Aso Pola v. United States, 778 F.3d 525

Pola was indicted January 6, 2009 for possession with intent to distribute oxycodone under 21 U.S.C. § 841(a)(1),(b)(1)(C).
He, a Canadian citizen, was a lawful permanent resident in Louisville, Kentucky at indictment.
He entered an Alford plea September 21, 2009 and was sentenced February 16, 2010 to 46 months’ imprisonment and three years’ supervised release.
Pola filed a pro se notice of appeal April 19, 2010; the appeal was dismissed as untimely.
On August 5, 2011 Pola filed a § 2255 motion alleging ineffective assistance of counsel for failing to file a notice of appeal.
A magistrate ordered an evidentiary hearing, but Pola was removed to Canada by ICE on September 19, 2012; hearing could not proceed as planned.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review after mootness argument	Pola contends injury in fact persists due to collateral consequences	Government argues no ongoing injury after removal	Jurisdiction exists; collateral consequences keep injury in fact alive
Whether Pola is entitled to an evidentiary hearing on ineffective assistance claim	Affidavits show material factual dispute about request to appeal	Record shows no clear request and credibility issues	Yes, Pola entitled to an evidentiary hearing to develop Flores-Ortega claim
Whether district court erred in relying on Partin affidavit to deny hearing	Credibility and factual disputes preclude summary ruling	Partin affidavit credible; Pola’s affidavit self-serving	District court erred; factual disputes require hearing
What effect would an evidentiary hearing have on potential vacatur and admissibility	Successful hearing could lead to vacatur and new direct appeal	Vacatur may not occur if appeal rights not supported	Hearing warranted to determine potential vacatur and appellate rights

Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (whether counsel must file a notice of appeal after client instruction or demonstration of interest)
Spencer v. Kemna, 523 U.S. 1 (U.S. 1998) (standing and injury-in-fact in habeas mootness analysis)
Carafas v. LaVallee, 391 U.S. 234 (U.S. 1968) (collateral consequences sustain habeas challenges after sentence served)
Fiswick v. United States, 329 U.S. 211 (U.S. 1946) (recognizes deportation consequences as collateral consequences of conviction)
Campbell v. United States, 686 F.3d 353 (6th Cir. 2012) (vacatur/remand when ineffective assistance potentially cures conviction defects)
Barakat v. Holder, 621 F.3d 398 (6th Cir. 2010) (evidence of a recorded conviction may be rebutted by vacatur order for immigration purposes)