United States v. Elizabeth Rodriguez-Vega
2015 U.S. App. LEXIS 14291
| 9th Cir. | 2015Background
- Rodriguez‑Vega, a lawful permanent resident, pleaded guilty to misdemeanor Attempted Transportation of Illegal Aliens (8 U.S.C. § 1324) after rejecting an initial plea that stipulated removal.
- Her attorney negotiated a revised plea that included a generic written warning that pleading guilty "may" carry immigration consequences; counsel orally told her before plea there was a "potential" for removal and later (at sentencing) said there was a "high likelihood."
- Fifteen days after sentencing, DHS issued a Notice to Appear alleging her conviction qualified as an aggravated felony making her removable.
- Rodriguez‑Vega filed a 28 U.S.C. § 2255 petition claiming ineffective assistance of counsel for failing to advise that removal was virtually certain and sought an evidentiary hearing.
- The district court expanded the record (obtained counsel’s declaration) but denied relief, concluding counsel only needed to advise of a general risk of removal and that there was no prejudice.
- The Ninth Circuit reviews whether counsel performed deficiently under Strickland and Padilla and whether Rodriguez‑Vega suffered prejudice from deficient advice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel performed deficiently by failing to advise that removal was virtually certain | Counsel failed to tell Rodriguez‑Vega that conviction made removal virtually certain under controlling law | Counsel gave adequate notice by warning of a "potential" or "high likelihood" of removal; plea agreement and colloquy also warned of immigration consequences | Counsel was constitutionally ineffective: Padilla requires advising of virtual certainty when the law is clear and the statute here plainly made conviction removable |
| Whether Rodriguez‑Vega was prejudiced by counsel's deficient performance | She would have refused the plea and either gone to trial or insisted on a non‑removal plea; she focused on avoiding deportation and rejected a prior stipulated‑removal plea | Government contends no reasonable probability of a better outcome and points to plea text/colloquy and post‑plea counsel statements | Prejudice shown: reasonable probability she would have sought a different plea or gone to trial to avoid near‑certain removal; prejudice not cured by generic warnings given after or in the plea colloquy |
| Whether the district court abused discretion by not holding an evidentiary hearing on the § 2255 petition | Rodriguez‑Vega requested a hearing to resolve credibility/factual disputes | Government says expanded written record (counsel declaration and petitioner declaration) sufficed; hearing not required | No abuse of discretion: expansion of the record and briefing were adequate; decision may be resolved on the paper record |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (failure to advise of virtually certain deportation when law is clear is deficient assistance)
- Strickland v. Washington, 466 U.S. 668 (two‑part ineffective assistance test: deficient performance and prejudice)
- Bonilla v. United States, 637 F.3d 980 (9th Cir.) (defendant facing almost certain deportation is entitled to know that it is a virtual certainty)
- Hill v. Lockhart, 474 U.S. 52 (guilty‑plea ineffective assistance analysis and prejudice framework)
- Missouri v. Frye, 132 S. Ct. 1399 (effective counsel required during plea negotiations; counsel may preserve plea‑bargaining benefits)
- United States v. Kwan, 407 F.3d 1005 (9th Cir.) (prejudice shown where defendant placed particular emphasis on immigration consequences)
- United States v. Howard, 381 F.3d 873 (9th Cir.) (standards for § 2255 corrective relief when ineffective assistance leads to accepting a plea)
- United States v. Orocio, 645 F.3d 630 (3d Cir.) (noncitizen may rationally accept risk of prison to avoid long‑term banishment)