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September 13, 2010

Eleventh Circuit extends(?!) Padilla to misadvice about potential civil commitment of sex offender

I happen to be traveling back today from Florida where I had the honor and pleasure to speak to a group of Florida state appellate judges about the work and possible impact of the Supreme Court in recent cases such as Graham v. Florida and Padilla v. Kentucky.  In the course of that discussion, I asserted that the Sixth Amendment ruling in Padilla might readily get extended to cases involving the potential collateral consequences of pleading guilty to a sex offense.  And, perhaps as I was speaking, the Eleventh Circuit demonstrated my wisdom by handing down a notable little per curiam ruling in Bauder v. Department of Corrections State of Florida, No. 10-10657 (11th Cir. Sept. 13, 2010) (available here). Here are key parts of the unanimous panel's work in Bauder:

The State of Florida appeals the district court’s grant of Gary William Bauder’s petition for habeas corpus under § 2254, in which the district court ruled that Bauder’s criminal defense attorney was ineffective by misadvising Bauder regarding the possibility of being civilly committed as a result of pleading to a charge of aggravated stalking of a minor....

The State raises two arguments on appeal. First, the State argues that the district court clearly erred in finding that Bauder’s counsel misadvised Bauder on the collateral consequence of civil commitment stemming from his plea. Based on counsel’s testimony described above, we cannot say that the district court’s factual finding that counsel misadvised Bauder is clearly erroneous.

Second, the State argues that the district court erred in ruling that counsel’s performance was deficient because the issue of whether Bauder would be subject to civil commitment was being litigated at the time of Bauder’s plea.  In support, the State cites a number of cases holding that attorneys cannot be found to have deficient performance when they fail to anticipate changes in law. While it is true that attorneys are not expected to anticipate changes in the law, this case does not involve a change in the law.  Fla. Stat. § 394.910, et seq., was passed in 1999, years before Bauder’s plea.  Even if one could argue that the law was unclear, the Supreme Court has noted that when the law is unclear a criminal defense attorney must advise his client that the “pending criminal charges may carry a risk of adverse [collateral] consequences.” Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).

Counsel’s deficient performance was not his inability to anticipate a ruling on the interpretation of the Florida civil commitment statute. Rather, his deficient performance was his affirmative representation that Bauder would not be exposing himself to further detention past his sentence were Bauder to plead to the charge of aggravated stalking.  Here, counsel did not tell Bauder that there was a possible risk of civil commitment, or that the law was unclear as to whether it could apply to Bauder, or that he simply did not know.  Rather, counsel told Bauder that pleading to the criminal charge would not subject Bauder to civil commitment, and this constituted affirmative misadvice.  For these reasons, the district court’s grant of Bauder’s petition for habeas corpus is AFFIRMED.

September 13, 2010 at 05:29 PM | Permalink


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intresting guess this means the 100's of thousands of those ilegally placed on the registry from BEFORE IT'S CREATION can now SUE their lawyers for failure to tell them the future! LOL

and if they really really wanted to have fun and cause the system to blow up...demand every one of their plea bargains to be tossed and trial's to occur....wouldnt that be fun.

Posted by: rodsmith | Sep 13, 2010 5:40:43 PM

The composition of the panel makes me a little skeptical that this result would survive any potential EB petition.

Posted by: Jay | Sep 14, 2010 7:08:55 AM

Finally! This is a good decision and I hope it survives the rest of the 11th Cir.

Posted by: Ala JD | Sep 14, 2010 11:42:30 AM

It is odd, as rodsmith notes, that a person sentenced after the imposition of a new collateral consequence (registration, notification, residency restrictions) likely will be in a better position to obtain relief than a person sentenced *before* the imposition of the new law, but nevertheless subject to its terms.

Posted by: Anon | Sep 15, 2010 2:50:42 PM

Not a registry issue.

I'm not sure what the remedy is here. How do you vacate a conviction and start again for someone that's already served the sentence? Involuntary civil commitment doesn't necessarily hinge on a conviction. States can do that without any conviction in some circumstances, which varies from state to state.


Posted by: Bill B. | Sep 15, 2010 5:35:41 PM



" How do you vacate a conviction and start again for someone that's already served the sentence?"

Posted by: rodsmith | Sep 16, 2010 1:17:21 AM

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