Supreme Court of the United States ______

No. 2015-01

IN THE Supreme Court of the United States ______

OCTOBER TERM 2015 ______

TOMAS HAVERFORD, Petitioner,

STATE OF EAGLETON, Respondent. ______

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF EAGLETON ______

BRIEF FOR PETITIONER ______

TEAM 11 Counsel for Petitioner

ISSUES PRESENTED

I. Whether the district court erred when it denied the Petitioner’s motion to suppress the evidence of methamphetamine and the equipment and supplies commonly used to manufacture methamphetamine, given that: A. Mr. Haverford was unlawfully seized when Deputy Sanderson extended a routine traffic stop into a criminal investigation without reasonable suspicion because nervousness and shakiness do not amount to reasonable suspicion. B. Mr. Haverford’s consent was invalid because the unlawful seizure resumed when Deputy Sanderson re-approached to ask for consent because a reasonable person would not feel free to leave or decline the deputy’s request. C. The evidence was tainted because a twelve second break is not enough to attenuate the taint, even though Deputy Sanderson told Mr. Haverford he was free to leave.

II. Whether the district court erred when it denied Petitioner’s motion to withdraw his guilty plea, given that: A. Mr. Brendanawicz provided objectively unreasonable misadvice regarding the consequences of Mr. Haverford’s guilty plea. B. Mr. Haverford was prejudiced because of Mr. Brendanawicz’s constitutionally deficient performance.

TABLE OF CONTENTS

Page

ISSUES PRESENTED ...... i

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... v

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ...... xi

STATEMENT OF THE CASE ...... 1

Statement of Facts ...... 1

Preliminary Statement ...... 2

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT ...... 6

I. THE DRUG EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE MR. HAVERFORD’S CONSENT WAS INVALIDATED AND THE EVIDENCE WAS TAINTED WHEN DEPUTY SANDERSON UNLAWFULLY EXTENDED THE TRAFFIC STOP INTO A CRIMINAL INVESTIGATION WITHOUT REASONABLE SUSPICION...... 6

A. The Extension of the Traffic Stop Was Unlawful Because Deputy Sanderson’s Testimony as to Mr. Haverford’s Pupils Should Be Discounted and the Remaining Factors of Nervousness and Shakiness Do Not Amount to Reasonable Suspicion...... 7

1. The trial court properly discounted Deputy Sanderson’s testimony as to Mr. Haverford’s pupils and identified Mr. Haverford’s nervousness and shakiness as the primary factors in the reasonable suspicion analysis...... 7

2. Nervousness and shakiness alone do not amount to reasonable suspicion...... 10

3. Without reasonable suspicion, it is unlawful to extend a traffic stop for longer than is required to complete the original mission of the stop...... 12

B. Mr. Haverford’s Consent Was Invalidated When Deputy Sanderson Re-Approached to Ask for Consent Because a Reasonable Person Would Not Feel Free to Leave or Decline the Request and Thus the Unlawful Search Resumed...... 13

1. Mr. Haverford Was Seized According to the Mendenhall- Royer “Free to Leave” or “Free to Decline” Conception of Seizure Because a Reasonable Person Under the Totality of the Circumstances Would Not Have Felt Free to Leave or Decline Deputy Sanderson’s Request...... 13

2. Alternatively, Mr. Haverford Was Seized Under the Hodari D. “Submission to Authority” Conception of Seizure Because He Submitted to Deputy Sanderson’s Authority, Which Was Indistinct From the Prior Unlawful Seizure...... 16

C. Alternatively, the Evidence Was Tainted By the Unlawful Seizure Because the Extremely Short Duration of Twelve Seconds Outweighs Deputy Sanderson Telling Mr. Haverford He Was Free to Leave...... 17

D. Although There Is a High Standard for Enforcing the Exclusionary Rule, the Case at Bar Satisfies This Court’s Reasons for Enforcement...... 19

II. THE EAGLETON SUPREME COURT ERRED WHEN IT DID NOT ALLOW MR. HAVERFORD TO WITHDRAW HIS GUILTY PLEA BECAUSE HIS LEGAL REPRESENTATION WAS BOTH DEFICIENT AND PREJUDICIAL...... 20

A. Mr. Brendanawicz’s Performance Amounted to Ineffective Assistance of Counsel Because He Provided Misadvice About the Consequences of Mr. Haverford’s Plea...... 21

1. Mr. Brendanawicz’s advice was constitutionally deficient because the statute that mandated Mr. Haverford’s deportation was clear...... 21

2. Mr. Brendanawicz’s misadvice regarding the deportation consequences of Mr. Haverford’s plea fell well below the objective standard of reasonableness for criminal defense counsel as required by Padilla...... 22

3. Mr. Haverford’s plea was not entered intelligently or voluntarily because Mr. Brendanawicz provided him with objectively unreasonable misadvice...... 25

iii

B. Mr. Haverford Was Prejudiced By Mr. Brendanawicz’s Deficient Performance Because Mr. Haverford Can Show That the Outcome of the Plea Process Would Have Been Different if He Had Been Given Constitutionally Adequate Advice About the Effect That His Guilty Plea Would Have on His Immigration Status...... 27

1. Mr. Haverford repeatedly stated that he was concerned about the consequences of entering a guilty plea because he did not want to be deported...... 27

2. It would have been a rational decision for Mr. Haverford to go to trial rather than accept the plea deal...... 28

CONCLUSION ...... 30

TABLE OF AUTHORITIES

Page(s)

UNITED STATES SUPREME COURT CASES

Boykin v. Alabama, 395 U.S. 238 (1969) ...... 20, 25

Brady v. United States, 397 U.S. 742 (1970) ...... 25

Brendlin v. California, 551 U.S. 249 (2007) ...... 14, 15

Brown v. Illinois, 422 U.S. 590 (1975) ...... 18, 19

Bumper v. North Carolina, 391 U.S. 543 (1968) ...... 13

California v. Hodari D., 499 U.S. 621 (1991) ...... 13, 16, 17

Chaidez v. United States, 133 S. Ct. 1103 (2013) ...... 28

Cullen v. Pinholster, 131 S. Ct. 1388 (2011) ...... 23

Davis v. United States, 131 S. Ct. 2419 (2011) ...... 9

Dunway v. New York, 442 U.S. 200 (1979) ...... 18

Elkins v. United States, 364 U.S. 206 (1960) ...... 19

Florida v. Bostick, 501 U.S. 429 (1991) ...... 13, 14

Florida v. Royer, 460 U.S. 491 (1983) ...... passim

Page(s)

Herring v. United States, 555 U.S. 135 (2009) ...... 9

Hill v. Lockhart, 474 U.S. 52 (1985) ...... 20, 21

Hill v. United States, 368 U.S. 424 (1962) ...... 20

Hudson v. Michigan, 547 U.S. 586 (2006) ...... 19

Illinois v. Caballes, 543 U.S. 405 (2005) ...... 12

Illinois v. Gates, 462 U.S. 213 (1983) ...... 16

Illinois v. Wardlow, 528 U.S. 119 (2000) ...... 10

Iowa v. Tovar, 541 U.S. 77 (2004) ...... 20

Kimmelman v. Morrison, 477 U.S. 365 (1986) ...... 20

Lafler v. Cooper, 132 S. Ct. 1376 (2012) ...... 20

Mapp v. Ohio, 367 U.S. 643 (1961) ...... 17

McMann v. Richardson, 397 U.S. 759 (1970) ...... 26

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

Ornelas v. United States, 517 U.S. 690 (1996) ...... 10

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

Page(s)

Rawlings v. Kentucky, 448 U.S. 98 (1980) ...... 15

Rodriguez v. United States, 135 S. Ct. 1609 (2015) ...... 12, 13

Strickland v. Washington, 466 U.S. 668 (1984) ...... 21, 22, 24

Taylor v. Alabama, 457 U.S. 687 (1982) ...... 18

Terry v. Ohio, 392 U.S. 1 (1968) ...... 10

United States v. Cortez, 449 U.S. 411 (1981) ...... 12

United States v. Drayton, 536 U.S. 194 (2002) ...... 15

United States v. Mendenhall, 446 U.S. 544 (1980) ...... passim

United States v. Sokolow, 490 U.S. 1 (1989) ...... 10, 11

United States v. Wade, 388 U.S. 218 (1967) ...... 20

Weeks v. United States, 232 U.S. 383 (1914) ...... 17

Wong Sun v. United States, 371 U.S. 471 (1963) ...... 17

UNITED STATES CIRCUIT COURT CASES

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974) ...... 25

Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) ...... 27

vii

Page(s)

Trahan v. Estelle, 544 F.2d 1305 (5th Cir. 1977) ...... 25

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) ...... 11

United States v. Bloom, 975 F.2d 1447 (10th Cir. 1992) ...... 11

United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) ...... 23

United States v. Broomfield, 417 F.3d 654 (7th Cir. 2005) ...... 12

United States v. Cordell, 723 F.2d 1283 (7th Cir. 1983) ...... 14

United States v. Couto, 311 F.3d 179 (2d Cir. 2002) ...... 23

United States v. Gregory, 79 F.3d 973 (10th Cir. 1996) ...... 18

United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) ...... 27, 28

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) ...... 27

United States v. Macias, 658 F.3d 509 (5th Cir. 2011) ...... 18

United States v. McKoy, 428 F.3d 38 (1st Cir. 2005) ...... 11

United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994) ...... 18

United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) ...... 28

United States v. Salzano, 158 F.3d 1107 (10th Cir. 1998) ...... 11

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Page(s)

STATE COURT CASES

Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013) ...... 29

McGaughey v. State, 37 P.3d 130 (Okla. Crim. App. 2001) ...... 18

State v. Sandoval, 171 Wash. 2d 163 (2011) ...... 27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ...... 3, 6

U.S. Const. amend. VI ...... 20

STATUTORY PROVISIONS

8 U.S.C. § 1227 (2008) ...... 21, 22

Eagleton Statute § 147.23(b) ...... 1

Eagleton Statute § 841 ...... 2, 22

FEDERAL RULE

Fed. R. Crim. P. 11 ...... 25

OTHER SOURCES

David Kessler, Criminal Law: Free To Leave? An Empirical Look At The Fourth Amendment’s Seizure Standard, 99 J. CRIM. L. & CRIMINOLOGY 51 (2009) ...... 15

Drug and Human Performance Fact Sheet: Cocaine, WWW.NHTSA.GOV, http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm (last visited January 29, 2016) ...... 8

Page(s)

Drug and Human Performance Fact Sheet: Methamphetamine (and Amphetamine), WWW.NHTSA.GOV, http://www.nhtsa.gov/people/injury/research/job185drugs/methamphetamine.htm (last visited January 29, 2016) ...... 8

Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the “Voluntary” Waiver of Fourth Amendment Rights, 44 HOW. L.J. 349, 366 (2001) ...... 15

Jack E. Richman et al., An Evaluation of Pupil Size Standards Used by Police Officers for Detecting Drug Impairment, 74 J. OF AM. OPTOMETRIC ASS’N 141, 175–182 (2004) ...... 8

Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, SUP. CT. REV. 153, 155 (2002) ...... 14

Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey: Whence Fourth Amendment “Seizures?”, 1991 U. ILL. L. REV. 729 (1991) ...... 14, 16

CONSTITUTIONAL PROVISIONS AND STATUTES 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.”

Eagleton Statute § 147.23(b) Motor Vehicle Headlights provides in pertinent part: “Every self-propelled motor vehicle other than motorcycles, road machinery, and farm tractors shall be equipped with at least two headlamps and two tail lamps, all in good operating condition with at least one on each side of the front and rear of the motor vehicle.”

Eagleton Statute § 841 Controlled Substance provides in pertinent part: “(a) It shall be unlawful for any person to knowingly or intentionally . . . (1) Manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

8 U.S.C. § 1227(a)(2)(B)(i) provides in pertinent part: “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

xi 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.”

xii

STATEMENT OF THE CASE

Statement of the Facts

On May 23, 2013 at around 6:10 p.m., Deputy David Sanderson (“Deputy Sanderson”) of the Pawnee County Sheriff’s Department was on patrol on Knudson Avenue in Wamapoke,

Eagleton. R. 3–4. Deputy Sanderson conducted a traffic stop on a maroon Chevy truck for a burnt-out headlight violation under Eg. Stat. § 147.23. R. 3, 15. Deputy Sanderson approached the driver of the vehicle, Petitioner Tomas Haverford (“Mr. Haverford”), and obtained his information. R. 4–5. Deputy Sanderson noticed that Mr. Haverford appeared nervous, was shaking, and that his pupils were small. R. 4. Deputy Sanderson returned to his vehicle and began issuing a citation. R. 4–5. Deputy Sanderson went back to Mr. Haverford’s vehicle, issued the citation, returned his information, and asked if Mr. Haverford was using drugs. R. 12.

Mr. Haverford told Deputy Sanderson he did not use drugs but had taken Adderall. R. 12.

Deputy Sanderson then asked if Mr. Haverford would be willing to take a field sobriety test. R.

12. Mr. Haverford agreed and exited his vehicle. R. 5, 13. Because the test did not reveal any indication of impairment, Deputy Sanderson told Mr. Haverford he was free to go. R. 15. Both individuals returned to their respective vehicles but only Mr. Haverford got into his truck. R. 5.

Twelve seconds later, Deputy Sanderson re-approached Mr. Haverford’s vehicle and asked for permission to conduct a search. R. 5. Mr. Haverford consented to the search. R. 5. Deputy

Sanderson found medication bottles with Mr. Haverford’s name on them. R. 5. One bottle had a clear, plastic bag containing a sandy-type substance. R. 4–5. The substance in the plastic bag tested positive for methamphetamine. R. 6. Deputy Sanderson also found two glass bottles that contained clear liquids, coffee filters, rubber gloves, and a heating canister. R. 32. Mr.

Haverford was arrested and charged with intent to manufacture methamphetamine under Eg.

Stat. § 841(a)(1). R. 15, 32.

Mr. Haverford is thirty-one years old and a resident of Eagleton. R. 31, 39. He is a

Venezuelan national and immigrated to the United States in 2003 when he was nineteen years old. R. 13. Mr. Haverford has been a lawful permanent resident (“LPR”) since he entered the

United States. R. 13. He is not married and does not have any children, nor does he have any family left in Venezuela. R. 30–31.

Preliminary Statement

Suppression. In denying Mr. Haverford’s motion to suppress, the Pawnee District Court first determined that Deputy Sanderson’s testimony regarding pupil size and drug use was unreliable and discounted it from the deputy’s basis for extending the traffic stop. R. 16. The court held that the remaining observations –– that Mr. Haverford was nervous and shaking –– did not justify reasonable suspicion necessary to extend the stop. R. 16. The court viewed Deputy

Sanderson telling Mr. Haverford that he was free to go as the end of the unlawful seizure, and thus concluded that Mr. Haverford gave valid consent because the seizure had ended. R. 18.

The court also found the drug evidence was not tainted by the unlawful seizure and ultimately denied Mr. Haverford’s motion to suppress. R. 21. The Supreme Court for the State of Eagleton affirmed the trial court’s decision to deny suppression, five votes to two. R. 50. The Supreme

Court, however, found that Deputy Sanderson did have reasonable suspicion to extend the stop after taking its own view of Deputy Sanderson’s testimony. R. 43. Thus, the Supreme Court declined to conduct an attenuation analysis and largely followed the trial court’s reasoning to find there was no continued unlawful seizure. R. 45–46.

Ineffective assistance of counsel. Mr. Haverford’s plea and sentencing hearing took place on August 21, 2013, and he was sentenced to ten years’ imprisonment. R. 23. Mr.

Haverford later moved to withdraw his guilty plea on the grounds that he received ineffective assistance of counsel because his attorney told him that pleading to his offense had only a strong possibility of deportation when in fact deportation was mandatory. R. 31. This motion was denied on November 1, 2013. R. 37. The trial court found that Mr. Brendanawicz’s performance was unreasonable because a reading of the relevant immigration statute would reveal that Mr. Haverford’s deportation was mandatory. R. 35. The trial court found, however, that Mr. Brendanawicz’s performance did not prejudice his client because Mr. Haverford failed to show that rejecting a plea would be rational given the much higher sentence he faced. R. 36–

37. The Supreme Court for the State of Eagleton affirmed, finding that Mr. Brendanawicz’s performance was reasonable because the deportation consequences were not clear. R. 50. Mr.

Haverford timely filed a petition for writ of certiorari, which this Court granted. R. 61.

SUMMARY OF THE ARGUMENT

Suppression. The Fourth Amendment protects against unreasonable searches and seizures and therefore this court should suppress the drug evidence found in Mr. Haverford’s truck. Deputy Sanderson unlawfully seized Mr. Haverford when he extended the traffic stop absent reasonable suspicion. Deputy Sanderson’s basis for reasonable suspicion rested on three observations: that Mr. Haverford was nervous, shaky, and his pupils were restricted. Given

Deputy Sanderson’s testimony about his knowledge and training regarding pupil size and drug use, the trial court discounted his observations about Mr. Haverford’s pupils. Indeed, Deputy

Sanderson’s knowledge is wholly inaccurate, especially considering he has been a law enforcement officer for fifteen years. Thus, the grounds for reasonable suspicion depend

3 primarily on Mr. Haverford’s nervousness and shakiness. Courts have recognized these observations as factors in finding reasonable suspicion, but have never based reasonable suspicion on only those two factors without more information. Finding nervousness and shakiness amount to reasonable suspicion would ensnare far too many innocent citizens because many people are nervous and shaky when they are pulled over. Thus, because Deputy Sanderson did not have reasonable suspicion to extend the traffic stop, he unlawfully seized Mr. Haverford.

Mr. Haverford was still unlawfully seized when Deputy Sanderson returned to ask for consent, and therefore his consent was invalid. Although Deputy Sanderson told Mr. Haverford he was free to go upon successfully completing the field sobriety test, Deputy Sanderson returned after only twelve seconds with all the trappings of authority he had already used to detain Mr. Haverford. Under these circumstances, no reasonable person would feel free to leave or decline Deputy Sanderson’s request for consent, so he was therefore seized. Alternatively,

Mr. Haverford was seized because he submitted to Deputy Sanderson’s show of authority.

Because Mr. Haverford was unlawfully seized when he gave consent to search, the consent was invalid, and the fruits of the search must be suppressed.

Alternatively, the fruits of Deputy Sanderson’s search should be suppressed because they were tainted by the unlawful circumstances. Courts evaluate the attenuation of a taint by considering the temporal proximity between the consent and the unlawful action, intervening circumstances, and the purpose and flagrancy of the misconduct. Here, while Deputy Sanderson did tell Mr. Haverford he was free to leave, the extremely short amount of time separating the unlawful seizure and the grant of consent weighs in favor of no attenuation. The evidence was tainted and should be suppressed.

Although this Court has set a high bar for applying the Fourth Amendment exclusionary rule, this case warrants application. The exclusionary rule is not intended to repair a constitutional wrong, but rather deter future violations of constitutional rights. Here, the precedent that would be set by ruling for Respondent would be that an officer can wipe away a constitutional violation merely by telling a suspect they are free to go and leaving for a brief amount of time. The officer would then be free to ask for consent upon re-approaching the suspect. The exclusionary rule is appropriate to deter such instances in the future.

Ineffective Assistance of Counsel. Due to Mr. Haverford’s counsel’s constitutionally deficient performance, Mr. Haverford suffered prejudice and now faces mandatory deportation.

The purpose of the Sixth Amendment is to ensure fairness of trials, and it guarantees that vulnerable populations are adequately represented in criminal proceedings. To determine whether Mr. Haverford has an ineffective assistance of counsel claim, this Court uses a two-part test. The first inquiry requires a showing that defense counsel’s performance was objectively unreasonable. If counsel’s performance is deemed to be constitutionally deficient, then the defendant must show whether counsel’s deficient performance prejudiced the defense.

Mr. Haverford should be allowed to withdraw his guilty plea. A non-citizen client who enters into a guilty plea without understanding the specific immigration consequences does not enter his plea intelligently and voluntarily. Mr. Brendanawicz’s failure to advise Mr. Haverford of the correct deportation consequences of his plea was objectively unreasonable. Mr.

Brendanawicz told his client there was a “strong possibility” of deportation if he pled guilty based on his inquiries to federal prosecutors. In reality, the statute clearly states that the offense subjected Mr. Haverford to mandatory removal from the United States. Justice does not demand

5 errorless or perfect representation, but it does demand that counsel provide constitutionally adequate representation.

Mr. Haverford has established prejudice because he can show that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The immigration consequences were material to Mr. Haverford’s decision to plead guilty, which he made with incomplete and inaccurate information due to his attorney’s failure to read the statute. Mr.

Haverford had no prior criminal record, no legal knowledge, and no idea that this counsel misadvised him. Had he been properly advised, Mr. Haverford would have made the rational decision to go to trial.

ARGUMENT

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. Here, Mr. Haverford was unlawfully seized when Deputy

Sanderson extended the traffic stop without reasonable suspicion. The unlawful seizure resumed when Deputy Sanderson returned to request consent to search, therefore invalidating Mr.

Haverford’s consent. Alternatively, the drug evidence seized was tainted because the request for consent was not sufficiently separated from the unlawful seizure. For this Court to rule for Mr.

Haverford, he must prevail on the reasonable suspicion issue (I.A) and either the invalid consent issue (I.B) or tainted evidence issue (I.C).

This Court should overturn the Eagleton Supreme Court’s finding that Deputy Sanderson had reasonable suspicion and instead follow the trial court’s contrary ruling. Deputy Sanderson offered only three observations supporting reasonable suspicion to extend the stop: Mr.

Haverford’s nervousness, shakiness, and constricted pupils. R. 16. Deputy Sanderson’s testimony about Mr. Haverford’s pupils and drug use should be discounted, as it was inaccurate and inconclusive. The relevant testimony includes the following:

Pupil Size Training: When Deputy Sanderson was asked whether he had gone through

“training that addressed pupils being restricted or smaller” (R. 4:14–15) he was so reticent in answering “Yes” (R. 4:16) that the State’s own counsel felt compelled to follow up with, “And you hesitated a little bit. Would any conclusions that you reach be based upon restricted pupils, or smaller pupils, be based more on experience than training?” R. 4:17–18. Deputy Sanderson answered, “Experience, yes.” R. 4:19. The State’s attorney followed up on redirect, asking,

“[I]s there any discussion about pupil size during that [field sobriety] training?” R. 10:7–8.

Deputy Sanderson answered, “I don’t remember, to be honest with you, ma’am. It was a while ago.” R. 10:9.

Effects of Drugs on Pupils: Deputy Sanderson testified that he knew cocaine to be an example of a drug that causes pupils to constrict. R. 8:4. He also testified that that he did not know what methamphetamine does to pupils. R. 8:6.

Average Pupil Size, Mr. Haverford’s Pupil Size: When asked if he knew the average pupil size for an adult male, Deputy Sanderson answered, “four to five millimeters, I believe” (R.

8:12) and estimated Mr. Haverford’s pupil size to be three millimeters. R. 8:8. Deputy

Sanderson mentioned the practice of using a pupilometer for reference but it was never made explicit that he used a pupilometer during the stop. R. 8:10.

Deputy Sanderson testified that he forgot his training and based his reasoning on

“experience,” but his experience falls apart when compared to prevailing pupil size-drug recognition science. First, cocaine does not constrict pupils but actually dilates them.1 Second, a study commissioned by the New England College of Optometry, University of Boston, the

Marblehead Police Department, and the Massachusetts State Police was conducted specifically to evaluate pupil analysis procedures used by drug recognition experts (“DRE”). The study noted that the DRE pupil size guideline range is actually three millimeters to six-and-a-half millimeters. Jack E. Richman et al., An Evaluation of Pupil Size Standards Used by Police

Officers for Detecting Drug Impairment, 74 J. OF AM. OPTOMETRIC ASS’N 141, 175–182 (2004).

Moreover, the study noted that the existing range is too narrow and would be overly sensitive to false positives. This means that Deputy Sanderson’s four to five millimeter range will lead to even more false positives than the researchers already expect from the overly narrow DRE range.

Even worse, allowing officers to merely eyeball pupil size will permit an officer to claim reasonable suspicion at will. As the photographs in the study illustrate, a pupilometer is essential

1 Drug and Human Performance Fact Sheet: Cocaine, WWW.NHTSA.GOV, http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm (last visited January 29, 2016). So, too, do methamphetamine and Adderall, the medication Mr. Haverford was taking at the time of the stop. Drug and Human Performance Fact Sheet: Methamphetamine (and Amphetamine), WWW.NHTSA.GOV, http://www.nhtsa.gov/people/injury/research/job185drugs/methamphetamine.htm (last visited January 29, 2016).

8 for measuring millimeter differences in pupil size with any accuracy, which is crucial when reasonable suspicion hangs in the balance. Relying on the naked eye leaves too much room for good faith and bad faith errors. Distributing pupilometers and giving training on how to use them indicates that the standard operating procedures envision law enforcement officials actually using the instrument, not just possessing them.

Finally, even if this Court still favors Deputy Sanderson’s experience and beliefs, the

Court should keep in mind he never actually testified that a pupil size of three millimeters is indicative of drug use by virtue of being outside the average range of four to five millimeters.

Deputy Sanderson merely observed that Mr. Haverford’s pupil size was outside of the average range (R. 8:8–12) and only separately did he testify that what he “noticed about restricted pupils” was that it is an “indicator of drug use.” R. 4:20–21. Among other shortcomings, this lack of explicit connection is what lead trial court Judge Hapley to find that, “Sanderson noted that

Haverford appeared to have restricted pupils, but Sanderson did not have any definitive information on how drug use might affect pupil size.” R. 16.

Law enforcement officers are allowed to make errors. See, e.g., Davis v. United States,

131 S. Ct. 2419, 2434 (2011); Herring v. United States, 555 U.S. 135, 142 (2009). In this case, however, Deputy Sanderson made conclusions based on beliefs, forgotten training, and rough estimation. It is possible for an officer to learn the signs of drug use without formal training, but fifteen years of experience has apparently not afforded Deputy Sanderson opportunity to learn basic facts. Ultimately, as Deputy Sanderson himself conceded: “I am not a drug recognition expert.” R. 8:4. This Court must not tolerate inexact methods when constitutional liberties are at stake.

2. Nervousness and shakiness alone do not amount to reasonable suspicion.

After discounting Deputy Sanderson’s pupil testimony, the trial court concluded that

“the support for reasonable suspicion rests primarily on Deputy Sanderson’s observations that

Haverford’s body was shaking and that he ‘appeared to be very nervous.’”2 R. 16. Reasonable suspicion is a totality of the circumstances test. See, e.g., United States v. Sokolow, 490 U.S. 1,

9–10 (1989). Although many observations have innocent explanations when viewed individually, law enforcement officers are allowed to infer criminal activity by considering those observations together. Id. Still, reasonable suspicion requires “a minimum level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Reasonable suspicion cannot be an officer’s “inchoate and unparticularized suspicion” or “hunch that criminal activity is afoot.”

Terry v. Ohio, 392 U.S. 1, 27 (1968). Thus, without additional observations, nervousness and shakiness do not amount to reasonable suspicion.

This Court has held that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 123. A “pertinent factor,” however, does not suffice as the only factor. While nervousness is present in an overwhelming share of reasonable suspicion findings, it is always combined with other more probative observations. For example, in Sokolow, Drug Enforcement Agency officials stopped a man at an airport because he was visibly nervous. 490 U.S. at 4. This observation was then combined with other factors: he paid for two tickets in cash, traveled under a suspicious name, came from a source city for drugs, stayed there for only forty-eight hours even though a round-trip flight takes twenty hours, and

2 This Court should adopt the trial court’s view on Deputy Sanderson’s pupil testimony because it was formed with the unique advantage of being able to see and hear witness testimony firsthand. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (“[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges . . . .”).

10 checked none of his luggage. Sokolow, 490 U.S. at 4. In Sokolow, nervousness may have piqued the agents’ attention but it was not the entire basis for reasonable suspicion.

Besides requiring additional factors beyond nervousness and shakiness to find reasonable suspicion, many courts have spoken directly to the limited probative value of those observations.

First, courts have noted that nervousness and shakiness are common during encounters with law enforcement. See, e.g., United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (explaining that

“[n]ervousness is a common and entirely natural reaction to police presence”); United States v.

Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998) (“[I]t is common for most people to exhibit signs of nervousness when confronted by a law enforcement officer whether or not the person is currently engaged in criminal activity.”) (internal quotation marks and citation omitted).

Additionally, courts recognize that without prior interaction with a suspect, a law enforcement officer does not have a baseline with which to compare. See, e.g., United States v. Beck, 140

F.3d 1129, 1139 (8th Cir. 1998) (holding that because the officer had never met the suspect before, any suspicion associated with the suspect’s nervous behavior was minimal at best);

United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir. 1992) (noting that record did not indicate whether agent had prior knowledge of defendant, so court did not understand how agent would know defendant was acting nervously or normally).

In addition to the insufficiency of nervousness and shakiness alone, Deputy Sanderson even testified as to facts that would serve to dispel reasonable suspicion of intoxicated driving:

Deputy Sanderson did not pull Mr. Haverford over for erratic driving or any other indication of impaired driving. R. 6:20–23. He did not observe or smell any odor of intoxicants, drugs, or paraphernalia. R. 7:3–9. Mr. Haverford did not have slurred speech. R. 7:10–13. Finally,

Deputy Sanderson testified that he had never met Mr. Haverford before and that for all he knew,

11 nervousness and shakiness could be normal for him. R. 7:16–21. Thus, many of Deputy

Sanderson’s observations actually argue against finding reasonable suspicion.

This Court must not find reasonable suspicion based solely on nervousness and shakiness. As Judge Posner noted, “Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously . . . . Such subjective, promiscuous appeals to an ineffable intuition should not be credited.” United States v.

Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). Law enforcement officers should combine factors like erratic driving or implausible travel plans, but nervousness and shakiness are exactly the factors that are uniquely susceptible to “subjective, promiscuous appeals to ineffable intuition.” Id. Instead, we should make “commonsense conclusions about human behavior” in reasonable suspicion determinations. United States v. Cortez, 449 U.S. 411, 417 (1981). Here, the commonsense conclusion is that people can be nervous to the point of shakiness when they encounter law enforcement. Another commonsense conclusion, accurately stated by the trial court, is that “practically speaking, police cannot expect to conduct field sobriety tests on every motorist who shakes and is nervous . . . .” R. 17. Mr. Haverford echoes that view here.

3. Without reasonable suspicion, it is unlawful to extend a traffic stop for longer than is required to complete the original mission of the stop.

This Court recently considered the concept of extending a routine traffic stop. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). “A routine traffic stop is more analogous to a so- called Terry stop . . . than to a formal arrest.” Id. (internal quotations and citations omitted).

This Court noted that, like the confined purpose and scope of a Terry stop, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’— to address the traffic violation that warranted the stop.” Id. (citing Illinois v. Caballes, 543 U.S.

405, 407 (2005)). Therefore, an officer may not lawfully extend a routine traffic stop once its

12 mission is complete “absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 135 S. Ct. at 1615.

Here, Deputy Sanderson returned Mr. Haverford’s driver’s license, registration, and the citation for the broken headlight, effectively completing the “mission” of the traffic stop. R.

12:14–20. Deputy Sanderson did not then tell Mr. Haverford he was free to go; instead, he administered a field sobriety test. R. 12:34. Deputy Sanderson did this without reasonable suspicion, and therefore he extended the stop unlawfully.

B. Mr. Haverford’s Consent Was Invalidated When Deputy Sanderson Re- Approached to Ask for Consent Because a Reasonable Person Would Not Feel Free to Leave or Decline the Request and Thus the Unlawful Seizure Resumed.

It is well settled that law enforcement may approach a citizen and request permission to conduct a search without reasonable suspicion. See, e.g., Florida v. Bostick, 501 U.S. 429, 434–

435 (1991). It is equally well established that unlawful conditions can invalidate subsequent consent. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 549 (1968). Here, Mr. Haverford was unlawfully detained when Deputy Sanderson subjected him to a field sobriety test without reasonable suspicion. When Deputy Sanderson asked Mr. Haverford for consent to search his vehicle, Mr. Haverford was still subject to the original unlawful seizure, and thus his consent to search was invalid. Mr. Haverford’s seizure continued under both the Mendenhall-Royer “free to leave” or “free to decline” conception of seizure, as well as the Hodari D. “submission to authority” conception of seizure. The evidence should be suppressed.

1. Mr. Haverford Was Seized According to the Mendenhall-Royer “Free to Leave” or “Free to Decline” Conception of Seizure Because a Reasonable Person Under the Totality of the Circumstances Would Not Have Felt Free to Leave or Decline Deputy Sanderson’s Request.

In United States v. Mendenhall, Justice Stewart, writing for a plurality, announced a test for seizure: “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in

13 view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U.S. 544, 554 (1980). This Court formally adopted

Justice Stewart’s test in Florida v. Royer, where a dissenting Justice Blackmun explicitly joined in approving the Mendenhall test. 460 U.S. 491, 497–98 (1983). A final development was added in Bostick when this Court examined a situation where the defendant was not “free to leave” because the request for consent occurred on a bus. 501 U.S. at 435–36. This Court decided that in such a situation “the ‘coercive effect of the encounter’ could be better measured by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Brendlin v. California, 551 U.S. 249, 255 (2007). Thus, the fully developed Mendenhall-Royer conception of seizure asks whether a reasonable person would believe he or she is free to leave or decline the officer’s requests, as judged by a totality of the circumstances.

This test has been widely criticized as being out of touch with reality. See United States v. Cordell, 723 F.2d 1283, 1286 (7th Cir. 1983) (Swygert, J., concurring) (“[A]s a factual psychological matter . . . people who are stopped for questioning of this kind . . . generally do not feel “free to leave.”); see also Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey:

Whence Fourth Amendment “Seizures?”, 1991 U. ILL. L. REV. 729, 739–40 (1991) (“[O]nly the most thick-skinned of suspects” would feel free to disregard a police officer’s request for further investigation.); Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion,

SUP. CT. REV. 153, 155 (2002) (“[E]mpirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on a single conclusion: the extent to which people feel free to refuse to comply is extremely limited under situationally induced pressures.”).

This Court has also recognized the legal fiction behind the Mendenhall-Royer test. In his dissent to United States v. Drayton, Justice Souter wrote, “It is very hard to imagine that either

[defendant] would have believed . . . he had any free choice to ignore the police altogether. No reasonable passenger could have believed that, only an uncomprehending one.” 536 U.S. 194,

212 (2002) (Souter, J., dissenting). Then, during oral argument for Brendlin, Justice Breyer said,

“I can follow my instinct [about what a reasonable person feels]. My instinct is he would feel he wasn’t free . . . . That’s just one person’s instinct. Or I could say, let’s look for some studies . . . .

[T]here are none.” Transcript of Oral Argument at 43, Brendlin v. California, 127 S. Ct. 2400

(2007) (No. 06-8120) (Breyer, J.).

In fact, scholars have conducted studies that address Justice Breyer’s concern. One study found the rate at which Ohioans gave consent to search during highway patrol stops was eighty- eight-and-a-half percent. Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the

“Voluntary” Waiver of Fourth Amendment Rights, 44 HOW. L.J. 349, 366 (2001). Another study addressed Justice Souter and Justice Breyer’s concern, confirming that people do not feel free to rebuff a police officer’s request. David Kessler, Criminal Law: Free To Leave? An Empirical

Look At The Fourth Amendment’s Seizure Standard, 99 J. CRIM. L. & CRIMINOLOGY 51 (2009).

Despite the criticism this test receives, this case does not call for this Court to overhaul an established rule of criminal procedure in order to find for Mr. Haverford. Rather, this Court need only apply the Mendenhall-Royer test with its flaws in mind – that is, by envisioning a real reasonable person, not a legal reasonable person.

Here, two circumstances combine to make a reasonable person not feel free to leave or decline: the short duration of Deputy Sanderson’s absence before he re-approached to ask for consent and the continued presence of the trappings of his authority. It is true that Deputy

Sanderson told Mr. Haverford he was free to go, but only twelve seconds later Deputy Sanderson re-approached to request consent with the same sheriff’s seal on his vehicle, the same lights flashing, the same gun on his hip, and the same badge on his chest. This occurred after having just put Mr. Haverford through a field sobriety test, a visceral demonstration of authority.

To claim that a momentary reprieve would suddenly embolden a reasonable person in these circumstances to feel free to leave or decline Deputy Sanderson’s request is a legal fiction.

The only people who would have felt free would be Justice Souter’s “uncomprehending” person,

LaFave’s “thick-skinned suspect,” or someone with an attorney’s knowledge of constitutional law. The Mendenhall-Royer test does not contemplate any of these as the reasonable person.

Finding that the instant circumstances amount to seizure would not open any floodgates because the facts are so specific. See Illinois v. Gates, 462 U.S. 213, 238 n. 11 (1983) (“[O]ne determination [in this area] will seldom be a useful ‘precedent’ for another.”). Conversely, a finding of no seizure would further infect the Mendenhall-Royer test with a misconception of the reasonable person. Because no reasonable person would feel free to leave or refuse a request made with all the same trappings of authority after only a twelve second break, Mr. Haverford was still unlawfully seized and his consent was therefore invalid.

Alternatively, this Court can find Mr. Haverford was seized by following the holding of

California v. Hodari D., 499 U.S. 621, 626 (1991). There, this Court considered a situation in which the defendant fled from a pursuing police officer on foot but never stopped. This Court established an alternative rule of seizure, which “requires either physical force . . . or, where that is absent, submission to the assertion of authority.” Id. (emphasis added).

The facts demonstrate that Mr. Haverford submitted to Deputy Sanderson’s authority and was therefore seized. First, when Mr. Haverford began speaking with Deputy Sanderson again, he answered the deputy’s questions with “yes, sir” and “no, sir,” indicating deference to the deputy’s authority. Moreover, Mr. Haverford took it upon himself to exit the vehicle when

Deputy Sanderson had only asked if he could speak with him. This shows Mr. Haverford reassumed the position in which Deputy Sanderson’s authority had placed him for the sobriety test. In other words, Mr. Haverford’s submission to Deputy Sanderson’s authority was so complete that it went beyond what was asked of him. Because Mr. Haverford submitted readily to Deputy Sanderson’s show of authority, he was therefore seized according to the Hodari D. conception of seizure. Because the seizure was unlawful, the consent was invalid.

In sum, Mr. Haverford gave consent to search his vehicle while he was still seized under the Mendenhall-Royer and Hodari D. conceptions of seizure. Because the seizure had resumed when Mr. Haverford gave consent and because that seizure was unlawful, Mr. Haverford’s consent was invalid and the evidence should be suppressed.

C. Alternatively, the Evidence Was Tainted By the Unlawful Seizure Because the Extremely Short Duration of Twelve Seconds Outweighs Deputy Sanderson Telling Mr. Haverford He Was Free to Leave.

Evidence that is the fruit of an unlawful search or seizure may be excluded from use in the prosecution’s case-in-chief. See, e.g., Weeks v. United States, 232 U.S. 383, 393–94 (1914)

(applying the exclusionary rule federally); Mapp v. Ohio, 367 U.S. 643, 650–51 (1961) (applying the exclusionary rule to the states). The prosecution may, however, use evidence obtained by

“an act of free will [sufficient] to purge the primary taint.” See, e.g., Wong Sun v. United States,

371 U.S. 471, 486 (1963). To evaluate whether a taint has attenuated, this Court set out a tripartite test that balances: (1) the temporal proximity of the unlawful act and the seizure of

17 evidence; (2) intervening circumstances; and (3) the purpose and flagrancy of the unlawfulness.

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

Here, only twelve seconds separated Deputy Sanderson dismissing Mr. Haverford from an unlawful seizure and the request for consent. This Court’s precedent demonstrates that in some cases not even a few hours is enough to find attenuation. See, e.g, Taylor v. Alabama, 457

U.S. 687, 691 (1982) (six hours insufficient); Dunway v. New York, 442 U.S. 200, 218 (1979)

(two hours insufficient); Brown, 422 U.S. at 604 (two hours insufficient); Rawlings v. Kentucky,

448 U.S. 98, 107 (1980) (forty-five minutes insufficient). Circuit and other courts lend support, as well. See, e.g., United States v. Macias, 658 F.3d 509, 524 (5th Cir. 2011) (thirty-second interval between illegal extension of traffic stop and request for consent weighed against attenuation); United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir. 1994) (seconds, or at most minutes, insufficient); United States v. Gregory, 79 F.3d 973, 979–80 (10th Cir. 1996)

(thirty-five seconds insufficient); McGaughey v. State, 37 P.3d 130, 141 (Okla. Crim. App. 2001)

(a few minutes “weigh[ed] heavily against finding the taint cleansed”). This prong is the most favorable for Mr. Haverford. The unlawful stop was too temporally proximate to the grant of consent for it to be valid.

The second factor considers intervening circumstances. Brown, 422 U.S. at 603. In this instance, the intervening circumstance was Deputy Sanderson telling Mr. Haverford he was free to leave. Respondent may argue this intervening circumstance is so significant that it alone cleanses the taint. The Brown test, however, is a balancing test, meaning some factors can outweigh other factors. Here, the extremely brief duration minimizes the deputy’s statement that the individual is free to go.

Finally, the third factor evaluates the purpose and flagrancy of the misconduct. Brown,

422 U.S. at 604. There are no allegations and there is nothing in the record to suggest Deputy

Sanderson conducted himself in a flagrant manner. Rather, this Court should recognize that

Deputy Sanderson’s purpose in returning to ask for consent was the same purpose for extending the routine traffic stop in the first place –– further investigation. In other words, Deputy

Sanderson resumed the purpose of fishing for evidence when he asked for consent. Thus, his actions fall under the purview of this prong because they had the purpose of continuing an unlawful search.

The temporal proximity prong outweighs the other Brown factors in favor of finding no attenuation. Therefore, this Court should suppress the evidence as tainted.

D. Although There Is a High Standard for Enforcing the Exclusionary Rule, the Case at Bar Satisfies This Court’s Reasons for Enforcement.

The Fourth Amendment exclusionary remedy “has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). “The rule is calculated to prevent, not to repair. Its purpose is to deter –– to compel respect for the constitutional guaranty in the only effectively available way –– by removing the incentive to disregard it.” Elkins v.

United States, 364 U.S. 206, 217 (1960). Despite this high bar, the instant case is ripe for application of the exclusionary remedy.

Finding in favor of Mr. Haverford on the suppression issue would repair his constitutional injury, but it would also accomplish the goals of prevention and deterrence. The precedent this Court would set with a ruling in favor of Respondent would signal to law enforcement that they can remedy both intentional and accidental constitutional defects simply by telling the suspect they are free to go and walking away for a few seconds, at which point they

19 could return to ask for consent. Applying the exclusionary rule will prevent and deter officers from taking advantage of such a ruling.

II. THE EAGLETON SUPREME COURT ERRED WHEN IT DID NOT ALLOW MR. HAVERFORD TO WITHDRAW HIS GUILTY PLEA BECAUSE HIS LEGAL REPRESENTATION WAS BOTH DEFICIENT AND PREJUDICIAL.

The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to effective assistance of counsel. U.S. amend. VI. The right to counsel is a fundamental right and is designed to make criminal prosecutions fair, legitimate, and accurate. Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). The right to effective assistance of counsel extends to “any stage of the prosecution.” United States v. Wade, 388 U.S. 218, 226

(1967).

The entry of a guilty plea constitutes a “critical stage.” Iowa v. Tovar, 541 U.S. 77, 81

(2004); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985). By entering a guilty plea, a defendant waives constitutional rights, including the right to trial by jury, the protection against self- incrimination, and the right to confront one’s accusers. See Boykin v. Alabama, 395 U.S. 238,

243 (1969). During plea negotiations, defendants are entitled to the effective assistance of competent counsel. See Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). Effective assistance requires that attorneys adequately advise clients of the potential deportation consequences of pleading guilty. See Padilla v. Kentucky, 559 U.S. 356, 384 (2010). Where defense counsel’s incorrect legal advice materially informed a defendant’s guilty plea, the plea is involuntary and unintelligent. See Hill, 474 U.S. at 56. Courts should allow a defendant to withdraw the guilty plea whenever the defendant proves that he was denied the effective assistance of counsel guaranteed by the Constitution and that withdrawal is necessary to correct a manifest injustice.

See Hill v. United States, 368 U.S. 424, 428 (1962).

A. Mr. Brendanawicz’s Performance Amounted to Ineffective Assistance of Counsel Because He Provided Misadvice About the Consequences of Mr. Haverford’s Plea.

This Court in Strickland v. Washington adopted a two-part test for evaluating claims of ineffective assistance of counsel. 466 U.S. 668, 687–688 (1984). The first inquiry requires a showing that defense counsel’s performance was objectively unreasonable. Id. If counsel’s performance is deemed to be constitutionally deficient, then the defendant must show whether counsel’s deficient performance prejudiced the defense. Id. This Court recently reaffirmed that counsel’s failure to advise a LPR of deportation consequences arising from his plea implicates the Sixth Amendment right to effective assistance of counsel. Padilla, 559 U.S. 356; see also

Hill, 474 U.S. at 58 (holding Strickland test applies to guilty plea challenges).

1. Mr. Brendanawicz’s advice was constitutionally deficient because the statute that mandated Mr. Haverford’s deportation was clear.

Mr. Brendanawicz’s performance was constitutionally deficient because he came to Mr.

Haverford’s plea hearing unprepared. At the beginning of the hearing, Mr. Brendanawicz requested an adjournment, stating that Mr. Haverford “doesn’t want to have to be deported” and was worried about the consequences of his plea. R. 24. Mr. Brendanawicz told the court, “I’m trying to figure it out, but it’s difficult.” R. 24. After a mere thirty-minute break, Mr.

Brendanawicz informed his client there was a “strong possibility” of deportation if he pled guilty. R. 25.

In actuality, the offenses that Mr. Haverford pled guilty to subjected him to mandatory removal from the United States under § 1227 of the Immigration and Nationality Act. 8 U.S.C.

§ 1227 (2008). Under federal law, any LPR in the United States shall be removed if the violation is within a statutorily defined class of deportable offenses. 8 U.S.C. § 1227(a)(2)(B)(i) (2008).

One class of deportable offenses includes those relating to a controlled substance violation

21 occurring at any time after admission into the United States. 8 U.S.C. § 1227(a)(2)(B)(i) (2008).

Mr. Haverford entered a guilty plea to a violation of the Eagleton Controlled Substance Act. Eg.

Stat § 841(a)(1). Simply put, if Mr. Haverford’s guilty plea stands, he will be deported.

When the law is unclear, a criminal defense lawyer only needs to advise his client that there is a risk of adverse immigration consequences, which Mr. Brendanawicz did. See Padilla,

559 U.S. at 369. But when the statute is “truly clear,” the attorney must provide correct advice that is “equally clear.” Id. Ineffective assistance of counsel is established when the immigration consequences of the defendant’s plea “could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.”

Id. Counsel is afforded “wide latitude” in making tactical decisions, but there is no tactical reason for Mr. Brendanawicz’s failure to inform Mr. Haverford that accepting the plea would result in his deportation. Strickland, 466 U.S. at 689. Counsel simply failed to engage in rudimentary legal investigation.

Stating that deportation is a “possibility” implies there is some chance that the person will not be deported. When made to a non-citizen considering whether to plead guilty to a felony, it is simply an incomplete and therefore inaccurate statement. Warning of potential deportation consequences is no substitute for warning of its virtual certainty. The statute that mandated Mr.

Haverford’s deportation was clear. Mr. Brendanawicz just needed to read it.

The first prong of the Strickland test asks whether a “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. A defense counsel’s performance is unreasonable when it is so deficient that it falls outside the “wide range of

22 professionally competent assistance.” Strickland, 466 U.S. at 690. A defendant must show that the errors were “so serious that counsel was not functioning as ‘counsel’ guaranteed by the Sixth

Amendment.” Padilla, 559 U.S. at 356. Courts look to prevailing norms of practice in the relevant area at the time of the representation in determining what is reasonable. See Cullen v.

Pinholster, 131 S. Ct. 1388, 1407 (2011). Insufficient advice regarding the immigration consequences of a plea bargain can constitute deficient performance. Padilla, 559 U.S. at 369.

A criminal defense lawyer has an affirmative duty when her client is a non-citizen to explain the immigration consequences of the criminal charges. Id. at 368. The trial court below correctly found that Mr. Haverford presented sufficient evidence that his counsel’s performance was constitutionally deficient and therefore held in his favor on this issue. R. 33.

An affirmative misrepresentation of the deportation consequences of a guilty plea falls outside the range of professional competence. See United States v. Couto, 311 F.3d 179, 188 (2d

Cir. 2002). “[A]uthorities of every stripe — including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications — universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . .” Padilla, 559 U.S. at 367 (footnotes omitted) (citing, inter alia, National Legal Aid and Defender Association, Performance Guidelines for Criminal

Prosecution, §§ 6.2–6.4; see also United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (“A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”) (emphasis in original). If Mr. Brendanawicz had looked up the law in the United

States Code, or referred to any immigration law treatises or practice aids, or simply conferred

23 with an immigration lawyer or law librarian, he would have quickly learned that the plea deal carried dire consequences for his client. Instead, he talked to federal prosecutors. R. 28.

Allowing counsel to decline further investigation when he is unclear about mandatory deportation would produce “two absurd results.” Padilla, 559 U.S. at 369. First, it would give an attorney an incentive to remain silent about immigration consequences. Id. Second, it would deny a vulnerable class of defendants least able to represent themselves the most “rudimentary” advice concerning deportation. Id. Neither of these results should occur when the information is readily available. In the very least, defense attorneys are expected to identify legal problems and research the law.

Respondent will likely argue that the risk of deportation is a collateral consequence that is outside the scope of representation required by the Sixth Amendment because it is a civil, as opposed to criminal, matter. Under this theory, defense counsel’s failure to advise his client about potential deportation is not appropriate as a claim for ineffective assistance of counsel.

This Court, however, has never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance.” Padilla, 559 U.S. at

365. The direct versus collateral distinction is “ill-suited” to evaluating a Strickland claim concerning the specific risk of deportation. Id. at 366. Although deportation is not a criminal proceeding, it is interwoven with the criminal process. Id. at 365. Criminal prosecutions and immigration law are interconnected, and as such, immigration consequences cannot be viewed in isolation.

The argument that counsel does not have to advise defendants on the varied and numerous consequences of a guilty plea is unfounded. These consequences are well known, such as the inability to vote, own a firearm, serve on a jury, or hold public office. But

24 deportation should be treated differently than other consequences because the effect it has on the life of the individual is far greater. Understanding deportation consequences is essential to counseling a defendant in entering a plea.

3. Mr. Haverford’s plea was not entered intelligently or voluntarily because Mr. Brendanawicz provided him with objectively unreasonable misadvice.

The misinformation Mr. Haverford received regarding his deportation risk affected his understanding of the plea he was entering. It is the attorney’s duty to provide the defendant an

“understanding of the law in relation to the facts.” Herring v. Estelle, 491 F.2d 125, 128 (5th

Cir. 1974). A non-citizen client who enters a guilty plea without understanding the specific immigration consequences may not enter his plea intelligently or voluntarily. See Trahan v.

Estelle, 544 F.2d 1305, 1309 (5th Cir. 1977) (“[A] guilty plea lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from the sixth” amendment.). The test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31

(1970); see Boykin, 395 U.S. at 242. A guilty plea must represent a defendant’s informed and voluntary choice among the available alternatives. See Boykin, 395 U.S. at 238. An intelligent plea requires knowledge of its direct consequences including the range of punishment. See

Brady v. United States, 397 U.S. 742, 755 (1970).

Because Mr. Haverford was not given proper advice, he did not make an intelligent nor voluntary decision to plead guilty. The purpose of the hearing is for the trial court and counsel to establish on the record that the defendant understands the process that led to the offer, the advantages and disadvantages of accepting it, and the sentencing consequences that will ensue once a conviction is entered based upon the plea. See, e.g., Fed. R. Crim. P. 11. But this Court

25 has held, however, that where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice “was within the range of competence demanded of attorneys in criminal cases.”

McMann v. Richardson, 397 U.S. 759, 771 (1970). Here, it was not. Mr. Haverford testified that had he known about the mandatory deportation, he would have told his attorney that he wanted to go to trial because he “was so worried about deportation.” R. 25.

The immigration consequences were material to Mr. Haverford’s plea decision, which he made uninformed due to Mr. Brendanawicz’s failure to read the statute. Counsel must notify her client when the plea carries a risk of deportation, which includes not only that the client may be deported, but also when the client must be deported. See Padilla, 559 U.S. at 374. Negotiation of a plea deal requires effective assistance of counsel, including investigating the facts, researching the law, and advising his client of all consequences of his plea. Without understanding that deportation was mandatory, Mr. Brendanawicz was unable to properly assess the case with the best interests of his client in mind.

Mr. Haverford’s plea was not intelligent because his counsel incorrectly stated there was a “strong possibility” he would be deported, when in fact deportation would automatically result.

Mr. Haverford had no prior criminal record, no legal knowledge, and no idea that his counsel gave him incorrect advice when he entered his plea. The trial court’s own admonishments did not cure counsel’s deficiency. At Mr. Haverford’s plea hearing, when the court asked him if he understood that he may be deported, he stated “I am worried, but I understand,” which indicates that Mr. Haverford did not intelligently nor voluntarily enter into this plea agreement. R. 25.

The entry of Mr. Haverford’s plea cannot stand.

Because Mr. Haverford demonstrated that Mr. Brendanawicz’s performance was deficient, the inquiry shifts to whether the deficient performance was prejudicial. A defense lawyer’s incorrect advice about the immigration consequences of a plea is prejudicial when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Padilla, 559 U.S. at 357; see also United States v.

Kwan, 407 F.3d 1005, 1017–18 (9th Cir. 2005) abrogated on other grounds by Padilla, 559 U.S. at 356 (“Kwan could have gone to trial or renegotiated his plea agreement to avoid deportation.”). This assessment depends on the totality of the circumstances, including the defendant’s evidence to support his assertion, the likelihood of success at trial, risks of going to trial, and his representations about his desire to retract his plea. See United States v. Kayode, 777

F.3d 719, 725 (5th Cir. 2014).

1. Mr. Haverford repeatedly stated that he was concerned about the consequences of entering a guilty plea because he did not want to be deported.

Mr. Haverford made his intentions clear –– he did not want to be deported. This Court has found prejudice where a non-citizen demonstrates clearly that she placed a “particular emphasis” on the immigration consequence of a plea. Kwan, 407 F.3d at 1017–18; see also

Kovacs v. United States, 744 F.3d 44, 53 (2d Cir. 2014) (finding prejudice burden met where petitioner’s “single-minded focus in the plea negotiations [was on] the risk of immigration consequences”); see also State v. Sandoval, 171 Wash. 2d 163, 175 (2011) (finding prejudice burden met when defendant would have rejected the plea offer had he known the deportation consequence and defense counsel said defendant was “very concerned” about deportation risk).

Mr. Haverford’s emphasis when entering his plea was on his immigration status. At the hearing, Mr. Haverford was consistent in communicating to the court through his counsel that he wanted to avoid deportation. Mr. Haverford stated, “I don’t want to be deported. I would have tried to find some way to stay here. I would have told my attorney that I wanted to go to trial and I never would have pled guilty.” R. 30. The decision on whether to plead guilty was ultimately Mr. Haverford’s. Although Mr. Haverford stated in open court that he understood the consequences of his plea, he did not have correct information when making the decision. Mr.

Brendanawicz disregarded the interests of his client and negotiated a plea deal that Mr.

Haverford stated he would have never accepted had he been fully informed.

2. It would have been a rational decision for Mr. Haverford to go to trial rather than accept the plea deal.

To show prejudice, “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. If Mr.

Haverford had known about the mandatory deportation, his decision to reject the plea and proceed to trial would have been rational. Significant ties to the United States could make a rational defendant less likely to accept a plea agreement that would result in deportation, and more likely to risk trial in hopes of avoiding certain “exile” from the United States. Kayode, 777

F.3d 719, 727 (5th Cir. 2014). Deportation is equivalent to banishment or exile, and this Court has recognized that “‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’” I.N.S. v. St. Cyr, 533 U.S. 289, 321

(2001) (quoting 3 Bender, Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999)); see also

United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011), abrogated on other grounds by

Chaidez v. United States, 133 S. Ct. 1103 (2013) (“Mr. Orocio was only 27 years old at the time he entered the plea agreement, and he rationally could have been more concerned about a near-

28 certainty of multiple decades of banishment from the United States than the possibility of a single decade in prison.”).

Mr. Haverford had earned permanent residency and made this country his home. He is a

LPR who has been in the United States for over a decade. He testified that he had not returned to

Venezuela since he arrived in the United States. He also told the trial court judge that all of his family in Venezuela is gone and he does not want to return there. If he was forced to go to

Venezuela he would have “no family, no job, nothing.” R. 30. Mr. Haverford demonstrated that his ties to the United States were strong enough to make it a rational decision to forego the plea deal and risk receiving the maximum penalty by going to trial.

The Supreme Court of Eagleton cites Commonwealth v. Escobar, 70 A.3d 838 (Pa.

Super. Ct. 2013) to demonstrate that even though Mr. Haverford was convicted, there is no guarantee that the U.S. Attorney General will carry out the steps necessary to deport him. R. 48.

The trial court’s focus on this slim possibility is misplaced, especially considering the gravity of the consequences he faces. Mr. Haverford will be arrested by Immigration and Naturalization

Service, charged in immigration court with being a deportable alien where the court cannot grant him discretionary relief, and he can never return to the United States. Moreover, he has no connections to Venezuela remaining. Therefore, Mr. Haverford has proven that his counsel’s unreasonable misadvice prejudiced him. As such, this Court should grant Mr. Haverford’s motion to withdraw his guilty plea.

CONCLUSION

For all the forgoing reasons, this Court should REVERSE the judgment of the Eagleton

Supreme Court.

Respectfully submitted,

Team 11 Counsel for Petitioner