A citizen of Burkina Faso who was taken into custody by immigration authorities after pleading guilty to trademark counterfeiting has lost his bid to overturn his convictions based on ineffective assistance of counsel.
Amadou Kabre maintained that his lawyers did not tell him about the potential immigration consequences of his guilty pleas, and argued that his convictions were not valid in light of the U.S. Supreme Court's recent ruling in Padilla v. Kentucky (pdf).
In Padilla, 130 S. Ct. 1473 (2010), the Court held that an attorney's failure to inform a client of the collateral deportation consequences of a guilty plea amounted to ineffective assistance of counsel.
However, Manhattan Criminal Court Judge Abraham Clott last week declined to give retroactive effect to Padilla, "at least with respect to a misdemeanor conviction."
"This Court concludes that in Padilla the Supreme Court announced a new rule of criminal procedure rather than applied settled law to a new set of facts and that the Padilla rule is not a 'watershed' change that must be applied retroactively to cases on collateral review," Clott wrote in People v. Kabre, 2002NY029321, 2003NY021859, 2004NY017122.
The ruling comes just two months after Bronx Criminal Court Judge Lynn R. Kotler arrived at the opposite conclusion in People v. Bennett.
In Bennett, 2010 WL 2089266, Jermaine Bennett claimed that his attorney told him that he did not think pleading guilty to criminal possession of marijuana in the fifth degree would have any immigration consequences.
Concluding that Padilla should be applied retroactively, Kotler ordered a hearing to decide whether Bennett's conviction had been obtained in violation of his Sixth Amendment right to counsel.
And in June, Eastern District of New York Judge Joanna Seybert noted in People v. Obonaga that "[r]easonable jurists have disagreed about whether Padilla has retroactive effect." 2010 WL 2629748.
In an interview, Steven Banks, attorney-in-chief of the Legal Aid Society, said that while no federal or state appellate court has decided whether to apply Padilla retroactively, the issue is coming up more frequently as defendants try to have their convictions overturned based on the Supreme Court's April ruling.
Legal Aid is planning to file several such cases and the number of actions "seem to be increasing as time goes on," Banks said.
"Looking across the country, more courts than not have correctly applied Padilla. We are hopeful as time goes on that the Bennett decision will be the one that is embraced," Banks said, adding that the issue "may well end up at the [New York State] Court of Appeals, depending on how the Appellate Divisions handle the matter."
But according to Robert S. Groban Jr., the population of litigants who can challenge their convictions based on Padilla, while large in theory, might be limited as a practical matter, since defendants who face deportation as a result of a guilty plea might not have access to the judicial system.
It "may be difficult to get the jurisdiction of a U.S. Court … if you've been removed and are sitting in Burma," Groban, the national chair of Epstein Becker Green's immigration law group, said in an interview.
In the case of Kabre, the Burkina Faso citizen was arrested in 2002 for selling fake New York Yankee Baseball caps. The following year, he was picked up for hawking phony Def-Jam CDs. In 2004, Kabre was once again arrested for peddling counterfeit DVDs.
After pleading guilty to three charges of trademark counterfeiting in the third degree, Kabre was sentenced to a conditional discharge with community service.
He was later taken into custody by immigration authorities, who informed him that his convictions made him eligible for deportation. He subsequently moved to vacate the three judgments, arguing that his attorneys had not explained that his convictions could result in deportation.
Kobre insisted he would have opted to go to trial had he known of the immigration consequences of pleading guilty and argued that his attorneys' advice had been ineffective under Padilla.
"Under both federal and New York law, a new decision can be considered on collateral review only if the decision applied settled law to a new set of facts, or, if the decision announced a new rule, only if that rule established that the defendant's conduct was not criminal at all…or if the rule is a 'watershed' principle so fundamental to the fair administration of justice in the adjudication of innocence or guilty that its retroactive application is required," the judge wrote.
In 2005, when Kabre's convictions became final, Clott observed that "the great majority of state courts" held that an attorney had no duty to advise a defendant of the collateral immigration consequences of a guilty plea.
The Padilla decision effectively "overrule[d] decisions from ten of the federal circuit courts and twenty-three states, and certainly has in this sense established a new rule in those jurisdictions," the judge wrote.
He said that he had "found no decision of the United States Supreme Court holding that one of its decisions overruling a majority of the lower federal courts resulted from a mere application of settled law."
Clott took issue with Kotler's reasoning in Bennett, which held that Padilla did not set forth a new constitutional rule but "merely applied the well-settled rule" in Strickland v. Washington, 466 U.S. 668 (1984), that a defendant is entitled to effective assistance of counsel before deciding whether to enter a guilty plea.
"That Strickland is the standard by which counsel's performance is judged breaks no new ground, but a ruling that courts must now judge counsel's performance in an area previously considered completely collateral to the criminal process does and is therefore 'new,'" Clott wrote.
Moreover, he disagreed with Kotler about the significance of the Padilla majority's "lengthy" discussion about the ruling's potential to open the "floodgates" of litigation.
While Kotler said that this discussion would be "render[ed] meaningless" if the Court had not intended for Padilla to be applied retroactively, Clott said that nothing in Padilla suggested that the Court had intended to "abrogate" its "large body of retroactivity jurisprudence."
He also took issue with Kotler's reliance on the New York Court of Appeal's ruling in People v. McDonald, 1 N.Y.3d 109 (2003), which held that attorneys who misadvised clients about the deportation consequences of a guilty plea could be considered ineffective.
"[P]eople v. McDonald does not, as the court in Bennett suggests, show that Padilla is not a departure from precedent," Clott concluded.
And while the judge noted that "better lawyers…have long advised defendants of immigration consequences, especially when deportation can seem more severe than any potential sentence," this did not mean that the rule in Padilla was a "watershed rule" which must be applied retroactively.
"[O]nly the most extraordinary changes in the law warrant revisiting convictions long since final," Clott concluded.
Kabre appeared pro se.
Assistant District Attorney Lauren Angelo handled the case for the Manhattan district attorney's office.