No. 2015-01

In the Supreme Court of the United States

TOMAS HAVERFORD,

PETITIONER

v.

STATE OF EAGLETON,

RESPONDENT.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF EAGLETON

BRIEF FOR THE RESPONDENT

Team 2

Counsel for Respondent

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 Brendanawicz’s deficient

performance?

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS ................................................................................................................ ii

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................. viii

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

SUMMARY OF THE ARGUMENT ..............................................................................................3

ARGUMENT ...................................................................................................................................3

I. Petitioner's Motion to Suppress Was Properly Denied Because He Provided

Untainted Consent, Even When Consent Was Superfluous ....................................3

a. Petitioner’s Motion to Suppress Was Properly Denied Because Petitioner

Provided Voluntary, Untainted Consent to the Search of His Vehicle ....................4

i. Petitioner’s Consent Was Voluntary Under the Totality of the

Circumstances Because No Indicia of Coercion Exist ................................4

ii. Petitioner’s Voluntary Consent Was Not Tainted Because the Field

Sobriety Test Was Lawful ...........................................................................6

b. Even If the Field Sobriety Test Was Unlawful, The Test Was Too Far Attenuated

to Taint Petitioner’s Consent .................................................................................11

c. Even If Petitioner’s Consent Was Tainted, Officer Sanderson Had Probable

Cause to Search the Vehicle ..................................................................................14

II. The District Court Properly Denied Petitioner’s Motion to Withdraw His Guilty

Plea Because He Cannot Demonstrate Either That His Counsel Performed

iii

Deficiently or That He Was Prejudiced as a Result of His Counsel’s

Performance ...............................................................................................................16

a. Attorney Brendanawicz Delivered Reasonable Professional Assistance When

He Advised Petitioner That His Guilty Plea Carried a “Strong Risk” of

Deportation ............................................................................................................18

b. Petitioner Was Not Prejudiced by Attorney Brendanawicz’s Performance Because

It Would Not Have Been Rational Under the Circumstances for Petitioner to

Reject the Plea Agreement Offered to Him by the State of Eagleton.....................24

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

iv

TABLE OF AUTHORITIES

CASES PAGE

Arizona v. Gant, 556 U.S. 332 (2009) ...........................................................................................14

Brown v. Illinois, 422 U.S. 590, 604 (1975) ........................................................................6, 11, 13

Candelario v. State, 2012 R.I. Super. LEXIS 180 (R.I. Super. Ct. 2012) .....................................23

Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013) ................................................................24

Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013) ....................................................21

Cun-Lara v. State, 273 P.3d 1227 (Haw. Ct. App. 2012) ..............................................................21

Denisyuk v. State, 30 A.3d 914 (Md. 2011) ...................................................................................26

Dunaway v. New York, 442 U.S. 200 (1979) .................................................................................12

Florida v. Bostick, 501 U.S. 429 (1991) ...................................................................................... 5-6

Fong Yue Ting v. United States, 149 U.S. 698 (1893) ...................................................................19

Henry v. United States, 361 U.S. 98 (1959) ...................................................................................14

Herring v. United States, 555 U.S. 135 (2009) ..............................................................................14

Hill v. Lockhart, 474 U.S. 52 (1985) .............................................................................................17

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

Katz v. United States, 389 U.S. 347 (1967) .....................................................................................4

Lafler v. Cooper, 132 S. Ct. 1376 (2012) ......................................................................................25

Myers v. State, 839 N.E.2d 1146 (Ind. 2005) ............................................................................ 9-10

Nardone v. United States, 308 U.S. 338 (1939)...............................................................................6

Navarette v. California, 134 S. Ct. 1683 (2014) ..............................................................................8

New York v. Harris, 495 U.S. 14 (1990) ..................................................................................11, 13

Oregon v. Elstad, 470 U.S. 298 (1985)......................................................................................4, 12

v

Ornelas v. United States, 517 U.S. 690 (1996) ................................................................................4

Padilla v. Kentucky, 559 U.S. 356 (2010) ............................................................................... 18-25

People v. Benedict, 82 Cal. Rptr. 759 (Cal. Ct. App. 1969) ..........................................................15

Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009)...................................... 9-10, 15-16

Roe v. Flores-Ortega, 528 U.S. 470 (2000) ...................................................................................25

Rogala v. D.C., 161 F.3d 44 (D.C. Cir. 1998) .................................................................................8

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ........................................................................ 4-6

State v. Folkert, No. A12-0854, 2013 WL 499764 (Minn. Ct. App. Feb. 11, 2013) .......................9

State v. Harrison, 190 P.3d 1146 (N.M. Ct. App. 2008), aff'd, 238 P.3d 869 (N.M. 2010) ............7

State v. Hegstrom, 543 N.W.2d 698 (Minn. Ct. App. 1996) ................................................... 14-15

State v. Ingrahm, No. 1 CA-CR 10-0432, 2011 WL 6038550 (Ariz. Ct. App. Dec. 1, 2011) ........9

State v. Lamme, 563 A.2d 1372 (Conn. App. Ct. 1989), aff’d, 579 A.2d 484 (Conn. 1990) ..........8

State v. Little, 468 A.2d 615 (Me. 1983) .........................................................................................8

State v. Ramos, 942 P.2d 841 (Or. Ct. App. 1997) ..........................................................................7

State v. Shata, 868 N.W.2d 93 (Wis. 2015) ....................................................................... 21-22, 24

State v. Superior Court In & For Cochise Cnty., 718 P.2d 171 (Ariz. 1986)..................................8

State v. Wood, 662 A.2d 919 (Me. 1995).........................................................................................8

State v. Wyatt, 687 P.2d 544 (Haw. 1984) .......................................................................................8

Strickland v. Washington, 466 U.S. 668 (1984) ............................................... 17-20, 23-24, 26, 30

Taylor v. Alabama, 457 U.S. 687 (1982) .......................................................................................12

Terry v. Ohio, 392 U.S. 1 (1968) .....................................................................................................8

Trapnell v. United States, 725 F.2d 149 (2d Cir. 1983).................................................................19

United States v. Apeland, 238 F. App’x 272 (9th Cir. 2007) ................................................... 10-11

vi

United States v. Arvizu, 534 U.S. 266 (2002) ..................................................................................9

United States v. Belt, 609 F. App’x 745 (4th Cir.) cert. denied, 126 S. Ct. 274 (2015) .......... 12-13

United States v. Cortez, 449 U.S. 411 (1981) ..................................................................................9

United States v. Donnelly, 475 F.3d 946 (8th Cir. 2007)...............................................................10

United States v. Green, 111 F.3d 515 (7th Cir. 1997) ............................................................. 12-13

United States v. Hanlon, 401 F.3d 926 (8th Cir. 2005) .................................................................10

United States v. Huff, 2015 WL 6743477 (6th Cir. Nov. 4, 2015) ................................................11

United States v. Jolly, 368 F. App’x 17 (11th Cir. 2010) ..............................................................15

United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) ........................................................... 26-30

United States v. Ledesma, 447 F.3d 1307 (10th Cir. 2006) ...........................................................15

United States v. Maher, 454 F.3d 13 (1st Cir. 2006) .......................................................................8

United States v. Mayo, 627 F.3d 709 (8th Cir. 2010) ....................................................................15

United States v. Robinson, 932 F. Supp. 1271 (D.N.M.1996) .......................................................12

United States v. Ross, 456 U.S. 798 (1982) ...................................................................................14

United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2006).....................................................15

United States v. Shaw, 2004 U.S. Dist. LEXIS 15942 (E.D. Pa. 2004).........................................26

United States v. Sokolow, 490 U.S. 1 (1989) ...................................................................................8

United States v. Soto, 988 F.2d 1548 (10th Cir. 1993) ............................................................ 10-11

United States v. Townsend, 305 F.3d 537 (6th Cir. 2002) ...............................................................8

United States v. Watson, 703 F.3d 684 (4th Cir. 2013) ........................................................... 12-13

United States v. Wisniewski, 192 F. App’x 749 (10th Cir. 2006) ....................................................9

Wong Sun v. United States, 371 U.S. 471 (1963) ..........................................................................11

vii

CONSTITUTIONAL PROVISIONS PAGE

U.S. Const. amend. IV .....................................................................................................................4

U.S. Const. amend. VI ...................................................................................................................17

STATUTORY PROVISIONS PAGE

8 U.S.C. § 1227(a)(2)(B)(i) .......................................................................................... 19, 21, 23-24

Eg. Stat. § 147.23(b) ........................................................................................................................7

Eg. Stat. § 841(a)(1) ....................................................................................................... 3, 18-19, 22

viii

CONSTITUTIONAL AND STATUTORY PROVISIONS 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 defence.”

8 U.S.C. § 1227(a)(2)(B)(i) provides: “Any alien (including an alien crewman) in and

admitted to the United States shall, upon the order of the Attorney General, be removed if the

alien is within one or more of the following classes of deportable aliens: Any alien who at any

time after admission has been convicted of a violation (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.”

Eagleton Statute § 147.23 provides: “(a) Every vehicle upon a highway within this State

shall be equipped with lighted headlamps and rear lamps as required for different classes of

vehicles: (1) During the period from sunset to sunrise, (2) When there is not sufficient light to

render clearly discernible any person on the highway at a distance of 400 feet ahead . . . . (b)

ix

Every self-propelled motor vehicle … 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(a)(1) provides: “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.”

1

STATEMENT OF THE CASE

Officer David Sanderson spotted Tomas Haverford (“Petitioner”) driving with a burnt out

headlight, so he initiated a routine traffic stop around 6:10 pm. R. at 6:15-19. After Officer

Sanderson explained the purpose of the stop, Petitioner attempted to avoid the interaction, asking

“Can I pull in the parking lot? I live right there. I just want to go to bed.” R. at 11:4-6. Officer

Sanderson immediately recognized Petitioner’s extreme nervousness, his shaking hands, his

sleepiness, and his pupils—constricted to two or three millimeters. R. at 11:8-10.

Based on these factors, Officer Sanderson decided to ask Petitioner if he would complete

a field sobriety test. R. at 11:10-11. As Officer Sanderson began to ask Petitioner if he would

take such a test, Petitioner asked to go home once more. R. at 12:22-23. Officer Sanderson stated

that Petitioner appeared nervous, and Petitioner repeated that he just “want[ed] to go to sleep.” R.

at 12:29-32. Finally, Officer Sanderson was able to ask Petitioner if he would be “willing to

attempt a field sobriety test,” and Petitioner agreed. R. at 12:33-35. Officer Sanderson confirmed

Petitioner’s willingness by asking a second time, and Petitioner, once again, agreed. R. at 12:36-

13:37.

Petitioner did not fail the field sobriety test, so Officer Sanderson told Petitioner he was

free to go. R. at 14:66. Petitioner responded by telling Officer Sanderson to have a good day. R.

at 14:67. The two walked away from each other, and Petitioner got into his vehicle to drive

away. R. at 8:22-9:2. It was at this time—roughly twelve seconds later—that Officer Sanderson

decided to ask if Petitioner would consent to a vehicle search. R. at 5:10-11. As he did with the

sobriety test, Officer Sanderson asked Petitioner if he could search Petitioner’s vehicle and,

when Petitioner agreed, Officer Sanderson confirmed that it was “fine,” to which Petitioner

replied “Yes, sir.” R. at 14:73-76.

2

During the search of the vehicle, Officer Sanderson found syringes, muriatic acid, a

mason jar with clear liquid, rubber gloves, coffee filters, fuel for a heat source, a glass bottle with

liquid, and medication canisters. R. at 5:19-6:2. In one of the medication canisters was a plastic

bag with a sandy substance that tested positive for methamphetamine. R. at 5:22-6:7. All

together, Officer Sanderson discovered paraphernalia used to manufacture methamphetamine

and 11.5 grams of methamphetamine. R. at 32.

During Petitioner’s criminal proceedings, he was represented by Attorney Mark

Brendanawicz. R. at 23. They appeared together at the first plea hearing, and Attorney

Brendanawicz asked for an adjournment of trial and received a postponement. R. at 24:11-18.

After Attorney Brendanawicz informed Petitioner that there was a strong possibility he would be

deported if convicted, R. at 25:12, Petitioner became concerned about the consequences of

accepting a plea deal, R. at 24:14-15. At the second plea hearing, the judge informed Petitioner

that upon a conviction “[he] may be deported or denied admission.” R. at 25:14-15. Despite this,

Petitioner pleaded guilty. R. at 25:16. The judge immediately confirmed that Petitioner

understood “[he] may be deported,” R. at 25:17, and Petitioner affirmed, R. at 25:18.

Attorney Brendanawicz attempted to defer the prosecution of Petitioner. R. at 26:4-5. He

also asked for the minimum sentence and probation instead of imprisonment. R. at 26:6-8.

Further, Attorney Brendanawicz asked that the record be expunged after Petitioner served

probation so that Petitioner would not be deported. R. at 26:8-9. The judge sentenced Petitioner

to ten years in prison without expungement. R. at 26:11-13. This case arises out of Petitioner’s

claims that Officer Sanderson illegally searched his vehicle and Attorney Brenanawicz failed to

provide constitutionally sufficient representation.

3

SUMMARY OF THE ARGUMENT

Petitioner, in violation of Eagleton Statute § 841(a)(1), possessed methamphetamine and

the paraphernalia for manufacturing more of the controlled substance. This evidence must be

admitted because Officer Sanderson’s discovery of these materials in Petitioner’s car was the

direct result of lawful police conduct. Petitioner voluntarily consented to the search of his

vehicle; that consent was valid and untainted by any prior unlawful police action, since the initial

traffic stop and the extension of the traffic stop were both lawful, and Petitioner’s consent was

too far attenuated from the traffic stop to possibly be tainted by it; and Officer Sanderson had

probable cause to search Petitioner’s vehicle, which obviated the need for Petitioner’s consent

anyway. Accordingly, this Court should deny Petitioner’s motion to suppress.

Additionally, Petitioner’s guilty plea must be preserved. Attorney Brendanawicz acted

well within the range of reasonable professional assistance when he advised Petitioner that there

was a strong risk that he would be deported from this country. Petitioner also cannot show that

he was prejudiced by Attorney Brendanawicz’s representation, because it would not have been

rational under the circumstances for Petitioner to reject the State’s plea agreement. Accordingly,

this Court should also deny Petitioner’s motion to withdraw his guilty plea.

ARGUMENT

I. Petitioner's Motion to Suppress Was Properly Denied Because He Provided

Untainted Consent, Even When Consent Was Superfluous

During his search of Petitioner’s vehicle, Officer Sanderson preserved—in a multitude of

ways—Petitioner’s constitutional rights. Officer Sanderson obtained consent to perform a search

of Petitioner’s vehicle, and the consent was not tainted by any unlawful action. The consent to

search was untainted because the initial field sobriety test was lawful, both because Officer

4

Sanderson had reasonable suspicion to perform the test and because he obtained Petitioner’s

consent to perform it. Further, Petitioner’s consent to Officer Sanderson’s search of his vehicle

was too far attenuated from the field sobriety test to have been tainted by it, even if Officer

Sanderson had failed to get Petitioner’s consent to perform the test and did not have reasonable

suspicion. Lastly, even if Petitioner’s consent is not valid, Officer Sanderson had probable cause

to search Petitioner’s vehicle, so the search was lawful independently of Petitioner’s consent.

This Court reviews similar issues under a de novo standard. Ornelas v. United States, 517 U.S.

690, 699 (1996) (holding that “as a general matter” reasonable suspicion and probable cause

issues should be reviewed de novo).

A. Petitioner’s Motion to Suppress Was Properly Denied Because Petitioner Provided

Voluntary, Untainted Consent to the Search of His Vehicle

1. Petitioner’s Consent Was Voluntary Under the Totality of the Circumstances Because No

Indicia of Coercion Exist

Prior to searching Petitioner’s vehicle, Officer Sanderson obtained voluntary, untainted

consent, protecting Petitioner’s constitutional rights. The Fourth Amendment protects individuals

from unreasonable searches and seizures. U.S. CONST. amend. IV. An officer that obtains

voluntary consent to a search, however, has ensured full compliance with the Fourth

Amendment. Katz v. United States, 389 U.S. 347, 358 n.22 (1967). Courts must determine if the

consent was given voluntarily as a “threshold requirement.” Oregon v. Elstad, 470 U.S. 298, 306

(1985). Voluntariness—a question of fact—is “determined from the totality of all the

circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

This Court upheld consent to a vehicle search as voluntary in Schneckloth v. Bustamonte,

412 U.S. 218, 275 (1973). The officers exerted control over the passengers by asking them to

5

step out of the vehicle prior to the search. Id. at 220. When the officer asked to search the

vehicle, one of the passengers only replied, “Sure, go ahead.” Id. at 220. The state also failed to

prove that the passengers affirmatively knew their right to refuse to provide consent. Id. at 234.

Despite these facts, the Court upheld the district court’s finding that the consent was given

voluntarily, overruling the circuit court. Id. at 249.

Additionally, if a party is not constructively seized—if a reasonable party would feel free

to leave—officers need not have reasonable suspicion before asking to perform a search. Florida

v. Bostick, 501 U.S. 429, 434 (1991). In Bostick, the Supreme Court of Florida held that a man

was constructively seized when police questioned him on a bus, id. at 431, but this Court

overturned that ruling, finding that the literally confining nature of the bus did not automatically

mean a seizure occurred. Id. at 436.

This case involves no indicia of coerciveness. In Schneckloth, the officer asked the

passengers to step out of the vehicle before searching the vehicle, an indication that the officer

was in a position of power. In the instant case, Petitioner exited his vehicle under his own

volition to speak with Officer Sanderson prior to consenting to the search. R. at 9:1-11.

Schneckloth also clarifies that defendants need not affirmatively know their right to refuse

consent, but two facts suggest Petitioner understood that right, further solidifying the

voluntariness of his consent. First, Petitioner chose to avoid answering Officer Sanderson’s

questions multiple times during the stop.1 His avoidance of these questions indicates his

understanding of his rights. Second, Officer Sanderson asked for and confirmed that he had

1 When asked to produce his registration, Petitioner responded with his desire to go to bed. R. at

11; lines 4-6. When Officer Sanderson mentioned that he had a question for Petitioner,

Petitioner responded by saying “Can I go home?” R. at 12:22-23.

6

Petitioner’s consent each time it was required.2 Officer Sanderson’s requests for and verifications

of Petitioner’s consent informed Petitioner of his right to decline the search. Lastly—and most

importantly—Petitioner’s consent occurred after he was already told he was free to go. R. at

14:66-74. In Schneckloth, the court found the consent to be voluntary despite the fact that the

officer asked to search the vehicle while the stop was still occurring; here, the stop had already

ended. Since being literally confined to a small space along with police officers did not amount

to a constructive seizure in Bostick, Petitioner could not have been constructively seized when he

was both told he could and was physically able to leave. Petitioner can point to no facts that

would suggest his consent to the search was coerced, and several key facts suggest that

Petitioner’s consent was wholly voluntary.

2. Petitioner’s Voluntary Consent Was Not Tainted Because the Field Sobriety Test Was

Lawful

Officer Sanderson’s extension of the stop to perform the field sobriety test was fully

lawful, and therefore could not have tainted Petitioner’s voluntary consent. The voluntary nature

of the consent is only the first question a court must ask in determining whether consent should

stand. Brown v. Illinois, 422 U.S. 590, 604 (1975) (“The voluntariness of the statement is a

threshold requirement.”). Courts then determine if there was any unlawful action by the police

officer that might taint the consent. See, e.g., Nardone v. United States, 308 U.S. 338, 341

2 When Petitioner agreed to the field sobriety test, Officer Sanderson confirmed by asking “Is

that okay?” R. at 12; line 33-36. After Petitioner stated that Officer Sanderson could “[g]o ahead

with the search of his vehicle,” Officer Sanderson confirmed by asking, “That’s fine?” R. at

14:75-76.

7

(1939). Therefore, if the consent was voluntary, the lack of any preceding unlawful action by the

police is sufficient to prove the consented-to search was lawful because there could be no taint.

As noted, voluntary consent resolves any Fourth Amendment issues,3 and Petitioner

consented to the field sobriety tests. Because consent is an exception to Fourth Amendment

search limitations, officers do not need reasonable suspicion to perform field sobriety tests when

they receive voluntary consent. While this Court has not ruled on this issue, several state courts

have upheld voluntary field sobriety tests when no reasonable suspicion existed. See State v.

Ramos, 942 P.2d 841, 842–43 (Or. Ct. App. 1997) (upholding a field sobriety test not based on

reasonable suspicion because the officer received consent); State v. Harrison, 190 P.3d 1146,

1149 (N.M. Ct. App. 2008), aff'd, 238 P.3d 869 (N.M. 2010) (same).

Petitioner provided voluntary consent to the field sobriety test, which eliminates the

possibility that Petitioner’s later consent to the vehicle search was tainted by unlawfulness.

Officer Sanderson obtained Petitioner’s consent when Petitioner agreed to the test after Officer

Sanderson asked, “Would you be willing to attempt a field sobriety test to make sure you’re

okay?” R. at 12:33-35. Officer Sanderson confirmed Petitioner’s consent to the test by asking

3 For the purposes of this brief, it is assumed that a field sobriety test would be defined as a

“search” under the Fourth Amendment even though this Court has not officially held that to be

the case. It seems likely this Court would determine the test to be a search. See, e.g., Skinner v.

Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) (holding breath analysis fell under Fourth

Amendment searches). If this Court so finds, the lawfulness of Officer Sanderson’s actions

would turn on whether Petitioner provided untainted, voluntary consent to the field sobriety test.

If this Court held that a field sobriety test did not reach the level of a Fourth Amendment search,

the lawfulness of Officer Sanderson’s actions would be guaranteed.

8

Petitioner once more, and Petitioner agreed to the test a second time. R. at 12:36-13:37. No

unlawful activity that would taint the consent occurred prior to Petitioner’s consent to the field

sobriety test because he was lawfully stopped for violating Eagleton Statute § 147.23, which

requires motor vehicles to be equipped with two, working headlamps. Eg. Stat. § 147.23(b).

Even if Petitioner’s consent fails to establish the legitimacy of the field sobriety test,

Officer Sanderson had reasonable suspicion to perform the test. This Court has not yet

determined “what quantum of suspicion” is necessary to require a field sobriety test. United

States v. Maher, 454 F.3d 13, 18 n.5 (1st Cir. 2006). This Court should adopt a “reasonable

suspicion” standard because this is the type of incident for which the reasonable suspicion

standard was created. If an officer has reasonable suspicion that criminal activity “may be afoot,”

the officer can perform a brief detention. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting

Terry v. Ohio, 392 U.S. 1, 30 (1968)). Because impaired driving constitutes criminal activity,

reasonable suspicion should be the standard that officers must meet to require a driver to take a

field sobriety test. This holding would be in line with this Court’s recent application of the

reasonable suspicion standard in a case involving an officer that stopped an impaired driver. See

Navarette v. California, 134 S. Ct. 1683, 1691 (2014). Two circuit courts have explicitly applied

the reasonable suspicion standard to field sobriety tests. United States v. Townsend, 305 F.3d

537, 541 (6th Cir. 2002); Rogala v. D.C., 161 F.3d 44, 52 (D.C. Cir. 1998). Several state courts

have come to this conclusion, too. See, e.g., State v. Little, 468 A.2d 615, 618 (Me. 1983); State

v. Wyatt, 687 P.2d 544, 552–53 (Haw. 1984); State v. Lamme, 563 A.2d 1372, 1375–76 (Conn.

App. Ct. 1989), aff’d, 579 A.2d 484 (Conn. 1990); State v. Superior Court In & For Cochise

Cnty., 718 P.2d 171, 176 (Ariz. 1986); State v. Wood, 662 A.2d 919, 921 (Me. 1995); Under the

reasonable suspicion standard, an officer must have only a “particularized and objective basis”

9

for suspicion of criminal activity, and reviewing courts should look at “the totality of the

circumstances” to judge the officer’s conduct. United States v. Cortez, 449 U.S. 411, 417–18

(1981). The totality of the circumstances “allows officers to draw on their own experiences and

specialized training.” United States v. Arvizu, 534 U.S. 266, 273 (2002).

Several illegal drugs constrict pupils.4 Many courts have found constricted or dilated

pupils to be a key factor in creating reasonable suspicion during a routine traffic stop. In State v.

Ingrahm, No. 1 CA-CR 10-0432, 2011 WL 6038550 (Ariz. Ct. App. Dec. 1, 2011), police

officers searched a man with constricted pupils claiming to be in a neighborhood for the purpose

of “hanging out [and] listening to music” showing some signs of confusion. Id. at *2. The court

determined that the officers had reasonable suspicion to stop him. Id. at *4. Similarly, in Myers

v. State, 839 N.E.2d 1146 (Ind. 2005), the court found that police officers had reasonable

suspicion to search a man’s vehicle because the man had shaky hands, appeared nervous, and

had constricted pupils. Id. at 1148; see also State v. Folkert, No. A12-0854, 2013 WL 499764, at

*6 (Minn. Ct. App. Feb. 11, 2013).

Uncontrollable sleepiness has functioned as a relevant factor when determining if an

officer had reasonable suspicion. In Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir.

2009), the officer’s reasonable suspicion was fully based on his belief that the detainee suffered

from “[u]ncontrollable sleepiness.” Id. at 1021. See also United States v. Wisniewski, 192 F.

App’x 749, 753–54 (10th Cir. 2006) (utilizing sleepiness as a factor in determining the officer

had reasonable suspicion).

4 See, e.g., Los Angeles Police Department, Drug Categories,

http://www.lapdonline.org/special_operations_support_division/content_basic_view/1039 (last

visited January 29, 2016).

10

An officer may also partially base reasonable suspicion on the detainee’s physical

shakiness. Even though it was cold outside, the Tenth Circuit found that an officer had

reasonable suspicion when the detainee had been inconsistent, had shaky hands, evaded

questioning, and appeared nervous. United States v. Soto, 988 F.2d 1548, 1556 (10th Cir. 1993);

see also United States v. Hanlon, 401 F.3d 926, 929 (8th Cir. 2005) (finding reasonable

suspicion when the detainee was inconsistent, extremely nervous, shook profusely, and refused

to make eye contact).

“Nervous, evasive behavior is another pertinent factor in determining reasonable

suspicion . . . .” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). While most Circuits have found

nervousness insufficient by itself to create reasonable suspicion, many courts have held that

extreme nervousness—in conjunction with other factors—helps establish reasonable suspicion.

In United States v. Apeland, 238 F. App’x 272 (9th Cir. 2007), the court found the officer had

reasonable suspicion based on the defendant’s extreme nervousness and “the pronounced smell

of an air freshener in the vehicle.” Id. at 274; see also United States v. Donnelly, 475 F.3d 946,

952–53 (8th Cir. 2007) (including nervousness in a list of factors that formed the basis for

reasonable suspicion).

Petitioner exhibited several signs of illicit behavior, and, given the totality of the

circumstances, Officer Sanderson had reasonable suspicion to require Petitioner to perform field

sobriety tests. First, Officer Sanderson observed Petitioner’s pupils to be constricted to only sixty

or seventy percent of an average pupil’s size. R. at 8:7–12. In Myers, reasonable suspicion was

found because the detainee exhibited constricted pupils, shakiness, and nervousness—all traits

Petitioner exhibited. Second, Petitioner also exhibited uncontrollable sleepiness.5 In Ramirez, the

5 On two separate occasions, Petitioner expressed his desire to go to sleep. R. at 11:6; 12:31–32.

11

officer’s observations all concerned traits associated with sleepiness, which provided enough

evidence for reasonable suspicion; here, Petitioner exhibited uncontrollable sleepiness in

conjunction with several other traits associated with illegal drug use. Third, Petitioner exhibited

shakiness, a trait that helped establish reasonable suspicion when combined with nervousness

and evasion in Soto. Fourth, Petitioner’s extreme nervousness compounds the other factors as it

did in Apeland. Together, these factors indicate that Officer Sanderson had reasonable suspicion

to subject Petitioner to the field sobriety tests. Thus, even if the consent Petitioner provided was

insufficient, the field sobriety test was lawful.

B. Even If the Field Sobriety Test Was Unlawful, The Test Was Too Far Attenuated to Taint

Petitioner’s Consent

Even an unlawful field sobriety test would not end a court’s analysis because the field

sobriety test was too far attenuated to taint Petitioner’s consent. While unlawful activity may

justify the suppression of evidence, the evidence may still be admitted if the government can

prove the evidence was not “fruit” of the unlawful activity. Wong Sun v. United States, 371 U.S.

471, 487–88 (1963). As noted, voluntariness is a threshold requirement that must first be

proven; “attenuation analysis is only appropriate where, as a threshold matter, courts determine

that the challenged evidence is in some sense the product of illegal government activity.” New

York v. Harris, 495 U.S. 14, 14 (1990). Once that threshold requirement is met, a court must look

to three causal connections factors when determining if the consent was tainted by unlawful

activity: temporal proximity, intervening circumstances, and the purpose and flagrancy of the

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

The temporal proximity of the consent to the unlawful activity is not a “weighty factor.”

United States v. Huff, 2015 WL 6743477, at *9 (6th Cir. Nov. 4, 2015). In fact, the same length

12

of time can be ambiguous as to whether it helps or harms a party in demonstrating attenuation.

Dunaway v. New York, 442 U.S. 200, 220 (1979) (Stevens, J., concurring) (“The temporal

relationship … may be an ambiguous factor.”); see also United States v. Robinson, 932 F. Supp.

1271, 1280 (D.N.M. 1996) (“[D]etermining whether the length of time separating evidence or a

statement from a Fourth Amendment violation tends to purge the taint of the illegality is a

fruitless endeavor.”). In United States v. Watson, 703 F.3d 684 (4th Cir. 2013), the court found

the officers’ detainment of the accused for three hours was “inherently coercive” but did not

indicate that “flagrant police misconduct occurred.” Id. at 697. In a remarkably similar case to

the present one, the Wisconsin Supreme Court found that sixteen seconds was not too close in

time to the unlawful activity because the officer told the detainee he was allowed to leave. State

v. Hogan, 364 Wis. 2d 167, 179 (2015).

The presence of intervening circumstances is the most important factor a court should

look to in order to determine if unlawful activity taints voluntary consent. See Taylor v.

Alabama, 457 U.S. 687, 690 (1982) (holding evidence must be excluded “unless intervening

events break the causal connection”); Oregon v. Elstad, 470 U.S. 298, 341–42 (1985) (Brennan,

J. dissenting) (“The only proper inquiry is whether a meaningful intervening event actually

occurred . . . .”). Many situations can function as an intervening circumstance. In a recent case, a

government agent unlawfully entered a private residence, but the appellant’s decision to engage

the government agent in a conversation created an attenuation between the unlawful entry and

the eventual consent. United States v. Belt, 609 F. App’x 745, 749 (4th Cir.), cert. denied, 126 S.

Ct. 274 (2015). One court has even found that the “voluntary act” of consenting can act as an

intervening circumstance in and of itself. United States v. Green, 111 F.3d 515, 522 (7th Cir.

1997).

13

The purpose and flagrancy of the officer’s conduct is also “particularly” important.

Brown v. Illinois, 422 U.S. 590, 604 (1975). Courts should look at whether the police officer

“intentionally violates what he knows to be a constitutional command” or whether the

unlawfulness was the result “of a good-faith misunderstanding.” New York v. Harris, 495 U.S.

14, 23–24 (1990). In Harris, this Court upheld the denial of a motion to suppress evidence that

was gathered while the speaker was unlawfully detained because the statement was not a

“product of being in unlawful custody.” Id. at 19. The statement was allowed into evidence

despite the uncontroverted fact that the officers “were aware” of the Fourth Amendment

prohibitions on their actions and decided to violate those rights “so they could get evidence that

they could not otherwise obtain.” Id. at 25–26 (Marshall, J. dissenting).

Applying these three factors to the instant case, Petitioner’s consent was too far

attenuated from the field sobriety test to be tainted, even if the extension of the stop for the field

sobriety test was found to be unlawful. It is difficult to navigate the ambiguity involved in the

temporal proximity element, but Petitioner was not detained for anywhere close to the several

hours that were found to be inherently coercive in Watson. And twelve seconds is not

significantly different from the sixteen seconds that were found to have no impact on the

attenuation analysis in Hogan. Under the most important consideration—whether there were any

intervening events—Petitioner fails to show a causal connection between his consent and the

alleged unlawful activity. In Belt and Green, mere conversation or the consent itself acted as

intervening circumstances, both of which occurred in the case at hand. And both of these events

were significantly less impactful than Officer Sanderson’s instruction to Petitioner that he was

free to go. Moreover, there is no evidence that Officer Sanderson acted with wanton disregard

for Petitioner’s constitutional rights. While the officers in Harris understood their actions

14

violated the Fourth Amendment, and still the statement was allowed into evidence, Officer

Sanderson had a good faith belief that the extension of the stop was constitutional. Each of these

factors weighs in favor of denying the motion to suppress. Together, they show a lack of causal

connection between the extension of the stop and Petitioner’s consent to the search, which is an

independent reason to uphold the lawfulness of Petitioner’s consent to the search.

C. Even If Petitioner’s Consent Was Tainted, Officer Sanderson Had Probable Cause to

Search the Vehicle

Lastly, even if none of the preceding arguments compels the admission of the

methamphetamine evidence, Officer Sanderson had probable cause to search Petitioner’s vehicle.

If probable cause that “a vehicle contains evidence of criminal activity” exists, an officer is

authorized to “search . . . any area of the vehicle in which the evidence might be found.” Arizona

v. Gant, 556 U.S. 332, 347 (2009) (citing United States v. Ross, 456 U.S. 798, 820–21 (1982)).

An officer can be said to have probable cause if the “facts and circumstances” would “warrant a

prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S.

98, 102 (1959). The test for probable cause “looks to an officer’s knowledge and experience.”

Herring v. United States, 555 U.S. 135, 145 (2009). The same factors that created reasonable

suspicion upon which Officer Sanderson could require a field sobriety test also establish

probable cause.

While federal courts have shed little light on the issue, several state courts have held that

constricted pupils helped establish probable cause in similar cases to the present one. In State v.

Hegstrom, 543 N.W.2d 698 (Minn. Ct. App. 1996), the court found that constricted pupils were

“particularly” helpful in establishing probable cause to believe that the defendant was driving

under the influence when looked at in conjunction with evidence of inattentive driving. Id. at

15

702. In People v. Benedict, 82 Cal. Rptr. 759 (Cal. Ct. App. 1969), the court held that an officer

had probable cause to believe the defendant was under the influence of an opiate drug when the

officer observed the defendant’s constricted pupils, the defendant’s fumbling to find an

identification in a wallet, and the defendant’s slow and slurred speech. Id. at 761.

Uncontrollable sleepiness—in addition to establishing reasonable suspicion—can also

give an officer probable cause. In Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009),

the court found the defendant’s “uncontrollable sleepiness, irritability, [and] rapid breathing,” in

addition to his elevated pulse and confusion regarding the time, all established probable cause to

issue an arrest for being under the influence of a controlled substance. Id. at 1024.

A defendant’s physical shakiness can also help create probable cause. See, e.g., United

States v. Jolly, 368 F. App’x 17, 18 (11th Cir. 2010) (finding probable cause to search a vehicle

when the driver’s “hands were shaking” and the officer saw him attempt to hide a clear plastic

bag); United States v. Mayo, 627 F.3d 709, 713 (8th Cir. 2010) (finding probable cause when the

defendant was nervous, had shaking hands, made contradictory statements, had a criminal

history, and possessed suspicious packages).

Similarly, just as it helped establish reasonable suspicion, extreme nervousness can

“weigh significantly” in a court’s determination of whether an officer had probable cause. United

States v. Ledesma, 447 F.3d 1307, 1318 (10th Cir. 2006) (quoting United States v. Santos, 403

F.3d 1120, 1127 (10th Cir. 2006)) (using nervousness as a factor in determining an officer had

probable cause to search a vehicle).

The signs of illegal drug use that Petitioner exhibited were enough to establish probable

cause for Officer Sanderson to believe that a search of his vehicle would find illegal drugs. In

Hegstrom and Benedict, courts found probable cause when defendants exhibited constricted

16

pupils in conjunction with other factors. Here, Officer Sanderson had specific training and

experience with identifying pupil size, R. at 4:14–19, and noticed Petitioner’s pupils were

constricted to a significantly smaller size than an average pupil, R. at 8:7–12. Further, Petitioner

exhibited uncontrollable sleepiness which, when added to several other factors, was enough to

create probable cause in Ramirez. Shaking hands and nervousness both helped established

probable cause in several cases. Here, Petitioner exhibited every one of these factors—

constricted pupils, uncontrollable sleepiness, shaking hands, and extreme nervousness. This

Court should affirm the judgment of the Supreme Court of Eagleton because Officer Sanderson

had probably cause to search Petitioner’s vehicle.

II. The District Court Properly Denied Petitioner’s Motion to Withdraw His Guilty

Plea Because He Cannot Demonstrate Either That His Counsel Performed

Deficiently or That He Was Prejudiced as a Result of His Counsel’s Performance

Petitioner contended in his motion to withdraw his guilty plea that his original counsel,

Attorney Brendanawicz, performed deficiently while representing Petitioner in his criminal

proceeding for possession with intent to manufacture methamphetamine. R. at 28. Despite

Attorney Brendanawicz advising Petitioner that there was a “strong risk,” R. at 29, that he would

be deported, Petitioner claims that Attorney Brendanawicz acted entirely outside the range of

reasonable professional assistance by failing to advise him of the risks of deportation. Petitioner

further contends that he suffered prejudice as a result of Attorney Brendanawicz’s allegedly

deficient performance. R. at 31. Petitioner cannot, however, show either that Attorney

Brendanawicz performed in a constitutionally incompetent manner during his representation or

that he experienced any prejudice as a result of that representation.

17

A defendant in a criminal trial is constitutionally entitled to the effective “Assistance of

Counsel.” U.S. CONST. amend. VI. When a defendant alleges that he has not received such

assistance, a court addresses a claim of ineffective assistance of counsel by reviewing the

defendant’s counsel’s performance under the Strickland test. Strickland v. Washington, 466 U.S.

668, 686 (1984). In that case, this Court laid out the proper test for such claims as follows:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. The Court continued, “Unless a defendant makes both showings, it cannot be said that

the conviction or death sentence resulted from a breakdown in the adversary process that renders

the result unreliable.” Id. (emphasis added). The Court reviews all circumstances of the

attorney’s representation of the defendant, but remains “highly deferential” to the attorney’s

performance due to the “strong presumption” that the attorney delivered “reasonable professional

assistance.” Id. at 689.

Shortly after deciding Strickland, this Court held in Hill v. Lockhart, 474 U.S. 52 (1985),

that the Strickland test also “applies to challenges to guilty pleas based on ineffective assistance

of counsel.” Id. at 58. Specifically,

In the context of guilty pleas, the first half of the Strickland test is nothing more

than a restatement of the standard of attorney competence . . . . The second, or

“prejudice,” requirement, on the other hand, focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.

Id. at 58-59.

More recently, this Court determined that the Strickland test applies to claims involving

an attorney’s alleged failure to properly advise her client regarding the immigration-related

18

consequences of a criminal conviction. Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Thus, this

case should be analyzed through the lens of the Strickland test, as it has been extended to guilty

pleas by Hill and to immigration-related issues by Padilla.

Within that legal framework, Petitioner’s contentions cannot succeed for two reasons.

First, Attorney Brendanawicz delivered “reasonable professional assistance,” as required by

Strickland, 466 U.S. at 689, when he advised Petitioner that accepting the State’s guilty plea

carried a “strong risk” of deportation. Accordingly, Petitioner’s claim that Attorney

Brendanawicz acted deficiently must fail. Second, Petitioner’s rejection of the plea bargain

would not have been “rational under the circumstances,” Padilla, 559 U.S. at 372. As a result,

Petitioner’s claim that he was prejudiced by Attorney Brendanawicz’s performance must fail as

well.

A. Attorney Brendanawicz Delivered Reasonable Professional Assistance When He

Advised Petitioner That His Guilty Plea Carried a “Strong Risk” of Deportation

Attorney Brendanawicz served as counsel to Petitioner during the proceeding for

Petitioner’s criminal possession of methamphetamine. R. at 28. The State of Eagleton

commenced its criminal case against Petitioner for his illegal possession of methamphetamine,

with intent to manufacture more of the controlled substance, pursuant to Eagleton Statute § 841,

which states in pertinent part: “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 . . . .” Eg. Stat. § 841(a).

Because of Petitioner’s status as a legal permanent resident of the United States, a

conviction for his criminal behavior had the potential to cause immigration-related consequences

for Petitioner. R. at 28. Specifically, under United States immigration law, “Any alien who at any

19

time after admission has been convicted of a violation of . . . any law or regulation of a State . . .

relating to a controlled substance . . . is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (2012)

(emphasis added). Subject to 8 U.S.C. § 1229b(a), however, the Attorney General would also be

free to cancel his removal. 8 U.S.C. § 1229b(a) (2012) (stating the Attorney General has

authority to cancel removals when the conviction is not for an aggravated felony). A conviction

under § 841(a)(1), under which Petitioner was charged, would in fact make it possible for the

Attorney General to either order or cancel his removal. Thus, such a conviction could be said to

carry a risk of deportation.

Removal from the United States through a deportation proceeding has long been

considered a serious consequence. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 740

(1893). Accordingly, defendants have been found by this Court to be entitled by the Sixth

Amendment to the competent advice of an attorney regarding the potential immigration-related

consequences of a criminal conviction, including the possibility of deportation. Padilla, 559 U.S.

at 366. If a defendant feels he has received ineffective assistance of counsel during the

representation, including the advice given to him in relation to the possibility of deportation, the

defendant’s counsel’s performance is subject to review by the court under the Strickland test. Id.

In the first prong of the Strickland test, “the defendant must show that counsel’s

performance was deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687. In this context, an attorney’s performance is judged in

relation to the “standard . . . of reasonably effective assistance.” Id.; see also, e.g., Trapnell v.

United States, 725 F.2d 149, 151-52 (2d Cir. 1983). This is an objective test, Strickland, 466

20

U.S. at 688, and “[t]he proper measure of attorney performance remains simply reasonableness

under prevailing professional norms.” Id.

This Court in Strickland also emphasized that “[j]udicial scrutiny of counsel’s

performance must be highly deferential,” id. at 689, and that there exists “a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance,” id. This

is because “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense

after it has proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.” Id. Deferential review of counsel’s performance ensures that the independence

and wide latitude of judgment that attorneys are trained to bring—and that they ought to bring—

remain protected from second-guessing when their representation does not constitute actually

constitutionally deficient representation.

This Court has since explained that the Strickland test applies when the challenged aspect

of attorney performance is the alleged failure of defense counsel to advise the defendant of the

potential immigration-related consequences of a criminal conviction. Padilla, 559 U.S. at 366.

Because of the complexity of the immigration system’s legal framework, and because criminal

defense attorneys are rarely well-versed in immigration law, the Court acknowledged that there

will be situations where the potential immigration-related consequences of criminal convictions

will not be clear. Id. at 369. To deal with such situations, the Court laid out the following rule:

When the law is not succinct and straightforward . . . , a criminal defense attorney

need do no more than advise a noncitizen client that pending criminal charges

may carry a risk of adverse immigration consequences. But when the deportation

consequence is truly clear . . . the duty to give correct advice is equally clear.

Id.

21

Some courts have found the consequences of the statute presently at issue,

§ 1227(a)(2)(B)(i) (and others that are similar), to be unclear. See, e.g., State v. Shata, 868

N.W.2d 93 (Wis. 2015); Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct. 2013)

(finding counsel’s advice that “it was likely there would be deportation proceedings instituted

against [Escobar]” to be correct, since “Escobar’s actual deportation was not an absolute

certainty”); Cun-Lara v. State, 273 P.3d 1227, 1239 (Haw. Ct. App. 2012) (finding counsel’s

statement “that [Cun-Lara] would be lucky if he was not deported” constitutionally sufficient).

This lack of clarity is compounded in situations like Petitioner’s where his conviction does not

necessarily entail actual deportation but simply makes him deportable. Cun-Lara, 273 P.3d at

1238.

In Shata (a case with some remarkably similar circumstances to the instant one), the

defendant pled guilty to possession with intent to deliver marijuana. Shata, 868 N.W.2d at 95.

This guilty plea, and the court’s subsequent conviction, made Shata subject to deportation under

§ 1227(a)(2)(B)(i). Id. at 95 n. 3. Shata’s attorney, like Attorney Brendanawicz, told Shata that a

conviction under the state statute carried a “strong chance” of deportation. Id. at 99-100, 113.

Shata’s attorney, also like Attorney Brendanawicz, did not read the relevant immigration

statutes, turning instead to the aid of federal prosecutors who told him that a conviction “could”

subject his client to deportation. Id. at 100. Shata’s attorney, also like Attorney Brendanawicz,

pursued other legal strategies to avoid Shata becoming deportable, but faced total opposition

from the State in those attempts, especially in light of the overwhelming amount of evidence

against Shata. Id. The court found that the assistance provided by Shata’s attorney was at no

point constitutionally ineffective under Padilla. Id. at 114.

22

This Court should follow the Wisconsin Supreme Court’s decision in Shata and find that

Attorney Brendanawicz did not deliver constitutionally ineffective assistance of counsel. The

parallels between the cases are clear, and the Wisconsin Supreme Court decided that case

correctly, relying on Padilla’s established law in doing so. The statute at issue in this case serves

to make Petitioner deportable as a result of his conviction under Eagleton Statute § 841(a)(1),

just as it made Shata deportable as a result of his conviction under the Wisconsin statute in that

case. Attorney Brendanawicz advised Petitioner that his conviction would carry a risk of

deportation, just as Shata’s attorney advised him, and just as this Court required in Padilla for

situations involving statutes with unclear immigration-related consequences. Padilla, 559 U.S. at

369 (stating that an attorney must advise his noncitizen client “that pending criminal charges

may carry a risk of adverse immigration consequences”).

In Padilla, the Court found the statute to clearly result in the defendant becoming eligible

for deportation. 559 U.S. at 368-69. In that case, a lawful permanent resident of the United States

pled guilty to transporting large amounts of marijuana, and subsequently was faced with

deportation proceedings. Id. at 359. During the criminal proceeding, Padilla’s counsel allegedly

“not only failed to advise him of this consequence prior to his entering the plea, but also told him

that he ‘did not have to worry about immigration status since he had been in the country so

long.’” Id.

While the Court went on to find that constitutionally competent counsel would have

advised the defendant his conviction would have made him “subject to” automatic deportation,

the defendant’s counsel entirely ignored that possibility, instead telling Padilla “not . . . to worry”

about it. Id. at 359-60. The Court criticized Padilla’s counsel’s “false assurance that his

conviction would not result in his removal from this country,” id. at 368, as blatantly incorrect,

23

given that the statutes at issue were clear. Under 8 U.S.C. § 1227(a)(2)(B)(i), a criminal

conviction for a narcotics offense made Padilla deportable. Id. His counsel’s assurance that he

“did not have to worry about immigration status” was thus obviously an incorrect statement.

Assuming Padilla did not want to be deported, he very much should have worried about his

immigration status and the potential immigration-related consequences of his conviction.

The instant case is easily distinguishable from Padilla. While Padilla’s counsel

affirmatively told him “not to worry” about the immigration-related consequences of his guilty

plea (a statement that is at best misinformed and at worst blatantly false), Attorney

Brendanawicz advised Petitioner that he should, in fact, worry about his immigration status,

because there was a possibility—a strong possibility—of deportation. It is also noteworthy that

Attorney Brendanawicz did pursue other courses of action in order to try to avoid the potential

immigration-related consequences of Petitioner’s conviction. R. at 24-26. In performing as he

did, Attorney Brendanawicz performed to the standard of reasonable professional assistance

required by Strickland. He thus did not provide constitutionally deficient assistance of counsel to

Petitioner.

Other courts have also approved of this interpretation of Padilla. In Candelario v. State,

2012 R.I. Super. LEXIS 180 (R.I. Super. Ct. 2012), the court found the statute to be clear and

concluded,

[U]nder Padilla, counsel has the obligation, where the immigration consequences

are clear, to make the defendant aware that his or her plea will make him or her

eligible for deportation. This obligation does not mean, however, that counsel is

under the obligation to inform the defendant that his or her plea will result in

deportation . . . . As neither counsel nor the court has control over immigration

proceedings, they cannot guarantee a defendant that he or she will, in fact, be

deported.

24

Id. at *53. And in Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013), the court also found

the statute to be clear, and concluded that “Chacon’s convictions made his deportation

presumptively mandatory, and . . . advice that he ‘would very likely be deported . . .’ did not fall

below what is required of a reasonably competent attorney under the circumstances.” Id. at 537.

This is the proper understanding of Padilla and does not depart at all from the language

in that case itself. In Padilla, this Court stated that the consequences of § 1227(a)(2)(B)(i) are

clear, in that it makes an alien convicted of a narcotics offense deportable. Padilla, 559 U.S. at

368 (“Padilla’s counsel could have easily determined that his plea would make him eligible for

deportation.”); id. at 369 (stating, “[Padilla’s] deportation was presumptively mandatory”). The

Court at no point stated that the “clear” consequences of the statute included guaranteed actual

deportation. See Shata, 868 N.W.2d at 109. Petitioner’s interpretation of Padilla, which he relies

upon to urge the Court to conclude that the statute necessarily entails his deportation, is simply

an incorrect understanding of Padilla’s holding. The Court should decline to adopt it and decline

to change the well-understood meaning of Padilla. Instead, applying Padilla directly, the Court

should conclude that Attorney Brendanawicz gave correct advice when he informed Petitioner

that his conviction would carry a strong risk of deportation. In so doing, Attorney Brendanawicz

did not act deficiently, but rather fully complied with his duty to provide constitutionally

competent assistance of counsel.

B. Petitioner Was Not Prejudiced by Attorney Brendanawicz’s Performance Because It

Would Not Have Been Rational Under the Circumstances for Petitioner to Reject the

Plea Agreement Offered to Him by the State of Eagleton

The second prong of the Strickland test requires a petitioner to “show that [counsel’s]

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. The standard is one

25

of “reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

To make such a showing in the context of his plea deal, a petitioner must demonstrate

that his counsel’s “constitutionally ineffective performance affected the outcome of the plea

process,” Hill, 474 U.S. at 59; see also Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (“In the

context of pleas a defendant must show the outcome of the plea process would have been

different with competent advice.”). Thus the standard, restated for the plea deal context, is “that

there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have

pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. This inquiry

should be considered in light of the likelihood that counsel, acting competently, would have

changed his recommendation as to the plea, which in turn is dependent on the likely outcome of

the trial in the case. Id. Such “predictions of the outcome at a possible trial, where necessary,

should be made objectively . . . .’” Id. at 60.

In Padilla, the Court described the showing that Petitioner must make: “[T]o obtain relief

on this type of claim, 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 (citing Roe

v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). To show prejudice, the petitioner has to

demonstrate, considering the totality of the circumstances at the time of the plea, that “there is

reason to think . . . that a rational defendant would want to [reject the plea bargain and proceed to

trial] . . . .” Flores-Ortega, 528 U.S. at 480 (applied in the context of counsel’s advice regarding

a plea bargain). In assessing the rationality of such a decision, “courts must take into account all

26

the information counsel knew or should have known” at the time of the defendant’s plea, and the

attorney’s advice regarding that plea. Id.

Several courts have addressed the second Strickland prong within this framework. See,

e.g., United States v. Kayode, 777 F.3d 719 (5th Cir. 2014); United States v. Shaw, 2004 U.S.

Dist. LEXIS 15942 (E.D. Pa. 2004); Denisyuk v. State, 30 A.3d 914 (Md. 2011). For example, in

Kayode, the court found that the defendant was not entitled to relief for his ineffective assistance

of counsel claim because he failed to show that he was prejudiced by his counsel’s performance.

Kayode, 777 F.3d at 725. The defendant, a naturalized citizen, had been indicted on several

charges of mail fraud, bank fraud, identity theft, and other crimes. Id. at 721. After consulting

with his counsel, he pleaded guilty to several of the charges against him. Id. Once Kayode was

sentenced, he moved to vacate his conviction on numerous grounds, including that he had

received ineffective assistance of counsel because his counsel had not advised him of the

deportation consequences of his guilty plea. Id. at 722. Kayode claimed that, had he known of

the deportation consequences of his guilty plea, he “would never have pled guilty.” Id.

The court determined that Kayode was not prejudiced by his attorney’s performance, as it

would not have been rational for him to reject the guilty plea and proceed to trial. Id. at 725. It

reached this conclusion after considering several factors,

including Kayode’s evidence to support his assertion [that he would have chosen

to go to trial instead of accepting the guilty plea], his likelihood of success at trial,

the risks Kayode would have faced at trial, Kayode’s representations about his

desire to retract his plea, his connections to the United States, and the district

court’s admonishments.

Id. The court found that the evidence presented for each of these factors weighed against

a finding of prejudice for all but two of the factors (the defendant’s connections to the

United States, and whether, prior to the motion, the defendant had made any other

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representation that he wanted to retract his guilty plea) since they led to the conclusion

that a rational defendant in his position would not have rejected the guilty plea. Id. at

725-29. Accordingly, it rejected his claim of ineffective assistance of counsel. Id. at 730.

In the instant case, it would not have been “rational under the circumstances” for

Petitioner to reject the guilty plea. Attorney Brendanawicz’s advice was not prejudicial because

no rational defendant in Petitioner’s shoes would want to reject the plea bargain he was offered.

In this case, the factors detailed by the court in Kayode lead to the same conclusion reached in

that case. First, Petitioner was highly unlikely to succeed at trial, and this too weighs against a

finding of prejudice. The evidence against Petitioner was absolutely “overwhelming,” as the trial

court found. R. at 36. Petitioner “carried a significant amount of methamphetamine, and a search

of his vehicle unearthed various pieces of equipment for manufacturing methamphetamine.” Id.

In Kayode, the evidence against the defendant was similarly “overwhelming,” 777 F.3d at 726,

and the court stated that such a “finding is entitled to great deference,” id. Kayode also put forth

only his own sworn testimony that he was not responsible for the crimes as evidence of the

defense he planned to mount at trial. Id. Petitioner put forth no evidence regarding the defense he

would have mounted. He asserts that he would have gone to trial, in the face of so much damning

evidence, without a clue as to how he would have argued against the State or convinced the court

to acquit him. And yet he claims—despite the fact that in order to avoid the potential deportation

he now faces, he would have had to be entirely acquitted of his charge—that accepting the guilty

plea prejudiced him. No rational defendant, however, would choose to proceed to trial when the

evidence against him was so overwhelming and he could not say how he would surmount it.

Accordingly, this factor also weighs against a finding of prejudice to Petitioner.

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Second, the risks faced by Petitioner in proceeding to trial, rather than accepting the

guilty plea, were substantial. Petitioner faced a potential maximum sentence of up to forty years

in prison, as compared to the ten years he received as part of his plea deal. R. at 25. The same

was true for the defendant in Kayode. 777 F.3d at 726-27. This significantly higher potential

sentence, coupled with his very low likelihood of succeeding at trial, would also lead a rational

defendant to accept the guilty plea rather than stand trial and risk the greater penalty.

Accordingly, this factor also weighs against a finding of prejudice to Petitioner.

Third, Petitioner did not make any attempts, prior to the instant motion to withdraw his

guilty plea, to take back his plea and insist on going to trial. Despite being told of the “strong

possibility” of deportation, and witnessing Attorney Brendanawicz’s attempts to avoid entering

the plea agreement, he made no complaints or attempts to withdraw it until filing the instant

motion. Kayode, conversely, did attempt to withdraw his guilty plea in a motion unrelated to his

ineffective assistance of counsel claim. Kayode, 777 F.3d at 728. While this factor weighed

toward a finding of prejudice in Kayode, id., it weighs against such a finding here.

Fourth, Petitioner was admonished by the trial court judge that accepting the State’s

guilty plea could potentially have detrimental immigration-related consequences. R. at 25, 36.

Specifically, the judge told him, “there is a risk, if found guilty of this crime, that you may be

deported or denied admission.” R. at 25. The judge also made several other similar statements.

Id. Though these warnings are not, alone, a substitute for counsel’s competent performance, they

are relevant to a determination of prejudice. Kayode, 777 F.3d at 728-29. Kayode was similarly

warned by the judge in his case that the guilty plea carried potential immigration-related

consequences. In that case, this factor weighed against a finding of prejudice, and it does so here

as well.

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Only two factors do not weigh against a finding of prejudice here. These are the evidence

presented by Petitioner to support his claim that he would have chosen to go to trial and

Petitioner’s connections to the United States. Petitioner’s evidence regarding his claim that he

would have proceeded to trial consisted only of his testimony at the post-conviction motion

hearing. Specifically, he said that he “would have told [Attorney Brendanawicz] that [he] wanted

to go to trial and [he] never would have pled guilty.” R. at 30. The evidence Kayode presented in

his case was limited to his affidavit, in which he swore that he “would never have pled guilty” if

he knew that parts of his indictment would be dismissed. Kayode, 777 F.3d at 726 (certain counts

of his indictment were dismissed on appeal from his sentencing). The defendant in Kayode did

not aver that he would have chosen to go to trial had he known of the potential immigration-

related consequences of his guilty plea. Id. This factor weighs more strongly toward a finding of

prejudice here than it did in Kayode, given that Petitioner did indeed aver as much.

Second, Petitioner’s connection to the United States may or may not weigh against a

finding of prejudice to him. Petitioner has been in the United States for thirteen years and has

neither a spouse nor any children. At his post-conviction motion hearing, he stated, “all of my

family in Venezuela is gone. My life and my work are here, and I would have nothing if I have to

go back.” R. at 30. In Kayode, the defendant had five siblings and a young child living in the

United States and had been residing here for thirty-two years. Kayode, 777 F.3d at 727. The

court found that “[w]hile these facts, standing alone, do not establish prejudice, they do indicate

that it would be more reasonable for someone in Kayode’s circumstances to risk going to trial

rather than face deportation.” Id. As a result, the court there found that this factor weighed

toward a finding of prejudice. In the instant case, however, Petitioner has far fewer and far

weaker connections to the United States than Kayode did. While he does state that he has

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nothing left for him in Venezuela, the circumstances certainly are not as extenuating as they were

in Kayode. Accordingly, it is uncertain whether this factor weighs for or against a finding of

prejudice, but it is clear that the situation is distinguishable from that in Kayode.

Given the totality of the circumstances, and the weight of all the Kayode factors

collectively, Petitioner has not demonstrated that it would have been rational under the

circumstances to reject the State’s plea agreement. Thus, he has not shown a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. As a result, he has also not demonstrated that he

suffered prejudice as a result of Attorney Brendanawicz’s performance. Because he has failed to

make a showing of prejudice, his entire claim of ineffective assistance of counsel must fail as

well. Accordingly, this Court should affirm the judgment of the Supreme Court of Eagleton, and

deny Petitioner’s motion to withdraw his guilty plea.

CONCLUSION

As has been demonstrated above, Petitioner was found with methamphetamine and

paraphernalia to manufacture more—in clear violation of the law—and the lawful nature of the

search that discovered those materials compels the admission of the evidence. Petitioner also

cannot show that Attorney Brendanawicz provided him constitutionally ineffective assistance of

counsel, and thus should not be allowed to withdraw his guilty plea. On this basis, the State of

Eagleton respectfully requests that this Court affirm the courts below, denying both Petitioner’s

motion to suppress the evidence and his motion to withdraw his guilty plea.

Team 2

Counsel for Respondent