70 A.3d 838 (Pa.Super. 2013)………………………… 23
Cullen v. Pinholster, 131 S. Ct. 1388 (2011)……………………………………….. 23, 27
Katz v. United States, 389 U.S. 347 (1967)………………………………………… 7, 16
Florida v. Bostick, 501 U.S. 429 (1991)……………………………………………. 7, 16-17
Hinton v. Alabama, 134 S.Ct.1081 (2014)………………………………………….. 22
Illinois v. Caballes, 543 U.S. 405 (2005)…………………………………………… 8
Mapp v. Ohio, 367 U.S. 643 (1961)………………………………………………… 6
Lafler v. Cooper, 132 S. Ct. 1376 (2012)………………………………………….. 19, 25
Navertte v. California, 134 S. Ct. 1683 (2014)……………………………………… 10
Padilla v. Kentucky, 130 S. Ct. 1473 (2010)……………………………………….. 19-24, 28
Rawlings v. Kentucky, 448 U.S. 97 (1980)…………………………………………. 13
Rodriguez v. United States, 135 S. Ct. 1609 (2015)………………………………... 8-9, 17
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)…………………………………... 12
Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920)…………………………….. 7
State v. Shata, 868 N.W.2d 93 (Wis. 2015)………………………………………… 23, 24
State v. Sandoval, 249 P.3d 1015 (Wash. 2011)……………………………………. 25-26, 28
Strickland v. Washington, 466 U.S. 668 (1984)…………………………………… 19-20, 22, 25
Terry v. Ohio, 392 U.S. 1 (1968)…………………………………………………… 6-7
United States v. Bonilla, 637 F.3d 980 ( 9th Cir. 2010)…………………………….. 22, 24
iv
United States v. Drayton, 536 U.S. 194, 203-05 (2002)……………………………. 17-18
United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)…………………………….. 14-15
United States v. Johnson, 58 F.3d 356 (8th Cir. 1995)……………………………… 8
United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014)………………………... 27-29
United States v. McSwain, 29 F.3d 558 (10th Cir. 1994)…………………………… 13-14
United States v. Mendenhall, 446 U.S. 544 (1980)………………………………… 6, 16
United States v. Maez, 872 F.2d 1444 (10th Cir. 1989)……………………………... 12
United States v. Perez, 37 F. 3d 510 (9th Cir. 1994)………………………………… 10
United States v. Recalde 761 F.2d 1448 (10th Cir. 1985)…………………………… 18
United States v. Terzado-Madruga, 897 F. 2d 1099 (11th Cir. 1990)………………. 12
Wong Sun v. U.S., 371 U.S. 471 (1963)…………………………………………….. 7
Constitutional Provisions:
US Const. amend IV………………………………………………………………… 6
US Const. amend VI………………………………………………………………… 19
Statutes:
8 USC 1227(a)(2)(B)(i) (2015)……………………………………………………… 22
Secondary Materials:
ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(f), p. 116 (3d ed.1999). 20
U.S. FOOD AND DRUG ADMINISTRATION, MEDICATION GUIDE- ADDERALL XR® (2013), http://www.fda.gov/downloads/Drugs/DrugSafety/ucm085819.pdf……………….. 10 Jack E. Richman, et. al., An Evaluation of Pupil Size Standards Used by Police Officers for Detecting Drug Impairment, 75 OPTOMETRY CLINICAL RESEARCH 1, 3 (2014), http://www.decp.org/pdfs/jaoapupilsizepaperrichman2.pdf…................................... 11
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QUESTIONS PRESENTED FOR REVIEW
1. Whether the district court improperly denied Haverford’s motion to suppress the
evidence of illegal activity where the police officer lacked reasonable suspicion to extend the
traffic stop, Haverford’s consent was tainted by prior illegality, and Haverford was
constructively seized at the time of granting consent.
A. Whether Deputy Sanderson lacked reasonable suspicion to extend a traffic stop
for a burnt-out headlight after he issued a citation for observations that have
logical, innocent explanations even when taken in their totality.
B. If the traffic stop was not lawfully extended to conduct field sobriety tests, was
Haverford’s consent, occurring twelve seconds later and after no significant
intervening event or the presence of a congenial atmosphere, so tainted by prior
illegality, so as to make the evidence seized inadmissible?
C. Was Haverford constructively seized without reasonable suspicion when the
deputy re-approached Haverford’s vehicle in uniform with his emergency lights
activated?
2. Whether the district court properly refused to allow Petitioner to withdraw his guilty
plea:
A. Was Attorney Brendawicz’s assertion that Petitioner’s conviction led to a risk of
deportation constitutionally deficient?
B. Was Petitioner prejudiced because of Attorney Brendanawicz’s deficient
performance?
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STATEMENT OF THE CASE
On May 20, 2013, Tomas Haverford (“Haverford”), a 31-year-old resident of Eagleton,
was driving his maroon Chevy truck on Knudson Avenue when he was pulled over for a burnt-
out headlight. (R. at 4). Haverford showed no signs of erratic or impaired driving and pulled
over right away. (R. at 7). Deputy David Sanderson (“Deputy Sanderson”) of the Pawnee
County Sheriff’s Department approached Haverford’s vehicle and obtained Haverford’s
information before returning to his commission. (R. at 4). Deputy Sanderson then issued
Haverford a traffic citation and asked Haverford if he would take a field sobriety test because, in
the Deputy’s opinion, Haverford appeared nervous, was shaking, and his pupils were restricted.
Id. Haverford agreed to the tests and once they were concluded, Deputy Sanderson determined
that Haverford was not impaired and instructed him that he was free to go. Id. Twelve seconds
later, with the lights of Deputy Sanderson’s commission still flashing, he reapproached
Haverford’s car and asked if he could speak with him again. (R. at 4,8). Haverford agreed and
Deputy Sanderson proceeded to inquire if Haverford would give him permission to search the
vehicle. Id. Haverford once again agreed to the Deputy’s requests; the search of the vehicle
revealed several methamphetamine precursors and a substance, which later tested positive for
methamphetamine. (R. at 6). Deputy Sanderson subsequently arrested Haverford for possession
with the intent to manufacture methamphetamine. (R. at 14).
On May 30, 2013, Haverford was charged with violating Eagleton Controlled Substances
Act, Eg. State. § 841(a)(1). (R. at 40). On June 19, 2013, Haverford, through counsel Mark
Brendanawicz, filed a motion to suppress evidence resulting from Deputy Sanderson’s search of
his vehicle. Id. The trial court denied Haverford’s motion. Id. Haverford appeared for his plea
hearing on August 21, 2013, with his attorney Mark Brendanawicz. (R. at 23). At the
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commencement of the proceeding, Brendanawicz requested an adjournment, stating Haverford, a
native Venezuelan but lawful permanent resident of the United States since 2003, did not want to
be deported and was worried about the consequences of his plea. (R. at 24). The court denied his
request, but did allow Brendanawicz thirty minutes to research the deportation consequences of
entering into a plea agreement. (R. at 24, 25).
To research this issue, Brendanawicz contacted several federal prosecutors to inquire
whether Haverford’s “guilty” plea would subject him to deportation. (R. at 28). No attorney gave
an absolute affirmative answer; rather each said, “it could.” (R. at 28, 29). Brendanawicz did no
other independent research to determine the immigration consequences of the possible plea
agreement. (R. at 28).
Brendanawicz advised Haverford that there was a strong risk he could be deported. (R. at
29). Despite efforts to arrange a more favorable plea agreement, Brendanawicz felt that if the
matter were to be set for trial, there was no viable defense he could have raised. (R. at 29). He
remarked that, “it was a tough spot to be in, given the situation.” (R. at 29).
When the plea hearing reconvened, the court advised Haverford of the risk of deportation
if he entered a guilty plea. (R. at 25). When Haverford pled guilty, he again expressed his
apprehension about the deportation consequences of the plea. (R. at 25). Brendanawicz, when
attempting to negotiate the parameters of the sentence, stated for a third time that Haverford was
nervous about deportation. (R. at. 26). Despite a request for expungement to allay concerns over
deportation, the guilty plea was entered on a conditional basis, preserving the right to appeal the
court’s denial of the motion to suppress. (R. at 26). Brendanawicz also attempted to have
Haverford placed on probation and told him that he would only be deported if he went to jail. (R.
at 30).
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On September 23, 2013, Haverford received a notice to appear for a removal proceeding
brought by the Immigration and Naturalization Service. (R. at 22). The notice charged that
Haverford, who had no family in either Venezuela or the United States, was subject to removal
from the country because of his conviction relating to controlled substances. (R. at 22).
Haverford said in his post-conviction hearing that he would have gone to trial and never would
have pled guilty if he had known his deportation would be automatic. (R. at 30).
On October 16, 2013, Haverford filed a motion under under Eagleton R. Crim. Pro. 11 to
challenge his conviction asserting he received ineffective assistance of counsel, alleging that
Brendanawicz failed to properly warn him of the deportation consequences of his conviction. (R.
at 28). The Pawnee District Court for the State of Eagleton denied this motion on November 1,
2013, holding that although Brendanawicz’s performance was deficient, it did not sufficiently
prejudice Haverford. (R. at 37). On appeal, the Supreme Court for the State of Eagleton reversed
the district court on the issue of deficient performance but affirmed the denial of Haverford’s
motion under Eagleton R. Crim. Pro. 11. (R. at 50).
SUMMARY OF THE ARGUMENT
The Fourth Amendment requires that evidence obtained from an illegal search, or as the
result of an illegal seizure, go unused against a defendant. Here, the trial court improperly
denied Haverford’s motion to suppress the evidence of illegal activity for several reasons.
First, Deputy Sanderson lacked reasonable suspicion to extend a traffic stop. The initial
reason for the traffic stop was a burnt-out headlight. Deputy Sanderson concluded his traffic
investigation and issued a citation before conducting field sobriety tests on Haverford based
solely on observations that have logical, innocent explanations even when taken in their totality.
Deputy Sanderson therefore lacked reasonable suspicion to prolong the traffic stop longer than
5
was necessary to conduct his traffic investigation and therefore the subsequent detention of
Haverford amounted to an illegal seizure.
Since Deputy Sanderson illegally prolonged the traffic stop, Haverford’s subsequent
consent was so tainted by prior illegality so as to make the evidence seized inadmissible.
Haverford had consistently stated that he wished to leave and was kept at the scene only by
Deputy Sanderson’s assertion of authority. Furthermore, Haverford consented only twelve
seconds after Deputy Sanderson’s unconstitutional prolonging of the traffic stop. No significant
intervening circumstances occurred during that time, and the search amounted to nothing more
than a mere fishing expedition by Deputy Sanderson.
Regardless of whether Deputy Sanderson had reasonable suspicion to conduct field
sobriety or whether Haverford’s consent was a result of a prior illegality, Deputy Sanderson still
lacked reasonable suspicion in order to obtain consent from Haverford during a constructive
seizure. Although Deputy Sanderson told Haverford that he was free to leave, he re-approached
Haverford’s vehicle only twelve seconds later. The lights on Deputy Sanderson’s commission
were still flashing and a reasonable person in Haverford’s position would not have felt as though
they were free to leave the scene and ignore an approaching police officer.
When Brendanawicz failed to inform Haverford that deportation was a certain
consequence of his conviction, he was not performing as the effective counsel guaranteed by the
Sixth Amendment to the Constitution. After Padilla v. Kentucky was handed down a few short
years ago, it is the responsibility of defense counsel to have at least a general awareness of the
immigration consequences of controlled substance cases on lawful permanent residents.
This deficient performance prejudiced Haverford in such a way that he would have
approached the plea bargaining process in a different way had he known his deportation
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proceeding was an automatic consequence of his plea. Given the severity of deportation, it would
be rational for defendants like Haverford to take a chance at trial rather than certain deportation
flowing from entering a guilty plea. Therefore, this Court should reverse the findings of the
Supreme Court of the State of Eagleton and find Haverford was prejudiced under the Sixth
Amendment by receiving ineffective assistance of counsel.
STANDARD OF APPELLATE REVIEW
This Court should review the finding of reasonable suspicion de novo. Ornelas v. United
States, 517 U.S. 690-91 (1996). Such a standard “will prevent unacceptably varied results based
on the interpretation of similar facts by different trial judges.” Brinegar v. United States, 338
U.S. 160 (1949). The trial court’s finding of fact is reviewed under a clearly erroneous standard.
See Eagleton R. Civ. P. 52(a)(6). Finally, this Court reviews the trial court’s legal conclusions
de novo. United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).
Similarly, when this Court reviews reviews the trial court’s denial of a motion to
withdraw a guilty plea, it should review the trial court’s legal conclusions de novo. United States
v. Reves, 774 F.3d 562, 564 (2014).
ARGUMENT
The Fourth Amendment states, “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . .”
U.S. Const. amend. IV. The Fourth Amendment’s protection of individuals from unreasonable
searches and seizures applies to the states by way of the Fourteenth Amendment to the U.S.
Constitution. Mapp v. Ohio, 367 U.S. 643, 635 (1961). A seizure occurs when an officer, “by
means of physical force or show of authority, has in some way restrained” a citizen’s liberty.
United States v. Mendenhall, 446 U.S. 544, 552 (1980) (quoting Terry v. Ohio, 392 U.S. 1, 16
7
(1968)). A person is seized only if, in view of the totality of the circumstances, a reasonable
person would believe that he was not free to leave. Id. at 554. In order to seize a person, a police
officer must have reasonable suspicion based on “specific and articulable facts . . . taken together
with rational inferences from those facts.” Terry, 392 U.S. at 21.
While warrantless searches are per se unreasonable under the Fourth Amendment,
consensual searches are an exception. Katz v. United States, 389 U.S. 347 (1967). Upon an
interaction amounting to a constructive seizure, an officer needs reasonable suspicion to request
consent for a search. Florida v. Bostick, 501 U.S. 429, 431 (1991). Evidence obtained from an
illegal search is subject to the exclusionary rule and “shall not be used at all”. Silverthorne
Lumber Co. v. U.S., 251 U.S. 385, 392 (1920). When evidence is seized as the result of an illegal
search, the question becomes “whether, granting establishment of the primary illegality, the
evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” Wong Sun v. U.S., 371 U.S. 471, 488 (1963).
Courts consider three factors when determining whether evidence obtained following a Fourth
Amendment violation was a result of that violation or was sufficiently attenuated as to dissipate
the taint caused by that seizure. Brown v. Illinois, 422 U.S. 590, 603 (1975). First, the temporal
proximity of the official misconduct and the seizure of evidence are considered. Id. Second,
courts consider whether intervening circumstances existed between the Fourth Amendment
violation and the evidence collection. Id. Third, the purpose and flagrancy of the official
misconduct are evaluated. Id.
I. THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF THE STATE OF EAGLETON AND HOLD THAT THE TRIAL COURT IMPROPERLY DENIED HAVERFORD’S MOTION TO SUPPRESS THE EVIDENCE OF ILLEGAL ACTIVITY WHERE THE POLICE OFFICER LACKED REASONABLE SUSPICION TO EXTEND THE TRAFFIC STOP, HAVERFORD’S CONSENT WAS
8
TAINTED BY PRIOR ILLEGALITY, AND HAVERFORD WAS CONSTRUCTIVELY SEIZED AT THE TIME OF GRANTING CONSENT. On the evening of May 20, 2013, Deputy Sanderson conducted a traffic stop on
Haverford’s vehicle pursuant to the State of Eagleton’s traffic laws. After issuing Haverford a
citation for the offense, Deputy Sanderson lacked reasonable suspicion to conduct field sobriety
tests, thus unconstitutionally prolonging the traffic stop. The evidence obtained from
Haverford’s subsequent consent was insufficiently attenuated from the illegal activity in order to
be admissible. However, even if this Court finds the evidence sufficiently attenuated from the
illegal activity or that there was reasonable suspicion for the prolonging of the traffic stop, the
officer still lacked the necessary reasonable suspicion required to secure consent during a
constructive seizure. For any or all of these reasons, the search violated the Fourth Amendment
and its fruits should be suppressed.
A. Deputy Sanderson lacked reasonable suspicion to extend a traffic stop for a burnt-out headlight after he issued a citation because his observations had logical, innocent explanations consistent with an uncommon experience, even if taken in their totality.
A police officer may stop a vehicle when he or she reasonably believes the driver is
violating a traffic law. United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995). In conducting
a traffic stop, the interaction between the police and a citizen is more analogous to a Terry stop
than to a formal arrest. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). The seizure’s
“mission” determines the tolerable duration of a traffic stop, which is the underlying traffic
violation warranting the stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). The mission for a
traffic violation includes checking the driver’s license, determining whether there are outstanding
warrants against the driver, inspecting the automobile’s registration and proof of insurance, as
well as tending to relevant safety concerns. Rodriguez 135 S. Ct. 1609, 1610. However, a traffic
9
stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete
th[e] mission. . .” of investigating a traffic violation and issuing a traffic citation. Id. at 407.
i) The traffic stop was concluded by issuing a citation.
Deputy Sanderson’s mission during his traffic stop of Haverford was limited to
investigating the underlying traffic violation. Deputy Sanderson initiated the traffic stop on
Haverford’s maroon Chevy truck because the vehicle had a burnt-out headlight. (R. 4). Deputy
Sanderson spoke with Haverford and obtained his information before returning to his police
commission. (R. at 5). When Deputy Sanderson returned to Haverford’s truck, he issued him a
citation before he inquired as to whether he would be willing to take a field sobriety test. (R. at
5). By issuing Haverford a citation before inquiring about field sobriety, Deputy Sanderson
effectively completed the mission of his traffic stop, which was the investigation of the
underlying traffic violation (i.e., the burnt-out headlight) and unconstitutionally prolonged the
traffic stop to fish for unrelated criminal activity. In Rodriguez, a police officer issued a driver a
citation before asking the driver for permission to walk his dog around the vehicle. Rodriguez
135 S. Ct. at 1614. Although the justification for the traffic stop was “out of the way,” the police
officer did not consider the individual “free to leave”. Id. at 610. This Court held that, “… a
police stop exceeding the time needed to handle the matter for which the stop was made violates
the Constitution’s shield against unreasonable seizures.” Id. Similarly, even though Deputy
Sanderson had concluded the traffic stop of Haverford, he did not consider him “free to leave.”
Id. Indeed, when Haverford asked, “Can I go home?” Deputy Sanderson replied, “Nope, just
hang tight”. (R. at 12).
ii) There was no reasonable suspicion to conduct field sobriety tests.
10
Deputy Sanderson did not have reasonable suspicion to expand the scope of inquiry
beyond the underlying traffic violation and conduct field sobriety tests. An officer may expand
the scope of inquiry to investigate additional suspicious factors that come to the officer’s
attention, but when accompanied by an extension of time longer than would have been needed
for the original stop, such action must be supported by reasonable suspicion. United States v.
Perez, 37 F. 3d 510, 513 (9th Cir. 1994); Navertte v. California, 134 S. Ct. 1683, 1687 (2014).
Deputy Sanderson stated that during their brief conversation through the window of Haverford’s
truck, Haverford had “appeared to be nervous,” “his pupils were restricted,” and his upper body
was shaking while seated in the truck. (R. at 4). Combined with other evidence of impairment,
these observations could contribute to reasonable suspicion; but without such evidence, they are
mere observations.
Haverford’s alleged nervousness and shaking have several logical, innocent explanations
even when taken in their totality. First, the record is wholly absent of any mention that
Haverford had previous experience with the police. After all, it isn’t every day that a citizen is
the subject of a police inquiry. However innocent one may be, nervousness and shaking in
response are not unusual behaviors when experiencing an uncommon and stressful event.
Second, prior to conducting the field sobriety test, Haverford informed Deputy Sanderson that he
was prescribed the medication Adderall. (R. at 12). According to the U.S. Food and Drug
Administration, shaking and nervousness are both “common side effects” of taking Adderall and
are closely associated with its use.1 Additionally, Deputy Sanderson was not a drug recognition
expert and he had never met Haverford before. (R. at 7-8). For all he knew, that behavior was
normal for Haverford. Id. In sum, displaying one’s normal mannerisms, exhibiting common side
1 U.S. FOOD AND DRUG ADMINISTRATION, MEDICATION GUIDE- ADDERALL XR® (2013),
http://www.fda.gov/downloads/Drugs/DrugSafety/ucm085819.pdf.
11
effects of widely used medication, or being nervous when experiencing an unusual and stressful
event, does not amount to a reasonable suspicion.
Deputy Sanderson’s determination that Haverford’s pupils were restricted is both
unreliable and unfounded. Deputy Sanderson was not a drug recognition expert. (R. at 8). While
he was provided field sobriety training, he could not remember if pupil size was covered during
the training and remarked that, “[i]t was awhile ago.” (R. at 10). When asked what drugs cause
pupil restrictions, Deputy Sanderson was only able to list cocaine and admitted that he did not
know how methamphetamine affects the pupils. (R. at 8). Even if Deputy Sanderson was able to
accurately approximate the size of Haverford’s pupils despite his lack of training and
fundamental knowledge of the subject, his estimate was still within the normal range of pupil
size. According to Deputy Sanderson’s testimony, Haverford’s pupils were three millimeters in
diameter. Even for law enforcement drug recognition experts, the present criterion considers the
normal, non-impaired range to be between 3.0 millimeters to not more than 6.5 millimeters.2
Therefore, because Deputy Sanderson lacked fundamental knowledge pertaining to pupil size
and the fact that his own approximation placed Haverford’s pupils within the normal, non-
impaired range, reasonable suspicion could not have derived from Haverford’s pupil size.
Aside from Deputy Sanderson’s observations that have logical, innocent explanations, all
other facts negate any hypothesis that Haverford was impaired. Most importantly, Deputy
Sanderson’s traffic stop of Haverford’s vehicle was due to a burnt-out headlight as opposed to
erratic driving or any other indication of impaired driving. (R. at 6). Further, Haverford pulled
over right away after Deputy Sanderson initiated his emergency lights. (R. at 7). Upon
2Jack E. Richman, et. al., An Evaluation of Pupil Size Standards Used by Police Officers
for Detecting Drug Impairment, 75 OPTOMETRY CLINICAL RESEARCH 1, 3 (2014), http://www.decp.org/pdfs/jaoapupilsizepaperrichman2.pdf.
12
approaching, Deputy Sanderson did not observe or smell any odor of intoxicants or drugs in
Haverford’s vehicle or on Haverford’s person. Id. He also did not have slurred speech, trouble
with his balance, or fail to comply with any of Deputy Sanderson’s requests. Id. Considering the
totality of the circumstances, Deputy Sanderson did not have reasonable suspicion to conduct
field sobriety tests.
B. Since the traffic stop was not lawfully extended to conduct field sobriety tests, Haverford’s consent, occurring twelve seconds later, after no significant intervening event or the presence of a congenial atmosphere, was so tainted by prior illegality so as to make the evidence seized inadmissible.
Haverford’s consent to search his truck was so tainted by prior illegality that the evidence
seized is inadmissible. The attenuation analysis is well established. Brown v. Illinois, 422 U.S.
590, 603-04 (1975). This doctrine makes challenged evidence admissible “if the causal
connection between the constitutional violation and the discovery of the evidence has become so
attenuated as to dissipate the taint” United States v. Terzado-Madruga, 897 F. 2d 1099, 1113
(11th Cir. 1990). The government bears the burden of proving the voluntariness of consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). To satisfy the burden, the government
must establish that consent is “sufficiently an act of free will to purge the primary taint of the
illegal [seizure], [or] it must be suppressed as fruit of the poisonous tree.” United States v. Maez,
872 F.2d 1444 (10th Cir. 1989). Courts consider three factors when determining whether
evidence obtained following a Fourth Amendment violation was a result of that violation, of
which no factor is dispositive and all three factors are significant. Brown, 422 U.S. at 603. First,
the temporal proximity of the official misconduct and the seizure of evidence are considered. Id.
Second, courts consider whether intervening circumstances existed between the Fourth
Amendment violation and the evidence collected. Id. Third, the purpose and flagrancy of the
13
official misconduct are evaluated. Id. Applied here, these factors weigh in favor of the evidence
obtained against Haverford being the result of a Fourth Amendment violation.
i) Temporal proximity.
The temporal proximity of official misconduct and seizure of evidence weighs heavily in
favor of the evidence seized as a result of a Fourth Amendment violation. Here, only a twelve-
second interval separated the two events. (R. at 14). Such a short time span weighs against
attenuation. In United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994), thirty-five seconds
passed between the illegal conduct and the consensual search. The Court noted that they had
repeatedly held that consent was involuntary when a seizure occurs in such close temporal
proximity to an illegal stop and in some cases, even forty-five minutes was not sufficient to
purge the taint of an illegal seizure. Id. In Brown, a statement given two hours after an illegal
arrest was still “fruit of the poisonous tree.” Brown, 422 U.S. at 604-605. These time spans
dwarf the twelve seconds present in this case.
The absence of a congenial atmosphere in this case also weighs against attenuation.
When considering temporal proximity, courts also consider the presence of a congenial
atmosphere or the absence thereof. Rawlings v. Kentucky, 448 U.S. 97, 109 (1980). Here,
Haverford repeated his desire to leave and expressed aggravation throughout the stop. (R. at 11-
12). Not only did the inherent power disparity between Deputy Sanderson and Haverford
become more apparent throughout their interaction, but Deputy Sanderson explicitly told him
that he was not free to leave. (R. at 12). The circumstances of this case are a far cry from those
of Rawlings. There, the Court found the fact that defendant had even “[got] up and put an album
on” and the Court found this factor in favor of attenuation. Rawlings, 448 U.S. at 109. Here,
Haverford had no such freedom, repeated his desire to leave, and was only dissuaded from doing
14
so by the Deputy’s assertion of authority. (R. at 12). Therefore, a brief twelve-second interval
and absence of a congenial atmosphere place the first factor squarely opposed to attenuation.
ii) Intervening circumstances.
The intervening circumstances also weigh against attenuation. In the attenuation
analysis, presence of intervening circumstances refers to events occurring between the illegality
and purported consensual search. Brown, 422 U.S. at 603-04. Courts view the circumstances
from the defendant’s perspective when determining whether any intervening event occurred that
would isolate them from the coercive effects of the illegality. United States v. Gregory, 79 F.3d
973, 980 (10th Cir. 1996). Here, Haverford was told, “you’re okay to go” after the completion of
field sobriety. (R. at 14). Deputy Sanderson only took twelve-seconds before he re-approached
Haverford’s vehicle and asked for consent to search. Id. From Haverford’s perspective, it would
have appeared that Deputy Sanderson’s previous statement was negated when he re-approached
his vehicle before he had time to leave. Considering the totality of the circumstances, a
reasonable person in Haverford’s position would not have felt as though they were free to leave.
Courts have concluded events such as the presence of counsel, appearance before a magistrate, or
the issuance of Miranda warnings to be sufficient intervening circumstances. Gregory, 79 F. 3d
973, 980. Deputy Sanderson uttering, “you’re okay to go” and his brief stroll back to his
commission certainly do not amount to the legally significant intervening circumstances found to
be sufficient in order to make a search voluntary. In McSwain “only a few minutes” passed
between an illegal detention and consent (during which time no significant intervening
circumstances occurred) and the court found there was no “break in the causal connection
between the illegality and the evidence they obtained.” McSwain,29 F.3d at 563 (quoting U.S. v.
Fernandez, 18 F.3d 874, 882 (10th Cir. 1994)). Under the facts of this case, there was not only
15
no significant intervening circumstances but there was also “no break in the causal connection
between the illegality and the evidence they obtained.” Id.
iii) Purpose and flagrancy of the official misconduct.
The purpose of Deputy Sanderson’s search of Haverford’s vehicle was not to further the
legitimate traffic investigation, but rather served only to obtain incriminating evidence against
him. This third factor, the purpose and flagrancy of the official misconduct, is perhaps the most
telling because it speaks to the purpose of the exclusionary rule itself. Brown, 422 U.S. at 605.
In Gregory, the court found that the officer had little interest in the underlying traffic violation
and was instead interested “ . . . in the contents of the truck and acquiring entrance to the
contents.” Gregory, 79 F.3d at 980. The court found these types of baseless searches to amount
to mere “fishing expedition[s] in the hope that something might turn up.” Id. Similarly, Deputy
Sanderson had concluded his traffic investigation, issued Haverford a citation, and was only
interested in obtaining incriminating evidence against Haverford. (R. at 14). As the court
concluded in Gregory, this Court should too find “ . . . no legal justification for the officer’s
continued detention of the defendant sufficient to satisfy the third factor in Brown.” Gregory, 79
F.3d at 980.
Taken as a whole, all three factors from Brown weigh against a determination of
attenuation. Only a short, twelve-second time span existed between the consent and the Fourth
Amendment violation. The officer’s show of authority and Haverford’s repeated requests to
leave also negate the presence of a congenial atmosphere. No legally sufficient intervening
circumstance occurred between the two events and a reasonable person in Haverford’s position
would not have felt as though they were free to leave. Finally, the only purpose served by
16
Deputy Sanderson’s search was to collect incriminating evidence against Haverford. Therefore,
all three factors weigh against attenuation.
C. Haverford was constructively seized without reasonable suspicion when the deputy re-approached Haverford’s vehicle in uniform and with his emergency lights activated.
A seizure has occurred when an officer, “by means of physical force or show of
authority, has in some was restrained” a citizen’s liberty. Mendenhall, 446 U.S. at 552 (quoting
Terry, 392 U.S. at 16). A person is seized only if, in view of the totality of the circumstances, a
reasonable person would have believed that he was not free to leave. Id. at 554. In addition to
whether a reasonable person would have felt free to leave, this Court has also explained a seizure
by asking whether a reasonable person would have felt free “to ignore the police presence and go
about his business.” Bostick, 501 U.S. at 437.
While under the Fourth Amendment, warrantless searches are per se unreasonable,
consensual searches are an exception. See Katz, 389 U.S. 347 (1967). When an interaction
amounts to a constructive seizure, police need reasonable suspicion to request consent to search.
Bostick, 501 U.S. at 431. Here, Haverford was constructively seized when Deputy Sanderson re-
approached his truck and obtained consent to search before Haverford had time to leave. Under
the totality of the circumstances, a reasonable person in Haverford’s position would not have felt
as though they were free to ignore a police officer that was approaching their vehicle and go
about their business. Perhaps most importantly, Haverford was not informed that he could refuse
the search and Deputy Sanderson lacked reasonable suspicion to obtain consent. For these
reasons, Haverford was constructively seized and his consent was not voluntary.
i) Constructive Seizure of Haverford.
17
Under the totality of the circumstances, a reasonable person in Haverford’s position
would not have felt as though they were free to leave when Deputy Sanderson re-approached his
truck; therefore Haverford was constructively seized. After completing the field sobriety test and
concluding that Haverford was not impaired, Deputy Sanderson said, “I’ll let you get on your
way then”. (R. at 14). Deputy Sanderson then returned to his vehicle and stood by the driver’s
side. (R. at 12). As this Court noted in Rodriguez, absent additional reasonable suspicion, the
officer must allow the seized person to depart once the purpose of the stop has concluded.
Rodriguez, 135 S.Ct. at 1609. Here, Deputy Sanderson never reentered his vehicle and instead,
after only twelve seconds, re-approached Haverford’s truck. (R. at 12). In such a short period of
time, Haverford did not have an opportunity to leave the scene. Deputy Sanderson’s emergency
lights were still activated as well. (R. at 8). With emergency lights still flashing behind him and
a police officer quickly approaching his vehicle, certainly Haverford would not have felt free “to
ignore the police presence and go about his business.” Bostick, 501 U.S. at 437. Under these
conditions, a reasonable person would not have felt free to leave. Accordingly, Haverford was
constructively seized.
ii) Haverford was not informed of his right to refuse the search.
Deputy Sanderson failed to notify Haverford of his right to refuse the search of his truck.
While this Court has rejected the suggestion that police officers must always inform citizens of
their right to refuse when seeking permission to conduct a warrantless consent search, the
Eleventh Circuit noted that, “providing [this] simple notification . . . is perhaps the most efficient
and effective method to ensure compliance with the Constitution.” United States v. Drayton, 536
U.S. 194, 203-05 (2002). Furthermore, informing an individual of his constitutional rights,
particularly Fourth Amendment rights, is important because it “shows the individual that the
18
police are prepared to respect his assertion of those rights.” U.S. v. Recalde 761 F.2d 1448, 1458
(10th Cir. 1985). Here, after Deputy Sanderson had re-approached Haverford’s vehicle, he asked
him, “Do you have anything that I need to know about?” and then proceeded to ask, “May I
search your vehicle?” (R. at 14). Despite the fact that Deputy Sanderson asked Haverford if he
“may” search his vehicle, this certainly does not lead to the logical conclusion that Haverford
knew he had the right to refuse the search. In Drayton, the dissent noted that the police “set the
scene [as an] atmosphere of obligatory participation” when officers announced they were
conducting bus interdiction and “they would like . . . cooperation”. Drayton, 536 U.S. 194, 210
(Souter, J., dissenting). There, as Justice Souter concluded, later requests prefaced with “Do you
mind . . .” would naturally have been understood in the terms with which the encounter began.
Id. Similarly here, Deputy Sanderson had refused several of Haverford’s requests and explicitly
told him that he was not free to leave. (R. at 12).
Deputy Sanderson also phrased what were essentially commands in the form of
questions. For example, when Deputy Sanderson asked Haverford to exit his vehicle and to
speak with him on the street, this was essentially a command in the form of a question because
had Haverford declined, Deputy Sanderson had the authority to remove him from the vehicle and
consistent with police practices, likely would have. Id. Certainly, Haverford would have viewed
Deputy Sanderson’s request to search his vehicle in light of the nonconsensual nature of the
twenty-four minute traffic stop. Because Deputy Sanderson did not inform Haverford of his
right to refuse the search of his truck and the overall nature of the traffic stop, Haverford’s
consent was not voluntary.
II. THE SUPREME COURT FOR THE STATE OF EAGLETON ERRED WHEN IT DENIED HAVERFORD’S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE HE WAS PREJUDICED WHEN HE DID NOT RECEIVE EFFECTIVE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT.
19
When Mark Brendanawicz failed to adequately explain to Tomas Haverford that the
charge to which he pled guilty carried a mandatory deportation consequence, his deficient
performance as an attorney unduly prejudiced Haverford’s decision to enter a guilty plea. The
right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United
States Constitution. US Const. amend VI; see also Strickland v. Washington, 466 U.S. 668, 685-
86 (1984). This right “is necessary to accord defendants the ‘ample opportunity to meet the case
of the prosecution’ to which they are entitled.” Id. at 685, citing Adams v. U.S. ex rel. McCann,
317 U.S. 269, 275-76 (1942). The right to effective assistance of counsel extends to and applies
throughout the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012).
To prevail on a claim of ineffective assistance of counsel, an individual must show (1)
that his or her counsel’s performance was deficient, and (2) that he or she was prejudiced by that
deficient performance. Strickland, 466 U.S. at 687. There are certain Sixth Amendment
contexts in which deficient performance is presumed. Id. at 692. In the recent case Padilla v.
Kentucky, this Court held that constitutionally competent counsel must advise non-citizen clients
whenever a conviction makes them subject to automatic deportation. 130 S. Ct. 1473, 1478
(2010). Lower courts are split on whether failure to properly advise a client of deportation
consequences results in prejudice.
Accordingly, this Court should reverse the Supreme Court for the State of Eagleton and
hold that Haverford was prejudiced by Brendanawicz’s deficient performance as an attorney.
A. Brendanawicz’s assertion that Haverford’s conviction for possession of a controlled substance only led to a risk of deportation was constitutionally deficient.
Brendanawicz’s performance was deficient under the Sixth Amendment because he failed
to adequately advise Haverford of the almost certain deportation consequences that flowed from
20
his conviction. This Court has held that an attorney’s performance is deficient under the first
prong of Strickland when that attorney fails to give clear and correct advice regarding the
deportation consequences of a particular offense. Padilla, 130 S.Ct. at 1483. To that end,
Brendanawicz’s performance as counsel must be reasonable under prevailing professional
norms. Id. at 1482, quoting Strickland, 466 U.S. at 688.
In Padilla, the defendant was a lawful permanent resident who entered a guilty plea after
being caught with a large amount of marijuana in his tractor trailer. The defendant had been a
lawful permanent resident of the United States for forty years and had served in the Armed
Forces. The defendant’s attorney failed to give him any advice before the plea hearing and told
the defendant that, because he had been in the United States for a long period of time, he did not
have to worry about being deported. The defendant claimed he would not have relied on this
advice if he had known deportation was a mandatory consequence of his conviction and that he
would have instead gone to trial.
Recognizing that the stakes have never been higher for noncitizens who face almost
certain deportation after committing an offense under the Controlled Substance Act, this Court’s
decision noted “[t]he importance of accurate legal advice for noncitizens accused of crimes has
never been more important.” Id. at 1480. When evaluating the reasonableness standard of the
first prong of Strickland, this Court’s decision stated, “prevailing norms of practice as reflected
in American Bar Association standards… are guides to determining what is reasonable… [and]
may be valuable measures of the prevailing professional norms of effective representation.” Id.
at 1482. To that end, the American Bar Association (ABA) charges defense attorneys to advise a
defendant on potential collateral consequences to entering a plea agreement. ABA Standards for
Criminal Justice, Pleas of Guilty 14-3.2(f), p. 116 (3d ed.1999). The official comment for this
21
standard says that defense attorneys “should be familiar with the basic immigration
consequences that flow from different types of guilty pleas,” especially as it pertains to crimes
involving controlled substances. Id. The Padilla decision cited five additional sources akin to
the ABA standard and noted that these publications share the common advice that defense
attorneys must warn noncitizen clients about deportation consequences of certain crimes.
Padilla, 130 S.Ct. at 1482. This advice is critical because deportation may be a worse
consequence than a potential jail sentence for some noncitizen defendants. Id. at 1483.
The present case bears many similarities to the Padilla case decided just six years ago by
this Court. Primarily, both Haverford and the defendant in Padilla were lawful permanent
residents who pled guilty to a violation of the Controlled Substance Act. Both individuals faced
deportation as a result of this plea and each stated that, had they known they would face certain
deportation, they would have made a different decision during the plea hearing. In fact,
Haverford feared going back to Venezuela because, as he described the country, it was a
dangerous place where he had no family or job waiting for him. (R. at 30).
While counsel in Padilla falsely assured defendant there would be no deportation
consequences flowing from the plea deal and Brendanawicz at least advised Haverford of the
strong risk of deportation, the Court’s holding that competent counsel should advise his or her
client that certain convictions lead to automatic deportation should not be overlooked. Padilla,
130 S.Ct. at 1478. Although immigration law and deportation consequences of certain crimes
can be quite complex when reviewed by a criminal defense attorney, the duty to give correct
advice regarding deportable offenses is at its most critical when the deportation statute is clear.
Id. at 1483. In Haverford’s case, the pertinent Controlled Substances Act statute reads:
Any alien who at any time after admission has been convicted of a violation of… any law or regulation of a State, the United States, or a foreign country relating to
22
a controlled substance… other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
8 USC 1227(a)(2)(B)(i) (2015) (emphasis added). This Court in Padilla held that the
consequences of this statute are clear: deportation is presumptively mandatory. Padilla, 130
S.Ct. at 1483. See also US v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2010) (holding that a non-
citizen defendant “who faces almost certain deportation is entitled to know more than that it is
possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual
certainty”).
Even if Brendanawicz’s advice was fairly accurate in that it portrayed deportation as a
possibility, this Court in Hinton v. Alabama held that although strategic choices made after
thorough investigations are virtually unassailable, those choices made by an attorney after
limited investigation are subject to closer scrutiny. 134 S.Ct.1081, 1088 (2014). In Hinton, the
defendant was charged with two counts of murder. The only evidence linking the defendant to
the crime was a gun found in his possession and several bullets found at the scene of the crime.
Defense counsel failed to investigate the statutory dollar amount that could be requested to hire a
credible ballistics expert. This Court held that “an attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research on that point is a
quintessential example of unreasonable performance under Strickland.” Id. at 1089.
Although factually dissimilar from the present case, Hinton, in tandem with Padilla,
should stand for the proposition that defense attorneys must be held to a higher standard when
researching critical elements of the defendant’s case. Despite the time available to him before
and during the plea hearing, Brendanawicz did no independent research surrounding the
deportation consequences of the plea deal that was being offered to Haverford. Brendanawicz
knew at the outset of the plea hearing that Haverford was worried about being deported. Even
23
though Brendanawicz called a few federal prosecutors to discuss deportation consequences, the
record is silent as to whether he corroborated their advice or consulted a defense attorney who
would have had more direct experience with this matter.
This Court has also previously deferred to the professional judgment of the attorney when
evaluating a Sixth Amendment claim of ineffective assistance of counsel. See, e.g., Cullen v.
Pinholster, 131 S. Ct. 1388, 1407 (2011) (reinforcing the requirement that Strickland gives a
strong presumption of competence and defers to the lawyer’s exercise of “reasonable
professional judgment” and recognizing that there are many ways in which effective assistance
may be given in any case). In that vein, several state courts have held that failure to inform a
defendant of certain deportation consequences does not give rise to a proper Sixth Amendment
claim. See State v. Shata, 868 N.W.2d 93 (Wis. 2015) (standing for the proposition that counsel
gives reasonably competent advice when simply advising their client of “a risk” of deportation);
and Commonwealth v. Escobar, 70 A.3d 838 (Pa.Super. 2013) (finding that the same statute
interpreted to require deportation upon conviction in Padilla does not create the certainty that
requires counsel to advise client of “certain deportation”).
In Shata, the noncitizen defendant was charged with possession with intent to deliver
marijuana. At the plea hearing, defense counsel advised the court that the defendant was nervous
about deportation and asked for more time to deal with the immigration issue. Before the
defendant entered his guilty plea, he was warned there was a risk he could be deported. The
defendant moved for postconviction relief, arguing that his attorney’s performance was deficient
because he was not properly warned of the deportation consequences of his plea. The attorney
testified that he did not research any immigration statutes, but had consulted with federal
24
prosecutors and was advised that the plea agreement “could” subject the defendant to
deportation.
The court denied the defendant’s motion for post-conviction relief for several reasons.
First, defense counsel gave no false assurances when the defendant was advised of the possibility
of deportation. Shata, 868 N.W.2d at 108. Second, the existence of prosecutorial discretion on
several levels meant that there was never really any certainty that deportation could take place.
Id. Finally, the court held a simple warning of the risk of deportation was sufficient verbiage to
put the defendant on effective notice of any possible consequence to a plea deal. Id. at 110.
While Shata bears factual resemblance to the present case, the state court’s findings are
not binding on this Court. Although the attorney in Shata followed many of the same procedures
Brendanawicz followed, such as calling federal prosecutors for advice or asking the court for
more time, Haverford was charged for possession of a different substance in a different
jurisdiction. On the issue of prosecutorial discretion, the Padilla decision makes it clear that
very little discretion exists in the federal immigration process. Padilla, 130 S.Ct. at 1481-82.
That opinion reinforces the idea that “recent changes in our immigration law have made removal
nearly an automatic result for a broad class of noncitizen offenders.” Id. at 1481. Any hope for
prosecutorial discretion in the present case was quashed because the State was wholly unwilling
to negotiate the plea deal with Haverford to allay any fears of deportation. (R. at 29).
Finally, it should be reemphasized that criminal defendants are entitled to know when
deportation is a virtual certainty rather than a possibility. Bonilla, 637 C.3d at 984. Deportation
is a severe punishment, and because Brendanawicz should have advised Haverford that he would
face deportation if he plead guilty, Brendanawicz’s performance was ineffective under the Sixth
Amendment.
25
B. When Brendanawicz failed to properly inform Haverford of the deportation consequences that would flow from his plea agreement, Haverford was prejudiced by this ineffective assistance of counsel.
After he found out that a deportation proceeding had been initiated against him,
Haverford stated that, had he known deportation would be automatic, he would have “tried to
find some way to stay [in the United States].” (R. at 30). The advice that there was a strong
possibility he could have been deported did not constitute effective assistance of counsel as
contemplated by the Sixth Amendment. This Court should find that Brendanawicz’s ineffective
assistance prejudiced Haverford so as to satisfy the second prong of Strickland.
To satisfy the second prong of the Strickland test for ineffective counsel, a court must ask
whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 688. When a defendant
alleges ineffective assistance of counsel during the plea-bargaining process, he must demonstrate
that “the outcome of the plea process would have been different with competent advice.” Lafler
v. Cooper, 132 S. Ct. 1376, 1384 (2012). Accordingly, when a defendant argues that he would
have rejected a plea deal, he 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.”
Id. quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable probability is one that is
“sufficient to undermine confidence in the outcome.” Strickland, 467 U.S. at 695. The standard
of proof for reasonable probability is lower than preponderance of the evidence. Id. at 1021.
One court has found that a defendant’s desire to withdraw his guilty plea after he
received faulty advice from his attorney regarding deportation was rational given the severity of
the deportation consequence. State v. Sandoval, 249 P.3d 1015, 1022 (Wash. 2011). In
Sandoval, the defendant was a lawful permanent resident charged with a deportable offense. He
26
told his attorney he did not want to plead guilty if that plea would result in deportation. The
defendant’s attorney assured him that he would not be deported until after he served jail time and
that he would have sufficient time to contact an attorney. Before he was released from jail, he
received notice that he was being deported. The defendant claimed he would not have pled
guilty had he known this deportation proceeding would be initiated.
The court held that the defendant met the “reasonable probability” standard of the second
prong of Strickland for two reasons: 1) the defendant swore he would have rejected the plea deal
had he fully know its consequence, and 2) counsel knew that the defendant was very concerned
about potential deportation consequences at the time the plea agreement was entered. Id. at
1021. The court’s decision reflected the reality that, in many cases involving deportable offenses
for noncitizens, the risk of going to trial would have far outweighed the severe consequences of
deportation. Id. at 1022.
The present case bears many similarities to Sandoval. Primarily, both cases involve a
defendant who, after receiving a deportation notice, expressed a desire to withdraw his guilty
plea. Additionally, both Brendanawicz and the attorney in Sandoval were fully aware that their
client was worried about the deportation consequences of any plea agreement. While the
attorney in Sandoval simply advised the defendant that he would have time to hire an
immigration attorney before any deportation proceeding could be brought, the advice
Brendanawicz gave Haverford was functionally equivalent in that it failed to advise Haverford
that deportation was certain under the plain language of the statute. Following the analysis of
Sandoval, Brendanawicz’s deficient performance prejudiced Haverford because Haverford said
he would have rejected the plea deal had he fully known the deportation consequences of
27
pleading guilty and Brendanawicz knew of this concern at the time the plea agreement was
entered.
The Fifth Circuit has held that a court must evaluate whether a defendant has sufficiently
proved prejudice based on the totality of the circumstances. U.S. v. Kayode, 777 F.3d 719, 725
(5th Cir. 2014). See also Cullen, 131 S.Ct. at 1408 (2011) (holding that if prejudice is alleged in
the guilt-innocence phase of a trial, a court must “reweigh the evidence in aggravation against
the totality of available mitigating evidence”). In Kayode, the defendant was indicted on a
charge of mail fraud. He signed a plea agreement after the court made sure he understood there
was a risk he could be deported if he pled guilty. Once the defendant faced deportation
consequences for his plea, he moved to withdraw his plea because he did not want to be
deported.
The court’s decision gave six factors to be considered in adjudging the prejudice prong of
Strickland: 1) whether there is evidence defendant would have gone to trial if the immigration
consequences of the plea were known; 2) whether it has been demonstrated by the defendant that
he was likely to succeed at trial; 3) the weight of the risks defendant would face by going to trial
rather than accept a plea bargain; 4) the extent of the defendant’s connection to the United States;
5) whether the defendant moved to withdraw his guilty plea at a prior time; and 6) whether the
trial court advised the defendant of the consequences of deportation. Id. at 725-29. The court
found that, after weighing these factors, the defendant did not suffer prejudice. Id. at 729-30. In
examining these six factors in the present case, however, this Court should find that it would
have been rational for Haverford to reject the plea agreement had his attorney properly advised
him of the deportation consequences of his actions.
28
The first factor is in Haverford’s favor because he said that he would not have pled guilty
if he had known that deportation was automatic for the offense with which he was charged. (R. at
30). This is unlike the defendant in Kayode who never said he would have gone to trial had he
known the immigration consequences of his plea deal. At the very least, Brendanawicz could
have used the certainty of deportation to his advantage when negotiating a plea deal with the
State. See Padilla, 130 S.Ct. at 1486 (stating, “Counsel who possess the most rudimentary
understanding of the deportation consequences of a particular criminal offense may be able to
plea bargain creatively…to craft a conviction and sentence that reduce the likelihood of
deportation, as by avoiding a conviction for an offense that automatically triggers the removal
consequence”).
The second factor weighed against prejudice in Kayode because there was
“overwhelming evidence against [the defendant].” Kayode, 777 F.3d. at 726. In the present
case, it could be argued that, pending the suppression of evidence from the traffic stop, there
would potentially be no evidence with which to convict Haverford at trial. Although
Brendanawicz said he didn’t feel Haverford could prevail at trial because he had no viable
defense (R. at 29), this is but one of six factors for the court to weigh in deciding whether the
motion to withdraw a plea is rational.
The third factor weighs in favor of prejudice because, even though Haverford would have
also faced certain deportation if he were convicted of the crime he was charged with at trial, he
would have also had more opportunity throughout the proceeding to make his case. As was
stated in Sandoval, “given the severity of the deportation consequence, we think [the defendant]
would have been rational to take his chances at trial.” Sandoval, 249 P.3d. at 1022. This Court
should similarly find this reasoning compelling when evaluating this third factor.
29
The fourth factor also weighs in favor of Haverford. Haverford moved to the United
States in 2003 and has been a lawful permanent resident ever since. Although he has neither a
spouse or a child, he has stated that he never wants to return to Venezuela because he no longer
has any contacts with that country and he views it as a dangerous place. (R. at 30). These
factors would tend to indicate it would be reasonable for Haverford to risk going to trial.
The fifth factor is irrelevant to this inquiry because the first and only time Haverford
moved to withdraw his guilty plea is the focus of the present case. It should be noted, however,
that Haverford only made this motion after finding out that his deportation would automatically
flow from his plea agreement. This motion was based, in relevant part, on a Sixth Amendment
claim of ineffective assistance of counsel directly related to his plea agreement.
The final factor should remain a neutral factor for consideration. Although the trial court
did verify that Haverford understood the “risk” of deportation, the court did not say this
deportation would be automatic. Admonishments weigh against finding prejudice, Kayode, 777
F.3d at 729, but misleading admonishments should not.
In weighing each of these six factors, this Court should find that Haverford suffered
prejudice by way of ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, Mr. Tomas Haverford respectfully requests this Court reverse
the decision of the Supreme Court of the State of Eagleton.
Respectfully submitted,
Team #15
Counsel for the Petitioner