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

i

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

1

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?

2

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

3

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).

4

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

6

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