Ohio v. Creary 

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County 

2004 Ohio App. LEXIS 792

Creary, a nineteen-year-old Jamaican man charged with robbery, pled guilty to robbery after his lawyer advised him to plead guilty to the single count indictment rather than be subject to deportation if he went to trial and was found guilty.  Creary claimed to rely on his lawyer's advice, believing that the guilty plea would reduce his chances of being deported, which he later found not to be the case when deportation proceedings were begun against him after his guilty plea and sentencing to one year in prison.  Creary's postsentence motion to withdraw his guilty plea based on ineffective assistance of counsel was denied, and Creary appealed. 

The Court of Appeals of Ohio reversed the denial of Creary's motion and remanded.  The court outlined the clear immigration statutes, which demonstrate that Creary's robbery conviction subjected him to deportation and even expedited removal, and the court found that Creary had significant evidence that his lawyer had misinformed him about the possibilities legally available.  Since Creary's lawyer knew that Creary was interested in deportation consequences and allegedly misinformed him about the state of unambiguous law, and since Creary would not have pleaded guilty if his lawyer had given him correct legal information, the court held that Creary's claim of ineffective assistance of counsel potentially satisfies the manifest injustice standard required to withdraw a guilty plea postsentence. 

Since Creary's motion merited a hearing on the ineffective assistance of counsel claim, the court reversed the lower court and remanded for further proceedings.

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Somsanuk v. Morones

U.S. District Court for the District of Oregon

Petitioner Kipoung Somsanuk, a Laotian native, brought a habeas petition claiming that he was being illegally detained.  The U.S. District Court granted the petition and ordered that the Petitioner be released from custody within ten days.

The Petitioner came to the U.S. from Laos in 1981 to live with his grandparents in Oregon.  In July 2003, the petitioner was convicted of third degree rape, third degree sodomy and providing liquor to a minor.  After serving a 90-day sentence, the Bureau of Immigration and Customs Enforcement (BICE) took the Petitioner into custody and ordered that he be deported.  The order became final when the Petitioner did not appeal.  BICE’s request for travel documents from the Laotian Embassy was denied when a consular official stated that the Petitioner was not a Laotian citizen.  After the statutory 90-day removal period expired, BICE continued to detain the Petitioner, who then brought the present action.

The Court held that the Petitioner must be released because the detention was unreasonable.  Although BICE may detain an individual for up to six months after the 90-day period has elapsed, it may only do so if removal is reasonably foreseeable.  In this case, the court said that it was not reasonably foreseeable that Laos would recognize citizenship of the petitioner and therefore ordered that the Petitioner be released within ten days.