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Ineffective, But Laudable, Counsel

Everyone makes mistakes. Even criminal defense lawyers.

Luis Juarez bought a gun. When he bought the gun, he said that he was a U.S. citizen. The government thought he was lying about that.

Mr. Juarez was charged with violating 18 U.S.C. § 911, which criminalizes making a false statement about being a United States citizen.

(Does Germany have a similar statute? Did Kennedy’s “Ich bin ein Berliner” violate it? I suppose not, because being a “Berliner” – whether a resident of Berlin or a jelly donut – is probably not the same as a citizenship claim. Pity.)

A lawyer was appointed to represent him. He reviewed the evidence, and negotiated a guilty plea. Mr. Juarez took the plea and was convicted. He was sentenced to 36 months for lying about being a citizen, and 42 months for reentering the country after a prior deportation following an aggravated felony.

No appeal was taken.

498474_eraser.jpgThen, Mr. Juarez, filed a pro se petition for relief under 28 U.S.C. § 2255. A 2255 allows a person who is serving a federal sentence to challenge his conviction because it violated the constitution. We may start to see more of these as a result of the Supreme Court’s recent ineffective assistance cases.

Mr. Juarez’s 2255 alleged that his lawyer was ineffective – violating Mr. Juarez’s right to counsel – because the lawyer didn’t investigate whether Mr. Juarez is a United States citizen.

Mr. Juarez, at the time, had already been deported before. Yet, Mr. Juarez asserted that his mother became a citizen when Mr. Juarez was under the age of 18, that his father was deceased, and that he stayed lawfully in the country until his 18th birthday. If all of that is true, it looks like Mr. Juarez would be a citizen under the derivative citizenship statute, 8 U.S.C. § 1432(a), as it then existed.

A hearing was held on Mr. Juarez’s petition. His prior counsel did the honorable thing, and told the truth. He said that he simply didn’t think about derivative citizenship. If he knew of it earlier, he “would’ve made a motion to withdraw the plea.”

This is clearly the right thing for Mr. Juarez’s lawyer to do. It is remarkable, perhaps, only because it isn’t always what lawyers do.

Mark Bennett, over at Defending People, had a post about a lawyer who took a different approach – conspiring with the government to lie about a nonexistent defense strategy. It’s shameful.

The point of being a criminal defense lawyer is to try to help your clients. If a lawyer is going to save his own skin on a lie instead of tell the truth to help his client, he should just something else with his time. We all make mistakes. Clients shouldn’t suffer as a result.

Despite Mr. Juarez’s lawyer’s candor, the district court denied the 2255. The Fifth Circuit, in United States v. Juarez, reversed.

If Mr. Juarez were a citizen, it would be a complete defense to the crimes he was accused of. For that reason, and because he had a colorable claim of citizenship, the Fifth Circuit reversed and remanded.