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6 to 2 victory before the U.S. Supreme Court

Jae Lee v. United States, 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016). At issue is whether to establish the prejudice prong for ineffective assistance of counsel after a guilty plea, the petitioner must show a viable trial defense. Mr. Lee is a citizen of South Korea but resided in the U.S.A. since early childhood, and had become a successful business man in Memphis with no ties to S. Korea. Mr. Lee entered a guilty plea to possession of ecstasy for resale in federal district court. Trial counsel informed Lee the government would not seek deportation. Plea was prior to release of the Padilla decision. Trial counsel provided affirmative misadvise on deportation. Lee proceeded with a § 2255 petition to vacate the conviction and set aside the guilty plea. Federal district court and Sixth Circuit found deficient performance by counsel. Same courts denied relief holding no prejudice because Lee would have been found guilty upon a jury trial and subject to deportation. Other federal circuits have disagreed on the same issue.

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