People v. Bruce McDonald

New York Court of Appeals

According to a recent decision by the New York Court of Appeals, an attorney’s inaccurate advice regarding the deportation consequences of a guilty plea constitutes ineffective assistance only if the defendant can show that he suffered prejudice.  In People v. McDonald, the Court said that inaccurate advice in an immigration matter may be grounds for reversal due to ineffective assistance of counsel.

Bruce McDonald has legally lived in the U.S. for over twenty years.  He is married to a U.S. citizen and has three children, all of whom were born in the U.S.  In 1999, McDonald was arrested on several drug-related charges, which were likely to bring a sentence of 25 years.  His attorney advised him to plea bargain, and McDonald received a one to three year sentence for selling marijuana and possession of cocaine.  The day after sentencing. McDonald was served with a notice of deportation.

McDonald’s attorney submitted an affidavit that he had misinformed his client about the deportation consequences of pleading guilty.  He claimed that the prosecutor had also given a similarly inaccurate opinion about deportation during plea negotiations.  The Appellate Division asserted that inaccurate counsel does not constitute ineffective counsel.

The Court of Appeals agreed with this decision.  According to Strickland v. Washington, a defendant claiming he had ineffective counsel must demonstrate both that the level of representation was substandard and that the defendant suffered prejudice.  The Court also stated that it could not reverse the guilty plea entered by McDonald because McDonald did not demonstrate that he would not have pleaded guilty if he had not been given the incorrect advice.

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Pradith v. Ashcroft

US District Court for the District of Oregon

CV 03-1304-BR

Davone von Pradith, a Laotian national with legal permanent resident status in the U.S., was is in the custody of Immigration and Customs Enforcement pending his deportation.  Pradith petitioned the Court for a Writ of Habeas Corpus and to be released from custody.  The Court granted his Writ of Habeas Corpus and ordered his immediate release.

Pradith came to the U.S. in 1971.  His parents and two children are U.S. citizens.  In June 1999 he was indicted with others for violations of Oregon law on one count of delivery and one count of conspiracy to deliver heroin in excess of five ounces.  Pradith was advised by his attorney that a plea agreement would not prevent him from seeking a cancellation of a removal order because an alien convicted of a crime that is not an aggravated felony under federal law may petition the Attorney General to cancel a removal order based on such a conviction.  In February 2000, Pradith entered a plea agreement and pleaded ‘no contest’ to a lesser charge. 

In June 2003, Pradith applied for a replacement for his permanent resident card.  During a routine check into Pradith’s criminal record, his 1999 felony conviction was discovered.  When Pradith went to an ICE office to replace his card, he was taken into custody.

In July 2003, when Pradith appeared before an Immigration Judge (IJ), the IJ informed him that he was ineligible for cancellation of a removal order because of the BIA’s decision in Yanez-Garcia.  In September 2003, ICE issued a notice of removal to Pradith.  Since July 2003, Pradith has been in ICE custody.  In September 2003, Pradith filed a Petition for Writ of Habeas Corpus.  In October 2003, he filed a Motion for Order to Show Cause why his Writ should not be granted.

Pradith argued before the Court that his being held in custody is in violation of his due process and equal protection rights under the Fourteenth Amendment.  He argued that it is unconstitutional for Yanez-Garcia, which was decided in May 2002, to be applied to his case retroactively.

The Court found that Pradith’s reliance on advice from his attorney in his plea agreement was reasonable “in light of the state of the law at the time.”  The government argued that retroactively applying Yanez-Garcia was not an issue because the statutes applicable to Pradith were enacted before he committed his criminal actions.  However, the Court found that Pradith asserted not that the government applied the immigration statues retroactively, but that the government applied the BIA’s interpretation of the statutes retroactively.

Citing Gonzales-Gonzales, the Court found that “it is fundamentally unfair for an alien such as [Pradith] to be subject to a changed definition of aggravated felony that results in his inability to seek cancellation of his removal from the United States.”  Because the BIA changed its interpretation two years after Pradith entered his plea, and because Pradith relied on the original precedents when he entered his plea, the Court concluded that the government violated Pradith’s due process rights when it applied Yanez-Garcia retroactively.