State v. Hatem M. Shata
364 Wis. 2d 63
Wis.2015Background
- Defendant Hatem Shata, an Egyptian national living in the U.S. since ~1991, pled guilty in Wisconsin to possession with intent to deliver marijuana as party to a crime; plea included a probation recommendation from the State but court imposed one year initial confinement.
- At plea colloquy counsel told Shata there was a “potential”/“strong chance” he could be deported; plea questionnaire and court advised that a plea “may” result in deportation.
- Months after sentencing Shata received DHS correspondence and moved post‑conviction to withdraw his plea, arguing ineffective assistance under Padilla v. Kentucky because counsel failed to advise that his conviction would mandatorily result in deportation.
- The circuit court denied relief, finding counsel credible and that he warned of a strong likelihood of deportation; the court of appeals reversed in a split decision, finding counsel deficient; the State sought review.
- The Wisconsin Supreme Court reversed the court of appeals: it held counsel’s advice that there was a “strong chance” of deportation complied with Padilla because deportation was not an absolute certainty due to executive discretion (DHS prosecutorial discretion) and Wis. Stat. §971.08’s admonition supports informing of a risk, not an absolute guarantee.
Issues
| Issue | Plaintiff's Argument (Shata) | Defendant's Argument (State / Counsel) | Held |
|---|---|---|---|
| Whether counsel provided constitutionally effective advice about immigration consequences under Padilla | Counsel deficient for saying a "strong chance" rather than advising deportation would be "absolute/mandatory" | Counsel satisfied Padilla by warning Shata of a risk and even a "strong chance" of deportation | Counsel was not deficient; telling client of a strong chance complied with Padilla |
| Whether Padilla requires counsel to predict that DHS will initiate and carry out removal proceedings | Padilla (and statute) required advising that deportation would necessarily follow conviction | Padilla requires advising of risk; counsel need not predict executive enforcement choices | Padilla does not require certainty; deportation is not an absolute certainty because of executive discretion |
| Whether counsel needed to read and cite immigration statutes to avoid deficiency | Counsel should have read 8 U.S.C. §1227 and given definitive advice that conviction mandates removal | Counsel’s reasonable practice can include consulting prosecutors and warning of risk; perfect statutory research not required here | No deficiency for not having read statute where correct advice (strong risk) was given |
| Prejudice standard and remedy for post‑sentence plea withdrawal | Shata: prejudice shown because would have rejected plea to avoid mandatory deportation | State: even if deficient, Shata would not have rationally rejected plea or should get Machner hearing on prejudice | Court did not reach prejudice because it found no deficient performance; denied plea withdrawal |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform noncitizen whether plea carries a risk of deportation; when consequence is clear, duty to give correct advice is clear)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance test: deficient performance and prejudice)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (executive branch has prosecutorial discretion in immigration enforcement)
- State v. Mendez, 354 Wis. 2d 88 (2014) (Wis. Ct. App.) (held counsel deficient for repeating only generic plea warning; partially disapproved by this opinion)
- Neufville v. State, 13 A.3d 607 (R.I. 2011) (Padilla‑related authority on counsel’s obligation to warn of immigration risk)
- Bonilla v. United States, 637 F.3d 980 (9th Cir. 2011) (counsel’s failure to advise at all of immigration consequence can be deficient)