(CN) – The Supreme Court said it will settle a circuit split and decide whether an attorney’s bad advice is enough for a Tennessee restaurateur to negotiate a new plea or go to trial on a drug charge that would force him to be deported.
Jae Lee, 47, moved to the United States from South Korea in 1982, and ended up owning two restaurants in Memphis, Tenn.
He also used drugs and was charged in 2009 with possession of ecstasy with intent to distribute after a sting operation, court records show. Lee had no previous criminal convictions.
His attorney advised him to plead guilty to get a lighter sentence considering the strong evidence against him, including Lee’s own admission that he possessed the drug and gave it to friends.
However, Lee never became a naturalized American citizen even though he has lived in the United States legally for decades.
He pleaded guilty to the ecstasy charge based on his attorney’s incorrect assurance that he could not be deported for the charge. Possession of ecstasy with intent to distribute is an aggravated felony, subjecting Lee to mandatory deportation.
Lee filed a motion to vacate his conviction and sentence, claiming ineffective assistance of counsel. A federal judge denied his motion, and he appealed to the Sixth Circuit.
In June, the Cincinnati-based appeals court affirmed the denial, finding that the bad advice of Lee’s attorney did not prejudice him because it is unlikely he would have been acquitted at trial or would have been able to get a conviction for a lesser offense that didn’t require deportation.
“In reaching this conclusion, we should not be read as endorsing Lee’s impending deportation,” U.S. Circuit Judge Alice Batchelder wrote for a unanimous three-judge panel. “It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense. But our duty is neither to prosecute nor to pardon; it is simply to say ‘what the law is.’”
Lee filed a petition for a writ of certiorari to the U.S. Supreme Court in September, citing a circuit split over whether a defendant like himself can demonstrate prejudice from ineffective assistance when they are facing strong evidence of guilt.
According to the petition, the Second, Fourth, Fifth and Sixth Circuits say a defendant in Lee’s position is not entitled to relief, while the Third, Seventh, Ninth and 11th Circuits have all “reached the opposite conclusion.”
“Because the Sixth Circuit had previously placed itself on the side of the government, the panel lacked the authority ‘to change camps,’” Lee’s petition states. “Regardless of which circuit ‘camp’ is correct, certiorari is warranted. It cannot be the case that ineffective assistance of counsel in some circuits results in mandatory and permanent deportation, while the exact same conduct in other circuits results in relief and an opportunity to negotiate a new plea or go to trial.”
On Wednesday, the Supreme Court agreed to hear Lee’s case and decide “whether it is always irrational for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation,” the question posed in Lee’s petition.
Per its custom, the high court did not comment on its decision to take up the case.