Monday, March 10, 2014

Legal hail mary gets this guy out of prison

One of the difficulties of practicing criminal law is that a criminal conviction may have consequences that extend beyond the criminal case. In legal terms, we call this "collateral consequences." Not quite "collateral damages," i.e., war casualties, but for some people, the collateral consequences are quite serious. Serious enough to accuse your criminal lawyer of ineffective assistance of counsel.

The case is Kovacs v. United States, decided March 3. Kovacs was a businessman who plead guilty to business fraud after the government accused him of overstating his business losses following a burglary, a scheme that ripped off the insurance company. When he plead guilty, Kovacs asked his lawyer to make sure the plea did not have immigration consequences. Kovacs' fear was that the plea would get him deported, as he was not a U.S. citizen. His lawyer told him not to worry. This is not a deportable offense, counsel said.

Counsel was wrong. One day, Kovacs was trying to re-enter the United States following a business trip. Immigration officials nailed him at the border because the crime he plead to was a one of moral turpitude, something for which you can be deported. He returned to Australia while his family remained in the United States to carry on the family business.

My guess is that, at some point or another, nearly every convicted felon thinks about filing a writ of habeas corpus to challenge the adequacy of his legal representation in criminal court. Kovacs did. He filed the writ of error coran nobis in the Eastern District of New York, which denied him relief. The Court of Appeals reverses and vacates the conviction. (This writ is not quite a habeas corpus petition. Although it does not carry a statute of limitations, it has been described as the "hail mary" of criminal motions).

In 2002, the Court of Appeals held in the Couto case that a lawyer misrepresents his client in failing to advise about the immigration consequences of a guilty plea. The question here is whether that 2002 precedent helps Kovacs even though his conviction became final in 2001, one year before Court decided Couto. The Court of Appeals (Jacobs, Kearse and Parker) says that Kovacs can invoke Couto. The general rule is that a precedent applies retroactively unless it announces a new rule. Here, the Couto decision did not really announce a new rule. Since the 1970s, the Court of Appeals had been trending in that direction. That trend culminated in the Cuoto ruling. Since Kovacs has proven that he would have negotiated a plea that did not impact his immigration status, he has therefore shown that his lawyer was ineffective in representing him in criminal court. His conviction is vacated. 

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