THE STATE OF NEW HAMPSHIRESUPREME COURT

No. 2015-0609

Alberto Ramos

V.

Warden, New Hampshire State Prison

Appeal Pursuant to Rule 7 from Judgmentof the Merrimack County Superior Court

BRIEF FOR THE PETITIONER

Thomas BarnardSenior Assistant Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301NH Bar # 16414603-224-1236(15 minutes oral argument)

TABLE OF CONTENTS

Page

Table of Authorities ii

Question Presented 1

Statement of the Case and the Facts 2

Summary of the Argument 4

Argument

I. A LAWYER’S FAILURE TO ADVISE A CLIENT THAT THENEW HAMPSHIRE DEPARTMENT OF CORRECTIONSMIGHT REQUIRE HIM TO SERVE HIS SENTENCE INANOTHER STATE CAN, IN SOME CIRCUMSTANCES,CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL 5

Conclusion 21

Supplement Supp. 1-8

1

TABLE OF AUTHORITIES

Page

Cases

Brady v. United States,397 U.S. 742 (1970) 9

Chaidez v. United States,133 S. Ct. 1103 (2013) 12, 14, 18

Cross v. Warden,138 N.H. 591 (1994) 8

Goodnow v. Perrin,120 N.H. 669 (1980) 5

Hill v. Lockhart,474 U.S. 52 (1985) 9, 10, 16, 17

Lamb v. Shaker Reg’l Sch. Dist.,168 N.H. 47 (2015) 7

McMann v. Richardson,397 U.S. 759 (1970) 9

Michel v. United States,507 F.2d 461 (2d Cir. 1974) 15

Missouri v. Frye,132 S. Ct. 1399 (2012) 15

Moore v. Hinton,513 F.2d 781 (5th Cir. 1975) 9

North Carolina v. Alford,400 U.S. 25 (1970) 11

Ohm v. Wakinekona,461 U.S. 238 (1983) 5

Padilla v. Kentucky,559 U.S. 356 (2010) passim

Premo v. Moore,562 U.S. 115 (2011) 16

11

Riso v. Dwyer,N.H. (Mar. 18, 2016) .7, 8

State v. Blunt,164 N.H. 679 (2013) 5

State v. Collins,133 N.H. 609 (1990) 7

State v. Collins,166N.H.210(20l4) 9

State v. Elliott,133 N.H. 190 (1990) 10, 11, 13

State v. Fournier,118 N.H. 230 (1978) 15

State v. Ortiz,163 N.H. 506 (2012) 13, 14, 16, 19

State v. Sharkey,155 N.H. 638 (2007) 12

Strickland v. Washington,466 U.S. 668 (1984) passim

Trinity EMS v. Coombs,166 N.H. 523 (2014) 8

United States v. Campbell,778 F.2d 764 (11th Cir. 1985) 10

Petition of Warden,168N.H.9(2015) 6

Wellington v. Comm’r, State Dep’t of Corrs.,140 N.H. 399 (1995) 11, 14

Statutes

R5A622-B:2 5

RSA Chapter 651-A 6

111

Constitutional Provisions

New Hampshire Constitution, Part 1, Article 15 5, 8

United States Constitution, Fifth Amendment 9, 14

United States Constitution, Sixth Amendment passim

United States Constitution, Fourteenth Amendments 5, 8

Other Authorities

ABA Standards for Criminal Justice: Pleas of Guilty, (3d ed. 1999) 15

ABA Standards for Criminal Justice: Prosecution Function andDefense Function, (3d ed. 1993) 18

Compendium of Standards for Indigent Defense Systems:Standards for Attorney Performance, (Dep’t of Justice 2000) 17

Margaret Colgate Love, Collateral Consequences After Padilla v.Kentucky: From Punishment to Regulation, 31 St. Louis U. Pub.L. Rev. 87(2011) 11, 16

Performance Guidelines for Criminal Defense Representation,(Nat’l Legal Aid and Defender Ass’n 2011) 17

iv

QUESTION PRESENTED

Whether the court erred by dismissing Ramos’s ineffective assistance of

counsel claim based on its conclusion that, as a matter of law, a lawyer’s

failure to advise a client that the New Hampshire Department of Corrections

might require him to serve his sentence in another state can never constitute

ineffective assistance of counsel.

Issue preserved by Ramos’s supplement to his petition for a writ of

habeas corpus, A6T, the State’s second motion to dismiss and answer to the

petition, A75, and the court’s order granting, in part, the State’s motion to

dismiss, Supp. 1.

Citations to the record are as follows:“A” refers to the separately-bound appendix to this brief;“H” refers to the evidentiary hearing held on March 26, 2015;“Supp.” refers to the attached supplement to this brief.

1

STATEMENT OF THE CASE AND THE FACTS

In 1996, the State obtained from Hilisborough and Merrimack County

grand juries indictments charging Alberto Ramos with second degree murder,

attempted escape and kidnapping based on events that occurred in 1995,

when Ramos was fourteen and fifteen years old. A18, A20, A125. In 1998,

Ramos reached a plea agreement with the State. A22-41, A122-A123. He

pleaded guilty to second degree murder and attempted escape, and the State

nolle prossed the kidnapping charge. A21-41, A122-A123. The court (Sullivan,

J.) sentenced Ramos to the New Hampshire State Prison for twenty-five years

to life on the second degree murder conviction, and for three to six years,

consecutive, on the attempted escape conviction. Supp. 1; A17, A19, A56-A58.

Each sentence required Ramos to “participate meaningfully and complete any

counseling, treatment and educational programs as directed by the correctional

authority or Probation/Parole Officer.” A17, A19, A56-A58.

In April 2013, the New Hampshire State Prison transferred Ramos to a

prison in Florida. Supp. 1; A2, AlO. In June 2013, Ramos filed a pg

petition for a writ of habeas corpus in the Merrimack County Superior Court,

in which he advanced two claims. Al. First, he argued that his guilty plea was

invalid because he did not understand that he could be transferred to a

different state. AS. Second, he argued that the State breached the terms of his

plea agreement by transferring him to Florida. A5-A6. The State filed a motion

to dismiss and answer. A8.

2

After the court (Delker, J.) appointed counsel for Ramos, he filed a

supplement to his petition advancing two additional claims. Supp. 1; A62. His

third claim was that his trial lawyer failed to inform him that he could be

transferred to another state, which rendered his assistance constitutionally

ineffective. A63-A68. His fourth claim was that his trial lawyer told him that

he would serve his sentence at the New Hampshire State Prison in Concord,

and that this affirmative misinformation constituted ineffective assistance of

counsel. A68-A71. The State filed a second motion to dismiss and an answer.

A75.

On May 27, 2014, the court granted the State’s motion to dismiss

Ramos’s third claim and denied its motion to dismiss the other claims. Supp.

1. On September 11, 2014, the State filed a motion for summary judgment

with respect to Ramos’s first and second claims, A165, which the court granted

on December 9, 2014, A198. Following an evidentiaiy hearing on March 26,

2015, H 1-197, the court denied Ramos’s fourth claim on May 5, 2015, finding

that his trial lawyer did not make any affirmative misrepresentation regarding

the possibility of his transfer to another state. A205.

After obtaining this Court’s leave for late filing, Ramos filed a notice of

discretionary appeal on November 23, 2015. The appeal claimed error only

with respect to Ramos’s third claim, that his lawyer provided ineffective

assistance by failing to warn him of the possibility of an interstate transfer. On

December 23, 2015, this Court accepted the appeal, indicating that it would

schedule argument before the full court.

3

SUMMARY OF THE ARGUMENT

All claims of ineffective assistance of counsel are resolved by reference to

the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

A defendant is entitled to relief if counsel’s representation fell below an

objective standard of reasonableness and the deficient performance prejudiced

him. Here, however, the court dismissed Ramos’s ineffectiveness claim solely

on the ground that it concerned a consequence that was “collateral” rather

than “direct,” a distinction relevant to challenges based on due process, not to

those based on ineffective assistance of counsel. Even if that distinction might

be relevant to some claims of ineffective assistance of counsel, it is not

applicable where the consequence at issue is particularly severe and intimately

related to the criminal process. The consequence at issue here — transfer to a

prison in a distant state — is particularly severe and intimately related to the

criminal process. By failing to apply the two-prong test set forth in Strickland,

the court erred.

4

I. A LAWYER’S FAILURE TO ADVISE A CLIENT THAT THE NEWHAMPSHIRE DEPARTMENT OF CORRECTIONS MIGHT REQUIRE HIMTO SERVE HIS SENTENCE IN ANOTHER STATE CAN, IN SOMECIRCUMSTANCES, CONSTITUTE INEFFECTIVE ASSISTANCE OFCOUNSEL.

Ramos’s third claim was that his trial lawyer failed to inform him that he

could be transferred to another state, which rendered his assistance

constitutionally ineffective under Part I, Article 15 of the New Hampshire

Constitution and Sixth and Fourteenth Amendments to the United States

Constitution. A63-A68. Ramos noted that he was fourteen years old at the

time of his arrest and seventeen years old when he pleaded guilty. A70. Prior

to his arrest, he lived with his family in Lawrence, Massachusetts, A70, which

is just a few miles from New Hampshire’s southern border, see State v. Blunt,

164 N.H. 679, 684 (2013) (judicial notice). Ramos “repeatedly told his [trial]

lawyers that he needed to be near his family.” A70. His mother was also very

concerned about where Ramos would serve his sentence. A70. Ramos noted

that, at the time of his guilty plea in 1998, it was “well-settled law” that a

prison inmate could be transferred to another state. A64-A65 (citing RSA 622-

B:2 (Interstate Corrections Compact, adopted in 1979); Ohm v. Wakinekona,

461 U.S. 238 (1983) (no federal due process right to serve sentence in-state);

Goodnow v. Perrin, 120 N.H. 669 (1980) (no state due process right to serve

sentence in-state)).

Prior to his transfer to Florida, Ramos’s family regularly visited him.

A68. As a result of his transfer to Florida, however, his family could no longer

visit. A68. Because Ramos had been convicted of attempted escape, moreover,

5

officials at the Florida prison classified him as “high risk,” which prevented him

from participating in educational, vocational or treatment programs. A4.

Without those programs, Ramos asserted, he would be unable to demonstrate

his rehabilitation and thus earn parole. A4; see also RSA Chapter 651-A

(governing parole); Petition of Warden, 168 N.H. 9, 15 (2015) (noting that under

“longstanding” practice, an inmate sentenced to consecutive sentences must be

paroled from one sentence before he can begin serving another).

Ramos acknowledged that, prior to the Court’s opinion in Padilla v.

Kentucky, 559 U.S. 356 (2010), lower courts frequently held that a claim of

ineffective assistance of counsel could not be based on counsel’s failure to

inform a client of a “collateral consequence” of a guilty plea. A65-A67. He

noted, however, that in Padilla, the Supreme Court held that a lawyer’s failure

to inform a client that his guilty plea would result in deportation could form the

basis of an ineffectiveness claim, even though deportation might be classified

as a collateral consequence. A67. The Court based its holding on the fact that

deportation is “intimately related to the criminal process.” A67; id. at 357.

Like deportation, Ramos argued, transfer to another state is also “intimately

related to the criminal process.” A67. “Transfer of inmates out of state,”

Ramos also observed, “can have the same devastating effect on families and

inmates as deportation.” A68. For these reasons, Ramos argued that the court

“should not be bound by the ‘direct v. collateral’ distinction.” A 67-68.

The State moved to dismiss Ramos’s claim without a hearing, arguing

that, “as a matter of law,” his claim, even if true, was not “legally cognizable.”

6

A93, A96. It argued that transfer to another state is a “collateral consequence”

and that, with the exception of deportation, an attorney never has an obligation

to inform a client about a collateral consequence of a guilty plea. A93-A94.

Padilla, the State argued, should be read as establishing nothing more than

that deportation is a unique exception to the “collateral consequence” rule.

A94.

The court, in its order, adopted the State’s argument. Supp. 4-6. “The

possibility of being sent out of state,” it found, “is a collateral consequence.”

Supp. 5. “Failing to inform a client of the collateral consequences of his

conviction,” it held, “does not constitute ineffective assistance of counsel.”

Supp. 4. The court distinguished Padilla, finding that this case “presents a

dramatically different circumstance tha[n] the immigration context.” Supp. 5.

The court held that “[a] hearing on this issue is not necessary” because an

attorney’s failure to warn a client that he could be transferred to another state

can never constitute ineffective assistance of counsel. Supp. 6. In so ruling,

the court erred.

“[A] habeas proceeding is civil in nature.” State v. Collins, 133 N.H. 609,

612 (1990). “In reviewing the trial court’s grant of a motion to dismiss” in a

civil case, this Court “considerLs] whether the allegations in the plaintiffs

pleadings are reasonably susceptible of a construction that would permit

recovery.” Riso v. D’er, N.H. — (Mar. 18, 2016). It “assume[s] the truth

of the facts alleged by the plaintiff and construe[sj all reasonable inferences in

the light most favorable to the plaintiff.” Lamb v. Shaker Reg’l Sch. Dist., 168

7

N.H. 47, 49 (2015); see also Cross v. Warden, 138 N.H. 591, 593 (1994)

(applying standard to denial of habeas corpus petition). It “rigorously

scrutinize[s] the complaint to determine whether, on its face, it asserts a cause

of action.” Trinity EMS v. Coombs, 166 N.H. 523, 525 (2014). This Court “will

affirm the trial court’s grant of the motion to dismiss” only “[i]f the facts

pleaded do not constitute a basis for legal relief.” Riso, — N.H. at —.

Part I, Article 15 of the New Hampshire Constitution and the Sixth and

Fourteenth Amendments to the United States Constitution guarantee an

accused the right to the effective assistance of counsel. In Strickland v.

Washington, 466 U.S. 668 (1984), the Court set forth the modern test for

determining whether this right has been violated, requiring a new trial. To

establish ineffective assistance, the accused “must show that counsel’s

performance was deficient,” in other words, “that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 687-88. Because the

constitutional guarantee “relies . . . on the legal profession’s maintenance of

standards,” “[mjore specific guidelines are not appropriate.” Id. at 688.

Rather, “[t]he proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” “Thus, a court

deciding an actual ineffectiveness claim must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case,” “in light of all

the circumstances,” “viewed as of the time of counsel’s conduct.” Id. at 690.

To obtain a new trial due to ineffective assistance, the accused “must

[also] show that the deficient performance prejudiced the defense.” Id. at 687.

8

This means that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. This Court applies the same two-part

standard in evaluating claims of ineffective assistance of counsel under the

State Constitution. See, çg, State v. Collins, 166 N.H. 210, 212-13 (2014).

In Hill v. Lockhart, 474 U.S. 52 (1985), the United States Supreme Court

held that Strickland’s two-part test is also “applicable to ineffective-assistance

claims arising out of the plea process.” Id. at 57. When evaluating a claim of

deficient advice in the plea process, the first part of the Strickland test requires

courts to question whether counsel’s advice “was within the range of

competence demanded of attorneys in criminal cases.” Id. at 56, 58-59

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The second part of

the Strickland test requires courts to question whether “there is a reasonable

probability that, but for counsel’s errors, [the defendant] would not have

pleaded guilty and would have insisted on going to trial.” Id. at 59.

Prior to Hill, many courts held that, for a guilty plea to be valid under the

Due Process Clause of Fifth Amendment, a judge need only inform a defendant

of the direct consequences of the plea, not the collateral consequences. See,

çg, Brady v. United States, 397 U.S. 742, 755 (1970) (guilty plea is valid,

under the Fifth Amendment, if it is “entered by one fully aware of the direct

consequences”); Moore v. Hinton, 513 F.2d 781, 782-83 (5th Cir. 1975) (judge

need not inform defendant of “collateral consequences” of guilty plea).

9

Following Hill, some lower courts imported this distinction between “direct” and

“collateral” consequences from the due process context into the Sixth

Amendment context, holding that, to provide effective assistance, a lawyer need

only inform his client of the direct consequences of his plea, not the collateral

consequences. See, United States v. Campbell, 778 F.2d 764, 768 (11th

Cir. 1985) (“counsel’s failure to advise the defendant of the collateral

consequences of a guilty plea cannot rise to the level of constitutionally

ineffective assistance”). These courts refused to consider the Strickland

analysis unless a defendant first demonstrated that matter about which he

claimed to have received inadequate advice was “direct” rather than “collateral.”

Id.

In State v. Elliott, 133 N.H. 190 (1990), this Court refused to conflate the

due process analysis and the Sixth Amendment analysis. In Elliott, the

defendant claimed that his guilty plea was invalid because neither the court

nor his lawyer told him that he would be certified a motor vehicle habitual

offender. Id. at 19 1-92. This Court noted that habitual offender certification is

“a classic example” of a collateral consequence and that, for a guilty plea to be

valid under the Due Process clause, the court need only advise the defendant of

direct consequences of the plea, not of any collateral consequence. Id. at 192.

This Court, however, distinguished between “a claim of judicial error in

accepting an unknowing and involuntary plea,” on the one hand, and “a claim

of ineffective assistance of counsel,” on the other. Id. at 194. It expressly

stated that it was not deciding whether a lawyer’s failure to advise a client

10

about collateral consequences might constitute ineffective assistance of counsel

under the Sixth Amendment. Id. It ruled that it “must recognize at least the

possibility that deficiencies in advice about collateral consequences of a plea

may pull a lawyer’s representation below the level of ‘reasonab’e competence’

by which effective assistance of counsel is constitutionally measured.” Id.

Five years later, however, this Court did conflate the two analyses. In

Wellington v. Comm’r, State Dept of Corrs., 140 N.H. 399 (1995), the habeas

petitioner, who had entered an Alford plea and continued to maintain his

innocence, see North Carolina v. Alford, 400 U.S. 25, 37 (1970), claimed that

he had received ineffective assistance of counsel because his lawyer did not tell

him that the sexual offender program was a prerequisite to parole and that

admitting guilt was a prerequisite to entering the sexual offender program.

Wellington, 140 N.H. at 400-02. This Court rejected the claim because the

consequences were collateral. Id. at 40 1-02. In doing so, it conilated the due

process inquiry with the effective assistance of counsel inquiry. Id. This Court

did not address its recognition in Elliott that a lawyer may have a duty to

advise a client about collateral consequences even though the trial court does

not.

The approach taken in Wellington — conflating the due process and Sixth

Amendment inquiries and holding that the right to effective assistance of

counsel does not extend to advice regarding collateral consequences — became

widespread throughout the nation. See Margaret Colgate Love, Collateral

Conseauences After Padilla v. Kentucky: Prom Punishment to Regulation, 31

11

St. Louis U. Pub. L. Rev. 87, 98 (2011) (“Courts applied the same formalistic

distinction between direct and collateral consequences to test a lawyer’s Sixth

Amendment advisement obligations that they applied to test their own

obligations under the Due Process Clause”). By 2010, state and lower federal

courts “almost unanimously concluded that the Sixth Amendment does not

require attorneys to inform their clients of a conviction’s collateral

consequences.” Chaidezv. United States, 133 S. Ct. 1103, 1104-05 (2013); but

see State v. Sharkey, 155 N.H. 638, 642-43 (2007) (gross misinformation

regarding collateral consequences may constitute ineffective assistance of

counsel).

It was not until 2010 that the United States Supreme Court addressed

the “direct”/”collateral” distinction in the context of the Sixth Amendment. In

Padilla v. Kentucky, 559 U.S. 356 (2010), the defendant claimed that he had

received ineffective assistance of counsel both because his lawyer failed to tell

him that, if convicted, he would be deported, and because his lawyer

affirmatively told him that he would not be deported. Id. at 359. The lower

court denied his claim on the ground that immigration consequences were

collateral, and the right to effective assistance of counsel does not include

advice about collateral consequences. Id. at 359-60. The Supreme Court,

however, noted that it had “never applied a distinction between direct and

collateral consequences to define the scope of constitutionally ‘reasonable

professional assistance’ required under Strickland.” Padilla, 559 U.S. at 365.

The Court noted that deportation is “a particularly severe ‘penalty”’ that is

12

“intimately related to the criminal process.” Id. “[Bjecause of its close

connection to the criminal process,” the Court noted, it is “uniquely difficult to

classify as either a direct or a collateral consequence.” Id. at 366. “The

collateral versus direct distinction is thus ill-suited to evaluating a Strickland

claim concerning the specific risk of deportation.” Id. The Court “conclude[dJ

that advice regarding deportation is not categorically removed from the ambit of

the Sixth Amendment right to counsel.” Id. The Court held that Strickland

applies to a lawyer’s failure to provide advice as well as to a lawyer’s affirmative

erroneous advice, finding “that there is no relevant difference . . . in this

context.” Id. at 370.

In State v. Ortiz, 163 N.H. 506 (2012), this Court returned to the view,

first expressed in Elliott, that the due process analysis is distinct from the

Sixth Amendment analysis. In Ortiz, the defendant moved to withdraw her pçq

se, nob contendere plea to misdemeanor shoplifting because the court did not

advise her that she might be deported. Ortiz, 163 N.H. at 508. She argued

that Padilla’s requirement under the Sixth Amendment — that attorneys warn

their clients of the risk of deportation before a guilty plea — “is transferrable” to

a due process requirement that a judge provide a similar warning. Id. at 511.

This Court, however, rejected the argument that an attorney’s obligation under

the Sixth Amendment is interchangeable with a judge’s obligation under due

process. Id. at 512. Rather, it held that “the ineffective assistance of counsel

analysis ... and the due process analysis . . . differ markedly.” Id. It

explained:

13

Direct and collateral consequences relate to the trialcourt’s duty to ensure that guilty pleas are knowinglyand voluntarily entered as a matter of FifthAmendment due process, while ineffective assistanceof counsel relates to the defense per’s dutypursuant to the Sixth Amendment.

This approach clarifies that defense counsel may beineffective in relation to a guilty plea due toprofessional duties for the representation of theirindividual clients that set a standard different — andhigher — than those traditionally imposed on trialcourts conducting plea hearings for defendants aboutwhom the judges often know very little.

Id. (ellipsis omitted). This Court went on to hold that immigration

consequences are collateral, and thus, due process does not require a judge to

warn a defendant about the risk of deportation. Id. at 5 13-14; see also

Chaidez, 133 S. Ct. at 1110 (Padilla did not question whether the direct-

collateral distinction is appropriate in contexts other than the Sixth

Amendment right to effective assistance of counsel).

As Padilla and Ortiz establish, the ineffective assistance of counsel

analysis differs from the due process analysis. To the extent that Wellington

conflates the two analyses, it has been implicitly overruled by Padilla and Ortiz.

Here, moreover, the State agrees that the two analyses are different. In its

motion to dismiss and answer, the State criticized Ramos’s lawyer for

“incorrectly conflat[ing] due process voluntariness-of-plea analysis with Sixth

Amendment ineffective-assistance-of-counsel jurisprudence.” A93.

Imposing a broader obligation on lawyers than on judges is logical.

“JP]lea bargains have become so central to the administration of the criminal

justice system that defense counsel have responsibilities in the plea bargain

14

process, responsibilities that must be met to render the adequate assistance of

counsel that the Sixth Amendment requires in the criminal process at critical

stages.” Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). A lawyer spends

much more time with the defendant than does a judge, and therefore knows

much more about the defendant and his or her background and priorities.

Unlike a judge, a lawyer is likely to be familiar with the defendant’s

immigration status, family ties, criminal and motor vehicle history, and

occupational aspirations. See Michel v. United States, 507 F.2d 461, 466 (2d

Cir. 1974) (“Defense counsel is in a much better position to ascertain the

personal circumstances of his client so as to determine what indirect

consequences the guilty plea may trigger”), ABA Standards for Criminal

Justice: Pleas of Guilty, § 14-3.2(1) cmt. at 126 (3d ed. 1999) (“only defense

counsel is in a position to ensure that the defendant is aware of the full range

of consequences that may apply in his or her case”). Thus, while it would be

an “impossible, unwarranted and unnecessary burden” to require judges to

advise defendants about the “numerous and logically unforeseeable” collateral

consequences, State v. Fournier, 118 N.H. 230 (1978), it is perfectly reasonable

to expect lawyers to advise their clients about those collateral consequences

that would have the greatest impact for each client, in light of that client’s

background and priorities. See ABA Standards for Criminal Justice: Pleas of

Guilty, § 14-3.2(0, cmt. at 127 (3d. ed. 1999) (“counsel should interview the

client to determine what collateral consequences are likely to be important to a

client given the client’s particular personal circumstances and the charges the

15

client faces”); Love, supra at 100 (“The considerations that make the

direct/collateral distinction sensible from the standpoint of institutional

competence when applied to a court, do not apply to criminal defense lawyers’

relationships with their clients... To say that defense counsel’s duty of

advisement under the Sixth Amendment is no greater than that of a court

under the Due Process Clause is to say that defense counsel has no duty at

all”).

Although a judge need only advise a defendant of the direct

consequences of a plea, Ortiz makes clear that the duty that a lawyer owes to

such a defendant is “different — and higher — than” that owed by the judge.

Ortiz, 163 N.H. at 512. Thus, the mere fact that a consequence is collateral

does not necessarily mean that a lawyer has no duty to advise his client

regarding it. Rather, claims of ineffective assistance of counsel in relation to

guilty pleas should be evaluated pursuant to the two-prong Strickland test —

the same test that is used to evaluate all other claims of ineffective assistance

of counsel. See Premo v. Moore, 562 U.S. 115, 126 (2011) (“Whether before,

during, or after trial, when the Sixth Amendment applies, the formulation of

the standard is the same: reasonable competence in representing the

accused”); Hill, 474 U.S. at 56-59 (courts should ask whether advice “was

within the range of competence demanded of attorneys in criminal cases,” and,

if not, whether “there is a reasonable probability that, but for counsel’s errors,

[the defendantj would not have pleaded guilty and would have insisted on going

to trial”).

16

Whether a lawyer’s failure to advise a client about a particular

consequence “was within the range of competence demanded of attorney in

criminal cases,” Hill, 474 U.S. at 56, “is determined on the facts of the

particular case,” “in light of all the circumstances.” Strickland, 466 U.S. at

690. Although the nature of a particular consequence as “direct” or “collateral”

might be one factor in determining whether an attorney’s failure to advise a

particular client about it satisfies this first prong of Strickland, it is not

dispositive. As Strickland itself makes clear, “specific guidelines are not

appropriate” in the analysis. Id. at 688. Here, by failing to apply the two-

prongs of Strickland and by dismissing Ramos’s ineffectiveness claim solely on

the ground that the consequence at issue was collateral, the court erred.

Even if some collateral consequences should be categorically excluded

from the range of matters about which a lawyer must provide advice, out-of-

state prison transfer, like deportation, should not be among them. In Padilla,

the Court cited several authorities supporting the proposition that defense

lawyers are obligated to advise non-citizens about the risk of deportation.

Padilla, 559 U.S. at 367-68. Many of those authorities equally support the

proposition that defense attorneys are obligated to advise their clients about

the risk of interstate prison transfer. See Performance Guidelines for Criminal

Defense Representation, § 6.2(a)(5) (Nat’l Legal Aid and Defender Ass’n 2011)

(“counsel should . . . make sure client is aware of. . . the possible and likely

place and manner of confinement); 2 Compendium of Standards for Indigent

Defense Systems: Standards for Attorney Performance, H7, H9 (Dep’t of Justice

17

2000) (states adopting “possible and likely place and manner of confinement”

guideline); ABA Standards for Criminal Justice: Prosecution Function and

Defense Function, § 4-5.1(a) (3d ed. 1993) (“defense counsel should advise the

accused with complete candor concerning all aspects of the case, including a

candid estimate of the probable outcome); id., § 4-8.1(a) (“The consequences of

the various dispositions available should be explained fully by defense counsel

to the accused”); id., § 4-8.1(a) cmt. at 235 (“The lawyer should carefully

explain to the defendant the sentencing alternatives available to the court and

what they will mean for the defendant personally should any of them be

selected”); ABA Standards for Criminal Justice: Pleas of Guilty, 14-3.2(1) (3d.

ed. 1999) (“To the extent possible, defense counsel should determine and

advise the defendant, sufficiently in advance of the entry of any plea, as to the

possible collateral consequences that might ensue from entry of the

contemplated plea”).

Although the court here distinguished Padilla by asserting that

“immigration consequences are neither direct nor collateral,” Supp. 5, this

misreads Padilla. In Padilla, the Court did not find that “immigration

consequences are neither direct nor collateral;” it found that, in the Sixth

Amendment context, it does not matter whether immigration consequences are

direct or collateral. See Padilla, 559 U.S. at 366 (“The collateral versus direct

distinction is thus ill-suited to evaluating a Strickland claim concerning the

specific risk of deportation”); Chaidez, 133 S. Ct. at 1110 (in Padilla, Court

“acknowledged” that “deportation . . . could well be viewed as a collateral}

18

matter”). The court’s assertion also contradicts this Court’s case law. Ortiz,

163 N.H. at 513-14 (“we join the other jurisdictions that have concluded that

immigration consequences are collateral consequences of a plea”).

The court also distinguished Padilla on the ground that interstate

transfers “do not happen with such regularity.” Supp. 5. The fact that there is

uncertainty about whether an individual will be transferred to an out-of-state

prison, however, does not diminish that individual’s interest in advice about

the risk. The fact that some individuals are not transferred out-of-state is little

comfort to those who, like Ramos, are transferred to prisons far away from

their families.

Finally, the court was mistaken in concluding that “[t]ransfers out of

state . . . do not impose such a great burden on inmates.” Supp. 5. Like

deportation, out-of-state prison transfer is a “particularly severe penalty,” that

is “intimately related to the criminal process.” Padilla, 559 U.S. at 365. Like

deportation, it is “most difficult to divorce” interstate prison transfer from the

underlying conviction. Id. at 366. Like deportation, interstate prison transfer

has an “impact . . . on [inmates’j families living” in, or near, the sending state.

Id. at 366. Here, for instance, Ramos’s interstate transfer to Florida posed a

greater geographical burden on him and his family than they would have faced

had he been deported to eastern Canada. It would be untenable to assert that

when Ramos was a 17-year-old child deciding whether to plead guilty to second

degree murder and attempted escape, he did not have an ovenvhelming

19

interest in being advised that he could transported to a prison over a thousand

miles away from his family.

For these reasons, interstate prison transfer is sufficiently similar to

deportation to justify similar treatment under the Sixth Amendment. Even if

some collateral consequences are “categorically removed from the ambit of the

Sixth Amendment right to counsel,” id. at 366, the risk of interstate prison

transfer is not. For these reasons, Strickland applies to Ramos’s claim.

The court here failed to apply Strickland. Thus, its ruling granting the

State’s motion to dismiss Ramos’s third claim should be reversed, and this

case should be remanded for an evidentiary hearing on that claim.

20

CONCLUSION

WHEREFORE, Alberto Ramos respectfully requests that this Court

reverse.

On December 23, 2015, this Court ordered that this case be scheduled

for argument before the full court.

The appealed decision is in writing and is appended to the brief.

Respectfully submitted,

ByX L—

Thomas Barnard, #16414Senior Assistant Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief have been mailed,postage prepaid, to:

Lisa L. WolfordAssistant Attorney GeneralCriminal BureauNew Hampshire Attorney General’s Office33 Capitol StreetConcord, NH 03301

thomas Barnard

DATED: July 7, 2016

21

SUPPLEMENT

SUPPLEMENT - TABLE OF CONTENTS

Page

Order on State’s Second Motion to Dismiss Supp. 1

?flje tate of Jtbi rnnpflirc,ietior Qtiurt

3R.ocking&m,

ALBERTO RAMOS

V.

WARDEN, NEW HAMPSHIRE STATE PRISON

NO. 217-2013-C ‘1-344

ORDER ON STATE’S SECOND MOTION TO DISMISS

The petitioner in 1998 was sentenced to 28 years to life for second degree

murder and attempted escape. He was 14 at the time of the murder, and 17 years old

at the time of his sentencing. In April 2013, the petitioner was transferred to a phson in

Florida. He filed a motion for a writ of habeas corpus, alleging that his plea was

involuntary and that the State breached the terms of his plea agreement by transferring

him to Florida. A telephonic hearing was conducted on September 13, 2013. Because

the petitioner was incarcerated without access to a library containing New Hampshire

law, the Court appointed the New Hampshire Public Defender to represent him. The

petitioner subsequently filed a supplemental petition for habeas corpus, arguing two

theories of ineffective assistance of counsel, The Warden moves to dismiss. The

petitioner objects. After review, the Warden’s motion to dismiss is GRANTED IN PART

and DENIED IN PART.

1

Supp. 1

Analysis

The petitioner makes four claims: 1) his plea agreement was rendered

involuntary when he was transferred to Florida, 2) the State breached his plea

agreement by transferring him to Florida, 3) his trial attorneys provided ineffective

assistance of counsel when they did not counsel him that he might not serve all of his

time in New Hampshire, and 4) his trial attorneys provided ineffective assistance of

counsel when they counseled him that he would serve all of his time in New Hampshire.

The Warden moves to dismiss. The Court will address each count individually.

The Court Cannot Say the Petitioner Cannot Demonstrate the TransferRendered His Plea Involuntary

The petitioner contends that his plea agreement included a term that he would

serve his sentence in New Hampshire, and that he would not have accepted the plea

agreement had the sentence allowed him to serve time elsewhere.

“A guilty plea must be knowing, intelligent, and voluntary to be valid. State v.

Qrtiz, 163 N.H. 506, 509 (2012) (citation omitted). In a collateral attack on a guilty plea,

a defendant must show some evidence which describes in a specific manner the way in

which he argues his plea was unknowing, unintelligent, or involuntary. Id. If a

defendant meets that burden and, as here, the trial court inquired into the knowledge or

volition of a plea, the defendant has the burden to demonstrate by clear and convincing

evidence that the trial court was wrong and that his plea was either involuntary or

unknowing for the reason he specifically claims.” Id. This is a high burden.

‘When a defendant knowingly and intelligently enters a plea of guilty, he waivers

a series of constitutional guarantees including the privilege against compulsory self

2

Supp. 2

incrimination and the rights to confront the witnesses against him and to obtain a thai by

jury. . If the prosecutor thereafter repudiates [the agreement), the wavers cannot be

enforced as knowing or voluntary.” State v. Little, 138 N.H. 657, 660 (1994) (quoflng

State v. O’Leary, 128 N.H. 661, 665-66 (1986)); but see Puckettv. United States: 556

U.S. 129, 137 (2009) (holding that prosecution breaching a plea agreement does not

render the plea unknowing or involuntary). “A defendant who has performed his part of

a plea agreement has a claim to relief, if not specific enforcement, because a

prosecutor’s failure to honor his side of the agreement invalidates the defendant’s

waiver of substantive constitutional rights.’ Little, 138 N.H. at 660.

Here, the Court believes that the petitioner is entitled to a hearing at which he

may present evidence that where he would serve his time was a term of the plea

agreement and that the Warden has breached that agreement. The Warden may

introduce evidence that there was no such term of the agreement or that the Warden

has not breached the agreement for some other reason.

II. The Court Cannot Say as a Matter of Law the Petitioner Is Not Entitled toSome Form of Relief

The petitioner also claims that he is entitled to specific performance on the plea

agreement and that the Warden should be ordered to return the petitioner to New

Hampshire. Santobello v. New York, 404 U.S. 257, 262 (1971) [W]hen a plea rests in

any significant degree on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be fulfilled.”).

The Warden argues that the petitioner cannot possibly demonstrate that where he

would serve his time was a term of the plea deal and That his decision to plead guilty

rested on that term “to a significant degree.” The fact that neither the State nor the

3

Supp. 3

Court have the authority to bind the Department of Corrections on the issue of where an

inmate will be incarcerated does not mean, as a matter of law, that the State did not

make that promise to the defendant. See RSA ch. 622; RSA ch. 623-B: RSA 651:15;

see also Parker, 629 N.W.2d at 79-SO (Parker must show that during plea negotiations

the prosecutor promised Parker he would serve his sentence in Wisconsin. Here, there

is no proof whatsoever that the prosecutor or court promised Parker he would serve his

sentence in Wisconsin.’); Cf. Griffin v. State, 461 N.E.2d 1123, 1124 (Ind. 1984) (noting

that the prosecution promised the defendant that it would recommend that the

defendant serve his sentence outside of Indiana). Rather, the Court is required to make

credibility assessments on whether the plea agreement included a condition that the

defendant serve his time in New Hampshire and that he relied on that provision “to a

significant degree.” The Court cannot resolve this issue without an evidentiary hearing

on the question. The Warden may also present evidence of any defenses the State

may have to the breach-of-plea claim. See Puckett v. United States, 556 U.S. 129, 137

(2009) (“Although the analogy may not hold in all respects, plea bargains are essentially

contracts,’).

III. Defendant Cannot Demonstrate His Trial Attorneys Were Ineffective byFailing to Warn Him that He Could Serve His Time Out of State

The petitioner next argues that, in the alternative, his trial attorneys were

ineffective when they did not warn him he could be sent out of state to serve his

sentence. Failing to inform a client of the collateral consequences of his conviction via

plea or trial does not constitute ineffective assistance of counsel. Wellinaton v.

4

Supp. 4

Commissioner, 140 N.H. 399, 401 (1995). By contrast, counsel is ineffective if she fails

to inform a client of the direct consequences of his plea.1

The Court concludes that the possibility of being sent out of state is a collateral

consequence, See Wellington, 140 N.H. at 401 (impact of Alford plea on parole after

probation is revoked is collateral); State v. Elliot, 133 N.H. 190, 193 (1990) (impact of

guilty plea on habitual offender certification is collateral); State v. Harper1 126 N.H. 815

(1985) (that conviction might result in enhanced penalties for subsequent crimes is

collateral).

The case is distinguishable from Padilla v. Kentucky, 559 L’S. 356, 2.65 (2010),

where the United States Supreme Court required that defense counsel inform clients of

the immigration consequences of a guflty plea. The case at bar presents a drama:ically

different circumstance that the immigration context. Deportation is “unique” in part

because of its ‘dramatic” nature--an almost automatic imposition after certain criminal

convictions. Padilla, 559 IJ.S. at 360, 365-66. By contrast. “[c]onfinement in another

State. . . is within the normal limits or range of custody which the conviction has

authorized the State to impose.” Ohm v. Wakinekona, 461 U.S. 238, 247 (1983)

(quotations omitted); see also Goodwin v. Perrin, 120 N.H. 669, 672 (1980) (“New

Hampshire law confer[s] no right on the prisoner to serve his time in any particular

facility or even inside the State.”). Transfers out of state do not happen with such

regularity and do not impose such a great burden on inmates that they can be

considered direct consequences. In concluding that the possibility of inter-state transfer

The Court notes that immigration consequences are neither direct nor collateral, but that counsel mustinform her client of immigration consequences before a plea. Padilla v. Kentucky, 559 U.S. 356, 365(2010).

5

Supp. 5

is a collateral conviction, the Court joins the company of the Wisconsin Court of

Appeals. See State v. Parker, 629 N.W.2d 77, 80 (Wis. Ct. App. 2001), Because it is a

collateral consequence, the failure to inform cannot constitute ineffective assistance of

counsel. A hearing on this issue is not necessary. See Grote v. Powell, 132 N.H. 96,

99 (1989) (“{W]hen a petition for habeas corpus asserts that the petitioner was denied

effective assistance of counsel, the court need not hold a hearing if the existing record

of the case clearly indicates that the peUtioner is note entitled to relief requested on the

grounds alleged.”). Thus, the Warden’s motion to dismiss the petitioner’s third count is

GRANTED.

IV. The Petitioner Is Entitled to a Hearina on Whether His Trial ArtorneysWere Ineffective by Misinforming Him on Where He Could Serve HisSentence

The petitioner next claims that he was denied effective assistance of counsel

when his trial attorneys actively misinformed him that he would serve his entire

sentence in New Hampshire. In evaluating a claim for ineffective assistance of counsel,

the Court looks at whether counsel’s performance fell below a reasonable standard, and

whether counsel’s performance prejudiced the defendant. See, Wellinuton, 140

N.H. at 400-01 (1995). While a defense lawyer has no obligation to inform his client of

collateral consequences of a plea, defense counsel may not prcvide affirmative

misinformation about the consequences of his plea. Counsel’s performance has fallen

below a reasonable standard if counsel ‘grossly misinforms a criminal defendant about

the collateral consequences of pleading guilty.” State v. Sharkey, 155 N.H. 638, 643

(2007). As to the prejudice prong, the petitioner must show that “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and woLild

0

Supp. 6

have insisted on going to trial.” Wellington, 140 N.H. at 401 (citations and quotations

omitted). On the record at this stage, the Court is unable to decide this claim. The

defendant has presented at least some evidence that the defendant was told he would

serve his sentence in New Hampshire if he pled guilty. See Defendant’s Supplement

To Petition for Writ of Habeas Corpus J28-31. Thus, a hearing wilt be scheduled for

the limited purpose of hearing evidence as to what the petiUoner’s trial attorneys told the

petitioner, whether he relied on that advice in pleading guilty, and ‘whether there is a

reasonable probability” lie would have not pleaded guilty absent that advice.

C on cI LI S Ofl

The clerk will schedule a hearing at which the petitioner will appear through video

conferencing for the purpose of taking evidence only as discussed above. All other

witnesses will testify in open court. In Vincent v. MacLean, — N.H. —, *5 (decided

March 7, 2014), the New Hampshire Supreme Court upheld the use of

videoconferencing for taking evidence in a civil matter. The Court noted that it is ‘within

the trial court’s discretion and the recognition of videoconferencing’s limitations does not

mean that [a plaintiff] was denied due process.” (citations and quotations omitted).

While Vincent involved a small claims case and invoved a plaintiff proceeding pro se,

the Court believes that the reasoning of Vincent allows videoconferencing here. The

Court will grant the petitioner and his counsel wide latitude in dealing with any

technological limitations that may occur. Crucially, this hearing is being conducted

before the Court and not to a jury and is a “relatively straightforward” matter, at least

factually. Id., at *5 Finally, while it may involve incarceration, a writ of habeas corpus

is a civil mailer, and the right the petitioner is seeking to vindicate is not one of absolute

7

Supp. 7

liberty—rather one of the right to serve time in New Hampshire. ci. at *6 (quoting

with approval Thorton v. Snyder, 428 F.3d 690, 698 (7th Cir. 2005) (allowing

teleconferencing in a prisoner’s civil rights case)). Finally, the Court notes the extreme

expense nvolved in transporting a prisoner approximately 1000 miles weighs against

ordering the petitioner’s transportation. The hearing will occur at the Rockingham

County Superior Court. The parties shall make arrangements for an oath to be

administered to the defendant in Florida if he intends to testify. The parties shall notify

the clerk’s office about any technical issues for conducting an evidentiaw heailng with

the defendant participating by video from prison in Florida.

SO ORDERED.

DATtE N. William DelkerPresiding Justice

8

Supp. 8