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Name: In re Hernandez
Case #: G054623
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/26/2019

Habeas petitioner established she was prejudiced by counsel’s ineffective assistance where he failed to advise her that her guilty plea would result in mandatory deportation and there was evidence she would not have entered the plea if properly advised. On advice of her attorney, Hernandez pleaded guilty to possession of meth for sale based on evidence that meth was found in the car she was driving, which was owned by one of the passengers. After serving some jail time, Hernandez was taken into federal custody for deportation because her offense was an “aggravated felony” under federal law. In her petition for writ of habeas corpus, Hernandez argued her attorney was ineffective in failing to advise her that her plea would result in mandatory deportation, and that she would not have entered the plea had she known this fact. The trial court summarily denied the petition and she re-filed the petition in the Court of Appeal. Held: Granted. To show ineffective assistance of counsel, petitioner must show that counsel’s performance fell below an objective standard of reasonableness, and that it resulted in prejudice. When federal immigration law clearly provides that a conviction will result in deportation, as here, defense counsel must correctly advise his client of that consequence before she enters a plea. (Padilla v. Kentucky (2010) 559 U.S. 356.) Here, there was no evidence that trial counsel ever advised Hernandez that she would be subject to mandatory deportation as a result of pleading guilty. In addition, the failure of Hernandez’s attorney to provide her with accurate immigration consequences advice was prejudicial. The contemporaneous evidence reflected Hernandez’s strong preference to remain in this country, and that she would not have entered the plea had she known she would be deported. Furthermore, the record did not show it was a foregone conclusion that she would have been convicted on the charge if she went to trial. The conviction was vacated, with directions to allow Hernandez to withdraw her guilty plea and enter a new plea.

The full opinion is available on the court’s website here: