Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel. Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction. Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.
Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice. In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.
In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.
First, the Eleventh Circuit agreed that the lawyer’s advice was unreasonably poor even though the reach of the underlying SVP civil commitment law was not yet clear. Although it was not certain that the law would be interpreted to reach Bauder’s stalking offense, the lawyer’s assurance that Bauder had nothing to fear constituted ineffective assistance — the lawyer should have at least warned Bauder of the risk of civil commitment. The case thus provides insight into the meaning of effective assistance in the context of legal uncertainty.
Second, the district court found that Bauder’s lawyer not only provided unreasonably poor performance, but that Bauder was prejudiced by the bad advice. Padilla itself remanded for the lower court to determine prejudice, leaving the prejudice analysis uncertain when the defendant argues that he has pled guilty as a result of bad advice. In Bauder, however, the district court found prejudice where the evidence of guilt was not overwhelming, the defendant had maintained his innocence (he pled no contest), and the lawyer admitted that he would have advised going to trial had he anticipated the defendant would be indefinitely committed under the SVP law. It seems that this very interesting aspect of the district court decision in Bauder was not appealed.
Cross posted at Life Sentences.
That is a great win for not telling your client he may face the “possibility of a civil commitment as a sexually violent predator” if he pled no contest to a stalking charge.