US v. Fazio — habeas corpus — affirmance — Chagares

Cosmo Fazio is a non-citizen who pled guilty to cocaine distribution after his lawyer told him that, in light of the conviction, there was “a chance” he would be deported but in the lawyer’s opinion “he would not be.” Both the plea agreement and the plea colloquy said that “no one can predict to a certainty” what effect the conviction would have on his immigration status. Ten days after Fazio pled guilty, a new lawyer told him that deportation was not just possible, it was certain. Fazio immediately tried to take back his plea, and ultimately Fazio filed a 2255 motion arguing that his plea counsel was ineffective, which the district court denied.

Today, the Third Circuit affirmed, denying Fazio’s appeal. The court did not decide whether plea counsel’s performance was deficient, holding that Fazio was not prejudiced because the colloquy “cured” any error by counsel. (The court also enforced Fazio’s collateral-attack waiver, although the opinion suggests that it would not have enforced the waiver if it had found that the ineffective-assistance claim had merit.)

Chagares was joined by Ambro and Vanaskie. Arguing counsel were Almon Burke and Mark Goldstein for Fazio and Michael Ivory for the government.

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

UPDATE:

• Here is the district court order denying Fazio’s motion to withdraw his plea, which describes the facts in greater detail than the CA3 opinion does; and
• Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.
• Here is the CA3 oral argument audio.

Santini v. Fuentes — civil rights — affirmance — Van Antwerpen

The court today revived a civil rights suit brought by a farmer against police who forcefully arrested him. The district court had granted summary judgment against the farmer, but the Third Circuit reversed in part, “emphasizing that . . . we must construe all facts and inferences in favor of the nonmoving party.”

Joining Van Antwerpen were Chagares and Krause. The case was decided without argument.

Disability Rights NJ v. Commissioner — civil rights — affirmance — Hardiman

The court today largely upheld New Jersey’s laws allowing non-emergency forcible medication of mentally ill persons in state custody without judicial process. The only persons with a right to judicial process before being forcibly administered psychotropic drugs are patients who are no longer subject to involuntary confinement but who are still in custody awaiting transfer to another facility. (Why the heck did NJ cross-appeal that?)

Joining Hardiman were Smith and Barry. Arguing counsel were Nathan Mammen of Kirkland & Ellis for the disability-rights group and Stuart Feinblatt for the state.