Zemene v. Dir., Dep't of Corr. ( 2015 )

Present: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan,
and Powell, JJ., and Koontz, S.J.
MICHAEL BERHANE ZEMENE
OPINION BY
v. Record No. 140719 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
February 26, 2015
HAROLD CLARKE, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Bruce D. White, Judge
In this appeal, we consider whether the Circuit Court of
Fairfax County erred in dismissing Michael Berhane Zemene's
petition for writ of habeas corpus. The court dismissed
Zemene's petition on the ground that he failed to establish
actual prejudice resulting from his counsel's failure to
advise him of the collateral consequences upon his immigration
status of accepting a plea agreement. See Padilla v.
Kentucky, 559 U.S. 356, 367 (2010).
STANDARD OF REVIEW
Because entitlement to habeas relief is a mixed question
of law and fact, the habeas court's findings and conclusions
are not binding upon this Court, but are subject to review to
determine whether the court correctly applied the law to the
facts. Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d 368, 369
(1997). Where, as in this case, the habeas court dismissed
the petition based upon a review of the pleadings without an
evidentiary hearing, we review the decision to dismiss the
petition de novo. See Dominguez v. Pruett, 287 Va. 434, 440,
756 S.E.2d 911, 914 (2014). "It is also well settled that
where, as here, the well pleaded allegations of the petition
are not denied they must be accepted as true." Morris v.
Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961)(per
curiam).
BACKGROUND
Zemene, a native of Ethiopia, lawfully immigrated to the
United States on June 29, 2000 at the age of nine. Zemene's
immigration status as a "derivative asylee" was based upon his
father's membership in the All Amhara People's Organization,
an opposition political group subject to violent repression by
the government of Ethiopia. Zemene's immigration status
changed to "lawful permanent resident" on October 25, 2005. 1
On September 3, 2012, Fairfax County police responded to
a dispatch advising that a security officer at a grocery store
was detaining Zemene as a suspect for shoplifting. Based upon
a statement taken from the security officer that Zemene was
apprehended attempting to shoplift beer valued at $33, police
1
A lawful permanent resident is an immigrant who has "the
status of having been lawfully accorded the privilege of
residing permanently in the United States," but has not yet
become a naturalized citizen. 8 U.S.C. § 1101(a)(20). The
documentation provided to the immigrant showing his status as
a lawful permanent resident is commonly known as a "green
card." See, e.g., United States v. Guijon-Ortiz, 660 F.3d
757, 759 (4th Cir. 2011).
2
arrested Zemene, taking him before a magistrate who issued a
warrant of arrest for petit larceny in violation of Code §
18.2-96.
The original return date on the warrant charging Zemene
with petit larceny was October 10, 2012. For reasons not
fully explained in the record, the case was continued to
December 5, 2012, and then again at the request of the
arresting officer to December 19, 2012. Zemene failed to
appear on that date, and a bench warrant for his arrest was
issued. Zemene was arrested on the bench warrant on January
8, 2013.
On January 15, 2013, attorney Laurence Tracy was
appointed by the Fairfax County General District Court to
represent Zemene on the petit larceny and failure to appear
charges. During their initial interview, Zemene informed
Tracy that "I was not a U.S. Citizen, but that I did have a
green card." The entire interview took less than 30 minutes.
Zemene unsuccessfully made several attempts to contact Tracy
during the next month by phone.
Ultimately, Zemene's trial in the general district court
was set for February 19, 2013. On the morning of Zemene's
trial, Tracy advised Zemene that the Commonwealth had
"dropped" the failure to appear charge. Tracy further
informed Zemene that in exchange for a guilty plea on the
3
petit larceny charge, the Commonwealth had indicated that
Zemene would receive a 12 month suspended sentence, which
would permit Zemene to be released immediately so that he
would not be incarcerated on his birthday, which was the next
day. Tracy advised Zemene that "this was the best deal that
he could get for me." Zemene "wanted to consult more with Mr.
Tracy to see if this truly was a good deal; however, I felt
very rushed and signed the plea agreement." At no time did
Tracy advise Zemene of the collateral consequences of the plea
and sentence upon Zemene's immigration status. The general
district court accepted Zemene's plea of guilty, sentencing
him in accord with the agreement to 12 months incarceration
with all time suspended. 2
On June 27, 2013, Zemene received a notice to appear from
the Department of Homeland Security's Immigration and Customs
Enforcement division ("ICE"). The notice informed Zemene that
he was subject to removal from the United States as a result
of his conviction under "a law relating to a theft offense
. . . for which a term of imprisonment [of] at least 1 year
2
The records of the general district court reflect that
three other misdemeanor charges against Zemene, including the
charge for failing to appear on December 19, 2012, were
dismissed by nolle prosequi during the same proceeding.
4
was imposed." 3 See 8 U.S.C. § 1227(a)(2)(A)(iii). Zemene was
taken into custody and held at the federal Farmville Detention
Center.
On November 27, 2013, Zemene filed a petition for writ of
habeas corpus in the Circuit Court of Fairfax County against
Harold Clarke, the Director of the Virginia Department of
Corrections (hereinafter, "the Commonwealth"). Code
§ 8.01-654. 4 Zemene alleged that Tracy had rendered
ineffective assistance of counsel because Tracy lacked a
proper understanding of the collateral consequences upon
Zemene's immigration status that would result from the
conviction for petit larceny and a sentence of twelve months
when Tracy negotiated the plea agreement with the
Commonwealth, and also by failing to inform Zemene of the
negative impact of the plea agreement on his immigration
status.
3
We are cognizant of the recent decision in Omargharib v.
Holder, ___ F.3d___, 2014 U.S. App. LEXIS 24289, at *2 (4th
Cir. Sept. 14, 2014) which concludes that Virginia's grand
larceny statute, Code § 18.2-95, does not qualify as a
removable offense under 8 U.S.C. § 1101(a)(43)(G).
Nonetheless, that case does not alter our analysis of the
present case because Code § 18.2-96 is not "divisible," and
Zemene received a one year sentence.
4
Although he was then detained by federal authority,
Zemene asserted the jurisdiction of the state court under Code
§ 8.01-654(B)(3), as he was still subject to the terms of his
suspended sentence.
5
Zemene alleged that he had been prejudiced by Tracy's
ineffective assistance of counsel because had Tracy been armed
with a proper understanding of the immigration consequences,
he would have likely been able to negotiate a plea agreement
which avoided the risk of removal. Zemene further alleged
that he had been prejudiced by the failure of Tracy to advise
him of the negative impact of the plea agreement on Zemene's
immigration status, and that, if he had been made aware that
accepting the plea agreement would lead to his being subject
to removal, "he would have gone to trial if he had not been
offered another deal." The petition was supported by
affidavits from Zemene and Tracy. On these grounds, Zemene
requested that the circuit court vacate his conviction for
petit larceny and grant him a new trial.
On December 5, 2013, the circuit court entered an order
directing the Commonwealth to file a response to show cause
why the writ should not issue. The order further provided
that Zemene was required to inform the court of any change in
his status with regard to the request for habeas relief.
On January 13, 2014, before the Commonwealth filed its
response, a federal immigration court entered an order
stripping Zemene of his lawful permanent resident status and
ordering his removal from the United States. In that same
order, the court exercised its discretion to withhold
6
proceeding with the removal on the ground that "it is more
likely than not that [Zemene] would be persecuted on account
of race, religion, nationality, membership in a particular
social group, or political opinion upon removal to" Ethiopia.
See 8 U.S.C. § 1231(b)(2).
On January 16, 2014, Zemene filed a revised petition for
writ of habeas corpus in the circuit court including details
of the actions taken by the immigration court. Zemene
maintained that, despite the decision to withhold further
proceedings on his removal, he had suffered actual prejudice
as the result of Tracy's ineffective assistance of counsel
because the loss of his green card meant that he was no longer
able to seek employment and also because the order of the
immigration court imposed certain travel restrictions on him.
Moreover, because the withholding order could be lifted at any
time, Zemene remained subject to removal as a result of the
February 19, 2013 conviction for petit larceny.
On January 22, 2014, the Commonwealth filed a motion to
dismiss Zemene's petition for writ of habeas corpus. Without
expressly conceding that Tracy's representation of Zemene had
not met an objective standard of reasonableness for effective
representation of a criminal defendant, the Commonwealth
asserted that Padilla "addressed only the performance part of
the two-part Strickland[v. Washington, 466 U.S. 668 (1984)]
7
test" with respect to the failure to advise a client of the
collateral immigration consequences that could result from a
conviction. The Commonwealth maintained that the mere fact
that the client was unaware of these consequences on his
immigration status was not sufficient to prove that he had
been prejudiced by counsel's ineffective representation.
Rather, to establish that he had been prejudiced by
Tracy's failure to advise him of the immigration consequences
of accepting the plea, the Commonwealth, quoting Padilla, 559
U.S. at 372, maintained that Zemene was also required to
"convince the court that a decision to reject the plea bargain
would have been rational under the circumstances." The
Commonwealth maintained that Zemene had failed to allege facts
sufficient to establish prejudice under this standard because
his "self-serving statement [is] unaccompanied by any claim of
innocence or articulation of any plausible defense he could
have raised had he gone to trial." Moreover, the Commonwealth
asserted that in accepting the plea Zemene's "focus was on
being released by his birthday; his concern was not
[removal]."
The Commonwealth further asserted that Zemene "offered no
evidence to show that had he gone to trial, he would have been
found not guilty of the larceny or that Commonwealth's
Attorney Robert McClain would have asked for anything less
8
than a 12 month sentence on the larceny offense." Continuing,
the Commonwealth also asserted that Zemene had not shown that
the general district court "would have been willing to impose
a sentence of less than 12 months had [Zemene] gone to trial."
Thus, the Commonwealth contended that Zemene had "failed to
show a substantial likelihood of a different result had he
gone to trial."
Responding to the Commonwealth's motion to dismiss his
petition for writ of habeas corpus, Zemene contended that the
Commonwealth's position failed to address the question of
prejudice objectively. Thus, quoting United States v.
Akinsade, 686 F.3d 248, 255 (4th Cir. 2012)(quoting Ostrander
v. Green, 46 F.3d 347, 356 (4th Cir. 1995)), Zemene maintained
that "[e]ven when 'the prosecution's evidence "proved to be
more than enough" for a guilty verdict,' prejudice may still
be present." Given that he was unaware of the immigration
consequences of accepting the plea agreement at the time Tracy
advised him to do so, Zemene maintained that he need only show
that it was objectively reasonable that a properly advised
defendant in his circumstances would have sought a better plea
agreement or chosen to go to trial and risk incarceration in
order not to lose his status as a lawful resident and be
returned to a country where he faced certain reprisal and
possible death at the hands of the government. These
9
consequences pale in comparison to his alleged desire to be
released from jail in order to celebrate his birthday and have
another minor charge dismissed.
Zemene supported his opposition to the motion to dismiss
with an affidavit further detailing his life history, his
strong ties to his family and community in the United States,
and the likely consequences of his being subject to reprisals
if forced to return to Ethiopia. He also asked the circuit
court to take notice of Commonwealth v. Mohamed, 71 Va. Cir.
383 (2006), an opinion of the Circuit Court of Arlington
County showing that the court under a plea agreement had
reduced a two year sentence for grand larceny to less than one
year upon a showing that the defendant had not been advised by
his attorney of the negative consequences of the plea
agreement on the defendant's immigration status.
The circuit court entered a final order dated February 6,
2014 sustaining the Commonwealth's motion to dismiss the
petition for writ of habeas corpus. In doing so, the court
elected to address only the issue of prejudice, see, e.g.,
Jerman v. Director, Dept. of Corrections, 267 Va. 432, 438,
593 S.E.2d 255, 258 (2004), in order to determine whether
Zemene's petition had sufficiently alleged that he was
entitled to habeas relief.
10
The court, citing Padilla, acknowledged that whether
prejudice resulted from Tracy's failure to advise Zemene of
the negative consequences of accepting the plea agreement
turned on whether "a decision to reject the plea bargain would
have been rational under the circumstances" when objectively
viewed. Nonetheless, departing from this standard the circuit
court, following the argument of the Commonwealth, began its
analysis of that question by observing that Zemene made no
"claim of actual innocence or articulation of any plausible
defense" and "show[ed] no concern for [removal]" at the time
he accepted the plea agreement. Stating its belief that "it
is highly likely [Zemene] would have been found guilty and it
[is] highly unlikely [Zemene] could demonstrate leniency in
sentencing," the court concluded that Zemene had failed to
establish that he suffered any prejudice as a result of
Tracy's failure to make Zemene aware of the negative
consequences on his immigration status of accepting the plea
agreement. In dismissing the petition, the court did not
address Zemene's further claim that he had been prejudiced by
Tracy's failure to address the immigration issue in
negotiating the plea agreement with the Commonwealth.
DISCUSSION
We awarded Zemene an appeal from the judgment of the
circuit court on the following assignment of error:
11
The circuit court erred by utilizing an
inappropriate standard to determine whether or not
the prejudice prong under Strickland v. Washington,
466 U.S. 668 (1984) was met in the context of a plea
agreement.
Before addressing the merits of Zemene's assignment of
error, we begin by briefly addressing two procedural issues
raised by the Commonwealth. First, the Commonwealth contends
that Zemene's assignment of error is deficient because it does
not identify a specific ruling of the circuit court that, if
reversed, would entitle Zemene to the relief he requests of a
remand to the circuit court for further proceedings including
an evidentiary hearing. We disagree.
As we have recently explained, "it is the duty of an
appellant's counsel to lay his finger on the error in his
assignment of error, and not to invite an appellate court to
delve into the record and winnow the chaff from the wheat."
Findlay v. Commonwealth, 287 Va. 111, 115-16, 752 S.E.2d 868,
871 (2014)(internal quotation marks, alteration, and citations
omitted). Zemene's assignment of error "lays a finger"
precisely on the alleged error of the circuit court by stating
that the court applied the wrong standard in analyzing the
prejudice prong of the Strickland test.
Next, the Commonwealth contends that because the
immigration court has withdrawn its order of removal against
Zemene, "his current claim is too speculative to conclude he
12
suffered prejudice under Strickland." Again, we disagree.
Zemene has already lost a significant interest because his
status as a lawful permanent resident has been revoked by ICE.
Moreover, the withdrawal of the order of removal does not
eliminate the possibility of Zemene's eventual removal, but
merely leaves the issue to the continuing discretion of the
immigration court. There is nothing speculative about the
actual and potential loss of civil liberties that Zemene faces
as a result of his conviction and sentence for petit larceny.
We now turn to the merits of Zemene's appeal. In
Strickland, the United States Supreme Court established a two-
pronged test to assess whether an attorney's representation
was ineffective. 466 U.S. at 687. To prevail on an
ineffective assistance of counsel claim, the petition must
satisfy both the "performance" prong and the "prejudice" prong
of the Strickland test. Id. To satisfy the first prong, "the
defendant must show that counsel's representation fell below
an objective standard of reasonableness." Id. at 688.
As indicated above, the Commonwealth did not directly
contest that Tracy's performance fell below an objective
standard of reasonableness, and the circuit court elected not
to address the issue at all. Nonetheless, we will address
this issue in order to determine whether the dismissal of
Zemene's petition was error.
13
It is abundantly clear from Tracy's own affidavit that,
despite being made aware that Zemene was not a citizen of the
United States in their initial meeting, Tracy undertook no
effort to learn the precise nature of Zemene's immigration
status. Nor did Tracy determine if there were potential
negative consequences to Zemene's immigration status arising
from a conviction for petit larceny and a sentence of twelve
months, and he did not broach this subject with the
Commonwealth during plea negotiations. Finally, Tracy did not
discuss with Zemene the likelihood that accepting the plea
agreement would lead to Zemene's loss of his lawful permanent
resident status and subject him to removal proceedings.
Accordingly, we hold that the allegations of the petition for
writ of habeas corpus were sufficient to satisfy the
"performance" prong of Strickland.
The final and dispositive issue in this appeal is whether
the circuit court erred by applying an improper standard in
reaching the conclusion that the allegations of Zemene's
petition for writ of habeas corpus failed adequately to allege
facts in support of the "prejudice" prong of the Strickland
test. Zemene contends that the circuit court erred by
focusing its analysis on whether the outcome of the
proceedings in the general district court would have resulted
in his acquittal or in his receiving a sentence which would
14
not have triggered the ICE removal proceeding. He contends
that in doing so, the court failed to apply the standard
applicable to a petitioner seeking habeas relief in a Padilla
immigration context, which when considered objectively shows
"that a decision to reject the plea bargain would have been
rational under the circumstances." Padilla, 559 U.S. at 372.
A finding of prejudice in this context depends on the specific
circumstances of each case. Id.; Kovacs v. United States, 744
F.3d 44, 52 (2d Cir. 2014)("[E]ach case is a context-specific
application of Strickland directed at a particular instance of
unreasonable attorney performance.").
In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the Supreme
Court of the United States required the petitioner to
establish prejudice by showing that there was a reasonable
probability he would have insisted on going to trial rather
than pleading guilty. More recently the Court has clarified
that a proven desire to go to trial is not the only context in
which prejudice may occur where a defendant has accepted a
plea agreement upon improper and inadequate advice of counsel.
Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1409-10
(2012).
Zemene contends that the circuit court erred by applying
the standard from Hill to conclude that rejection of the plea
agreement would have been rational only if Zemene was assured
15
of an acquittal or of receiving a more favorable sentence had
he gone to trial. Zemene asserts that in a Padilla context,
unlike in Hill, it was only necessary for the petitioner to
show that in rejecting the plea agreement he would have had a
reasonable probability of obtaining a result that would not
affect his immigration status, even if an active jail sentence
would have been avoided by accepting the plea agreement. Cf.
Laster v. Russell, 286 Va. 17, 24-25, 743 S.E.2d 272, 275-76
(2013).
Zemene contends that his petition and its supporting
documents establish that had Tracy been adequately prepared
with knowledge of the immigration consequences of the plea
agreement and advised him accordingly, Zemene not only would
have rejected the plea agreement, but would have had a
reasonable probability of obtaining a new plea agreement which
would have avoided those consequences. Failing that
circumstance, Zemene further contends that there was a
reasonable probability that, contrary to the statement by the
circuit court, he would have received a more lenient sentence
had he chosen to go to trial because Tracy could have
presented the immigration consequences to the general district
court as a factor to be considered in sentencing.
The Commonwealth responds that other courts that have
addressed the issue have held that a habeas petitioner "cannot
16
make that showing merely by telling [the Court] now that [he]
would have gone to trial then if [he] had gotten . . . .
accurate advice." Pilla v. United States, 668 F.3d 368, 373
(6th Cir. 2012). "All courts require something more than [a]
defendant's subjective, self-serving statement that, with
competent advice, he would not have pled guilty and would have
insisted on going to trial." Bahtiraj v. State, 840 N.W.2d
605, 611 (N.D. 2013)(internal quotation marks and citation
omitted); see also Turner v. Calderon, 281 F.3d 851, 881 (9th
Cir. 2002); United States v. LaBonte, 70 F.3d 1396, 1412-13
(1st Cir. 1995), rev'd on other grounds, 520 U.S. 751 (1997).
Accordingly, the Commonwealth maintains that it was proper for
the circuit court to first look to the weight of the evidence
against Zemene. See, e.g., Premo v. Moore, 562 U.S. 115, ___,
131 S. Ct. 733, 744 (2011).
Thus, the Commonwealth contends that because Zemene
articulated no defenses to his crime and did not challenge the
sufficiency of the evidence to support his guilty plea, the
circuit court correctly relied upon the absence of possible
defenses and the strength of the Commonwealth's case in
determining whether it would have been rational for Zemene to
choose to go to trial. See United States v. Fugit, 703 F.3d
248, 260 (4th Cir. 2012). But see United States v. Orocio,
645 F.3d 630, 643 (3d Cir. 2011)(holding that the Supreme
17
Court "has never required an affirmative demonstration of
likely acquittal . . . as the sine qua non of prejudice").
Clearly, had Zemene gone to trial he would have faced
prosecution for at least one other offense and, contrary to
his apparent desire not to be incarcerated on his birthday,
potentially would have received an active jail sentence.
Accordingly, the Commonwealth contends that the court's
conclusion that Zemene would not have received a more lenient
sentence was supported by the evidence and, thus, established
that rejection of the plea agreement which avoided these
consequences would not have been rational.
For purposes of this case, in advancing a claim of
prejudice due to defense counsel's failure to advise him of
the immigration consequences when entering a plea agreement,
Zemene need not demonstrate a likelihood of acquittal at
trial. Rather, the question is "whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process." Hill, 474 U.S. at 59 (emphasis added).
As the Supreme Court observed in Padilla, an alien defendant
might rationally decide that "[p]reserving [his] right to
remain in the United States may be more important . . . than
any potential jail sentence." 559 U.S. at 368. In such
cases, the correct inquiry is whether the defendant would have
"gone to trial in the first place" because he "might
18
rationally be more concerned with removal than with a term of
imprisonment." Orocio, 645 F.3d at 643. If this is the
defendant's sentiment, "the threat of removal provides [a]
powerful incentive to go to trial" even if the evidence
against him is strong. Id. at 645.
In short, when reviewed under the proper standard for a
habeas corpus proceeding alleging a violation of the
principles recognized in Padilla, the court's consideration of
the rationality of a decision whether to accept or reject a
plea agreement must include a properly advised defendant's
desire to avoid a negative impact on his immigration status.
Here, Zemene stated in his petition that had he been properly
advised by Tracy, he would have rejected the plea agreement
and either instructed Tracy to seek a new agreement that
avoided the negative immigration consequences or, failing
that, he would have gone to trial in an effort to avoid those
consequences. Indeed, when objectively viewed, it is
difficult even to imagine that Zemene would not have done so
and especially in light of the fact that with respect to his
immigration status he faced no worse consequence by going to
trial and stood to gain a significant benefit if he obtained a
sentence of even a single day less than the maximum. The
dismissal of the other misdemeanor charges afforded him no
benefit in regard to his immigration status because
19
convictions for those offenses would not have triggered
removal proceedings under 8 U.S.C. § 1227. Accordingly, we
conclude that the petition for habeas corpus adequately
alleged that Zemene was prejudiced by Tracy's ineffective
assistance.
CONCLUSION
For these reasons, we hold that the circuit court applied
an incorrect standard for determining whether prejudice
resulted from Tracy's failure to advise Zemene of the adverse
consequences on his immigration status of accepting the plea
agreement. Accordingly, we will reverse the judgment of the
circuit court dismissing Zemene's petition for writ of habeas
corpus. The case is remanded for an evidentiary hearing
regarding the factual allegations in Zemene's petition, and
entry of an appropriate order consistent with the views
expressed in this opinion.
Reversed and remanded.
20