Ilocano wins case against ineffective counsel

by Atty. Emmanuel Samonte Tipon

Is there any Filipino who has accused his criminal defense attorney of ineffective assistance and won? If you know of any, I would like to meet you, the winning Filipino, and his lawyer and treat all of you to dinner in the best steak house in Honolulu.

Why? (1) Lawyers are reluctant to accuse a colleague of ineffective assistance lest the accused gets back at the accuser, (2) The chances of winning are very slim, and (3) It takes time, money, and considerable effort.

Last Monday (December 9) my son Noel and I won a case in the U.S. Court of Appeals, Ninth Circuit on behalf of a Filipino by charging his criminal defense attorney with ineffective assistance that resulted in the removal of the alien. Case No. 10-72815, U.S. v. Ramiro. We wrote about the oral argument we made in the case in “Arguing successfully in appellate courts” in the November 2013 issue of this publication.

Ramiro, an Ilocano from Bacarra, Ilocos Norte, was with his “barkada” (Filipino slang for “group of friends”) when one of them shouted that somebody wanted to buy drugs. Ramiro did not want to become involved and threw away a plastic packet. Another picked it up and gave it to the one who shouted. The latter then gave it to the buyer who turned out to be an undercover agent.

Ramiro and his barkada were charged with drug distribution before a federal court. Ramiro pleaded not guilty. Since he appeared without a lawyer, the judge appointed a lawyer for Ramiro. The court-appointed lawyer told Ramiro that if he fought and lost he would get 20-40 years but if he pleaded guilty counsel would negotiate a term of 12 to 18 months. Ramiro, terror-stricken, agreed to change his plea to “guilty.” Ramiro asked the lawyer about the possibility of deportation. The lawyer told Ramiro that he “may” be deported. He did not tell Ramiro that drug distribution is an “aggravated felony” and that an alien convicted of an aggravated felony is subject to mandatory deportation and therefore he “will” be deported.

At sentencing the lawyer was negotiating with the judge to sentence Ramiro to less than one year so it will look better when he appears before the immigration judge. It was obvious that the lawyer did not know that a conviction for drug distribution will result in mandatory deportation regardless of the length of the sentence. The judge suggested a recess so that the lawyer could consult with someone. The lawyer refused the suggestion. The judge sentenced Ramiro to 12 months and one day. The lawyer also told Ramiro that after he serves his sentence, he will be released. The lawyer did not tell Ramiro that he will continue to be detained pending his removal proceedings.

DISCARDING NOT DISTRIBUTING DRUGS

While in jail, Ramiro learned through the prison grapevine that drug distribution is an aggravated felony and that he will be deported. Ramiro contacted us. We filed a 28 U.S.C. § 2255 petition to vacate a sentence of a person in federal custody. We alleged that his counsel was ineffective by misadvising Ramiro before changing his plea to guilty that (1) he “may” be deported when the correct advice should have been that he “will” be deported, and (2) he would be released after serving his sentence when the correct advice should have been that after serving his sentence he will continue to be detained pending removal proceedings.

We alleged that if Ramiro had been told the truth that he “will” be deported if he pleaded guilty and that the maximum sentence he could get was 24 months if he went to trial and lost, he would have gone to trial and might have won because a reasonable juror could conclude that he was “discarding” not “distributing” drugs. We contended that Ramiro was prejudiced because he gave up his right to a jury trial and was convicted and served a prison sentence, and faced continued detention pending removal proceedings. We argued that but for the deficient performance of his attorney, the result of the case would have been different. The judge summarily dismissed our § 2255 petition, saying that the criminal defense counsel’s performance was not ineffective and that Ramiro did not show prejudice.

We appealed to the U.S. Court of Appeals which held: The district court erred by summarily dismissing Ramiro’s motion under 28 U.S.C. § 2255. Ramiro is entitled to relief if his counsel “effectively misled” him about the immigration consequences of his guilty plea and he was prejudiced by that misleading advice. Prejudice requires establishing that, but for counsel’s errors, there is a reasonable probability “he would not have pleaded guilty and would have insisted on going to trial.”  “Because Ramiro has adequately alleged that his counsel’s performance was both objectively unreasonable and prejudicial, his § 2255 motion should not have been summarily dismissed.” The court vacated the district court judge’s dismissal and remanded the case for further proceedings.

While this case was pending DHS filed removal proceedings against Ramiro and he was ordered removed. The court refused to hold in abeyance his removal pending the outcome of this case. DHS deported Ramiro without notifying his counsel. We will ask the court to order the DHS to bring Ramiro back so that he can continue to fight his case.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. and Sunday at 8 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)