Docket No. 2015-01

In the Supreme Court of the United States

________________________________

THOMAS HAVERFORD,

Petitioner,

v.

STATE OF EAGLETON,

Respondent.

________________________________

ON WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE OF EAGLETON

________________________________

BRIEF FOR THE PETITIONER

________________________________

TEAM #9

Counsel for Petitioner

i

QUESTIONS PRESENTED

1. Whether the district court properly denied the Petitioner’s motion to suppress the

evidence of methamphetamine and the equipment and supplies commonly used to

manufacture methamphetamine:

A. Whether Deputy Sanderson had reasonable suspicion to extend a lawful traffic

stop about a burnt-out headlight to investigate whether Petitioner was under the

influence of drugs in the operation of his vehicle by having Petitioner perform

field sobriety tests?

B. If the traffic stop was not lawfully extended to investigate drug use by Petitioner,

was Petitioner’s subsequent consent to search his truck tainted by prior illegality,

so that the evidence seized was inadmissible?

C. Was Petitioner constructively seized without reasonable suspicion when the

deputy re-approached Petitioner’s vehicle to request consent to search?

2. Whether the district court properly refused to allow Petitioner to withdraw his guilty plea:

A. Was Attorney Brendanawicz’s assertion that Petitioner’s conviction led to a risk

of deportation constitutionally deficient?

B. Was Petitioner prejudiced because of Attorney Brendanawics’s deficient

performance?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF AUTHORITIES ......................................................................................................... iv

CONSTITUTIONAL PROVISIONS & STATUTES INVOLVED.............................................. ix

STATEMENT OF THE CASE ....................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................. 6

ARGUMENT .................................................................................................................................. 8

I. THE DISTRICT COURT IMPROPERLY DENIED THE PETITIONER’S MOTION TO

SUPRESS BECAUSE THERE WAS NO REASONABLE SUSPICION OF CRIMINAL

ACTIVITY TO EXTEND THE STOP AND DEPUTY SANDERSON NEVER

OBTAINED LAWFUL, VALID CONSENT TO SEARCH THE VEHICLE. ................... 8

A. After Deputy Sanderson completed the investigation into Petitioner’s traffic violation,

the extension of the stop without reasonable suspicion was a violation of the Fourth

Amendment.. .................................................................................................................... 8

B. The consent, search and seizure that produced the evidence of methamphetamine and

other contraband were the fruits of the unlawful extension of the traffic stop of Tomas

Haverford in violation of the Fourth Amendment. ........................................................ 12

1. The Post-Stop Detention of Tomas Haverford was a Constructive Seizure Not

Independently Justified by Reasonable Suspicion of Criminal Activity...........13

2. Tomas Haverford’s Consent To Search Was Not Attenuated From The

Unlawful Extension Of The Traffic Stop..........................................................15

C. Granting the Motion to Suppress will maintain the American public's perception of a

legitimate police force and protect the constitutional rights guaranteed by the Fourth

Amendment.....................................................................................................................17

II. THE DISTRICT COURT IMPROPERLY REFUSED TO ALLOW PETITIONER TO

WITHDRAW HIS GUILTY PLEA BECAUSE ATTORNEY BRENDANAWICZ'S

CONDUCT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF THE SIXTH AMENDMENT ............................................................... 19

A. Attorney Brendanawicz's assertion that Petitioner's conviction led to a risk of

deportation was constitutionally deficient under Padilla. ............................................. 20

B. Attorney Brendanawicz's performance prejudiced Petitioner because there is a

reasonable probability that Petitioner would not have pled guilty and his rejection of the

plea bargain was rational under the totality of the circumstances. ................................ 24

iii

1. Petitioner would not have pled guilty because he says that he would not have

and both his counsel and the court were acutely aware of his concerns

regarding deportation......................................................................................24

2. Petitioner's rejection of the plea bargain would have been rational under the

circumstances because he has significant ties to the United States, he had the

possibility of success at trial, and it was more important to the petitioner to

avoid deportation that to risk a worse sentence..............................................26

CONCLUSION ............................................................................................................................. 30

iv

TABLE OF AUTHORITIES

Cases

Arizona v. Johnson,

555 U.S. 323 (2009) ............................................................................................................ 13, 14

Bousley v. United States,

523 U.S. 614 (1998) .................................................................................................................. 19

Boyd v. United States,

116 U.S. 616 (1886) .................................................................................................................. 18

Boykin v. Alabama,

395 U.S. 238 (1969) .................................................................................................................. 19

Brady v. United States,

397 U.S. 742 (1970) .................................................................................................................. 19

Bridges v. Wixon,

326 U.S. 135 (1945) .................................................................................................................. 26

Brown v. Illinois,

422 U.S. 590 (1975) .............................................................................................................. 6, 16

California v. Hodari D.,

499 U.S. 621 (1991) .................................................................................................................. 13

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) .................................................................................................................... 18

Cullen v. Pinholster,

131 S. Ct. 1388 (2011) .............................................................................................................. 20

Delaware v. Prouse,

440 U.S. 648 (1979) .................................................................................................................. 18

Dunaway v. New York,

98 S. Ct. 2248 (1979) ................................................................................................................ 13

Fong Yue Ting v. United States,

149 U.S. 698 (1893) .................................................................................................................. 26

Fraser v. Commonwealth,

59 S.W.3d 448 (Ky. 2001) ........................................................................................................ 25

v

Hill v. Lockhart,

474 U.S. 52 (1958)...............................................................................................................24, 25

Illinois v. Caballes,

543 U.S. 405 (2005) ........................................................................................................ 8, 12, 13

Kovacs v. United States,

744 F.3d 44 (2d Cir. 2014) ........................................................................................................ 24

Lafler v. Cooper,

132 S. Ct. 1376 (2012) .............................................................................................................. 20

Libretti v. United States,

516 U.S. 29 (1995).....................................................................................................................23

Lockhart v. Fretwell,

506 U.S. 364 (1993) .................................................................................................................. 28

Massiah v. United States,

377 U.S. 201 (1964)...................................................................................................................28

McMann v. Richardson,

397 U.S. 759 (1970) .................................................................................................................. 19

Ohio v. Robinette,

519 U.S. 33 (1996) .................................................................................................................... 13

Ornelas v. United States,

517 U.S. 690 (1996) .................................................................................................................... 8

Padilla v. Kentucky,

559 U.S. 356 (2010) ........................................................................................................... passim

Powell v. Alabama,

287 U.S. 45 (1932) .................................................................................................................... 27

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) .................................................................................................................. 12

Spano v. New York,

360 U.S. 315 (1959)...................................................................................................................28

State v. Barker,

348 P.3d 1138 (Or. Ct. App. 2015) ............................................................................................. 9

vi

State v. Duhaime,

258 P.3d 649 (Utah Ct. App. 2011) .......................................................................................... 11

States v. Jones,

234 F.3d 234 (5th Cir. 2000) ....................................................................................................... 6

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................................................................... passim

Terry v. Ohio,

392 U.S. 1 (1968) ................................................................................................................ 13, 28

Thomas v. Lockhart,

738 F.2d 304 (8th Cir. 1984) ..................................................................................................... 24

Tollette v. Henderson,

411 U.S. 258 (1973)...................................................................................................................23

United States v. Akinsade,

686 F.3d 248 (4th Cir. 2012) ..................................................................................................... 26

United States v. Arvizu,

534 U.S. 266 (2002). ................................................................................................................... 8

United States v. Beck,

140 F.3d 1129 (8th Cir. 1998) ................................................................................................... 11

United States v. DeBartolo,

790 F.3d 775 (7th Cir. 2015) ......................................................................................... 24, 25, 29

United States v. Dortch,

199 F.3d 193 (5th Cir. 1999). .................................................................................................... 12

United States v. Drayton,

536 U.S. 194 (2002) ............................................................................................................. 14,15

United States v. Estrada,

459 F.3d 627 (5th Cir. 2006) ..................................................................................................... 10

United States v. Fernandez,

18 F.3d 874 (10th Cir. 1994) .................................................................................................... 11

United States v. Gavilan,

761 F.2d 226 (5th Cir. 1985) ..................................................................................................... 24

vii

United States v. Jones,

234 F.3d 234 (5th Cir. 2000)........................................................................................................8

United States v. Kayode,

777 F.3d 719 (5th Cir. 2014) ......................................................................................... 26, 27, 28

United States v. Khalaf,

116 F. Supp. 2d 210 (D. Mass. 1999) ....................................................................................... 19

United States v. Macias,

658 F.3d 509 (5th Cir. 2011) .............................................................................................. passim

United States v. Mendenhall,

466 U.S. 544 (1980) .................................................................................................................. 13

United States v. Ortiz,

422 U.S. 891 (1975) .................................................................................................................. 13

United States v. Pack,

612 F.3d 341 (5th Cir. 2010) ................................................................................................. 8, 12

United States v. Salzano,

158 F.3d 1107 (10th Cir. 1998) ................................................................................................. 11

United States v. Simpson,

609 F.3d 1140 (10th Cir. 2010) ................................................................................................. 11

United States v. Soto-Cervantes,

138 F.3d 1319 (10th Cir. 1998) ................................................................................................. 11

United States v. Streater,

70 F.3d 1314 (D.C. Cir. 1995) .................................................................................................. 19

United States v. Sullivan,

138 F.3d 126 (4th Cir. 1998) ..................................................................................................... 11

United States v. Urias–Marrufo,

744 F.3d 361 (5th Cir.2014) ................................................................................................ 25, 27

United States v. Wood,

106 F.3d 942 (10th Cir. 1997) ................................................................................................... 11

Warden v. Hayden,

387 U.S. 294 (1967) .................................................................................................................. 17

viii

Washington v. Sandoval,

249 P.3d 1015 (Wash. 2011)................................................................................................23, 25

Whren v. United States,

517 U.S. 806 (1996) .................................................................................................................. 11

Wong Sun v. United States,

371 U.S. 481 (1963) ...................................................................................................... 13, 15, 17

Statutes

8 U.S.C. § 1227 (a)(2)(B)(i)............................................................................................... ix, 21, 22

Eg. Stat. § 841(a)(1) ................................................................................................................... ix, 3

Eagleton R. Crim. Pro. 11................................................................................................................3

Constitutional Provisions

U.S. Const. amend. IV ........................................................................................................... passim

U.S. Const. amend. VI ..................................................................................................... ix, 4, 7, 19

Other Authorities

Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912

(1992). ....................................................................................................................................... 28

ix

CONSTITUTIONAL PROVISIONS & STATUTES INVOLVED

U.S. Const. amend. IV

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.

U.S. Const. amend. VI

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.

Controlled Substances Act, 21 U.S.C. § 841 (a)(2).

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or

intentionally –

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a

counterfeit substance.

8 U.S.C. § 1227 (a)(2)(B)(i)

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 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.

Eg. Stat. § 841(a)(1)

(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; or

(2) Create, distribute, or dispense, or possess with intent to distribute or dispense, a

counterfeit substance.

(b) In the case of a violation of subsection (a) involving 5 grams or more of methamphetamine,

its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers,

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and

not more than 40 years.

1

STATEMENT OF THE CASE

A. Factual Background

Tomas Haverford, a long time permanent resident of the state of Eagleton, was sentenced

to ten years’ imprisonment after pleading guilty to a violation of Eagleton Statute, Eg. Stat. §

841(a)(1). (R. at 31-32). Mr. Haverford is a Venezuelan national. (R. at 31). He immigrated to

the United States from Venezuela in 2003, at the age of only nineteen. (R. at 31). He has been a

lawful permanent resident (LPR) since he entered the United States in 2003. (R. at 31). He lives

and works in the United States. His life is here.

On the evening of May 20, 2013, Mr. Haverford was driving near Knudson Avenue in

Wamapoke, Eagleton when Mr. Haverford drove past Deputy David Sanderson of the Pawnee

County Sheriff’s Department. (R. at 3-4). Although Mr. Haverford did not appear to be driving

erratically or to be chemically impaired while driving, from Deputy Sanderson’s vantage point,

Deputy Sanderson observed that Mr. Haverford’s Chevy truck had a burnt-out headlight. (R. at

4-6). He pulled over Mr. Haverford at approximately 6:10 p.m. (R. at 3).

As Deputy Sanderson approached Mr. Haverford’s vehicle, he did not observe or smell

any odor of drugs or alcohol. (R. at 7). After introducing himself as a deputy of the law, he asked

for Mr. Haverford’s license and registration. (R. at 11). Mr. Haverford then asked to pull into the

parking lot of his residence, as he was tired and wanted to go to bed, but Deputy Sanderson

ordered him to, “hang tight right there.” (R. at 11).

Deputy Sanderson then returned to his vehicle and noted that Mr. Haverford was “real

nervous” and that his pupils were restricted. (R. at 11). Additionally, he noted that he was going

to subject Mr. Haverford to a field sobriety test based on the deputy’s observations. (R. at 11).

2

Deputy Sanderson then asked Mr. Haverford to step out of the vehicle. (R. at 12). Mr.

Haverford complied with the deputy’s orders. (R. at 12). Deputy Sanderson returned Mr.

Haverford’s registration and explained the traffic ticket and how to contest it, if Mr. Haverford

so wished. (R. at 12). Deputy Sanderson questions Mr. Haverford about his nervousness, which

Mr. Haverford apologized and asked if he could go home. (R. at 12). Deputy Sanderson told him

he could not and to again “hang tight.” (R. at 12).

Deputy Sanderson then questioned Mr. Haverford about if he was using any drugs, to

which Mr. Haverford replied that he doesn’t use drugs but takes prescribed Adderall. (R. at 12).

Mr. Haverford again repeated that he was tired, upset, and wanted to go home to which Deputy

Sanderson responded by asking Mr. Haverford to attempt a field sobriety test. (R. at 12). Mr.

Haverford passed multiple field sobriety tests to which Deputy Sanderson responded, “you’re ok

to go. I’ll let you get on your way then.” (R. at 13-14). Deputy Sanderson returned to his vehicle

but did not enter his vehicle. (R. at 9).

Twelve seconds later, Deputy Sanderson continued asking Mr. Haverford questions,

resulting in asking for permission to search Mr. Haverford’s vehicle. (R. at 14). During a search

of vehicle, Deputy Sanderson discovered methamphetamine and materials to make

methamphetamine. (R. 6-14). Mr. Haverford was later charged with possession with intent to

manufacture Methamphetamine under the Eagleton Controlled Substances Act. (R. at 25); Eg.

Stat. § 841 (a)(1).

Mr. Haverford moved to suppress evidence seized from his car, arguing that Deputy

Sanderson had violated his Fourth Amendment rights. (R. at 15). After hearing evidence, the

Pawnee District Court denied the motion to suppress. (R. at 21). Judge Perd Hapley noted that

although “Sanderson was an experienced Deputy with fifteen years of service for the Pawnee

3

County Sherriff’s Department, he was not a drug recognition expert,” and did not know “how

drug use might affect pupil size.” (R. at 16-17). Additionally, Judge Hapley explained that Mr.

Haverford’s nervousness “may also have innocent explanations,” and that Deputys cannot

realistically “conduct field sobriety tests on every motorist who shakes and is nervous when

stopped by an Deputy.” (R. at 16-17). Additionally, the court found that Deputy “Sanderson did

not have reasonable suspicion to ask Haverford to conduct field sobriety tests” and, therefore,

“the extension of the stop was unlawful.” (R. at 17). The court denied the motion on a finding

that Mr. Haverford was not constructively seized and his rights were not violated. (R. at 21).

On August 21, 2013, after his attempt to suppress the evidence against him was denied,

Mr. Haverford proceeded to a plea and sentencing hearing. (R. at 24-26) At the hearing, Attorney

Mark Brendanawicz informed the court that Mr. Haverford “doesn’t want to have to be

deported.” (R. at 24). After the State described the plea agreement, Attorney Brendanawicz told

this court that he had told Haverford that “deportation is a strong possibility.” (R. at 25). With

the consent of the court and the State, Mr. Haverford pled guilty on the condition that he

preserve the right to appeal the court’s denial of his motion to suppress. (R. at 25). This court

sentenced Mr. Haverford to ten years in prison on the charge of possession with intent to

manufacture methamphetamine under the Eagleton Controlled Substances Act and denied the

request for expungement. (R. at 26); Eg. Stat. § 841 (a) (1).

On September 23, 2013, Mr. Haverford received a Notice to Appear from the Department

of Homeland Security (DHS), ordering him to appear before an immigration judge. (R. at 22).

B. Procedural History

On October 16, 2013, Mr. Haverford filed a motion under Eagleton R. Crim. Pro. 11,

challenging his conviction on numerous grounds, including an allegation that he received

4

ineffective assistance of counsel because his attorney did not advise him of the deportation

consequences of his guilty plea. (R. at 27-30). Specifically, Mr. Haverford’s motion alleged that

Attorney Brendanawicz violated this Court’s decision in Padilla v. Kentucky, 559 U.S. 356

(2010), which held that counsel is ineffective for failing to inform a defendant that a drug

trafficking offense results in mandatory deportation. (R. at 28).

The trial court then held an evidentiary hearing. (R. at 27-30). Based on the record and

the evidence presented at the hearing, the court denied Mr. Haverford’s motion to withdraw his

plea. (R. at 31). The court found Attorney Brendanawicz did perform deficiently, but that Mr.

Haverford had not established prejudice. (R. at 31-37).

On November 15, 2013, Mr. Haverford appealed the trial court’s denial of his motion to

withdraw his guilty plea and its denial of his motion to suppress. (R. at 41).

On appeal, the Supreme Court of Eagleton reversed the trial court in part and determined

that Deputy Sanderson did in fact have reasonable suspicion to persue field sobriety tests,

making the extension of the stop lawful. (R. at 38-39). The court also affirmed the trial court’s

finding that the consent to search the vehicle was valid. (R. at 39). Moreover, the Supreme Court

of Eagleton reversed the trial court’s determination that Attorney Brendanawicz had acted

deficiently, but ultimately affirmed the trial court’s denial of Mr. Haverford’s motion to

withdraw his guilty plea. (R. at 39). Because the Supreme Court of Eagleton determined that

Attorney Brendanawicz’s conduct was ‘adequate,’ it did not address the question of whether his

deficient performance prejudiced Mr. Haverford. (R. at 50).

Two justices, including the Chief Justice, dissented declaring, “I cannot possibly find that

an attorney who fails to read the statute performed sufficiently to fulfill his Sixth Amendment

duty to counsel.” (R. at 56). The dissenting justices agreed with the trial court that Attorney

5

Brendanawizc was deficient. (R. at 55). Additionally, the dissent found “that the trial court’s

conclusion that the extention of the stop for field sobriety tests was unlawful.” (R. at 51). Finally,

the court found that no reasonable person in Mr. Haverford’s shoes would have consented to the

search “absence the presence of coercion” that the dissent found here. (R. at 54)

In the October term 2015, the Supreme Court of the United States granted petition for

writ of certiorari.

6

SUMMARY OF THE ARGUMENT

This Court should affirm the district court’s decision that Deputy Sanderson unlawfully

extended the initial traffic stop. The Deputy lacked the prerequisite reasonable suspicion that was

needed to subject the Defendant to field sobriety tests when he was pulled over for a routine

traffic violation. Although Deputy Sanderson points to the Defendant’s pupil size and

nervousness for meeting the reasonable suspicion standard, Deputy Sanderson has no training on

the effects of methamphetamine use and nervousness alone is not enough to satisfy reasonable

suspicion.

Further, this Court should reverse the district court’s decision that the Defendant gave

legal, valid consent. First, the Defendant was constructively seized without reasonable suspicion

when Deputy Sanderson asked for consent to search the Defendant’s car. No reasonable person

would have felt free to leave the encounter with the Deputy and absent the unlawful constructive

seizure, the Defendant would never have given consent to search the vehicle.

Second, the consent was not attenuated from the unlawful extension of the stop and all

fruits of the unlawful seizure are tainted. The time between the unlawfully extended stop and the

consent was a mere twelve seconds and when the facts of the present case are applied to the test

from Brown v. Illinois, 422 U.S. 590, 603-04 (1975), this Court should find that this length of

time does not support attenuation. Therefore, this Court should reverse the district court’s

decision to deny the Defendant’s motion to suppress the evidence of methamphetamine and

equipment to produce methamphetamine.

This Court should find that the district court improperly refused to allow Mr. Haverford

to withdraw his guilty plea. A guilty plea must be entered knowingly and voluntarily for it to be

constitutionally valid. Mr. Haverford relied on erroneous advice from his defense counsel,

7

Attorney Brendanawicz, in entering his guilty plea. Had he known the critical fact that his

conviction led to mandatory deportation he would have proceeded to trial. Thus, Petitioner

validly challenged his guilty plea because Attorney Brendanawicz’s conduct constitutes

ineffective assistance of counsel.

In ruling on an ineffective assistance of counsel claim, both prongs of the Strickland test

must be met. Petitioner has satisfied both the deficient performance and prejudice prongs of the

Strickland test. First, Attorney Brendanawicz’s violated his duty to Mr. Haverford to accurately

instruct him that his conviction led to mandatory deportation under the standard set forth by this

Court in Padilla v. Kentucky, 559 U.S. 356 (2010). Attorney Brendanawicz’s performance

cannot be considered anything but deficient and in violation of the Sixth Amendment because he

even failed to read the statute critical to the defense of his client. Thus, Petitioner’s Motion to

Withdraw should have been granted because defense counsel was constitutionally deficient.

Attorney Brendanawicz’s erroneous advice prejudiced Mr. Haverford and effectively

tainted the reliability of the District Court’s decision. The record overwhelmingly supports that

defense counsel and the trial court were aware of Mr. Haverford’s concern regarding deportation

and that he would not have entered a guilty plea had he been informed that his deportation was

certain upon conviction. Moreover, under a totality of the circumstances, the facts show that Mr.

Haverford’s rejection of the guilty plea would have been rational. As a result of utmost reliance

on his counsel’s deficient advice, Mr. Haverford entered an uninformed, unknowing, and

involuntary guilty plea. Therefore, the courts below erred by denying his motion to withdraw and

should be reversed.

8

ARGUMENT

I. THE DISTRICT COURT IMPROPERLY DENIED THE PETITIONER’S MOTION

TO SUPRESS BECAUSE THERE WAS NO REASONABLE SUSPICION OF

CRIMINAL ACTIVITY TO EXTEND THE STOP AND DEPUTY SANDERSON

NEVER OBTAINED LAWFUL, VALID CONSENT TO SEARCH THE VEHICLE.

A. After Deputy Sanderson completed the investigation into Petitioner’s traffic

violation, the extension of the stop without reasonable suspicion was a violation of

the Fourth Amendment..

This Court should affirm that the district court correctly held that the extension of the

initial traffic stop was unlawful. Determinations of reasonable suspicion should be reviewed de

novo on appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996). However, this Court should

“review findings of historical fact only for clear error and give due weight to inferences drawn

from those facts by resident judges.” Id. This is because of the district court’s unique position of

“superior access to the evidence.” United States v. Arvizu, 534 U.S. 266, 276 (2002).

Stopping a vehicle is a “seizure” within the meaning of the Fourth Amendment. United

States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). A seizure that is justified solely by the interest

in issuing a warning ticket to a driver can become unlawful if it is prolonged beyond the time

reasonably required to complete that mission. Illinois v. Caballes, 543 U.S. 405, 407 (2005). The

authority to hold the detained comes to an end when the actions related to the purpose of the

traffic stop have been completed. Id. “An officer’s subsequent actions are not reasonably related

in scope to the circumstances that caused him to stop the vehicle if he detains its occupants

beyond the time needed to investigate the circumstances that caused the stop, unless he develops

reasonable suspicion of additional criminal activity in the meantime.” United States v. Macias,

658 F.3d 509, 517 (5th Cir. 2011) (citing United States v. Pack, 612 F.3d 341, 350 (5th Cir.

2010)). An officer can ask questions unrelated to the traffic stop that extend the duration of the

stop only when the officer has reasonable suspicion necessary for the continued detention. Id.

9

Even if dilated pupils are a sign of methamphetamine use, as Deputy Sanderson claims,

dilated pupils are not enough to satisfy the reasonable suspicion standard. State v. Barker, 348

P.3d 1138, 1142-44 (Or. Ct. App. 2015). In Barker, the appellate court reversed the trial court,

ruling that evidence seized must be suppressed as the evidence was tainted fruits from an

unlawful search and seizure. Id. The court held that a suspect’s dilated pupils and signs of

methamphetamine use are “insufficient to give rise to reasonable suspicion that the person is in

possession of methamphetamine.” Id.

Deputy Sanderson’s justification for reasonable suspicion was the Defendant’s dilated

pupils and his nervousness. (R. at 5). Deputy Sanderson admits not only that he is not a drug

recognition expert, but that he has no idea how methamphetamine affects a person’s pupils. (R.

at 7-8). The government offers no evidence of the Deputy’s experience in relation to drugs or

drug symptom identification. Additionally, Deputy Sanderson had his emergency lights on,

which would reasonably alter the Defendant’s pupil size due to the sheer brightness of these

emergency lights. (R. at 7). This is a normal biological reaction to light. The fact that Deputy

Sanderson does not know how the pupils react from methamphetamines, coupled with the

brightness from the emergency lights, leads to the conclusion that the Defendant’s pupils could

not have in any way led the Deputy to believe that the Defendant was impaired by drugs, let

alone stand the test of reasonable suspicion. Consequently, this leaves only the Defendant’s

nervousness as the only evidence for reasonable suspicion to extend the stop.

In United States v. Mascias, the Fifth Circuit held that nervousness alone does not satisfy

the reasonable suspicion standard. Macias, 658 F.3d at 520. In Macias, the defendant was

stopped for the failure to wear a seatbelt. Id. at 512. The stopping officer asked questions

unrelated to the purpose of the stop, thereby extending the duration of the stop. Id. at 512-13.

10

The officer asked for consent to search the defendant’s vehicle, claiming that the defendant’s

“nervousness” was the justification for reasonable suspicion. Id. The search resulted in the

officer discovering a firearm and in the arrest of the defendant for being a felon in possession of

a firearm. Id. The court held there that nervousness alone does not meet the requirements for

reasonable suspicion to extend the duration of the traffic stop and, additionally, that the consent

was not an independent act of free will. Id. at 520. Therefore, the court suppressed all evidence

of the search.

Analogous to Macias, the Defendant was stopped for a routine traffic violation. (R. at 4).

Deputy Sanderson has repeatedly cited that the Defendant’s nervous conduct prompted him to

extend the traffic stop. (R. at 4-11). Lacking the qualifications to determine whether someone is

under the influence of methamphetamine, the Deputy here has solely based his suspicions on the

Defendant’s nervous conduct. Deputy Sanderson unlawfully extended the stop when he asked

the Defendant if he could speak with him again based solely on his nervous conduct. By using

this as his justification to subject the Defendant to field sobriety tests, the extension of the stop is

plainly not admissible.

Therefore, Deputy Sanderson had no reasonable suspicion that the Defendant was driving

under the influence of alcohol or impaired by drugs. “Reasonable suspicion exists when the

detaining officer can point to specific articulable facts, that when taken together with rational

inferences from those facts, reasonably warrant the . . . seizure.” United States v. Estrada, 459

F.3d 627, 631 (5th Cir. 2006). The evidence required for reasonable suspicion must be based on

more than mere hunches or intuition. Macias, 658 F.3d at 520.

The circumstances surrounding the extension of the stop must be taken into account and

how they would affect the Defendant’s demeanor. Deputy Sanderson observed that the

11

Defendant was “real nervous” and that the Defendant was shaking. (R. at 11). The Defendant

wanted to go to sleep and felt as if the Deputy would not leave him alone. (R. at 13-14).

Nevertheless, “nervousness, standing alone, generally is not sufficient to support reasonable

suspicion.” Macias, 658 F.3d at 520.; See also, United States v. Salzano, 158 F.3d 1107 (10th

Cir. 1998); United States v. Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir. 1998); United States

v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998); United States v. Beck, 140 F.3d 1129, 1139 (8th

Cir. 1998). “’[N]ervousness is of limited significance in determining whether reasonable

suspicion exists, because it is common for innocent individuals as well as guilty ones ‘to exhibit

signs of nervousness when confronted by a law enforcement officer’" and because it is difficult

for an officer who is not familiar with a person to evaluate whether they are "acting normally for

them or nervously." State v. Duhaime, 258 P.3d 649, 657 (Utah Ct. App. 2011) (quoting United

States v. Simpson, 609 F.3d 1140, 1147-48 (10th Cir. 2010)). The Defendant’s nervousness is a

natural reaction to being pulled over by a police officer and subsequently questioned. ′′[M]ost

citizens-whether innocent or guilty - exhibit signs of nervousness when confronted by a law

enforcement officer.′′ United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). Nervousness is

consequently ′′of limited significance in determining reasonable suspicion.′′ United States v.

Fernandez, 18 F.3d 874, 879 (10th Cir. 1994). The Defendant’s nervousness was a natural result

of the situation in which he was placed, and standing on its own, nervousness is not sufficient

evidence to warrant reasonable suspicion of criminal activity.

During an ordinary traffic stop, the seizure of a vehicle and its occupants is based solely

on the officer’s belief of probable cause that a traffic violation has actually occurred. Whren v.

United States, 517 U.S. 806, 810 (1996). The purpose of the stop itself is to address the traffic

violation, and therefore the length of the stop must last no longer than necessary than to

12

accomplish that objective. Caballes, 543 U.S. at 407. Only when the officer develops reasonable

suspicion of a different criminal activity in the course of the stop may the officer lawfully extend

the stop. United States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010). The Deputy observed no open

intoxicants in the vehicle, no drugs or drug paraphernalia, no slurred speech from the Defendant,

and no indication of impaired driving. Nothing suggested to Deputy Sanderson that the

Defendant was operating the vehicle while impaired by drugs or alcohol, or that any criminal

activity was afoot. (R. at 6-8). The Deputy lacked any particular reason to believe that the

Defendant was under the influence of drugs or alcohol. The Deputy lacked the prerequisite

reasonable suspicion required to subject the Defendant to field sobriety tests, and therefore the

length of the stop was longer than necessary.

The traffic stop was extended well beyond the purpose of the stop, the burnt out

headlight, and the unlawful extension of the stop without reasonable suspicion was a violation of

the Defendant’s Fourth Amendment rights. This Court, therefore, should suppress the evidence

of methamphetamine and the equipment and supplies that were seized as a result of this unlawful

search and seizure.

B. The consent, search and seizure that produced the evidence of methamphetamine

and other contraband were the fruits of the unlawful extension of the traffic stop of

Tomas Haverford in violation of the Fourth Amendment.

This Court should reverse the district court’s holding that the Defendant gave valid

consent for Deputy Sanderson to search the Defendant’s car. The state’s burden of proof that the

defendant validly consented to a search becomes “all the more difficult” when a prior

constitution violation has already occurred. United States v. Dortch, 199 F.3d 193, 201 (5th Cir.

1999). Consent, even when voluntary, is not valid when obtained through illegal action by the

police. Schneckloth v. Bustamonte, 412 U.S. 218, 229-35 (1973). The Fourth Amendment test for

13

a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact

to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996). The

search of the Defendant’s consent to search the vehicle, the search of the vehicle, and the seizure

of evidence were fruits of the unlawful extension of the stop and, therefore, must be suppressed.

Dunaway v. New York, 98 S. Ct. 2248 (1979); Wong Sun v. United States, 371 U.S. 481 (1963).

A stop must be reasonable from beginning to end, and reasonableness depends as much on

execution as on initial justification. See United States v. Ortiz, 422 U.S. 891, 895 (1975); Terry,

392 U.S. 1, 28-29 (1968). In reviewing the district court’s holding that the Defendant’s consent

was legal and valid, this Court should apply a clear error standard. Macias, 658 F.3d at 523.

1. The Post-Stop Detention of Tomas Haverford was a Constructive Seizure

Not Independently Justified by Reasonable Suspicion of Criminal Activity.

This Court has said that, “normally, the stop ends when the police have no further need to

control the scene, and inform the driver and passengers they are free to leave.” Arizona v.

Johnson, 555 U.S. 323, 333 (2009). The authority to hold the detained comes to an end when the

actions related to the purpose of the traffic stop have been completed. Illinois v. Caballes, 543

U.S. 405, 407 (2005). A constructive seizure occurs when an officer uses “physical force or

show of authority” that limits the liberty of a citizen. United States v. Mendenhall, 466 U.S. 544,

522 (1980); see also, Terry v. Ohio, 392 U.S. 1, 19 (1968). If under the totality of the

circumstances, a reasonable, innocent person would believe they are not free to leave, then a

seizure under the Fourth Amendment has occurred. Mendenhall, 466 U.S. at 554-55; See also,

California v. Hodari D., 499 U.S. 621, 627-28 (1991).

In Arizona v. Johnson, 555 U.S. 323, 333 (2009), this Court found that the defendant’s

consent to search was not valid because of prior police misconduct. The officer lawfully stopped

the defendant for suspended registration of the defendant’s vehicle. Id. at 327-28. The encounter

14

took place within minutes of the stop, a pat down followed within moments of respondent's exit

from the car. Id. at 333. The Court held that the consent to the pat down was not consensual as

the defendant was constructively seized and the point at which the defendant could have felt free

to leave had not yet occurred. Id.

Analogous to Arizona, very little time had passed between the stop and the Defendant’s

consent. Here, even less time had passed, a mere 12 seconds between the end of the unlawfully

extended stop and when Deputy Sanderson approached the Defendant again. (R.at 14). This is

plainly not enough time for a reasonable person to think that the seizure had ended when the

Deputy originally walked away, and the Defendant could not have possibly thought he was free

to go.

Additionally, Deputy Sanderson had repeatedly denied the Defendant’s requests and

coerced the Defendant into giving consent to the search. (R. at 11-14). The Defendant had asked

to pull into the parking lot of his residence because he was drowsy which Deputy Sanderson

swiftly denied. (R. at 11). Deputy Sanderson showed his authority by denying the Defendant’s

request to go home. (R. 11-14). Before the Defendant’s request to leave, Deputy Sanderson

returned the Defendant’s license and registration. (R. at 12). A reasonable, innocent person could

easily construe this as a sign that the traffic stop had concluded. When the Defendant asked

Deputy Sanderson to go home, however, he denied the request. (R. at 11-14). The only reason

the Defendant continued to be present was Deputy Sander’s use of authority to keep the

Defendant there. If the Defendant has already believed that the traffic stop was over and his

request to leave had already been denied once, it is reasonable to believe that when he was

approached by Deputy Sanderson for additional questioning that he again was not free to leave

or “that he had any free choice to ignore the police altogether”. United States v. Drayton, 536

15

U.S. 194, 212 (2002) (Souter, J., dissenting). Absent the impression that the Defendant was not

free to leave that Deputy Sanderson gave through coercion and display of his authority, a

reasonable person would not have given consent.

Based on much of the same analysis as earlier, Deputy Sanderson did not have reasonable

suspicion that the vehicle contained illegal drugs or paraphernalia. The Defendant passed all of

the Deputy’s field sobriety tests. (R. at 13-14). There was no odor of drugs or alcohol emanating

from the car or the Defendant. (R.at 6-8). Deputy Sanderson had no evidence of reasonable

suspicion of criminal activity during the unlawful extension of the stop, and he surely did not

have it after the twelve-second lapse where he approached the Defendant again. In fact, the sole

purpose for Deputy Sanderson continued the seizure of the Defendant was to find evidence of

reasonable suspicion. Because the Deputy did not have reasonable suspicion the Defendant was

involved in criminal activity, the continued detention of the Defendant violated the Fourth

Amendment’s prohibition of unreasonable seizures. Accordingly, this Court should find that

these facts do not establish reasonable suspicion, rendering the post-stop seizure unlawful.

Absent the unlawful constructive seizure, the Defendant would not have been present to

give consent for the search of his vehicle. The evidence obtained from the search, therefore, must

be suppressed.

2. Tomas Haverford’s Consent To Search Was Not Attenuated From The

Unlawful Extension Of The Traffic Stop.

The test to determine whether “the connection between the lawless conduct of the police

and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.”

Wong Sun v. United States, 371 U.S. 481, 487 (1963) (internal quotations omitted). To determine

whether the Defendant’s consent to search the vehicle was an independent act of free will and

attenuated from the illegal constructive seizure, this Court should look to three factors: (1) the

16

temporal proximity of the illegal seizure and the consent; (2) the presence of any intervening

circumstances; (3) “the purpose and flagrancy” of the initial misconduct. Brown v. Illinois, 422

U.S. 590, 603-04 (1975).

Addressing the first factor, the temporal proximity of the illegal conduct and the consent

to search, the time period between the two is not nearly enough time to establish attenuation. In

Macias, where the court found that the temporal proximity was not sufficient to establish

attenuation, the time period between the illegal seizure and the defendant’s consent was thirty

seconds. Macias, 658 F.3d at 524. In the current case, after Deputy Sanderson told the Defendant

he was “okay to go,” a mere twelve seconds had passed before the Deputy returned to ask the

Defendant additional questions. (R. at 14). This wasn’t even enough time for the Defendant to

start his car and leave the stop, let alone that the illegal detention had concluded. Virtually no

time had elapsed between the primarily illegality and the consent to search the vehicle. Thirty

seconds was not enough in Macias to establish attenuation, and the Defendant requests that this

Court mirror the Fifth District’s holding, and find that twelve seconds is not enough to establish

the first prong of attenuation. Macias, 658 F.3d at 524.

The second factor also indicates that there was not sufficient attenuation to dissipate the

taint of the unlawful extension of the stop. Although Deputy Sanderson told the Defendant he

was “okay to go” after he returned his license and registration, which would indicate the end of

the unlawfully extended stop, no single factor is determinative under the test. (R. at 12-14) This

is not a significant intervening factor and is not sufficient to warrant that the consent was not

fruits of the unlawfully extended stop.

Finally, the third factor analyzes the purpose and flagrancy of the initial misconduct.

Brown, 422 U.S. at 603-04. The purpose of the initial unlawful extension of the stop was to find

17

some evidence of operating under the influence of alcohol or drugs. After no evidence of

reasonable suspicion for requiring the Defendant to perform field sobriety tests, the Deputy was

forced to let the Defendant go. (R. 12-14). The request for consent, however, is alarming as the

purpose for the search was the same as the initial unlawful misconduct: for evidence of operating

under the influence of alcohol or drugs. This shows a flagrant disregard to the law by Deputy

Sanderson, and weighs heavily against attenuation of the initial unlawful extension of the stop

and the consent.

Even if the consent to search the vehicle may have been voluntary, the consent was not

valid. The causal chain between the unlawful constructive seizure and the Defendant’s consent

was not broken and therefore the search was nonconsensual. Collectively, no factors are present

that could arguably suspend the taint from the unlawfully extended stop. As the consent to search

the vehicle was not a product of valid consent, all evidence derived from the search should be

suppressed.

C. Granting the Motion to Suppress will maintain the American public’s perception of

a legitimate police force and protect the constitutional rights guaranteed by the

Fourth Amendment.

The exclusionary rule protects The Fourth Amendment guarantees by “deterring lawless

conduct by federal officers” and closing “the doors of federal courts to any use of evidence

unconstitutionally obtained.” Wong Sun v. United States, 371 U.S. 481, 485-86 (1963). The rule

is designed to “prevent, not to repair . . . to deter – to compel respect for the constitutional

guaranty in the only effectively available way – by removing the incentive to disregard it.” Id.

This Court has long held that the Fourth Amendment was deliberately aimed by the Founders to

protect citizens from indiscriminate police actions. Warden v. Hayden, 387 U.S. 294, 301 (1967).

“It was a reaction to the evils of the use of the general warrant in England and the writs of

18

assistance in the Colonies, and was intended to protect against invasions of the ‘sanctity of a

man’s home and the privacies of life.’” Id., quoting Boyd v. United States, 116 U.S. 616, 630

(1886).

In order to maintain the American public’s perception as to the legitimacy of our nation’s

police force, it is imperative that these values are upheld. The sort of situation in which the

Defendant finds himself in, facing prosecution that stems from unlawful police conduct, is of the

very nature that the Founders intended to shield the American citizens from with the Bill of

Rights. Id. The Judicial Branch of this nation simply cannot let unfettered police conduct go

unpunished and let criminal perpetrators be spared from true justice.

A police Deputy simply cannot be given carte blanche whenever a citizen is pulled over

for a routine traffic stop. Allowing police officers to conduct searches and seizures absent

reasonable suspicion offends the very notions that the Fourth Amendment and the United States

of America was founded upon. Not finding for the Defendant would effectively place a stamp of

approval on not only Deputy Sanderson’s unlawful conduct, but on unlawful intrusions on

citizen’s right to privacy during any and all traffic stops. This Court has a history of condemning

this sort of suspicion less drug investigation, and Deputy Sanderson’s unlawful conduct is

exactly of the sort of “standard less and unconstrained discretion” that this Court has previously

condemned. City of Indianapolis v. Edmond, 531 U.S. 32, 39(2000), quoting Delaware v.

Prouse, 440 U.S. 648, 661 (1979).

19

II. THE DISTRICT COURT IMPROPERLY REFUSED TO ALLOW

PETITIONER TO WITHDRAW HIS GUILTY PLEA BECAUSE ATTORNEY

BRENDANAWICZ'S CONDUCT CONSTITUTES INEFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH

AMENDMENT.

Attorney Brendanawicz failed to inform Mr. Haverford of critical information regarding

the immigration consequences of his guilty plea, depriving him of the opportunity to make an

informed choice and resulting in an involuntary, unconstitutional guilty plea. Accordingly, this

Court should reverse the decisions of the lower courts and hold that the district court improperly

denied Petitioner's Motion to Withdraw his Guilty Plea.

When considering a defendant's motion to withdraw a guilty plea, the court evaluates

whether the plea was knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-43

(1969) (reasoning “[i]gnorance, incomprehension . . . might be a perfect cover-up of

unconstitutionality.”). A plea of guilty is constitutionally valid only to the extent it is voluntary

and intelligent. Bousley v. United States, 523 U.S. 614, 618 (1998) (citing Brady v. United

States, 397 U.S. 742, 748 (1970)). Attorneys have “a duty to research the applicable law and to

advise his client in such a way as to allow him to make informed choices” about how to proceed.

United States v. Khalaf, 116 F. Supp. 2d 210, 213 (D. Mass. 1999). A defendant's guilty plea is

not made knowingly or voluntarily where it is induced by counsel's faulty legal advice. See

United States v. Streater, 70 F.3d 1314 (D.C. Cir. 1995). “[I]f the right to counsel guaranteed by

the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent

counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970). In this case, Mr. Haverford was left

to the mercy of Attorney Brendanawicz's incompetence.

The Sixth Amendment to the United States Constitution guarantees defendants the right

to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

20

Challenges to guilty pleas based on ineffective assistance of counsel are evaluated by the two-

prong test established by this Court in Strickland v. Washington. Id.; Lafler v. Cooper, 132 S. Ct.

1376 (2012). In order to obtain relief, a defendant must show that his counsel’s performance was

deficient and he was prejudiced because of the deficient performance. Strickland, 466 U.S. at

687. Thus, Mr. Haverford is entitled to withdraw his guilty plea because Attorney

Brendanawicz's performance was deficient and but for his reliance on defense counsel's

misguidance, the proceedings would have been different.

Both prongs of Strickland involve mixed questions of fact and law that this Court reviews

under a dual standard of review: the trial court's factual findings are reviewed under a clearly

erroneous standard, while the ultimate decision whether counsel was ineffective is reviewed de

novo. (R. at 41).

A. Attorney Brendanawicz's assertion that Petitioner's conviction led to a risk of

deportation was constitutionally deficient under Padilla.

To satisfy Strickland's first prong, counsel’s performance must fall below the standard set

by prevailing professional norms. Strickland, 466 U.S. at 687-88. To determine whether

counsel’s performance met prevailing professional norms, the court must look to “the standard

practices in the relevant area at the time of representation.” Cullen v. Pinholster, 131 S. Ct. 1388,

1407 (2011). Generally, courts look to prevailing standards of practice reflected in American Bar

Association standards to determine what is reasonable. Strickland, 466 U.S. at 688. But, where as

in this case, the claim is based on counsel's failure to adequately inform the Defendant

concerning the extreme consequence of deportation, this Court established in Padilla v.

Kentucky, 559 U.S. 356, 369 (2010), that counsel's performance is evaluated under a two-tier

standard. Padilla is the current standard of professional practice at the time of Mr. Haverford's

conviction and should apply. Id.

21

The duty of defense counsel under Padilla is clear: where the immigration consequences

of a defendant’s plea are “unclear or uncertain,” counsel need do no more than advise her client

that the plea “may carry a risk of adverse immigration consequences;” but, where the

immigration consequences of a particular plea a “succinct, clear, and explicit,” counsel must

advise the client of those specific consequences. Id. The Supreme Court of Eagleton misapplied

this standard and should be reversed.

Attorney Brendanawicz was required to inform Mr. Haverford that deportation was

presumptively mandatory because the immigration consequences of his plea were succinct, clear,

and explicit. In order to determine whether the immigration consequences of a particular plea are

clear the first step is to read the statute.

In Padilla, the Supreme Court found ineffective assistance of counsel 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.” 559 U.S. at 369. The statutes applicable to Haverford are the same statutes at issue in

Padilla. Id. at 368; See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission

has been convicted of a violation of … any law or regulation of a State, the United States or a

foreign country relating to a controlled substance ..., other than a single offense involving

possession for one's own use of 30 grams or less of marijuana, is deportable”). Addressing the

exact same statute, this Court concluded that “the consequences of Padilla’s plea could easily be

determined from reading the removal statute, his deportation was presumptively mandatory, and

his counsel's advice was incorrect.” This Court explained that “[c]onstitutionally competent

counsel would have advised [him] that his conviction for a controlled substances offense made

him subject to automatic deportation.” Padilla, 559 U.S. at 360.

22

There is no evidence in the record that Attorney Brendanawicz informed Mr. Haverford

that his conviction would make him subject to automatic deportation, thus his advice was

incorrect and constitutionally deficient. If this Court were to now find that the immigration

consequences of § 1227(a)(2)(B)(i) are unclear and hold that only the unsupported statement

from Attorney Brendanawicz that there was only a ‘strong possibility’ of deportation, then this

Court would effectively overrule Padilla and deprive defendants of their constitutional right to

effective assistance of counsel. Thus, this Court should hold that defense counsel’s performance

was deficient for failing to provide defendant with correct advice regarding the deportation

consequences of his guilty plea.

Further, the Supreme Court of Eagleton’s distinction between the affirmative misadvice

given to Padilla and counsel's statements to Mr. Haverford here is incorrect for three reasons.

First, the trial court found that “Haverford has presented sufficient evidence to create a genuine

issue of material fact as to whether his counsel’s performance was constitutionally deficient.” (R.

at 35). Attorney Brendanawicz claimed that he informed Mr. Haverford that deportation was “a

strong possibility”; however, Mr. Haverford testified “that [Brendanawicz] was trying to get me

probation so I wouldn’t be deported, that they would only deport me if I went to jail.” (R. at 29-

30). On this evidence, the trial court found that Attorney Brendanawicz's performance was

deficient. It was entirely reasonable for the trial court to have determined that Attorney

Brendanawicz did affirmatively misadvise Mr. Haverford with mistaken interpretations of the

immigration law. Thus, Attorney Brendanawicz was deficient.

Second, this Court in Padilla expressly rejected a rule that would excuse defense

counsel’s ignorance where he remained silent rather than articulating erroneous advice. This

Court reasoned:

23

A holding limited to affirmative misadvice would invite two absurd results. First,

it would give counsel an incentive to remain silent on matters of great importance,

even when answers are readily available. Silence under these circumstances

would be fundamentally at odds with the critical obligation of counsel to advise

the client of “the advantages and disadvantages of a plea agreement.

Padilla, 559 U.S. at 370 (citing Libretti v. United States, 516 U.S. 29, 50–51 (1995)).

Thus, this Court should not now depart from the sound reasoning of Padilla and allow for Mr.

Haverford’s guilty plea to stand where he was not fully informed by his counsel of critical

considerations. This Court should apply the same reasoning applied in Padilla and find that

Haverford’s immigration consequences were succinct, clear, and explicit requiring counsel to

give correct advice.

Third, “strong possibility” is not the same as “subject to automatic deportation,” and the

difference in the implications of these statements could, and did in this case, drastically alter a

defendant’s calculus of his situation. Mr. Haverford was still deprived of necessary information,

which his defense counsel knew was of utmost importance to his client. (R. at 24-26); see

Washington v. Sandoval, 249 P.3d 1015, 1021 (Wash. 2011) (en banc) (acknowledging counsel

was aware that defendant “was very concerned at the time about the risk of deportation”)

(internal quotations omitted); see also Tollette v. Henderson, 411 U.S. 258, 268 (1973) (noting

“[c]ounsel’s concern is the faithful representation of the interest of his client.”). Mr. Haverford’s

reliance on defense counsel’s assurance of probability rather than certainty still deprived Mr.

Haverford of the information necessary to make an informed choice about his guilty plea. Thus,

Mr. Haverford satisfies the first prong of Strickland.

Therefore, Attorney Brendanawicz failed to meet the professional standard set forth in

Padilla by not advising Mr. Haverford that his conviction led to presumptively mandatory

deportation. Lacking that information, Mr. Haverford could not make an informed and conscious

24

choice whether to plead guilty and accordingly the District Court erred in denying his motion to

withdraw his plea.

B. Attorney Brendanawicz's performance prejudiced Petitioner because there is a

reasonable probability that Petitioner would not have pled guilty and his rejection

of the plea bargain was rational under the totality of the circumstances.

Having concluded that Attorney Brendanawizc’s performance was constitutionally

deficient, this Court’s next inquiry is whether defense counsel's ignorant, incomplete advice

prejudiced Mr. Haverford. This question can only be answered in the affirmative. “In order to

satisfy the “prejudice” requirement, the defendant must show that there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Padilla, 559 U.S. at 366;

Strickland, 466 U.S. at 694 (noting that prejudice need not be shown by a preponderance of the

evidence)). Although Padilla failed to reach this issue, several Courts of Appeals have adopted

this general approach. See, e.g., Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir. 1984); accord,

United States v. Gavilan, 761 F.2d 226, 228 (5th Cir. 1985); Kovacs v. United States, 744 F.3d

44, 51 (2d Cir. 2014), United States v. DeBartolo, 790 F.3d 775 (7th Cir. 2015).

The defendant must also show that to reject the plea bargain and go to trial would have

been “rational under the circumstances.” Padilla, 559 U.S. at 372. As the record overwhelmingly

supports that Mr. Haverford would not have pled guilty and that his rejection of the States' plea

was rational under the totality of the circumstances, Mr. Haverford was prejudiced by his defense

counsel's misguidance and has satisfied the second prong of Strickland.

1. Petitioner would not have pled guilty because he says that he would not

have and both his counsel and the court were acutely aware of his concerns

regarding deportation.

25

First, “in order to satisfy the prejudice prong, a defendant challenging a guilty plea must

show that there is a reasonable probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985). “Judges and prosecutors should hesitate to speculate on what a defendant would have

done in changed circumstances.” United States v. DeBartolo, 790 F.3d 775, 778 (7th Cir. 2015)

(Posner, J.). Here, this Court need not speculate on what Haverford would have done because he

testified to the trial court in the post-conviction motion hearing that had he known deportation

was automatic, he would not have pled guilty. (R. at 30); see United States v. Urias–Marrufo,

744 F.3d 361, 363 (5th Cir. 2014) (holding that defendant’s affidavit stating that she would not

have entered the guilty plea satisfied the prejudice prong); cf. Fraser v. Commonwealth, 59

S.W.3d 448, 452-53 (Ky. 2001) (unless conclusively refuted by the record allegations of post-

conviction petition are taken as true).

This case is analogous to Washington v. Sandoval, 249 P.3d 1015 (Wash. 2011) (en

banc). In Sandoval, the court found prejudice where Mr. Sandoval stated in his brief that he

would not have accepted the plea and counsel admitted Mr. Sandoval “was very concerned”

about the risk of deportation. Id. at 1021. The Washington Supreme Court in Sandoval found this

to be sufficient, even though it was not “rational” that Mr. Sandoval would proceed to trial

instead of accepting a plea deal given a large disparity in punishment. Id. Here, Mr. Haverford

similarly relied on his counsel’s advice regarding the risk of deportation after making abundantly

clear to his counsel and the court that he was very concerned with deportation. (R. at 26-30).

Thus, this Court should find that Mr. Haverford satisfied the prejudice prong because he made

adamant representations that he would not have pled guilty had Attorney Brendanawicz provided

him with effective assistance.

26

2. Petitioner's rejection of the plea bargain would have been rational under

the circumstances because he has significant ties to the United States, he

had the possibility of success at trial, and it was more important to the

petitioner to avoid deportation that to risk a worse sentence.

In United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014), the 5th Circuit announced

factors to consider in determining whether a defendant satisfied the prejudice prong. Such factors

include, but are not limited to: ties to the United States, curative judge’s warnings concerning

immigration consequences, the risks faced by defendant, likelihood of success at trial, and

evidence supporting the importance to the defendant. Id. The test is entirely dependent on the

facts of the case specific to defendant and the court should look to the totality of the

circumstances. Id. In this case, each factor weighs in favor of prejudice against Mr. Haverford.

Accordingly, the district court improperly denied Petitioner’s Motion to Withdraw.

First, significant ties to the United States could make a rational defendant less likely to

accept a plea agreement that would result in deportation, in hopes of avoiding certain banishment

from the United States. Cf. Padilla, 559 U.S. at 370–71 (“When attorneys know that their clients

face possible exile from this country and separation from their families, they should not be

encouraged to say nothing at all.”); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir.

2012) (finding prejudice where the defendant had significant familial ties to the United States

and thus would reasonably risk going to trial instead of pleading guilty and facing certain

deportation.). Here, Haverford does not have any remaining family in Venezuala. (R. at 30). He

has never returned to Venezuela since arriving in the United States. (R. at 30). His job and life

are in the United States. (R. at 30). “The impact of deportation upon the life of an alien is often

as great, if not greater than, the imposition of a criminal sentence.” Bridges v. Wixon, 326 U.S.

135, 164 (1945). This Court has long recognized that deportation is a particularly severe

“penalty.” Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893). Thus, the District Court

27

should have taken into consideration the severity of exiling Mr. Haverford from his life and

forcing him to return to a place where he has nothing and found prejudice.

Next, the Pawnee District Court incorrectly found that the Petitioner did not satisfy the

second prong of Strickland because the trial judge’s warnings during Haverford’s guilty plea

supported that he understood the consequences of his guilty plea. (R. at 36). The district court is

correct that a trial court’s admonishments can serve to cure the prejudice resulting from defense

counsel’s erroneous advice. See Kayode, 777 F.3d at 728-29. However, in the present case the

warnings did not cure counsel’s deficiencies. While the receipt of such warnings may be relevant

to the analysis, warnings are not an adequate substitute for defense counsel’s professional

obligation. See Powell v. Alabama, 287 U.S. 45 (1932) (“How can a judge, whose functions are

purely judicial, effectively discharge the obligations of counsel for the accused. Moreover, “[i]t

is counsel's duty, not the court's, to warn of certain immigration consequences, and counsel's

failure cannot be saved by a plea colloquy.” Urias–Marrufo, 744 F.3d at 369.

Here, the trial judge informed Haverford that “there is a risk, if found guilty of this crime

that you may be deported or denied admission.” (R. at 36). The warning given to Haverford

mirrors the erroneous advice given by his defense counsel and the advice counsel is required to

give under Padilla when the immigration consequences of conviction are not clear. See Kayode,

775 U.S. at 740 (Dennis, J., dissenting) ("a judicial warning of possible deportation simply

mirrors the bad advice of defense counsel in failing to advise him that deportation would

certainly result from the guilty plea.”) (citing Padilla, 559 U.S. at 369 (requiring counsel to

advise that the conviction “may carry a risk of adverse immigration consequences” only where

the immigration consequences are unclear)). Perfuctory judicial warnings given after a

defendant has relied on the counsel of his attorney offer no genuine protection and cannot offset

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prejudice caused to the defendant. Kayode, 777 F.3d at 730-31 (Dennis, J., dissenting). Thus, the

judicial warnings given to Mr. Haverford in this case do not cure counsel's deficiencies and

district court's finding to the contrary should be reversed.

Other factors to consider when discerning whether the petitioner was prejudiced are the

risks faced by rejecting the plea and the likelihood of success at trial. Id. at 725. The district

court improperly found that the strong evidence against Mr. Haverford removed any successful

outcome at trial. (R. 36). In Lockhart v. Fretwell, 506 U.S. 364 (1993), this Court noted that an

analysis focusing solely on mere outcome determination, without attention to whether the result

of the proceeding was fundamentally unfair or unreliable, is defective. Here, although there is the

possibility that trial would not have resulted in a different outcome, defense counsel's deficient

performance effectively removed the adversarial nature of the trial.

For example, Attorney Brendanawicz could have negotiated a different plea leading to a

conviction that was not a deportable offense. “To a large extent ... horse trading [between

prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea

bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice

system.” Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909,

1912 (1992). “Anything less ... might deny a defendant ‘effective representation by counsel at

the only stage when legal aid and advice would help him.’” Massiah v. United States, 377 U.S.

201, 204 (1964) (quoting Spano v. New York, 360 U.S. 315, 326 (1959) (Douglas, J.,

concurring)). The proceedings in this case would have been different had Attorney

Brendanawizc not failed to engage the adversarial process of the plea negotiations.

Moreover, Mr. Haverford had a likelihood of a favorable outcome if he proceeded to

trial. The plea bargain received by counsel was above the minimum sentence required under the

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statute. (R. at 58). The minimum he faced at trial was only five years. (R. at 58). Mr. Haverford

was a first time offender and does not have any other criminal charges. (R. at 25-26). Further, the

record states he showed remorse for his alleged crime. (R. at 25-26). “A survey conducted in

2001 and 2002 revealed that 39 percent of potential white jurors and 50 percent of potential

black jurors would be “very willing” or “mostly willing” to acquit, despite evidence of guilt, in a

first-time nonviolent drug possession case.” Debartolo, 790 F.3d at 759 (applying the survey to a

2015 conviction). Further, jury nullification always exists as a possibility. “[A] criminal

defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no

sturdy legal leg to stand on. . .” Id. Thus, under the circumstances Mr. Haverford's likelihood of

success at trial weighs in favor of prejudice.

As a result, this Court should find that because all of the factors analyzed support that a

choice to not plead guilty was rational under the circumstances, Mr. Haverford was prejudiced

by defense counsel’s deficient performance. Consequently, this Court should find that Mr.

Haverford satisfies the prejudice prong of Strickland.

Therefore, Petitioner has satisfied both the deficient performance and prejudice prongs of

the Strickland test. Attorney Brendanawicz violated his duty to Mr. Haverford to accurately

instruct him that his conviction led to mandatory deportation and even failed to meet general

standards of attorney competence by reading the statute critical to the defense of his client.

Attorney Brendanawicz’s unskillfulness prejudiced Mr. Haverford and effectively tainted the

reliability of the District Court’s decision. As a result of utmost reliance on his counsel’s

deficient advice, Mr. Haverford entered an uninformed, unknowing, and involuntary guilty plea.

Therefore, the courts below erred by denying his motion to withdraw and should be reversed.

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CONCLUSION

For the aforementioned reasons, Petitioner respectfully requests that this Court

REVERSE the ruling of Supreme Court for the State of Eagleton and hold that the District Court

improperly denied Petitioner’s Motion to Suppress and Motion to Withdraw Guilty Plea.

Respectfully submitted,

/s/ Team #9

Counsel for Petitioner

Benjamin Wyatt, Esq.

Attorney for Petitioner

Wyatt, Meagle, Gergich & Dwyer, LLP

554 West Main Street

Eagleton City, EG 98765