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Supreme Court of the United States No. _________ ================================================================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- ALFREDO JUAREZ, Petitioner, v. PEOPLE OF THE STATE OF COLORADO, Respondent. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The Supreme Court Of Colorado --------------------------------- --------------------------------- PETITION FOR A WRIT OF CERTIORARI --------------------------------- --------------------------------- PHILIP L. TORREY Counsel of Record CRIMMIGRATION CLINIC HARVARD IMMIGRATION AND CLINICAL PROGRAM HARVARD LAW SCHOOL 6 Everett Street, Suite 3105 Cambridge, MA 02138 (617) 495-0638 [email protected] Counsel for Petitioner ================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTION PRESENTED FOR REVIEW In Padilla v. Kentucky, this Court held that the Sixth Amendment right to effective assistance of counsel requires counsel to provide correct legal advice to noncitizen-defendants about the immigration con- sequences of a prospective guilty plea. 559 U.S. 356, 368–69 (2010). If federal law is “succinct, clear, and explicit” about the immigration consequences of a guilty plea, then defense counsel’s duty to explain those consequences is equally clear. Id. at 368. In con- trast, defense counsel need only caution that a guilty plea may carry a risk of adverse immigration conse- quences when federal law is unclear. Id. In Padilla, the Court determined that federal law clearly required the petitioner’s deportation as a result of his guilty plea. Id. at 368–69. Defense counsel was therefore required to explain to the petitioner that the guilty plea would trigger his mandatory deportation as a matter of law. Id. at 360, 369. The question presented in this case is: When there is no dispute that a guilty plea will trigger mandatory deportation pursuant to federal law, must defense counsel advise a noncitizen-defendant that the plea will result in deportation as a matter of law, or is it sufficient for defense counsel to caution that the plea could make the noncitizen-defendant “deportable” or that it will “probably” result in deportation? ii PARTIES TO THE PROCEEDING All parties appear in the caption of the case on the cover page. RELATED PROCEEDINGS Colorado Supreme Court: Juarez v. Colorado, No. 2017SC815 (Feb. 10, 2020), reh’g denied (Mar. 2, 2020) iii TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW .......... i PARTIES TO THE PROCEEDING ...................... ii RELATED PROCEEDINGS ................................ ii TABLE OF CONTENTS ...................................... iii TABLE OF AUTHORITIES ................................. v PETITION FOR A WRIT OF CERTIORARI ....... 1 OPINIONS BELOW ............................................. 1 JURISDICTION ................................................... 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED ............................................. 2 INTRODUCTION ................................................ 2 STATEMENT OF THE CASE.............................. 5 I. FACTUAL BACKGROUND ....................... 5 A. Juarez’s ties to the United States and the 2011 arrest .................................... 5 B. Defense counsel’s failure to advise Juarez that the prosecution’s plea offer would trigger his deportation as a matter of law .................................... 6 II. THE PROCEEDINGS BELOW ................. 9 A. Colorado District Court ....................... 9 B. Colorado Court of Appeals ................... 11 C. Colorado Supreme Court ..................... 12 REASONS FOR GRANTING THE WRIT ............ 14 iv TABLE OF CONTENTS—Continued Page I. THE DECISION BELOW CONTRIBUTES TO A DEEP CONFLICT AMONG FEDERAL CIRCUIT COURTS AND STATE COURTS OF LAST RESORT ..................................... 14 II. THE DECISION BELOW IS INCORRECT AND OFFERS AN IDEAL VEHICLE TO RESOLVE THE QUESTION PRESENTED .... 20 A. The decision below is incorrect ........... 20 B. This case offers an ideal vehicle to resolve the question presented ............ 22 CONCLUSION ..................................................... 24 APPENDIX Opinion, Supreme Court of Colorado (February 10, 2020) .......................................... App. 1 Opinion, Colorado Court of Appeals (October 19, 2017) .......................................... App. 24 Denial of Petition for Postconviction Relief, District Court, City & County of Denver, Colorado (May 28, 2013) ................................ App. 46 Denial of Rehearing, Supreme Court of Colorado (March 2, 2020) .............................................. App. 70 v TABLE OF AUTHORITIES Page CASES Budziszewski v. Comm’r of Correction, 142 A.3d 243 (Conn. 2016) ...................................... 16 Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................. 22 Diaz v. Iowa, 896 N.W.2d 723 (Iowa 2017) ............................. 16, 19 Encarnacion v. Georgia, 763 S.E.2d 463 (Ga. 2014) ....................................... 16 Hernandez v. Florida, 123 So.3d 757 (Fla. 2012) ........................................ 17 Hill v. Lockhart, 474 U.S. 52 (1985) ................................................... 20 Kingdomware Tech. v. United States, 136 S. Ct. 1969 (2016) ............................................. 10 Lee v. United States, 137 S. Ct. 1958 (2017) ............................. 4, 13, 22, 23 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) ................................................... 10 Maiyo v. United States, 576 F. App’x 567 (6th Cir. 2014) .............................. 16 Maryland v. Sanmartin Prado, 141 A.3d 99 (Md. 2016) ........................................... 17 Massachusetts v. DeJesus, 9 N.E.3d 789 (Mass. 2014) ................................ 17, 21 vi TABLE OF AUTHORITIES—Continued Page Neufville v. Rhode Island, 13 A.3d 607 (R.I. 2011) ............................................ 18 Padilla v. Kentucky, 559 U.S. 356 (2010) ......................................... passim Shata v. Wisconsin, 868 N.W.2d 93 (Wisc. 2015) ..................................... 17 Strickland v. Washington, 466 U.S. 668 (1984) ....................................... 9, 13, 21 United States v. Al Halabi, 633 F. App’x 801 (2d Cir. 2015) ............................... 15 United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) .................................... 15 United States v. Fazio, 795 F.3d 421 (3d Cir. 2015) ..................................... 15 United States v. Ramirez-Jimenez, 907 F.3d 1091 (8th Cir. 2018) ............................ 15, 19 United States v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015) .............................. 15, 21 Washington v. Sandoval, 249 P.3d 1015 (Wash. 2011) .................................... 17 STATUTES 8 U.S.C. § 1227(a) ................................................ 2, 9, 10 8 U.S.C. § 1227(a)(2)(B)(i) ......................................... 2, 8 8 U.S.C. § 1229b(a)(1) ................................................... 9 vii TABLE OF AUTHORITIES—Continued Page 21 U.S.C. § 802 .............................................................. 2 28 U.S.C. § 1257(a) ........................................................ 1 REGULATIONS 21 C.F.R. § 1308.15(d)(1) ............................................... 7 CONSTITUTIONAL PROVISIONS U.S. Const. amend. VI ......................................... 2, 4, 18 OTHER AUTHORITIES Merriam-Webster, Online Dictionary, https://www.merriam-webster.com/dictionary/able ...... 21 1 PETITION FOR A WRIT OF CERTIORARI Alfredo Juarez petitions for a writ of certiorari to review the judgment of the Colorado Supreme Court. --------------------------------- --------------------------------- OPINIONS BELOW The decision of the Colorado Supreme Court is reported at 457 P.3d 560 (Colo. 2020) and reproduced in the Appendix at App. 1–23. The Colorado Supreme Court’s decision denying rehearing is not reported, but it is reproduced in the Appendix at App. 70. The deci- sion of the Colorado Court of Appeals is reported at 459 P.3d 596 (Colo. App. Ct. 2017) and reproduced in the Appendix at App. 24–45. The decision of the Colorado District Court is not reported, but is available at No. 2011CR01007, 2013 WL 12330519 (Colo. Dist. Ct. May 28, 2013), and it is reproduced in the Appendix at App. 46–69. --------------------------------- --------------------------------- JURISDICTION The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). The judgment of the Colorado Su- preme Court denying a petition for rehearing entered on March 2, 2020. --------------------------------- --------------------------------- 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The United States Constitution, Amendment VI, provides, in relevant part: In all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for his defense. 8 U.S.C. § 1227(a) provides: Any alien (including an alien crewman) in and admitted to the United States shall, upon or- der 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)(2)(B)(i) provides: Any alien who at any time after admission has been convicted of a violation of (or a con- spiracy or attempt to violate) any law or reg- ulation of a
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