Remember, collateral consequences remember

On Wednesday, ACCA will hear oral argument in United States v. Vargaspuentas, No. ARMY 20091096, on these three interesting issues:

I.  WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION.

II.  WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985).

III.  IF APPELLANT’S COUNSEL WAS INEFFECTIVE, WHAT RELIEF, IF ANY, IS APPROPRIATE.

Remember Denedo?

From the headnotes in Hill:

    In the present case it is unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because petitioner’s allegations were insufficient to satisfy the "prejudice" requirement. He did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility [474 U.S. 52, 53] date, he would have pleaded not guilty and insisted on going to trial. Nor did he allege any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead guilty.

    And from Padilla:

    To satisfy Strickland ’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. , at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id. , at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the … right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr , 533 U. S. 289 . Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland ’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance.