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 of Eagleton

Brief for the Petitioner

Team 25

Counsel for Petitioner

i

QUESTIONS PRESENTED

I. Does the Court have an obligation to suppress the evidence against Haverford when the evidence was obtained by a consenting search but Haverford’s consent was tainted by an unlawfully extended stop and the consenting party was constructively seized?

II. Does Haverford have a right to withdraw his guilty plea when his counsel gave deficient advice and Haverford was prejudiced by the deficient advice?

   

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................................ i  TABLE OF AUTHORITIES ...................................................................................................... iv  

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................... vi  

STATEMENT OF THE CASE .................................................................................................... 1  

SUMMARY OF THE ARGUMENT .......................................................................................... 4  

ARGUMENT ................................................................................................................................. 6  

I.   THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF EAGLETON AND FIND THAT THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE IT WAS GATHERED AS PART OF AN UNLAWFULLY PROLONGED STOP, HAVERFORD WAS UNDER CONSTRUCTIVE SEIZURE, AND HIS CONSENT WAS TAINTED BY UNCONSTITUTIONAL POLICE ACTION. ........................................ 6  

a.   The Extension of the Stop for Sobriety Tests Was Unreasonable and Unlawful because There Was No Reasonable Suspicion to Support the Conducting of the Tests. ......................... 6  

b.   Haverford’s Consent to the Search of His Vehicle Was Invalid Because He Was Under Constructive Seizure and It Was Tainted by the Traffic Stop’s Extension. ............................... 8  

i.   Haverford was under constructive seizure because a reasonable person would believe the stop was still ongoing. ....................................................................................................... 9  

ii.   The causal connection between the unconstitutional, prolonged stop and the search was not attenuated and, therefore, tainted Haverford’s consent. ......................................... 10  

II.   THE DISTRICT COURT’S DENIAL OF HAVERFORD’S MOTION TO WITHDRAW GUILTY PLEA IS IMPROPER BECAUSE HAVERFORD DID NOT KNOW THE MAGNITUDE OF HIS PLEA AND HAVERFORD WAS PREJUDICED BY HIS TRIAL ATTORNEY’S DEFICIENT PERFORMANCE WHICH IMPLICATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. ........... 12  

a.   Haverford’s Motion to Withdraw Guilty Plea Should Have Been Granted Because He Did Not Know That He Would Be Deported If He Plead Guilty. ................................................... 13  

b.   The District Court’s Denial of Haverford’s Motion to Withdraw Guilty Plea Is Improper Because Haverford Was Prejudiced by His Trial Attorney’s Deficient Performance Which Implicated the Sixth Amendment Right to Effective Assistance of Counsel. .......................... 16  

i.   Mr. Brendanawicz’s performance was deficient because the advice he gave Haverford regarding the likelihood of deportation fell below an objective standard of reasonableness.... .................................................................................................................. 17  

ii.   Haverford was prejudiced as a result of Mr. Brendanawicz’s deficient performance because Haverford would not have pled guilty if Mr. Brendanawicz provided accurate advice regarding the risk of deportation. ............................................................................. 20  

iii

CONCLUSION ........................................................................................................................... 23  

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases

Boykin v. Alabama, 395 U.S. 238 (1969) .. ....................................................................... 5, 13, 14 Brown v. Illinois, 422 U.S. 590 (1975) ....................................................................................... 11 California v. Hodari D., 499 U.S. 621 (1991) .............................................................................. 9 Florida v. Bostick, 501 U.S. 429 (1991) ....................................................................................... 9 Hill v. Lockhart, 474 U.S. 52 (1985) .................................................................................... 13, 21 Hinton v. Alabama, 134 S. Ct. 1081 (2014) ................................................................................ 20 Jackson v. Denno, 378 U.S. 368 (1964) ..................................................................................... 13 Lafler v. Cooper, 132 S. Ct. 1376 (2012) ....................................................................... 13, 16, 21 McMann v. Richardson, 397 U.S. 759 (1970) ...................................................................... 16, 17 Navarette v. California, 134 S. Ct. 1683 (2014) ....................................................................... 4, 6 Padilla v. Kentucky, 559 U.S. 356 (2010) ........................................................................... passim Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) ................................................................. 11 Rawlings v. Kentucky, 448 U.S. 98 (1980) ................................................................................. 11 Rodriguez v. United States, 135 S. Ct. 1609 (2015) ................................................................. 4, 7 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ......................................................................... 9 Strickland v. Washington, 466 U.S. 668 (1984) .................................................................. passim Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................. 7 United States v. Mendenhall, 446 U.S. 544 (1980) .............................................................. 5, 8, 9 Wong Sun v. United States, 371 U.S. 471 (1963) ................................................................ passim

United States Circuit Court Cases

United States v. Johnson, 58 F.3d 356 (8th Cir. 1995) ............................................................. 6, 7 United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) .............................................................. 22 United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) .......................................................... 21, 22 United States v. Perez, 37 F.3d 510 (9th Cir. 1994) ..................................................................... 7 United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) ......................................... 11 United States v. Ward, 518 F.3d 75 (1st Cir. 2008) .................................................................... 14

Constitutional Provisions

U.S. CONST. amend. IV ............................................................................................................. 5, 6

v

U.S. CONST. amend. VI ……………………………………………………………………. 5, 16

Statutory Provisions

8 U.S.C. § 1227(a) (2012) ........................................................................................................... 19 8 U.S.C. § 1227(a)(2)(B)(i) (2012) ....................................................................................... passim 21 U.S.C. § 841(a)(2) (2012) ........................................................................................................ 3 Eagleton Rule of Crim. Proc. 11(c), (d) ……………………………………………………...… 13

Other Authorities MODEL RULES OF PROF’L CONDUCT r. 1.1 (AM. BAR ASS’N. 1983) ………………………….. 18

vi

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Chapter 8 of the United States Code § 1227(a) in relevant part provides: “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens.”

Chapter 8 of the United States Code § 1227(a)(2)(B)(i) provides: “Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”

Chapter 21 of the United States Code § 841(a)(2) provides: “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally…to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.”

Eagleton Rule of Criminal Procedure 11 in relevant part provides: “(c) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding. (d) If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal.”

1

STATEMENT OF THE CASE

1. Haverford’s Background

Tomas Haverford, (“Haverford”), is a 31-year-old resident of Eagleton. R. at 39. In 2003,

he immigrated to the United States from Venezuela and gained status as a lawful permanent

resident. R. at 31. After being charged with possession with intent to manufacture

methamphetamine under the Controlled Substances Act, Haverford pled guilty unaware that his

deportation would be mandatory under relevant immigration laws. R. at 29. Haverford was not

informed by his attorney that he could be automatically deported because of his charge. R. at 29.

Instead, Haverford was advised that he would only be deported if he went to jail. R. at 30. If

Haverford knew that his deportation was automatic, he would not have pled guilty and would

have decided to go to trial. R. at 30.

2. The Traffic Stop

On May 20, 2013, at approximately 6:10 PM, Haverford was stopped by Deputy David

Sanderson (“Deputy Sanderson”) for a burnt out headlight. R. at 3-4. Haverford pulled over right

after Deputy Sanderson activated his emergency lights. R. at 7. Haverford was issued a citation

for the burnt out headlight. R. at 12. Deputy Sanderson observed that Haverford was shaking

from his upper body and appeared to have restricted pupils. R. at 4. Deputy Sanderson learned

about pupil restriction and changes in size during law enforcement training, however, he relied

on his own experience to conclude that restricted pupils is an indication of drug use. R. at 4.

When asked about his medication use, Haverford informed Deputy Sanderson that he used

Aderall. R. at 12. Deputy Sanderson questioned Haverford because in his experience, Aderall

consumers, never appeared as nervous as Haverford was during this traffic stop. R. at 12. Deputy

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Sanderson never had previous contact with Haverford to have knowledge of his general

mannerisms. R. at 7. Haverford informed Deputy Sanderson that he in fact was not nervous, but

upset that he was being questioned and delayed from returning home because he was tired. R. at

12.

Haverford did not exhibit symptoms of drug use, such as, erratic or impaired driving,

slurred speech, nor any visible intoxicants or paraphernalia. R. at 6. However, Deputy Sanderson

asked Haverford to attempt a field sobriety test and Haverford obliged. R. at 12. Haverford was

asked to identify the color of a pen and then follow it with his eyes as Deputy Sanderson moved

it; then he was asked to balance on one leg and count; then he was asked to walk on a line in the

road while counting his steps; and finally, he was asked to touch the tip of his nose with the hand

that Deputy Sanderson called out. R. at 13–14. After Haverford successfully completed all of

these sobriety exercises, Deputy Sanderson concluded that Haverford was not impaired and told

Haverford he was free to leave. R. at 5. Haverford got into the driver’s seat of his vehicle, but

Deputy Sanderson stood by the driver’s side of his vehicle. R. at 9. Twelve seconds after both

men returned to their vehicles, Deputy Sanderson re-approached Haverford’s vehicle asking if he

could conduct a search. R. at 14. Haverford responded “Why not. Yeah. Go ahead,” and Deputy

Sanderson began to search the vehicle. R. at 14. Deputy Sanderson believed he discovered a

“portable meth lab.” R. at 14. Haverford was placed under arrest and informed of his rights. R. at

14.

3. Procedural History

On July 10, 2013, Judge Perd Hapley (“Judge Hapley”) presiding in the Pawnee District

Court for the State of Eagleton denied Haverford’s Motion to Suppress the evidence obtained

from the vehicle search on May 20, 2013. Judge Hapley found that the extension of the stop was

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unlawful because Deputy Sanderson did not have reasonable suspicion to ask to conduct a field

sobriety test. R. at 17. However, Judge Hapley held that Haverford was not constructively seized

at the time he consented to the search and therefore Deputy Sanderson did not need a reasonable

suspicion to request consent to a search. R. at 21.

On August 21, 2013, Haverford was sentenced to ten years imprisonment after entering a

conditional guilty plea to the charge of possession with intent to manufacture methamphetamine

under the Controlled Substances Act. R. at 25-26, 38. During this hearing, Haverford’s counsel,

Mark Brendanawicz (“Mr. Brendanawicz”), notified the court that Haverford was concerned

about the consequences of his plea and the risk of being deported. R. at 24. Mr. Brendanawicz

stated that he told Haverford “deportation is a strong possibility.” R. at 25. The court also

notified Haverford that if he is found guilty he “may be deported or denied admission.” R. at 25.

Haverford was convicted of violating Controlled Substances Act, 21 U.S.C. § 841(a)(2). R. at 25.

On August 23, 2013, Haverford received a Notice to Appear from the U.S. Department of

Justice Immigration and Naturalization Services. R. at 22. The Notice alleged that Haverford was

convicted of violating the Controlled Substances Act and subsequently subjected to removal

from the United States under § 237(a)(2)(B)(i) of the Immigration and Nationality Act and 8

U.S.C. § 1227 (a)(2)(B)(i) (West 2016). R. at 22. Haverford filed a Motion to Withdraw Guilty

Plea under Eagleton Rule of Criminal Procedure 11 alleging that Mr. Brendanawicz did not

correctly inform him of the deportation risks of his guilty plea. R. at 28.

On October 16, 2013, during a Post-Conviction Motion hearing, Mr. Brendanawicz stated

that he was aware that Haverford’s guilty plea subjected him to deportation but he was unaware

that deportation was mandatory. R. at 28. Therefore, he did not use the term “mandatory” when

advising Haverford. R. at 28. Mr. Brendanawicz also stated that he did not research the

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immigration consequences to determine if deportation was mandatory. R. at 28. Instead, he

spoke with several federal prosecutors about Haverford’s charge and plea and was unanimously

informed that Haverford “may” be subject to deportation. R. at 29.

On November 1, 2013, Judge Hapley denied Haverford’s Motion to Withdraw Guilty

Plea finding that Haverford failed to show either that his counsel performed deficiently or that

Haverford was prejudiced because of his counsel’s failure. R. at 31.

On November 15, 2013, Haverford appealed the trial court’s denial of both motions. R. at

41. The Supreme Court for the State of Eagleton on appeal affirmed the trial court’s denial of

Haverford’s Motion to Suppress. R. at 50. The state Supreme Court reversed the trial court’s

finding that Mr. Brendanawicz performed deficiently but affirmed the dismissal of Haverford’s

Motion to Withdraw Guilty Plea. R. at 50.

SUMMARY OF THE ARGUMENT

Haverford has presented sufficient evidence to support his Motion to Suppress Evidence

and his Motion to Withdraw Guilty Plea, therefore, this court should reverse the decision of the

Supreme Court of Eagleton and grant Haverford’s Motions.

First, this Court should grant Haverford’s Motion to Suppress Evidence. Haverford

suffered from an unlawful extension of a traffic stop when Deputy Sanderson expanded the

scope of the search and the length of the stop without reasonable suspicion. Deputy Sanderson

pulled Haverford over for a burnt out headlight, but then conducted sobriety tests. R. at 3–4, 14.

This was beyond the scope of the stop because a burnt out headlight is not related to sobriety and

was not supported by reasonable suspicion. See Rodriguez v. United States, 135 S. Ct. 1609,

1612 (2015); Navarette v. California, 134 S. Ct. 1683, 1687 (2014).

5

Further, Haverford could not consent to a search because he was under constructive

seizure and his consent was tainted by the misconduct of the unlawful extension of the stop.

Haverford was under constructive seizure because in the totality of his circumstances a

reasonable person would not feel free to leave. See United States v. Mendenhall, 446 U.S. 544,

554–55 (1980). Also, the misconduct by Deputy Sanderson was purposeful and flagrant, and was

close enough in temporal proximity to the consent that the consent was not free from the taint of

the misconduct. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). Therefore, Deputy

Sanderson did not have consent to search the vehicle.

Second, this Court should grant Haverford’s Motion to Withdraw Guilty Plea. The Sixth

Amendment’s guarantee of the right to counsel can be implicated if a defendant is ignorant of the

consequences of a guilty plea. Boykin v. Alabama, 395 U.S. 238, 242 (1969). Additionally, the

Sixth Amendment can also be implicated if deportation is a consequence and counsel has failed

to provide effective representation. See Strickland v. Washington, 466 U.S. 688, 687 (1984).

Haverford suffered from ineffective counsel because Mr. Brendanawicz did not properly inform

Haverford that he would be deported if he plead guilty to a drug charge. R. at 28–29.

Haverford was prejudiced by Mr. Brendanawicz’s ineffective representation because Mr.

Brendanawicz’s advice fell below the objective standard of reasonableness. The standard of the

reasonableness of counsel’s performance is based on the prevailing norms at the time of the

conduct. See Strickland, 466 U.S. at 690. Mr. Brendanawicz did not conduct any independent

research, which is clearly against the prevailing norm of reasonable performance. R. at 30. In

sum, there is sufficient evidence for both motions to be granted.

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ARGUMENT

I. THIS COURT SHOULD REVERSE THE DECISION OF THE SUPREME COURT OF EAGLETON AND FIND THAT THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE IT WAS GATHERED AS PART OF AN UNLAWFULLY PROLONGED STOP, HAVERFORD WAS UNDER CONSTRUCTIVE SEIZURE, AND HIS CONSENT WAS TAINTED BY UNCONSTITUTIONAL POLICE ACTION.

The evidence found in Haverford’s car should be suppressed because it was obtained

through an unlawful search. The Fourth Amendment guarantees protection against unlawful

search and seizure. U.S. CONST. amend IV. Allowing in the evidence found from this unlawful

search would encourage other officers to obtain evidence through unlawful means. The stop was

unlawful because Deputy Sanderson unconstitutionally extended the length and scope of the stop

by performing sobriety tests without reasonable suspicion. Further, Haverford was under

constructive seizure and the misconduct of extending the stop was temporally proximate enough

to taint the consent to search.

a. The Extension of the Stop for Sobriety Tests Was Unreasonable and Unlawful because There Was No Reasonable Suspicion to Support the Conducting of the Tests.

An extension of a stop and expansion of the scope of inquiry is unreasonable if the police

officer does not have the support of reasonable suspicion. It is lawful for a police officer to stop a

vehicle if he reasonably believes there is a violation of a traffic law. United States v. Johnson, 58

F.3d 356, 357 (8th Cir. 1995). However, an officer can only extend the time of the stop if it is

supported by reasonable suspicion. Navarette v. California, 134 S. Ct. 1683, 1687 (2014). For

example, in Navarette, it was lawful for the officers to search the defendants’ vehicle because the

vehicle matched the description from a 911 call of a woman who was run off the road and the

officers could smell marijuana. Id. at 1686–87.

7

Additionally, “a seizure justified only by a police-observed traffic violation, therefore,

becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission

of issuing a ticket for the violation.” Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015). In

Rodriguez, the officer initiated the stop because the defendant’s vehicle had swerved into the

shoulder of the road, but after issuing a warning for driving in the shoulder, the officer extended

the stop to allow a drug-sniffing dog to smell the car without the defendant’s consent. Id. at

1612–13. This extended both the time of the stop and the scope.

Further, the scope of the inquiry must be reasonably related to the justification for the

stop unless there are additional suspicious factors that are “particularized” and “objective.”

United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994). A seizure becomes unlawful if the

officer conducts unrelated checks during the stop without reasonable suspicion. Rodriguez, 135

S. Ct. at 1614–15.

Many traffic stops are compared to Terry v. Ohio, in which an officer, who was an expert

on daytime robbery, used his knowledge to stop a man who was going to commit a robbery and

frisk him to find weapons, which diffused a dangerous situation. 392 U.S. 1, 4–8 (1968). In that

case, the officer used his expertise to initiate a stop and the additional suspicious factors allowed

for the frisk to diffuse the situation. Id. at 16–18.

Here, Deputy Sanderson stopped Haverford because of a burnt out headlight, but

extended the stop on insufficient evidence of drug use. R. at 3–4. The original stop was justified

because there was a violation of a traffic law due to the burnt out headlight. See Johnson, 58 F.3d

at 357. However, after issuing a citation for the headlight, Deputy Sanderson extended the length

and scope of the stop by making Haverford perform field sobriety tests without reasonable

suspicion. R. at 12–14. The sparse evidence relied on for this extension was that Haverford was

8

acting nervous and his pupils were restricted. R. at 4. This is very similar to Rodriguez because

Deputy Sanderson unlawfully extended the stop in both length and scope without reasonable

suspicion. In both Rodriguez and here, the defendants were given the citation for the reason they

were stopped, but the investigation continued and the scope of the investigation expanded from a

traffic violation.

The extension of the stop is unlawful and distinguishable from Navarette because Deputy

Sanderson did not have reasonable suspicion to support his decision to continue the stop. Unlike

Navarette where there were multiple factors that would allow an officer to reasonably suspect

there was marijuana in the car, here there was sparse evidence. Further, Deputy Sanderson is not

an expert on drug use nor pupil size. R. at 4. This is not enough for reasonable suspicion because

Deputy Sanderson is not a drug expert unlike the officer in Terry. Therefore, the extension of the

stop and the expansion of the scope of investigation was unlawful because the purpose for the

stop had ended but Deputy Sanderson continued without reasonable suspicion.

b. Haverford’s Consent to the Search of His Vehicle Was Invalid Because He Was Under Constructive Seizure and It Was Tainted by the Traffic Stop’s Extension.

A person cannot consent to search if they are already seized by an officer. Further, a

consent to search can be tainted by officer misconduct and, therefore, inadmissible as fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). In this case,

Haverford was constructively seized because a reasonable person in his position would not feel

free to leave under the totality of the circumstances. See United States v. Mendenhall, 446 U.S.

544, 554–55 (1980). Additionally, Haverford’s consent was tainted by Deputy Sanderson’s

unlawful extension of the stop. Therefore, the evidence found by the search is fruit of the

poisonous tree and should not be allowed in court.

9

i. Haverford was under constructive seizure because a reasonable person would believe the stop was still ongoing.

If a person is not seized, a police officer can receive consent to search even if he does not

have reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 431 (1991). However, if a

person is seized, he cannot willing consent to a search because there is coercion. A seizure

requires that the officer use physical force. California v. Hodari D., 499 U.S. 621, 626 (1991).

However, a constructive seizure can take place when an officer shows authority – the show of

authority is a necessary element of constructive seizure, but is not sufficient for totality of the

circumstances. Id. at 628. A person is constructively seized if, in the totality of those same

circumstances, a reasonable person would not feel free to leave. Mendenhall, 446 U.S. at 554–

55.

By looking at the totality of the circumstances, the court takes many factors into

consideration “to determine whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers’ requests to search or

otherwise terminate the encounter.” Bostick, 501 U.S. at 439. In Bostick, officers boarded a bus

and asked defendant if they could search his luggage and after he consented the officers found

drugs. Id. at 431. The Bostick court held that this could be considered a seizure because the

defendant could not leave the bus for fear of being stranded and the officers did not tell him he

could leave without consequence. Id. at 439. The court also takes the psychological impact the

circumstances had on the person being seized and whether his/her consent was voluntary. See

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

In this case, Haverford was constructively seized, therefore, Deputy Sanderson could not

obtain consent like he would from a non-seized person. It is evident that Haverford was under

constructive seizure because under these circumstances, a reasonable person would not feel free

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to leave. First, Deputy Sanderson showed his authority, one of the requisite elements of

constructive seizure, as explained in Hodari D. Deputy Sanderson had pulled Haverford over

earlier and was re-approaching his car while his car lights were still flashing. R. at 7, 9, 14.

Deputy Sanderson also showed his authority by issuing Haverford a citation. R. at 12.

Second, only 12 seconds passed between Deputy Sanderson telling Haverford to leave

and him re-approaching the car. R. at 14. Similar to the defendant in Bostick who could not exit

the bus, Haverford could not have felt free to leave to leave because he did not have an

opportunity to leave. Twelve seconds is barely enough time to buckle a seatbelt, let alone to

drive away. The 12 seconds did not even give Deputy Sanderson enough time to re-enter his

vehicle. R. at 14.

Third, Deputy Sanderson did not get back into his vehicle. R. at 14. Typically, after stops

end, officers return to their vehicles. Using the reasonable person standard from Mendenhall, it is

illogical to think that a stop would be over before the officer returned to his vehicle and turned

off his emergency lights.

Finally, the psychological impact of Haverford being tired (which he repeatedly said to

Deputy Sanderson) and having to complete sobriety tests, probably made Haverford consent to a

search. R. at 12, 14. The psychological effects of the circumstances must be taken into account as

stated in Schneckloth. Under all these circumstances, a reasonable person would not feel free to

leave, therefore, Haverford was constructively seized.

ii. The causal connection between the unconstitutional, prolonged stop and the search was not attenuated and, therefore, tainted Haverford’s consent.

Evidence that is gathered by exploitation of illegal police conduct or by means tainted by

illegal police conduct should not be admissible. Wong Sun, 371 U.S. at 487–88. However, the

11

evidence is admissible if the causal connection between the misconduct and seizure of the

evidence are too attenuated. United States v. Terzado-Madruga, 897 F.2d. 1099, 1113 (11th Cir.

1990). Three factors should be taken into consideration when evaluating if there was taint of

illegal police conduct: 1) the temporal proximity of the misconduct and the seizure of the

evidence; 2) any intervening circumstances; and 3) the purpose and flagrancy of the official

misconduct. Brown v. Illinois, 422 U.S. 590, 603–04 (1975).

Not all evidence obtained through misconduct must be considered as fruit of the

poisonous tree, but the question is whether the evidence gathered was purged of the taint of the

illegal police conduct. Wong Sun, 371 U.S. at 487–88. For example, in Wong Sun, a man gave

incriminating statements after narcotic agents broke into his room without probable cause, and

those statements were considered inadmissible because they were tainted by the unlawful

conduct. Id. at 473–74, 490. Further, in temporal proximity, the court has held that, generally, if

only a few minutes has passed the misconduct is considered to taint the consensual search. See

Rawlings v. Kentucky, 448 U.S. 98, 107 (1980). Additionally, the purpose and flagrancy of the

misconduct is a very important consideration. In Brown, the defendant gave inculpatory

statements after an illegal arrest, but was still read his Miranda rights, however, the court held

that the Miranda rights were not enough to protect his Fourth Amendment rights because the

misconduct was so blatantly unlawful that it was flagrant and purposeful. Brown, 422 U.S. at

592–97.

Here, the temporal proximity was very brief, there were important intervening

circumstances, and the misconduct was flagrant. First, a few minutes can pass and the consent

can still be tainted by the misconduct. Rawlings, 488 U.S. at 107. For Haverford, there was only

12 seconds. R. at 14. Not enough time had elapsed for Haverford to have forgotten the

12

misconduct. Therefore, the misconduct was still close enough in temporal proximity to taint his

consent.

Next, the intervening circumstances between the misconduct and the consent are key,

significant facts to the case. Deputy Sanderson told Haverford he could leave. R. at 14. While

this is important, it does not absolve Deputy Sanderson of the misconduct because Haverford

still felt afraid to refuse his request to search the car. Similar to how the officers telling the

defendant in Brown of his Miranda rights did not erase the taint of the misconduct, this one act

cannot absolve Deputy Sanderson of his misconduct of unlawfully extending the stop.

Finally, it is evident that Deputy Sanderson wanted to extend the stop, unlawfully, to find

a reason to search Haverford’s car. Similar to the officers in Brown performing a blatantly

unlawful arrest, Deputy Sanderson purposefully and flagrantly extended the stop to perform

sobriety tests. Deputy Sanderson had very few reasons to perform the sobriety tests – only that

Haverford was nervous and his pupils were restricted, but he still expanded the scope and length

of the stop. R. at 4, 12. This is flagrant misconduct and taints the consent. While considering all

these factors together, it is clear that Deputy Sanderson’s misconduct is not too attenuated from

Haverford’s consent to have tainted it.

II. THE DISTRICT COURT’S DENIAL OF HAVERFORD’S MOTION TO WITHDRAW GUILTY PLEA IS IMPROPER BECAUSE HAVERFORD DID NOT KNOW THE MAGNITUDE OF HIS PLEA AND HAVERFORD WAS PREJUDICED BY HIS TRIAL ATTORNEY’S DEFICIENT PERFORMANCE WHICH IMPLICATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

Under Eagleton Rules of Criminal Procedure 11, a defendant may ask the court to vacate

the judgment, discharge, grant the defendant a new trial, or correct the sentence when they

believe their sentence is subject to a collateral attack. A defendant must specifically state all

13

grounds on which the sentence is being challenged and the facts relied on to support such

grounds. Eagleton Rule of Crim. Proc. 11(c), (d).

Courts have recognized the weightiness and severity of guilty pleas and subsequently

have required that admissions be made knowingly and voluntarily. Boykin v. Alabama, 395 U.S.

238, 242 (1969); Jackson v. Denno, 378 U.S. 368, 377 (1964). Ignorance or incomprehension of

the magnitude and consequences of a guilty plea may result in the implication of the Sixth

Amendment’s guarantee of the right to counsel. Boykin, 395 U.S. at 243. See Lafler v. Cooper,

132 S.Ct. 1376, 1385 (2012) (“Defendants have a Sixth Amendment right to counsel, a right that

extends to the plea-bargaining process.”); Hill v. Lockhart, 474 U.S. 52, 58 (1985) (reasoning

that while Strickland examined a claim of ineffective counsel under the Sixth Amendment in a

capital sentencing proceeding, the same application is appropriate in claims arising out of a plea

process).

When deportation is a potential consequence, the Sixth Amendment may be triggered

when counsel fails to provide effective advice to a lawful permanent resident. Strickland v.

Washington, 466 U.S. 668, 687 (1984). In such an instance, the defendant must show that his

attorney’s performance was deficient and such performance was prejudicial to the defendant. Id.

a. Haverford’s Motion to Withdraw Guilty Plea Should Have Been Granted Because He Did Not Know That He Would Be Deported If He Plead Guilty.

Haverford was unaware that his acceptance of the guilty plea would result in deportation

from the United States under 8 U.S.C. § 1227(a)(2)(B)(i) (West 2016). This lack of knowledge

should have been sufficient for the lower court to conclude that Haverford’s guilty plea was

inadmissible and that his Motion to Withdraw Guilty Plea under Eagleton Rules of Criminal

Procedure 11 was meritorious.

14

Courts evaluate whether a plea was offered knowingly and voluntarily when examining a

defendant’s motion to withdraw guilty plea. Boykin, 395 U.S. at 241. The record must provide

evidence showing that the defendant “intelligently and understandingly” had knowledge

regarding the guilty plea. Id. at 242. A plea may be considered as offered without knowledge

when the defendant is ignorant of the consequences of his plea. Id. at 246 (Harlan, J., dissenting).

A plea is considered to be provided voluntarily when it is made without “any force coercion,

undue promises, or threats.” United States v. Ward, 518 F.3d 75, 84 (1st Cir. 2008).

Courts give heavy consideration to the explicit text in proceeding transcripts to determine

if the defendant had knowledge regarding their plea. Boykin, 395 U.S. at 242. In Boykin, an

armed robber pled guilty on five charges of robbery and was sentenced to death. Id. at 240. On

automatic appeal, the Court held there was reversible error because the record failed to “disclose

that the defendant voluntarily and understandingly entered his pleas of guilty.” Id. at 244.

Unconvinced by the majority’s finding, Justice Harlan in his dissenting opinion stated that

because the defendant did not make any effort to withdraw his plea, personally raise any

questions concerning his voluntariness or knowledge in making the plea, nor asserted that the

plea was coerced or made in ignorance of the consequences, then it was appropriate to conclude

that defendant’s guilty plea was made knowingly and voluntarily. Id. at 245-246.

The Boykin court used the term “understandingly” interchangeably with the term

“knowingly” when describing the required elements necessary to withdraw a guilty plea. Boykin,

395 U.S. at 242, 244, 248. Such action suggests that the Court wanted the requirement of

knowledge to be understood and interpreted as more than just defendant’s acknowledgement that

he is providing a plea. Instead the court wanted to ensure defendants had a thorough and accurate

15

understanding of the consequences so they could make a thoughtful and well-informed decision

regarding his legal choices.

Here, Haverford was aware that there was a “strong possibility” of deportation, however,

he was unaware that deportation was mandatory under applicable immigration laws. R. at 30.

Considering that Mr. Brendanawicz himself as Haverford’s counsel failed to independently or

with the assistance of others, interpret the full scope of the statute, it is logical to conclude

Haverford did not know that being convicted of violating the Controlled Substance Law would

directly result in deportation. R. at 28-29. Haverford relied on his attorney’s inaccurate

understanding of the immigration law and on a passing warning provided by the trial judge

during the plea hearing to conclude that there was a possibility, albeit small, that he would not be

deported. The trial judge’s vague warning that Haverford “...may be deported” was not a

concrete enough cautioning for Haverford to have been able to conclude that his deportation was

mandatory. R. at 25.

Furthermore, Haverford’s lack of knowledge of the consequences of his plea is reflected

explicitly in the Post-Conviction Motion Hearing Transcript. R. at 30. When asked about his

knowledge of the mandatory deportation statute pertaining to the crime he committed, Haverford

stated he would not have plead guilty had he known that his deportation was automatic and

would have alternatively decided to proceed with a trial. R. at 30. Unlike in Boykin where Justice

Harlan was unconvinced that the defendant lacked knowledge because he did not take personal

action challenging the guilty plea, Haverford himself brought forth his Motion to Withdraw

Guilty Plea. R. at 31. Additionally, Haverford stated that had he known that 8 U.S.C. §1227

required deportation, he would not have pled guilty. R. at 30. This affirmative action taken by

16

Haverford suggests that he did not have complete knowledge of the consequences of his guilty

plea at the time the plea was made.

Haverford’s Motion to Withdraw Guilty Plea should have been granted because the plea

was not made with knowledge of the automatic risk of deportation.

b. The District Court’s Denial of Haverford’s Motion to Withdraw Guilty Plea Is Improper Because Haverford Was Prejudiced by His Trial Attorney’s Deficient Performance Which Implicated the Sixth Amendment Right to Effective Assistance of Counsel.

Under the Sixth Amendment, a defendant in a criminal prosecution has a right to the

assistance of counsel. U.S. CONST. amend. VI. The guaranteed right to counsel does not just

promise the availability of counsel, but instead guarantees that the defendant has counsel that is

effective. McMann v. Richardson, 397 U.S. 759, 771 (1970) (stating “that if the right to counsel

guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of

incompetent counsel”). Courts have extended this right to deportation and removal proceedings

even though they are not criminal in nature because deportation is “nevertheless intimately

related to the criminal process.” Padilla v. Kentucky, 559 U.S. 356, 365 (2010). Moreover, the

Court has acknowledged that a defendant’s Sixth Amendment right extends to the plea

bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (“during plea negotiations

defendants are entitled to the effective assistance of competent counsel) (citations omitted).

To claim that their counsel’s assistance was so defective as to implicate the Sixth

Amendment, the convicted defendant must show that counsel’s performance was deficient and

the defendant was prejudiced because of the deficient performance. Strickland v. Washington,

466 U.S. 668, 687 (1984). Counsel’s performance was deficient when the errors made were so

serious that it was as though the defendant did not have counsel. Id. Counsel’s performance was

prejudicial to the defendant when the defendant was deprived of a fair trial. Id.

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Mr. Brendanawicz’s representation did not constitute as effective assistance of counsel as

guaranteed by the Sixth Amendment because his performance was deficient and prejudicial

towards Haverford.

i. Mr. Brendanawicz’s performance was deficient because the advice he gave Haverford regarding the likelihood of deportation fell below an objective standard of reasonableness.

A defendant seeking to implicate their Sixth Amendment right must demonstrate that

counsel’s performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688. See also McMann, 397 U.S. at 771. The reasonableness of counsel’s performance is

determined on a case by case basis in light of prevailing professional norms at the time of

counsel’s conduct. Strickland, 466 U.S. at 688, 690. This Court has previously acknowledged

that counsel must advise a defendant of the risks of deportation when the defendant’s issue deals

with criminal prosecutions and immigration law. Padilla, 559 U.S. at 367.

In Padilla, a lawful permanent resident of the United States challenged his deportation

after pleading guilty to violating a Controlled Substance Law. Id. at 359. The permanent resident

argued that his attorney failed to notify him of the “virtually mandatory” deportation

consequences and as a result, he pled guilty. Id. The Court held that the permanent resident’s

counsel was incompetent and did not provide effective counsel because counsel failed to advise

him that he was subject to automatic deportation as a result of his drug conviction. Id. at 360.

The Court emphasized the importance of “accurate legal advice for noncitizens” because

immigration law increases the consequences potentially faced by a noncitizen in a criminal case.

Id. at 364. Furthermore, the Court reasoned that it is a prevailing professional norm that counsel

notifies their client about applicable deportation risks. Id. at 367. The Court stated that because

the language of the immigration statute was “succinct, clear and explicit” in demonstrating the

18

consequence of deportation, the attorney should have known that the permanent resident would

be subject to deportation. Id. at 368-369. Similar to the present instance, the immigration statute

evaluated by this Court in Padilla was 8 U.S.C. § 1227 (a)(2)(B)(i). Id. at 368.

Here, Mr. Brendanawicz’s performance fell below the reasonable objective standard

expected from effective counsel. He failed to attempt to independently research the immigration

consequences of Haverford’s crime and as a result, failed to realize deportation is mandatory

under the immigration statute. R. at 28. According to Rule 1.1 of the American Bar Association:

Model Rules of Professional Conduct, a lawyer must provide competent representation to a client

by having the “thoroughness and preparation necessary for the representation.” MODEL RULES OF

PROF’L CONDUCT r. 1.1 (AM. BAR ASS’N. 1983). Comment 1.2 of the Model Rules of

Professional Conduct expressly states that “a lawyer can provide adequate representation in a

wholly novel field through necessary study” or through “the association of a lawyer of

established competence in the field in question.” These rules were implemented as professional

norms prior to and during the Pawnee District Court trial date of August 21, 2013. See

http://www.americanbar.org/groups/professional_responsibility/policy.html (indicating that the

most recent changes to the Model Code were applied in February 2013 and did not pertain to

Rule 1.1 and subsequently are applicable in the present case).

Mr. Brendanawicz’s poor attempt to provide adequate representation in a presumptively

wholly novel field did not include even a modicum, let alone the necessary amount, of study

required for Haverford’s case. Mr. Brendanawic’s did not research the immigration

consequences to determine the potential likelihood of deportation. R. at 28. If he had, Mr.

Brendanawicz likely would have noticed that 8 U.S.C. § 1227 (a)(2)(B)(i) explicitly requires that

any non-citizen who has been convicted of a violation of any Controlled Substance Law other

19

than a single offense in possession of marijuana of 3 grams or less for their own use is

deportable. 8. U.S.C. § 1227 (a)(2)(B)(i) (West 2016).

When the risk of deportation in immigration law is clear, succinct and straightforward, an

attorney representing a defendant in a criminal case must provide equally clear advice to their

client. Padilla, 559 U.S. at 369. Here, even if Mr. Brendanawicz was unsure as to whether the

deportation was mandatory based on a reading of the entire provision in its entirety, a reading of

8 U.S.C. § 1227 (a) in isolation explicitly states that deportation is mandatory. The statute states

that “any alien in and admitted to the United States shall, upon the order of the Attorney General

be removed if the alien is within one or more of the following classes of deportable aliens.” 8.

U.S.C. § 1227(a) (emphasis added). A person with a basic understanding in statutory

interpretation upon reading this statute would have concluded that use of the term “shall”

indicated that removal was mandatory. See Shall, THE LAW DICTIONARY, http://thelawdictionary.

org/shall/ (last visited Jan. 30, 2016) (“As used in statutes and similar instruments, this word is

generally imperative or mandatory”). Furthermore, evaluation of relevant case law such as

Padilla would have identified that the exact immigration statute relevant to Haverford’s crime

had been deemed “clear and succinct” by the Court and interpreted as requiring mandatory

deportation. Padilla, 559 U.S. at 368 (stating that the terms of 8 U.S.C. § 1227 (a)(2)(B)(i) are

"succinct, clear and explicit in defining the removal consequence...” and upon reading the text of

the statute, “counsel could have easily determined that his plea would make him eligible for

deportation”).

The State Supreme Court’s reasoning that deportation is not mandatory because the U.S.

Attorney General may not actually enforce it does not preclude a finding that Mr. Brendanawicz

acted within the objective standard of reasonableness required of effective counsel. R. at 48.

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Contrarily, it is unreasonable for counsel to provide his client with a false sense of assurance

relying on happenstance that a law may not enforced. Such an excuse, even if found appropriate,

should not be afforded to Mr. Brendanawicz because he did not even research the immigration

statute’s explicit text or precedent interpretation to argue that lack of enforcement was a

possibility. Instead, his actions were motivated by his ignorance and not through use of a clever

statutory interpretation canon.

This Court has previously refused to excuse defense counsel’s ignorance when it is

fundamental to the case they are handling. See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (“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”). The federal prosecutors who advised Mr. Brendanawicz are not established

in the field of immigration law to be considered as a sufficient source of research. R. at 28.

Perhaps if Mr. Brendanawicz contacted immigration defense attorneys, Immigration and

Naturalization Services attorneys and officers, or immigration law professors and scholars, his

research could reasonably be perceived as sufficient. However, such is not the case in this

instance.

Mr. Brendanawicz’s performance was deficient because he did not meet the reasonable

standard of objectiveness expected from attorneys when he failed to research the 8 U.S.C. § 1227

(a)(2)(B)(i) or obtain advice from established lawyers in the field.

ii. Haverford was prejudiced as a result of Mr. Brendanawicz’s deficient performance because Haverford would not have pled guilty if Mr. Brendanawicz provided accurate advice regarding the risk of deportation.

To show that counsel’s deficiency was prejudicial to a defendant, the defendant must

show that counsel’s errors were so serious that the defendant was deprived of a fair trial.

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Strickland, 466 U.S. at 687. When challenging counsel’s performance during a plea process, the

defendant must show that the result of the plea proceeding would have been different if counsel

had not provided advice which was deficient and there was a reasonable probability that

defendant would not have pled guilty but for counsel’s performance. Lafler v. Cooper, 132 S. Ct.

1376, 1384 (2012); Hill v. Lockhart, 474 U.S. 52, 59 (1985). Courts have acknowledged that a

defendant subject to deportation may find a right to remain in the United States more important

than “any potential jail sentence.” Padilla, 559 at 368. See also United States v. Orocio, 645 F.

3d 630, 643 (3rd Cir. 2011).

In Hill, petitioner pleaded guilty in trial court to first degree murder and theft of property.

Id. at 368. More than two years later, petitioner sought relief on the grounds that prior to him

pleading guilty his attorney failed to advise him that he was required to serve one-half of his

sentence before being eligible for parole. Id. The Court held that the petitioner failed to prove

prejudice as a result of his counsel’s advice because he failed to allege that he would have

pleaded guilty if his counsel had provided him with accurate information about his parole

eligibility. Id. at 371.

Here, unlike in Hill, there is explicit evidence that Haverford would have rather gone to

trial than pleading guilty. R. at 30. At the Post-Conviction Motion Hearing, Haverford expressly

stated that if he had known his guilty plea would have resulted in deportation he would have

tried to find some way to stay in the United States and would have told his attorney he wanted to

pursue a trial. R. at 30. Haverford explained that Venezuela is a dangerous country and being

deported there would result in him losing his family and livelihood. R. at 30. Based on these

circumstances, a decision to go to trial and potentially endure jail time would have been a

rational choice considering Haverford would lose access to his family if deported. The State

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Supreme Court of Eagleton’s rationale that going to trial would be an irrational choice under the

circumstances is unsupported because it is not obvious that Haverford would have been

unsuccessful at trial. R. at 36. See United States v. Orocio, 645 F.3d 630, 643 (3rd Cir. 2011)

(noting that “a rational decision not to plead guilty does not focus solely on whether a defendant

would have been found guilty at trial”). Even if Haverford was unsuccessful at trial and faced the

maximum forty year sentence as permitted in Eagleton Statute § 841 (b), such a sentence would

have been a better alternative then returning to Venezuela. If Haverford was to be deported to

Venezuela even after serving forty years, such an outcome could still be more desirable to

Haverford as he would have more time to defer his return to the dangerous country.

The factors relied on by Eagleton Supreme Court to conclude whether counsel’s

performance was prejudicial weigh in favor of Haverford’s claim. In Kayode, the circuit court

considers the totality of the circumstances including evidence to support the defendant’s

assertion, his likelihood of success at trial, the risks faced at trial, defendant’s connection to the

United States, representation about a defendant’s desire to retract his plea and judicial

admonishments regarding possible deportation. U.S. v. Kayode, 777 F.3d 719, 725 (5th Cir.

2014). In this case, Haverford expressly stated that if he had been properly advised by counsel,

he would have gone to trial instead of offering a guilty plea. R. at 30. The risk of imprisonment

faced at trial would have been less than the risk of deportation assumed in pleading guilty based

on Haverford’s concerns. R. at 30. Even the worst case scenario at trial in receiving forty years

imprisonment, could have been the best case scenario for Haverford. In Kayode, the court

recognized such a concern and reasoned that “significant ties to the United States could make a

defendant less likely to accept a plea agreement that could result in deportation and more likely

to risk trial in hopes of avoiding exile from the United States.” Haverford has strong ties to the

23

United States being that both his family and job are both located here. Additionally, Haverford’s

action of bringing forth a Motion to Withdraw Guilty Plea demonstrates a clear desire to retract

his guilty admission. Lastly, the trial court judge’s acknowledgement of the possibility of

deportation to Haverford still weighs in favor of prejudice to Haverford because her warning did

not encompass the magnitude of the risk. Similar to Haverford’s counsel, the trial judge’s advice

stated that deportation was a possibility not mandatory as stated in 8 U.S.C. § 1227 (a)(2)(B)(i).

Nonetheless, a defendant does not necessarily rely on a trial judge to advise them of all of the

possible risks in their proceeding. A reasonable client anticipates that such a duty will be

serviced by their effective counsel. While the likelihood of success at trial may not have been in

favor of Haverford, the remaining factors still weigh in favor of Haverford and subsequently

demonstrate prejudice.

Haverford was prejudiced by Mr. Brendanawicz deficient performance because Mr.

Brendanawicz’s failure to notify Haverford that deportation was mandatory under 8 U.S.C. §

1227 (a)(2)(B)(i) resulted in Haverford pleading guilty instead of going to trial as he would have

if he was aware of the magnitude of the risk of deportation.

CONCLUSION For the foregoing reasons, this Court should reverse the decision of the Supreme Court of

Eagleton and find the evidence against Haverford should be suppressed and Haverford’s Motion

to Withdraw Guilty Plea should be granted.

Team 25 Counsel for Petitioner