A Glimmer of Hope for Noncitizens and Their Advocates: Why Missouri v. Frye Necessitates a Reevaluation of Strickland's Prejudice Prong

Abstract

Following the Supreme Court's groundbreaking decision in Padilla v. Kentucky, many noncitizens have successfully vacated prior convictions on the grounds that they had not been accurately advised of the immigration consequences of their criminal conviction. As accurate immigration advice is now considered within the ambit of the Sixth Amendment’s right to effective assistance of counsel, the main vehicle used to vacate these constitutionally infirm convictions has been through motions for post-conviction relief. Unfortunately for many noncitizens, relief under Padilla has been limited due to unreasonably strict readings of the second prong of the Strickland test. Under Strickland, the petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Many courts, emphasizing state interests in the finality of criminal convictions, have interpreted this language to mean that the petitioner must be able to show that, absent the defective plea bargain, she would have been able to achieve a better result at trial. Many of these courts relied upon the Supreme Court’s language in Hill v. Lockhart, where the Court held that a prisoner failed to meet the prejudice prong of Strickland because he could not show a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial. This note seeks to show how the Supreme Court’s recent decision in Missouri v. Frye necessitates a reevaluation of how courts currently interpret the prejudice prong of Strickland. Section II provides an introduction to both Strickland, which established the test used when evaluating claims of ineffective assistance of counsel, and Padilla, which extended Strickland into situations where a noncitizen was not accurately advised of the potential immigration consequences of her criminal conviction. Section III then turns the focus to how courts currently evaluate the second prong of the Strickland test, with a particular focus on how narrow readings of Strickland have limited relief for noncitizens. Section IV introduces Missouri v. Frye, a recent Supreme Court decision that discussed the right to effective assistance of counsel during plea bargaining. Section V, then, describes the potentially game-changing effects that Frye could usher in if advocates are able to extend its use to situations where a defense attorney did not engage in plea bargaining with the client’s interest in avoiding any potential immigration consequences in mind.