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Federal judge delimits ineffective assistance of counsel claims

The Edward A. Garmatz U.S. Courthouse in Baltimore. (Daniel Leaderman/The Daily Record)

The Edward A. Garmatz U.S. Courthouse in Baltimore. (File photo)

A lawyer’s failure to warn clients that a guilty plea in state court can be used against them in a federal criminal proceeding does not constitute ineffective assistance of counsel, a federal judge in Baltimore ruled Monday.

U.S. District Judge James K. Bredar’s published ruling enables prosecutors to introduce at Kenneth Faison’s federal trial on racketeering and drug distribution conspiracy charges his state-court admission of criminal gang activity and assault with a handgun.

In his memorandum opinion, Bredar distinguished federal trial use of a state guilty plea from a lawyer’s failure to tell a non-U.S. citizen client that admitting guilt could likely lead to deportation, which the Supreme Court has held does constitute ineffective assistance of counsel in violation of the Constitution’s Sixth Amendment.

“Given its near inevitability following a conviction for specified crimes, ‘deportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to (those) crimes,’” wrote Bredar, quoting from the high court’s 2010 decision in Padilla v. Kentucky.

“By contrast a federal conviction does not inextricably flow from a state guilty plea,” Bredar added. “Both in general and in the specific circumstances present here, an underlying state conviction is neither necessary nor sufficient to secure a federal conviction, rather, it is but one ingredient that may be used by the government if it decides to prosecute the defendant under federal law.”

In papers filed in U.S. District Court, Faison’s counsel, Richard B. Bardos, contended that the 2015 guilty plea in Baltimore City Circuit Court should be inadmissible in the federal trial because Faison never would have admitted guilt had his state-trial attorney told him it could be used against him in a federal proceeding.

Bardos cited Federal Rule of Evidence 402, which permits relevant evidence to be admitted so long as its admission does not violate the defendant’s constitutional rights. Federal prosecutors countered by citing Rule 801, which generally permits admissions by defendants to be introduced at trial.

Bredar, in siding with the prosecution, ruled the use of a state guilty plea in a federal trial is merely a “collateral consequence,” whereas deportation is likely a direct consequence of a guilty plea, thus requiring counsel to advise clients of that risk.

Bredar wrote that he does lightly make this distinction “lightly.”

“Indeed, the circumstances present in this case highlight the potentially severe collateral consequences that may result, at least in part, from a guilty plea,” the judge wrote. “However, the potential for such consequences, and a multitude of other collateral issues not raised by the present motion, is an inherent aspect of pleading guilty to serious criminal conduct. And, under controlling precedent, such collateral consequences are simply too remote and too far removed from the underlying criminal proceedings to be included within the ambit of the Sixth Amendment right to effective assistance of counsel.”

Bardos declined to comment on Bredar’s decision. Bardos is with Schulman, Hershfield & Gilden P.A. in Baltimore.

The case is United States of America v. Kenneth Faison et al., No. JKB-16-00363.

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