Lee v. United States<\/em><\/a>, 2017 WL 2694701 (2017).<\/p>\nJae Lee moved to the United States from South Korea when he was 13. \u00a0He worked in Tennessee running two restaurants. Over 35 years, he never returned to South Korea. Lee, however, never applied for citizenship and only had lawful permanent residence.<\/p>\n
In 2008 Lee was arrested and charged with possession with intent to distribute ecstasy. Lee pled guilty pursuant to a plea agreement after his attorney assured him that he would not be deported if he pled guilty. He received a year and a day in prison.<\/p>\n
However, after arriving in the BOP, Lee learned that he had been misadvised. Lee had pled guilty to an \u201caggravated felony,\u201d which except in limited situations requires deportation. So Lee filed a 2255 motion arguing that his attorney was ineffective for misadvising him about the deportation consequences of his plea.<\/p>\n
A magistrate judge recommended that Lee be granted relief after receiving testimony from Lee and his former lawyer. It was unequivocal that Lee had been misadvised. Lee\u2019s lawyer admitted this. Further, Lee\u2019s lawyer testified that he would have recommended that Lee go to trial if he had known that Lee would be deported as a result of his plea. Thus, per the magistrate, Lee’s lawyer had rendered ineffective assistance of counsel.<\/p>\n
Nevertheless, the district judge rejected the magistrate\u2019s recommendation. According to the district court, Lee was not prejudiced by his lawyer\u2019s misadvice because there was virtually no chance that Lee would have been acquitted if he would have gone to trial.<\/p>\n
The Sixth Circuit upheld the lower court’s decision on appeal. According to the Sixth Circuit, Lee could not show prejudice because \u201cno rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.\u201d<\/p>\n
Lee appealed to the Supreme Court. In an opinion by Chief Justice Roberts, the Supreme Court reversed.<\/p>\n
Justice Roberts began by drawing a distinction between claims of prejudice arising from \u201cattorney error during the course of a legal proceeding\u201d versus \u201cdeficient performance [that] arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.\u201d In the former situation, prejudice is most typically shown through \u201ca reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.\u201d<\/p>\n
In the latter situation, as Chief Justice Roberts wrote:<\/p>\n
\u201cWhen a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial \u2018would have been different\u2019 than the result of the plea bargain. That is because, while we ordinarily \u2018apply a strong presumption of reliability to judicial proceedings,\u2019 \u2018we cannot accord\u2019 any such presumption \u2018to judicial proceedings that never took place. We instead consider whether the defendant was prejudiced by the \u201cdenial of the entire judicial proceeding … to which he had a right.\u2019<\/p>\n
When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a \u2018reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.\u2019”<\/p><\/blockquote>\n
The Court recognized that sometimes a defendant will have to show \u201cthat he would have been better off going to trial.\u201d But that showing is only required \u201cwhen the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error\u2014for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession.\u201d<\/p>\n
In Lee\u2019s case, according to the Chief Justice, \u201cthe error was instead one that affected Lee’s understanding of the consequences of pleading guilty.\u201d<\/p>\n
The Government argued for \u201ca per se<\/em> rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial.\u201d<\/p>\nHowever, the Court held that the adoption of a categorical rule would be inappropriate because (1) claims of ineffective assistance of counsel require a \u201ccase-by-case examination\u201d of the \u201ctotality of the evidence\u201d; and (2) the relevant inquiry \u201cfocuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.\u201d<\/p>\n
The Court recognized that defendants with little to no chance of success at trial will often have a hard time proving that they would have gone to trial instead of pleading guilty. But this is not because of the possible outcome of the trial, but because of how the prospect of success would have affected the defendant\u2019s decision to plead.<\/p>\n
Nevertheless, the Court recognized that sometimes the potential consequences of going to trial versus pleading guilty can both be bad. According to the Court, \u201cwhen those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20\u2013year sentence may nevertheless choose trial, if the prosecution’s plea offer is 18 years.\u201d<\/p>\n
The Court was careful to make clear that \u201ccourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.\u201d<\/p>\n
As applied to Lee, the Court found that Lee had demonstrated a reasonable probability that he would have gone to trial had he been properly advised by his counsel.<\/p>\n
\u201cWe cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the \u2018determinative issue\u2019 for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that \u2018almost\u2019 could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.\u201d<\/p><\/blockquote>\n
The judgment of the Sixth Circuit affirming the denial of 2255 relief was accordingly reversed. Lee v. United States<\/em><\/a>, 2017 WL 2694701 (2017).<\/p>\n