Jose I. Zalmeron v. United States, 125 A.3d 341

Background

In 1994 Zalmerón pleaded guilty to attempted possession with intent to distribute; sentence was suspended and probation later revoked; he was deported and later again detained in removal proceedings.
D.C. Code § 16-713(a) requires trial judges to advise noncitizen defendants on record that convictions may cause deportation, exclusion, or denial of naturalization; §16-713(b) permits plea withdrawal and vacatur if the court failed to advise and adverse immigration consequences occurred; it creates a presumption of nonadvisement absent a record of the advisement.
In 2014 Zalmerón moved to vacate his conviction under §16-713(b), filing a sworn affidavit that he is not a U.S. citizen, suffered immigration consequences, and was not so warned; the plea transcript was unavailable.
The trial court denied Zalmerón’s motion based solely on the trial judge’s recollection that he gave the advisement; Zalmerón sought disclosure of chambers materials and requested that, if the judge would testify, another judge hear the contested facts; the government initially did not respond but later conceded the presumption was triggered.
The Court of Appeals vacated the denial and remanded for an evidentiary hearing, holding that the government may be allowed to attempt to rebut the statutory presumption on remand, that unexplained delay is a credibility factor (not an absolute bar), and that if the trial judge’s recollection is used as evidence he must be treated as a witness and the factfinder must be a different judge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Zalmerón is entitled to reversal and automatic withdrawal of plea because the judge's memory cannot rebut §16-713(b) presumption	Zalmerón: his sworn affidavit triggered the presumption; judge's decades-old memory cannot rebut presumption; government waived right to rebut by not presenting evidence	Government: may be permitted a remand to attempt to rebut presumption; government did not waive rebuttal given procedural posture	Court: Reversal not warranted; vacated denial and remanded so government may try to rebut the presumption at an evidentiary hearing
Whether the government is barred from presenting evidence on remand for failing to respond earlier	Zalmerón: government’s earlier silence forfeited right to develop evidence	Government: absence of early response not waiver given court practice and murky proceedings	Court: No waiver; remand permitted for development of record
Whether unexplained delay in filing §16-713(b) motion bars relief	Zalmerón: statute contains no time limit; delay cannot bar relief	Government: unexplained delay can preclude relief or be a factor against it	Court: Delay is not an absolute bar; unexplained delay is relevant to credibility and may be considered at hearing
Whether the trial judge may both testify about his recollection and serve as factfinder	Zalmerón: if judge’s recollection is used, he must be a witness and not the factfinder; reassignment to an independent judge outside Superior Court may be appropriate	Government: if it relies on the plea judge’s recollection, an independent factfinder should hear the testimony; otherwise reassignment unnecessary	Court: If government relies on the trial judge’s recollection, Downey requires that another judge (not the judge-witness) resolve the contested facts; reassignment procedures left to trial court

Key Cases Cited

Valdez v. United States, 906 A.2d 284 (D.C. 2006) (holding affidavit can trigger §16-713 presumption of nonadvisement)
Downey v. United States, 91 F.2d 223 (D.C. Cir. 1937) (judge who is witness should not also serve as factfinder; hearing before another judge required)
Ramsey v. United States, 569 A.2d 142 (D.C. 1990) (delay cannot by itself bar collateral claim; delay may bear on credibility at evidentiary hearing)
United States v. Redondo-Lemos, 27 F.3d 439 (9th Cir. 1994) (a judge cannot fairly weigh his own credibility when assessing disputed recollection)