Lee v. United States (16-327)

argument 16-327

Lee v. United States

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What factual error did J. Lee’s counsel make about deportation consequences?

John G. Roberts 0:00

We'll hear argument this morning in Case 16-327, Lee v.

Paul D. Clement 0:04

United States. Mr. Bursch. Thank you, Mr. Chief Justice, and may it please the Court. J. Lee accepted a plea based on his counsel's assurance he would not be deported. Counsel had it exactly backward. The plea resulted in mandatory banishment from the United States. No one seriously doubts that if Mr. Lee knew the truth about his plea, he would have rejected it, But the Sixth Circuit dispensed with this Court's totality of the circumstances test for proving prejudice and created a categorical rule.

Anthony M. Kennedy 0:34

In state courts, are state courts mandated to follow what we do in the federal courts under Rule 11, that is to say, before the guilty plea is accepted to advise the defendant of all of his rights? I'm sure they are. Yeah, I think in most state courts they do follow that procedure. Do they also advise the defendant that if he or she is an alien, there may be certain consequences to the plea in state courts. Do you happen to know?

Paul D. Clement 1:03

In state courts, every court would have their own version of Rule 11, and so they're going to have some colloquy. And I believe those colloquies have changed somewhat since Padilla. And so one of the problems here, if you look at what happened during the withdrawal of the plea, everyone in the court, including the judge, thought that Mr. Lee was going to remain in the United States after he served his sentence. I don't.

Anthony M. Kennedy 1:26

quite see that in... Let me walk you through that. At 103 of the joint appendix, which was the beginning, the judge, after advising him of many of his rights, said, are you a U.S. citizen? No, Your Honor. Okay. A conviction on this charge then could result in your being deported. Does that at all affect your decision about whether you want to plead guilty or not? Yes, Your Honor. Okay, how does it affect your decision? I don't understand, and then he talks about it again.

Paul D. Clement 1:56

Right, and then we find out later at the 2255 evidentiary hearing, Justice Kennedy, that when he said, I don't understand, he then turned to his attorney, Mr. Fitzgerald, and Mr. Fitzgerald said, don't worry, this is a standard warning that everybody gets. If the deportation consequences are not in the plea agreement itself, he will not be deported.

Anthony M. Kennedy 2:15

I'm not sure how much more the judge can do, and that at least argues for or accepting a midway ground of requiring strickland conspiracy, strickland doubt, reasonable probability of success if

Paul D. Clement 2:33

you go to a jury. But, well, two points on that, Justice Kennedy. First, with respect to what he heard from the judges, what I would really like the Court to focus on is the sentencing hearing colloquy, which is at pages 124 to 127 of the joint appendix. And there it's clear that everyone, even the federal district court judge, believed that he was going to be released back into the United States after his one year was over. She even put him on three years of supervised release and told him to give the probation officer his address once he was released.

John G. Roberts 3:02

Well, that goes to deficient performance. I think we're beyond

Paul D. Clement 3:05

that, and the question is prejudice. Well, the question there at the colloquy was whether he was informed at all and how that prejudice, to kind of combine the response to yours and Justice Kennedy's question, what's the standard that we have here? And we start with the baseline, which is Strickland. Is there a reasonable probability of a different outcome? But that was refined by this Court in Hill. And as we explain at length in the reply brief, the Hill test is whether there is a reasonable probability the defendant would not have pleaded guilty. And

John G. Roberts 3:33

here — On that point, you say the facts here support that conclusion and go through them all. But I don't understand how you'll be able to distinguish any case in the future. You say, well, here, he's been here a long time. It hasn't gone back to South Korea. But I think someone who's just arrived might say, you know, this has been my passion my whole life to come to the United States. I don't want to go back. You know, I'm not sure how at the outset a judge can simply say, oh, we don't need to have a hearing in a case like this.