Can You Sue the State Over Immigration Consequences of a Plea Bargain

[justice4mgh]

My question involves criminal law for the state of: Nevada.

Can anyone give some insight if the state can be held "liable" for the following. Please note this case is still being litigated within the courts and is currently under appeal per recent U.S Supreme Court decision of Padilla v. kentucky. March 2010. Thanks

AFFIDAVIT OF FORMER CLARK COUNTY DEPUTY
DISTRICT ATTORNEY ??????????

STATE OF NEVADA )
:ss
COUNTY OF CLARK)

????????????, being duly sworn, deposes and says:
1. That affiant is knowledgeable about all matters set forth in this affidavit and
knows them to be true.

2. That I am competent to testify concerning the facts contained in this affidavit.

3. That I was employed as a deputy District Attorney for the county of Clark, State
of Nevada in 1994.

4. That I was assigned to the criminal division in 1994.

5. That one of the criminal cases I was assigned to in 1994 was the State of Nevada
V. ????????? case numbers ???????? and ????????

6. That Mr.??????? social security number is ????????? and his date of birth is December 21, 1961.

7. That in case numbers ???????? and ????????. Mr. ??????? was charged with
Burglary and possession of stolen property.

8. That after two preliminary hearings both cases were bound over for trial to the
Clark county District Court.

9. That prior to trial Mr. ??????? was administered and passed a polygraph examination as to whether or not he actually broke into people's homes and committed the act of Burglary.

10. That on April 29, 1994 ??????? entered into a plea agreement whereby he
agreed to plead guilty to two (2) counts of possession of stolen property. Both
charges being felonies.

11. That on April 29, 1994 before Judge J. ?????????, Mr. ??????? pleaded
guilty to case number one count of possession of stolen property.

12. That prior to entering his plea, during negotiations, Mr. ?????? advised me, in the
presence of his attorney, for the first time that he was a resident alien and by
pleading guilty to any felony, he would have problems with the United States
Immigration Service.

13. That I, ??????? advised Mr.??????? in the presence of his attorney that "The
State" would not "pursue" any immigration matters or holds in regard to Mr.
???????. Mr. ??????? was in essence promised by the "State" that if he pled guilty
he would not have any immigration problems from the "State".

14. That during the plea agreement, as it was read into the record I, ????????
again stated on the record page 6, line 3 and 4 of the plea transcript, that the
"State would not be pursuing any immigration hold or any other matter of that
nature" against Mr. ????????

15. That the plea agreement agreed to by Mr. ??????? clearly stated that the "State"
would not pursue or cause any immigration problems for Mr. ???????.

16. That subsequent to his release from the Clark County jail, the United States
immigration service was waiting for him and placed him into custody.

17. That Mr. ?????? was in fact deported from the United States as a result of the two
felony convictions he had agreed to.

18. That after many years of trying, Mr. ?????? was finally able to locate me on or
about June 21,2004.

19. That unknown to myself and Mr. ??????, at the time of the plea agreement in
1994, the Clark County Jail was required to notify the United States Immigration
Service whenever a resident alien is processed through the county jail.

20. That had Mr. ?????? known that his pleading guilty would have resulted in any
United States Immigration problems he never would have entered into the plea
agreement. This was clearly stated to this affiant by Mr. ??????? in the presence of
his attorney. Clearly, Mr. ???????? pled guilty with the understanding that the
immigration service would not be involved. That is the only reason Mr. ????????
agreed to plead guilty, because he believed that immigration would not be
involved.

21. That had I known that the county jail had as it's policy in 1994 to automatically
notify the United States Immigration Service anytime a resident alien is processed
through the jail I never would have offered the plea agreement to Mr. ??????? with
the promise that the "State" would not pursue an immigration hold or any other
matters with the immigration service.

22. That it has come to my attention that Mr. ???????, a resident alien did not
understand that the "state" as represented by Clark County Deputy District
Attorney Mr. ????? was a different entity than the federal branch of the United
States Immigration Service. Mr. ??????? justifiably believed that Mr. ????? and
the Clark County District judge had some power or authority over the United
States Immigration service. And that when Mr. ?????? stated for the record and
made the promise a part of the plea agreement that the "State" would not pursue
any immigration matters. Mr. ?????? justifiably believed that Mr. ?????? or the
county judge could somehow prevent the immigration from using the two felony
convictions from deporting him.

23. That furthermore had I known that the county jail was going to immediately
contact the United States immigration Service, he would never had let Mr. ??????
proceed with the plea agreement as it was offered to Mr. ???????. The plea
agreement clearly incorporated the promise that the "State " would not pursue
immigration issues. Had Mr. ?????? known that another county agency would by
it's own policy violate the terms of the plea agreement, he never could have gone
through with the agreement.

24. That my understanding of the plea agreement and promise regarding immigration
was that the "state" meaning the District Attorney's office would not pursue or
cause Mr. ?????? to have any immigration problems as a result of the plea
bargain.

25. That due to a misunderstanding of the meaning of the "State", Mr. ?????? pled
guilty to the two felonies. Absent the misunderstanding neither Mr. ??????? nor
Mr. ?????? would have entered into the April 29 1994 plea agreement.

26. That as a result of the misunderstanding, the plea agreement should be set aside
since no actual agreement existed due to the misunderstanding. No meeting of the
minds actually occurred due to the mutual misunderstanding of fact on both the
defendant and the county.

27. That Mr. ??????? made numerous attempts over the years to have his attorney at
the plea agreement on April 29, 1994, ???????. to enforce the agreement or
contact the state to bring the misunderstanding to the attention of the State.

28. That Mr. ??????? made several unsuccessful attempts over the years to contact me, but due to my unforeseen retirement in 1997 from the Clark County District
Attorneys Office was never able to locate me until June 2004.

29. That in this affiant's opinion, a grave injustice has been done to Mr. ???????? and
the 1994 convictions should be vacated and the plea agreement be deemed null
and void. That the plea agreement was never intended to cause the deportation of
Mr . ???????.

Further Affiant sayeth Naught

?????????

Signed and sworn before me this day of June 2004.
Notary public in and for said County and State

?????????
Notary Public, State of Nevada
Appointment No. 9823931
MyAnpl Expires May 12,2002

[free9man]

Liable for what? In order to prevail in a civil action on this, you would have overcome the state's sovereign immunity and/or the DDA's qualified immunity. Those are incredibly high hurdles to make. The only argument you might have is that a DDA working in Clark County probably handled many cases involving immigration status and thus should have been aware of the jail's policies. But even that is a stretch. It would appear that the DDA on your case is supporting your desire to overturn the plea. Whether the facts, as presented in this affidavit, are sufficient for you to prevail in your efforts is anyone's guess.

Further, you were already told by the court that Padilla does not apply retroactively and thus is not an avenue of relief for you.

[justice4mgh]

You reply is so noted, However, as a pro-se litigant I can say I have done and I am doing quite an exceptional job in obtaining justice. By the way nothing in the Order states Paddila is not Retroactive. I have prevailed on one lawsuit, and I fully disagree with your interpretation of my question where I give substantial information for you to make an intelligent and non hostile answered. The question was directed towards the State and its overseeing agencies, and not the DA. . Thanks for trying anyways. P.s. I hope the below gives you a little more insight on what I am trying to show and achieve. Justice delayed is justice denied.

U. S. Department of Justice
Civil Division
Washington, D.C. 20530
August 27, 1999
via Facsimile and First Class Mail
Mr. ?????????

St. Catherine's Close

Stoke Aldermoore
Coventry, ?????????
Warickshire, England

Re: ???????? v. ????????. CIV-???????-PHX-SMM

Dear ??????:

The Immigration and Naturalization Service ("INS") has approved significant public benefit parole on your behalf so that you may come to the United States for the trial in the above captioned case. There are, however, several conditions attached to this approval of immigration parole. First and foremost, you
will remain in the custody of the INS during your entire stay in the United States.

The trial is scheduled to begin on Tuesday, September 21, ????. You may arrive in the United States anytime after Friday, September 17, 1999. You must purchase a round-trip ticket with an open ended departure. The flight must be a non-stop flight from London, England to Phoenix, Arizona. You are required to send me proof that you have purchased such a ticket as well as your flight itinerary. After you have sent me a copy of your' ticket and the itinerary, you may then go to the United States Embassy in London and obtain your boarding letter. Without the boarding letter you will not be able to get on your flight. The
boarding letter will identify your flight itinerary and will only be valid for the flight that you have identified.
An INS officer will meet your plane in Phoenix, Arizona and you will be taken into custody at that time. When you arrive you will be required to surrender your ticket and passport to the INS. You are permitted to remain in the United States for the duration of your trial. As soon as your trial has ended you will
be required to leave the United States. While the immigration parole document permits you to remain for ten days, the district director may terminate your immigration parole at anytime. The district director will terminate your immigration parole at the end of the trial, even if that is before the end of the ten-day
period. Because there is no fixed date when the trial will end you are required to purchase an open ended ticket so that you can leave on the next available non-stop flight to London. Your failure to follow any of these conditions, or any other condition the INS deems fit to impose, will result in an immediate termination of your immigration parole.

If you have any questions you may contact me at the telephone number listed above. If I am not available you may contact my supervisor, ??????? at (202). You can send a facsimile of your purchased ticket and itinerary to me at (202) ?????????

Sincerely,

???????????, Attorney
Office of Immigration Litigation
Civil Division
Department of Justice
PO Box 878, Ben Franklin Station
Washington, DC 20044

[free9man]

I highly doubt you are doing well. I have seen no evidence of it. That letter has no bearing on the case you are discussing in this thread. From your other thread, note the bold portions:

A. Failure to Warn of Possible Deportation Claim First, with respect to Defendant’s argument that his counsel was ineffective by failing to inform him that he could be deported as the result of his conviction, the Third Circuit has not ruled on whether or not an attorney must inform his client of possible future immigration proceedings in order to comply with the Sixth Amendment. See United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (declining to decide “whether counsel's failure to advise a client about the deportation consequences of a guilty plea can constitute deficient representation absent special circumstances”). In the 2010 case of Padilla v. Kentucky, the Supreme Court ruled that defense counsel must always advise a non-citizen client of the deportation consequences of a guilty plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). However, ??????? cannot use the Padilla decision more than eight years later to challenge his 2002 conviction. This is because of another Supreme Court decision that announced that a “new rule” of constitutional criminal procedure does not apply retroactively to cases challenged on collateral review. Teague v. Lane, 489 U.S. 288, 310 (1989). Under Teague, “new constitutional rules” of criminal procedure are generally inapplicable to cases that have already become final. Id. at 311.Moreover, a rule is “new” if it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Graham v. Collins, 506 U.S. 461, 467 (1993); see Teague, 489 U.S. at 310. Neither the Third Circuit nor the Supreme Court have ever ruled on whether or not an attorney must make a client aware of possible future immigration proceedings in order to comply with the Sixth Amendment prior to the Padilla case. Thus, the 2010 Padilla decision requiring counsel to advise a non-citizen client of deportation consequences is a new constitutional rule and should not be applied retroactively to Plaintiff’s 2002 plea of guilty and sentence.

So you have been advised by another court that it cannot be applied retroactively. You can expect this court to do the same.

And my answer to your question that began this thread remains the same. The State has no liability in this instance that can be readily identified and, even if it did based on some fact that you will disclose later, you would be hard pressed to successfully litigate it pro se.

[justice4mgh]

I highly doubt you are doing well. I have seen no evidence of it. That letter has no bearing on the case you are discussing in this thread. From your other thread, note the bold portions:

A. Failure to Warn of Possible Deportation Claim First, with respect to Defendant’s argument that his counsel was ineffective by failing to inform him that he could be deported as the result of his conviction, the Third Circuit has not ruled on whether or not an attorney must inform his client of possible future immigration proceedings in order to comply with the Sixth Amendment. See United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (declining to decide “whether counsel's failure to advise a client about the deportation consequences of a guilty plea can constitute deficient representation absent special circumstances”). In the 2010 case of Padilla v. Kentucky, the Supreme Court ruled that defense counsel must always advise a non-citizen client of the deportation consequences of a guilty plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). However, ??????? cannot use the Padilla decision more than eight years later to challenge his 2002 conviction. This is because of another Supreme Court decision that announced that a “new rule” of constitutional criminal procedure does not apply retroactively to cases challenged on collateral review. Teague v. Lane, 489 U.S. 288, 310 (1989). Under Teague, “new constitutional rules” of criminal procedure are generally inapplicable to cases that have already become final. Id. at 311.Moreover, a rule is “new” if it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Graham v. Collins, 506 U.S. 461, 467 (1993); see Teague, 489 U.S. at 310. Neither the Third Circuit nor the Supreme Court have ever ruled on whether or not an attorney must make a client aware of possible future immigration proceedings in order to comply with the Sixth Amendment prior to the Padilla case. Thus, the 2010 Padilla decision requiring counsel to advise a non-citizen client of deportation consequences is a new constitutional rule and should not be applied retroactively to Plaintiff’s 2002 plea of guilty and sentence.

So you have been advised by another court that it cannot be applied retroactively. You can expect this court to do the same.

And my answer to your question that began this thread remains the same. The State has no liability in this instance that can be readily identified and, even if it did based on some fact that you will disclose later, you would be hard pressed to successfully litigate it pro se.

Just using my PR skills, nothing more. By the way I prevailed pro-se on my first lawsuit, and I am ready to file my second. There certainly would be no harm in trying don't you think?. Would I be hard pressed? I don't think so, the facts speak for themselves. After 6.5 years of litigation I prevailed in my 1st 1983 civil rights complaint, and this was done from this side of the pond. I bet you have never seen or heard of anything like it huh? Do you want more clarification/evidence to the same? I am more than happy to give you the case No's. Saying that, I believe I am to much for you to deal with, and I suggest you stick with your questions and answers on traffic tickets, I am way upon your league. I was just making sure this is another site with wannabe lawyers who talk out there ? P.s Your highlighted excerpts from the Order do not say Padilla is not Retroactive. What it dose say, is no Circuit Court has ruled on the Application of Padilla YET YET YET.

[free9man]

Go ahead and post those case numbers. I'll be genuinely surprised and will publicly congratulate you if you did, in fact, win on the merits of your case and not because the agency settled to make it go away.

Just using my PR skills, nothing more. By the way I prevailed pro-se on my first lawsuit, and I am ready to file my second. There certainly would be no harm in trying don't you think?. Would I be hard pressed? I don't think so, the facts speak for themselves. After 6.5 years of litigation I prevailed in my 1st 1983 civil rights complaint, and this was done from this side of the pond. I bet you have never seen or heard of anything like it huh? Do you want more clarification/evidence to the same? I am more than happy to give you the case No's. Saying that, I believe I am to much for you to deal with, and I suggest you stick with your questions and answers on traffic tickets, I am way upon your league. I was just making sure this is another site with wannabe lawyers who talk out there ? P.s Your highlighted excerpts from the Order do not say Padilla is not Retroactive. What it dose say, is no Circuit Court has ruled on the Application of Padilla YET YET YET.

Are you having trouble with reading comprehension?

Thus, the 2010 Padilla decision requiring counsel to advise a non-citizen client of deportation consequences is a new constitutional rule and should not be applied retroactively to Plaintiff’s 2002 plea of guilty and sentence.

However, ??????? cannot use the Padilla decision more than eight years later to challenge his 2002 conviction. This is because of another Supreme Court decision that announced that a “new rule” of constitutional criminal procedure does not apply retroactively

That is a decision from the 3rd Circuit Court of Appeals so YES, a Circuit Court has ruled on it.

[jk]

Go ahead and post those case numbers. I'll be genuinely surprised and will publicly congratulate you if you did, in fact, win on the merits of your case and not because the agency settled to make it go away.



Are you having trouble with reading comprehension?

Thus, the 2010 Padilla decision requiring counsel to advise a non-citizen client of deportation consequences is a new constitutional rule and should not be applied retroactively to Plaintiff’s 2002 plea of guilty and sentence.

However, ??????? cannot use the Padilla decision more than eight years later to challenge his 2002 conviction. This is because of another Supreme Court decision that announced that a “new rule” of constitutional criminal procedure does not apply retroactively

That is a decision from the 3rd Circuit Court of Appeals so YES, a Circuit Court has ruled on it.

and of course he fails to provide case identification so what he claims can be verified.

OP is obviously delusional and believes he is actually winning somewhere. Nothing he has provided to date proves any success in any court action.

and his ban from entry to the US still stands so apparently he isn't winning where it is important anyway.


hey mark, what did you win in your 1983 case?

justicef4mgh:

Justice delayed is justice denied

. I have one that I believe is more fitting. It is a quote from a movie.

stupid is as stupid does

[justice4mgh]

This was the Decision/opinion of the Federal District Court Judge hearing my motion/petition...The 3rd Circuit has never ruled on the Application of Padilla..So you should read again. As far as my Civil rights "Win" and thinking more clearly, by giving you that Information could lead me to future problems and reveal my Identity as well..Let me assure you I prevailed on the merits after 4 days of trial. The government appealed to the 9th circuit (pro-immigrant) and also lost there as well.

[jk]

reveal your identity?


Mark Hough

http://law.justia.com/cases/federal/...83/427/586443/

and I see there were convictions prior to the 2 felonies that got you booted:

Here, in addition to his convictions for possession of stolen property, Hough has previously been convicted for burglary, grand larceny, conspiracy to commit burglary, and driving without a license.

[flyingron]

http://mark-gary-hough-v-the-state-o....blogspot.com/

Just one of several blogs he started on the subject. Odd behavior for someone trying to keep his "identity" secret.

Some other info:

http://ftp.resource.org/courts.gov/c....95-70248.html

Here, in addition to his convictions for possession of stolen property, Hough has previously been convicted for burglary, grand larceny, conspiracy to commit burglary, and driving without a license.