Opinion
CL-2010-16601
03-17-2011
Ibrahim v. Superintendent of the Rappahannock Regional Jail
%%%Larry C. Brown, Jr. %%%Law Office of Larry Brown, Jr. Counsel for Petitioner Adhem R. Ibrahim %%%Kevin O, Barnard %%%Frith, Anderson, & Peake, P.C. Counsel for Respondent Superintendent of the Rappahannock Regional Jail
MARCUS D. WILLIAMS
JANE MAPUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRCDE
LORRAINE NORDLUND
BRETT A, KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M, LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIOGE, JR.
MICHAEL P. MCWEENY
GAYLORD L FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
LETTER OPINION
March 17, 2011
Dear Counsel:
On January 18, 2011, Respondent Superintendent of the Rappahannock Regional Jail filed its Demurrer to the Petitioner Adhem R. Ibrahim's Petition for Writ of Habeas Corpus. The Court sent a letter to counsel on January 25, 2011 regarding responsive filings to the Demurrer. After reviewing the parties' briefs, the Court is now prepared to rule.
I. Background
Mr. Ibhrahim became a lawful permanent resident of the United States or a "green card holder" in 1992. He is not a full citizen of the United States.
On January 26, 2009, Mr. Ibrahim was charged with felony possession of marijuana with intent to distribute. Mr. Ibhrahim pled guilty to the misdemeanor offense of possession with intent to distribute marijuana on January 27, 2010 in the Fairfax County General District Court. The General District Court sentenced Mr. Ibhrahim to ninety (90) days in jail but suspended the entire active jail sentence.
Although Mr. ibhrahim was convicted of a misdemeanor, a drug trafficking crime involving marijuana is considered an "aggravated felony" under the Immigration and Nationality Act and this offense made him subject to removal. See 8 U.S.C.S. § 1227(a)(2)(A)(iii) ("any alien who is convicted of an aggravated felony at any time after admission is deportable"); see also 8 U.S.C.S. § 1101(a)(43) ("[t]he term 'aggravated felony' means... illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act [21 U.S.C.S. § 802]), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)"). Mr. Ibrahim is currently being held pending removal proceedings in the Executive Office of Immigration Review.
Mr. Ibhrahim filed his Notice and Petition for Writ of Habeas Corpus in this Court on November 23, 2010. Mr. Ibhrahim argues that his trial counsel misadvised him of the immigration consequences of a guilty plea. Trial counsel candidly acknowledges this - counsel "specifically told Mr. Ibrahim that in [his] opinion, as his attorney, he would suffer no adverse consequences to his immigration status asa [sic] a result of this conviction." (Affidavit of Trial Counsel, ¶ 3, Jan. 28, 2011.) Petitioner maintains that this affirmative misadvice constituted ineffective assistance of counsel under the standard outlined in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner further argues that the ineffective assistance of his trial counsel rendered his plea unknowing and involuntary and, thereby, negated his guilty plea. See Gardner v. Warden, 222 Va. 491, 493, 281 S.E.2d 876, 877 (1981) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 171, 23 L.E.2d 274 (1969)); see also Va. Sup. Ct. R. 3A:8(b). Petitioner also notes that the case of Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010), states "that counsel must inform her client whether his plea carries a risk of deportation."
In his Demurrer, Respondent argues that the writ of habeas corpus is an extraordinary remedy which is not appropriate in this case because Padilla announced a "new rule" that should not be applied retroactively to Mr. Ibrahim's case. Teague v. Lane, 489 U.S. 288, 310 (1989).
The decisions cited above are consistent with the "prevailing professional norms" that existed at the time Mr. Ibrahim pled guilty to the underlying offense. Strickland, 466 U.S. at 669. "The American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel 'should fully advise the defendant of these consequences.'" INS v. St. Cyr, 533 U.S. 289, 323 n.48, 150 L.Ed.2d 347, 121 S.Ct. 2271 (2001) (quoting 3 ABA Standards for Criminal Justice 14-3.2, Comment 75 (2d ed. 1982)). Also, attorneys have a general duty of competence which includes being apprised of applicable law and giving advice on a myriad of potential client concerns. See Virginia Rules of Professional Conduct, Preamble [1] ("[a]s advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical imputations"); id., Rule 1:1 ("[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation"); id., Rule 2.1 ("[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.") It follows that the advice given must be reasonably correct.
In summary, while defense attorneys in the Commonwealth of Virginia were not required to affirmatively advise their clients of immigration consequences prior to the Padilla decision,
they had the duty to give correct immigration advice whenever they chose to do so. This principle predates Padilla and, therefore, the Court does not need to reach the issue of whether Padilla applies retroactively to Mr. Ibrahim's case.
Mr. Ibrahim's entitlement to habeas relief can only be conclusively determined after an evidentiary hearing. This letter opinion addresses the legal principles applicable to the first prong of Strickland, i.e., whether misadvice on immigration consequences prior to entry of a plea would meet the Strickland standard that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Whether the facts support such a finding depends on whether Mr. Ibrahim is able to establish that he did, in fact, receive erroneous advice from his trial counsel regarding the immigration consequences of his plea. While there is some indication that Respondent may be conceding this issue, see Footnote 1, supra, it is not entirely clear and Respondent is entitled to an evidentiary hearing on the matter if he wishes. Regardless of Respondent's position on the first prong of Strickland, an evidentiary hearing must still be held on the second (prejudice) prong. Mr. Ibrahim must demonstrate that, but for counsel's error, he would not have pled guilty and "would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Respondent clearly contests this issue.
The parties are directed to confer with each other and contact the Court's law clerk within ten (10) days to schedule an evidentiary hearing.
Sincerely,
Respondent also argues that affirmative misinformation regarding the immigration consequences of a guilty plea did not constitute ineffective assistance prior to Padilla.
II. Analysis
A. Legal Standards
"The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority." Va. Code Ann. § 8.01-654 (A)(1). A petitioner may challenge the lawfulness of his detention if he alleges that he received ineffective assistance of counsel. See Va. Code Ann. § 8.01-654 (B)(6). "It is well settled that a person... who seeks his release by habeas corpus on the grounds of ineffective assistance of counsel has the burden of proving the charge made by a preponderance of the evidence." Peyton v. Ellyson, 207 Va. 423, 426 (1966).
An attorney has provided ineffective assistance to bis client if (1) "counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 698. In cases where the petitioner challenges a conviction based on a guilty plea, the petitioner must establish that, but for counsel's error, he would not have pled guilty and "would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); Lewis v . Warden, 274 Va. 93, 118, 645 S.E.2d 492, 506 (2007).
B. Findings
The questions posed by this case are (i) whether misadvice regarding immigration consequences of a guilty plea constituted ineffective assistance of counsel prior to the United States Supreme Court's decision in Padilla; (ii) if misadvice did not constitute ineffective assistance prior to Padilla, whether Padilla should be applied retroactively to this case; and (iii) whether Mr. Ibhrahim is entitled to habeas relief based on the standard articulated in Strickland.
Respondent contends that giving a client misinformation about the effect of a guilty plea on the client's immigration status did not constitute ineffective assistance of counsel prior to Padilla. Based on its review of pertinent case law, the Court disagrees and finds that such misadvice constituted ineffective assistance of counsel. In Virginia, immigration consequences, including deportation, were considered "collateral consequences" of a guilty plea before Padilla. See Zigta v. Commonwealth, 38 Va. App. 149, 156, 562 S.E.2d 347, 350 (2002); cf. Padilla, 130 S.Ct. at 1482 ("[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.") Virginia defense counsel, therefore, were not required to advise clients of the immigration consequences of a guilty plea prior to the United States Supreme Court's decision in Padilla. Id. 38 Va. at 155, 562 S.E.2d at 349-50.
However, prior to Padilla, the United States Court of Appeals for the Fourth Circuit held that
...where the client asks for advice about a "collateral consequence" and relies upon it in deciding whether to plead guilty, the attorney must not grossly misinform his client about the law. Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979)... We cannot expect criminal defense lawyers to be seers, but we must demand that they at least apprise themselves of the applicable law and provide their clients with a reasonably accurate description of it.
Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. Va. 1995), overruled on other grounds by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. Va. 1996). Similarly, in United States v. Gajendragadkar, 1998 U.S.App. LEXIS 11656, *5-6 (1998) (unpublished), the United States Court of Appeals for the Fourth Circuit found that the attorney's erroneous assurance that the defendant would not be subject to deportation as a result of his plea "falls below prevailing standards of professional competence... even if the consequence might otherwise have been described as 'collateral.'" As a result, the Court of Appeals concluded- "that counsel's performance was constitutionally deficient." Id. at *6. In other words, the advice given was not "within the range of competence demanded of attorneys in criminal cases." Id. at *3 (citing Strickland, 466 U.S. at 669) (internal citations omitted).
Significantly, two pre-PadillaVirginia circuit court cases also hold that misadvice regarding immigration consequences amounts to ineffective assistance of counsel. In Commonwealth v. Tahmas, 2005 Va. Cir. LEXIS 132, *2 (Fairfax 2005), trial counsel ''affirmatively advised" the defendant that relief would be available if there were negative immigration consequences of his conviction but that deportation was not a possibility as long as he received a jail sentence of less than twelve months. The Honorable T. Terrence Ney determined that these "affirmative misstatements" distinguished this case from Zigta v. Commonwealth because the defendant in Zigta "received no advice upon which to rely when he entered his plea. Here [defendant] received and relied upon wrong advice." Id at *8. That distinction persuaded the court that counsel provided ineffective assistance to his client as the "attorney had a duty not to give incorrect advice." Id at * 12.
Similarly in the case of Commonwealth v. Mohamed, 71 Va. Cir. 383 (Arlington 2006), trial counsel told his client that relief would be available from any adverse immigration consequences of his plea due to the fact that he had been in the United States for more than ten years and because grand larceny did not qualify as an "aggravated felony" under the Immigration and Nationality Act. The Honorable William T. Newman, Jr. found that the Sixth Amendment rights of the defendant had been violated when he received that advice because he pled guilty without knowing that this "single criminal conviction could result in deportation without the possibility of discretionary relief." Id. at 385.
The Court is not aware of any Virginia Supreme Court or Court of Appeals precedent on the issue of whether such misstatements by an attorney amount to ineffective assistance of counsel. However, other jurisdictions that have considered the issue have held that "an attorney's performance is deficient if he incorrectly informs his client that deportation is not a
consequence of a guilty plea." Tahmas, 2005 Va. Cir. LEXIS at *10-11; see e.g., U.S. v. Couto, 311 F.3d 179 (2nd Cir. 2002) (holding that an attorney's affirmative misrepresentations about the deportation consequences of a guilty plea rendered the defendant's plea involuntary by counsel's ineffective assistance); U.S. v. Kwan, 407 F.3d 1005, 407 F.3d 1005 (9th Cir. 2005) (distinguishing between an attorney's failure to advise and misadvice about immigration consequences in holding that misadvising a client constitutes ineffective assistance of counsel); Utah v. Rojas-Martinez, 73 P.3d 967 (Utah 2003) (holding that counsel's affirmative misrepresentations about immigration consequences present an objectively unreasonable deficiency); US. v. Shaw, 2004 U.S. Dist. LEXIS 15942 (2004) (holding that attorney's statement that there would be no immigration consequences of a guilty plea was "flatly wrong" and objectively unreasonable under Strickland); State v. Paredez, 136 N.M. 533, 538 (N.M. 2004) ("[i]f a defendant's attorney informs him or her that deportation will not be a consequence of a guilty plea when the guilty plea renders deportation a possibility, then the attorney's performance would be deficient"); State v. Zarate, 264 Neb. 690, 698-699 (Neb. 2002) ("[w]e observe that the circumstances of the instant case are distinguishable from situations in which a defendant has been offered affirmative misadvice or misstatements regarding the immigration consequences of a guilty plea. Federal and state courts have recognized that counsel's affirmative misadvice or misstatements regarding deportation or other collateral consequences of a plea may, under certain circumstances, constitute ineffective assistance of counsel.") The weight of authority favors the conclusion that misadvice constitutes ineffective assistance.
Randy N Bellows
Circuit Court Judge
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