703 F. App'x 414
6th Cir.2017Background
- Aso Pola, a Canadian citizen and U.S. lawful permanent resident, entered an Alford plea in Sept. 2009 to possession with intent to distribute oxycodone and was sentenced in Feb. 2010 to 46 months’ imprisonment.
- Pola was released in Sept. 2012 and removed to Canada; he later pursued postconviction relief and appeals, including a § 2255 proceeding that succeeded on the narrow ground that counsel failed to file a requested direct appeal, prompting entry of a new judgment so Pola could appeal.
- In this delayed direct appeal Pola asserts two ineffective-assistance-of-counsel claims tied to his plea: (1) counsel failed to advise him his plea would result in deportation (Padilla theory); and (2) counsel misadvised him about the likely length of his sentence, leading him to plead (Hill/Strickland theory).
- The plea and sentencing transcripts show the AUSA told the court that deportation proceedings would be initiated and an ICE agent was present; Pola did not object or dispute awareness of deportation at those hearings.
- An evidentiary hearing on related § 2255 issues developed testimony from Pola and his trial attorney (Partin); the record contains no contemporaneous statement that counsel affirmatively misadvised Pola about deportation, and Pola acknowledged understanding possible immigration consequences and the court’s sentencing authority.
- The district court denied relief on these ineffective-assistance claims; the Sixth Circuit affirmed, concluding the record does not satisfy Strickland’s performance or prejudice prongs for either claim.
Issues
| Issue | Pola's Argument | Government/Respondent's Argument | Held |
|---|---|---|---|
| Whether counsel failed to advise Pola that his plea would result in deportation (Padilla claim) | Partin did not advise Pola that conviction would cause automatic deportation; had he known, he would not have pled | Record shows AUSA informed court ICE would initiate deportation and Pola gave no contemporaneous denial or objection; no evidence counsel misadvised | Denied — record lacks factual support of deficient advice and fails to show prejudice under Strickland/Padilla |
| Whether counsel misled Pola about likely sentence length, causing him to plead (Hill/Strickland claim) | Partin led Pola to expect time served (≈9 months) and release; had Pola known a Guideline sentence would be imposed, he would have gone to trial | Plea colloquy warned Pola of maximum exposure, court discretion, and no binding sentence; Partin testified he conveyed belief but warned outcome could differ; Pola offered no contemporaneous evidence he would have insisted on trial | Denied — some deficient expectations existed but plea colloquy and record rebut prejudice; no reasonable probability Pola would have insisted on trial |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about deportation risk where it is clear)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland standard applies to guilty-plea challenges)
- Strickland v. Washington, 466 U.S. 668 (1984) (performance and prejudice standard for ineffective assistance)
- Lafler v. Cooper, 566 U.S. 156 (2012) (right to effective counsel extends through plea bargaining)
- Missouri v. Frye, 566 U.S. 133 (2012) (counsel’s duty includes plea-bargaining stage)
- Lee v. United States, 137 S. Ct. 1958 (2017) (assessing prejudice from counsel’s erroneous deportation advice requires case-by-case review and contemporaneous evidence)
- United States v. Timmreck, 441 U.S. 780 (1979) (finality and strong interest in upholding guilty pleas)
- Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999) (proper plea colloquy can cure misunderstandings about plea consequences)