MIGUEL MADRIGAL-ESTRELLA, Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent.
Washington County Circuit Court C160056CV; A163556
Oregon Court of Appeals
March 18, 2020
Petition for review denied August 27, 2020 (366 Or 826)
303 Or App 124, 463 P3d 23
MIGUEL MADRIGAL-ESTRELLA, Petitioner-Appellant, υ. STATE OF OREGON, Defendant-Respondent. Washington County Circuit Court C160056CV; A163556
463 P3d 23
Petitioner, a citizen of Mexico living in the United States without legal immigration status, pleaded guilty and was convicted of one count of driving under the influence of intoxicants,
Affirmed.
Linda Louise Bergman, Senior Judge.
Blake Doré argued the cause for appellant. Also on the brief was Doré Law Firm.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Bеnjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.*
* Egan, C. J., vice Hadlock, J. pro tempore.
Affirmed.
Petitioner pleaded guilty and was convicted of one count of driving under the influence of intoxicants (DUII),
STANDARD OF REVIEW
We review the denial of post-conviction relief for errors of law. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). “A post-conviction court‘s findings of historical fact are binding on this court if there is evidence in the record to support them.” Id. “If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the [trier of fact‘s] ultimate conclusion[.]” Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
FACTS
Petitioner is a citizen of Mexico who, in 2013, was living in the United States “without legal status.” In late November 2013, he backed his car into another car in a
In early January 2014, petitioner and the state entered into a plea agreement, under which petitioner agreed to plead guilty to the DUII count and the state agreed to dismiss the other count. Petitioner‘s plea agreement expressly identified immigration consequences as a “significant consequence” of pleading guilty:
“12. In addition to the sentence imposed, I understand that there are other significant consequences if I enter a ‘Guilty’ or ‘No Contest’ plea, including, but not limited to:
If I am not a United States citizen, deportation/removal, exclusion from future entry into the United States or denial of naturalization[.]”
(Underlining in original.) Immigrаtion consequences were the first of nine potential consequences listed on the pre-printed form, only three of which were marked on petitioner‘s plea petition.
Petitioner initialed each page of the plea petition and signed his full signature on the last page. Petitioner‘s court-appointed counsel also signed a “Certificate of Counsel,” attesting, among other things, that he had “personally examined” and “explained” to petitioner all of the
Petitioner‘s plea hearing wаs held on January 10, 2014. A Spanish interpreter was present to translate for petitioner. The trial court discussed terminating probation and diversion and accepting a plea on the first DUII charge. Regarding the second DUII charge, the court noted that petitioner was on an “ICE hold.” Petitioner‘s trial counsel confirmed that that was correct and said that petitioner had been held on the current charges since late November. Trial counsel said that they had been “seeking immigration attorney consultation, as well as debating trial, and now he‘s here *** to take accountability on all of it.” The court asked counsel how he thought it was “going to go,” to which counsel responded that he “obviously had never given guarantees” but that petitionеr “certainly will go to Tacoma” (where there is an ICE detention center), which is where he had gone previously, and that he would have to wait for a bond hearing, which would take about three weeks. Asked if he had any sense whether petitioner would be deported on the second DUII, counsel said that he did not have much of a sense because he did not have any “direct immigration experience,” but that his “sense from the immigration attorney is that [petitioner] has a number of ties here, so he may have an opportunity to bond out and fight this case for an extended period of time.”
The court asked petitioner if he had anything to say about the first DUII. Petitioner provided some personal background. He described phone calls from the Mexican “mafia” threatening to kidnap his family members in Mexico. He said that he used alcohol to cope with depression about the situation. Trial counsel noted at that point that “there may be some asylum issues.”3 The trial court said that it
After making some additional remarks, the trial court sentenced petitioner on the first DUII to time served, fines, fees, driver‘s license suspension, and two years of enhanced bench probation, including the “immigration package.” On the latter point, the court explained that, if petitioner “[was] not deported,” he would have to report to Washington County evaluation services within two days of leaving Tacoma, and, if he “was deported,” he could not reenter the United States illegally and would have to report to an ICE facility if he reentered.
Regarding the second DUII charge, the trial court asked petitioner if he had had sufficient time to discuss the plea agreement with his attorney, and petitioner said “yes.” Petitioner also said “yes” when asked if he was satisfied with the help and advice that he had received from counsel. The court heard and accepted the factual basis for the plea. Petitioner‘s trial counsel requested that, when the court set a payment schedule on fines and fees, it take into account that petitioner “could have potentially an extended stay in Tacoma.” The court then accepted the plea and imposed a similar sentence on the second DUII as the first DUII, including the “immigration package.” The court asked petitioner if he had “any questions about what happened to [him] this afternoon.” Petitioner responded “no” and added that he thought “everything was clear.” Petitioner thanked the court, and the hearing ended.
Two years after his conviction, petitioner filed a petition for post-conviction relief, asserting inadequate and ineffective assistance of trial counsel under
Petitioner‘s post-conviction trial was held in 2016. Neither party offered live testimony. Petitioner relied on three affidavits—two of his own and one of an immigration attorney named Carter—while the state submitted an affidavit from petitioner‘s trial counsel. We summarize the relevant portions of each of those affidavits.
Petitioner attested as follows. He met with trial counsel three times. He asked trial counsel to speak with his immigration attorney, but trial counsel declined, saying that he “had nothing to do with immigration.” Petitioner heard from his wife that his immigration attorney had tried unsuccessfully to get in touch with trial counsel several times. Petitioner did not speak with his immigration attorney while he was in jail. Trial counsel never gave petitioner any immigration-related advice. According to petitioner, on the day of his plea hearing, trial counsel arrived late at court, “had not reviewed [the] plea petition before court,” “reviewed the plea petition with [petitioner] very quickly with an interpreter,” “did not discuss all the parts of the petition,” and “did not read or discuss section 12 with [petitioner].” According to petitioner, the interpreter did not read the petition “word for word,” and petitioner does not rеad English.
Carter, who identified herself (in 2016) as petitioner‘s immigration attorney, attested as follows. Petitioner is facing deportation. He initially came to ICE‘s attention while in jail on the first DUII, and the second DUII “caused him to return to the attention of ICE.” Under “the current priorities for enforcement and detainment,” petitioner “would not be prosecuted as a deportable alien if he did not have the DUII convictions.” “Competent immigration counsel would realize that the second DUII would trigger detainment and charges,” and “[t]his information would be available by consulting with a competent immigration attorney.” In Carter‘s view, any immigration advice that trial counsel gave to petitioner was insufficient unless it accounted for “the current immigration enforcement рriorities.” “Those immigration
Petitioner‘s trial counsel attested as follows. Thе court appointed him on December 2, 2013, to represent petitioner. Trial counsel had Moore, who speaks Spanish, meet with petitioner for a preliminary interview that same day. Moore discussed with petitioner, among other things, his immigration hold. Trial counsel personally met with petitioner on December 16, with an interpreter, to discuss the case. Petitioner told him at the December 16 meeting that he had an immigration attorney named Steven Miller. That led to Moore contacting petitioner‘s wife, regarding contact with Miller. Trial counsel met again with petitioner on January 7, with an interpreter, and reviewed the plea petition with him. At that time, trial counsel understood that petitioner had been in contact with his immigration attorney, Millеr, “regarding the consequences of entering a plea.” Petitioner entered the plea three days later, on January 10, in court, with a court-certified interpreter present.
The post-conviction court denied relief, making the following findings regarding the immigration claim:
“[Petitioner] was already under ICE release at the time of his arrest. Trial [attorney] knew [petitioner] had an immigration attorney for that matter and that [petitioner‘s] wife was in contact with that lawyer. Although it is proven that trial attorney had no contact with the immigration attorney, there is an absence of proof that [petitioner] had not gotten advice from that immigration attorney. There is no affidavit addressing that issue—no affidavit from [the] immigration attorney or [petitioner‘s] wifе and [petitioner]
does not directly address it. It is not unreasonable for the trial attorney to expect [petitioner] or his wife to consult with that expert who was already aware of [petitioner‘s] status and legal problems and for the trial attorney to rely on the expertise of that expert. The plea petition addresses immigration problems, and there was a discussion on the record. The attorney says that [petitioner] has discussed ICE issues with his immigration attorney.”
Petitioner appeals from the resulting judgment. He argues that the “post-conviction court erred in holding that petitioner was adequately informed of the immigration consequences of pleading guilty when trial counsel did not inform [p]etitioner of the immigration consequences of his plea but instead assumed [that] he obtained that information elsewhere.”
ANALYSIS
A petitioner is entitled to post-conviction relief when he establishes a “substantial denial” of a state or federal constitutional right that “rendered the conviction void.”
Applying the Sixth Amendment, the Supreme Court agreed with the petitioner “that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at 360. In reaching that conclusion, the Supreme Court recognized the specialized nature of immigration law but emphasized that, in Padilla, the “terms of the relevant immigration statute [were] succinct, clear, аnd explicit in defining the removal consequences for [the petitioner‘s] conviction,” such that the petitioner‘s “counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute.” Id. at 368. “[W]hen the deportation consequence is truly clear, as it was in [Padilla], the duty to give correct advice is equally clear.” Id. at 369. By contrast, the Supreme Court explained, when “the deportation consequences of a particular plea are unclear or uncertain,” a criminal defense attorney‘s duty “is more limited.” Id. “When the law is not succinct and straightforward ***, a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id.
As described by the Oregon Supreme Court, “[a]fter Padilla, if the immigration consequences of pleading guilty to certain crimes are ‘truly clear,’ *** then the
In this case, petitioner asserts that his trial counsel was constitutionally ineffective because the second DUII conviction “has severely damaged [petitioner‘s] ability to adjust his immigration status,” such that he “is facing certain deportation,” and that those consequences “were clear and easily ascertainable.” In petitioner‘s view, to quote his
The threshold question, then, is whether the immigration consequences of petitioner‘s guilty plea to the second DUII were clear and easily ascertainable, such that the Sixth Amendment required petitioner‘s trial counsel to recognize those consequences and communicate them to petitioner, or whether they were unclear or uncertain, such that the Sixth Amendment required only that he advise petitioner that a conviction might carry a risk of adverse immigration consequences. Padilla, 559 US at 369; see also Daramola, 294 Or App at 465 (“In aрproaching any Padilla-based claim the analysis begins with the threshold question: Are the immigration consequences clear?“). If the immigration consequences of petitioner‘s plea were clear and easily ascertainable, then petitioner‘s trial counsel was personally responsible for ensuring that petitioner received correct advice on that issue, Daramola, 294 Or App at 465, and he could not simply assume that petitioner was getting correct advice from his immigration attorney. Conversely, if they were unclear or uncertain, then trial counsel only needed to put petitioner on general notice that his plea might have immigration consequences, at which point it was petitioner‘s choice whether to consult an immigration аttorney before entering the plea.
We agree with the state that, in this case, petitioner has not established that the immigration consequences of his plea were clear and easily ascertainable in 2013. Unlike the petitioner in Padilla, petitioner was already subject to deportation before he pleaded guilty to the second DUII charge, because, to use Carter‘s phrasing, petitioner was “here without legal status.” Although we disagree with the
The difficulty with petitioner‘s argument is that petitioner fails to explain—or at least fails to explain persuasively—how it would have been clear and easily ascertainable to petitioner‘s trial counsel in 2013 that pleading guilty to the second DUII “virtually assured [petitioner‘s] deportation.” It is important to note that whether the immigration consequences of a plea were clear and eаsily ascertainable is a question of law, not fact. Daramola, 294 Or App at 466. Further, the question is whether the immigration consequences were clear and easily ascertainable to any competent attorney, not whether an immigration attorney with specialized knowledge would have had an opinion on the issue. See id. at 466-67; see also Padilla, 559 US at 368 (explaining that the petitioner‘s criminal defense counsel could have easily ascertained the immigration consequences of the plea by simply reading the relevant statute).
A post-conviction petitioner therefore cannot merely rely on an immigration attorney‘s expert opinion on a question of immigration law but, rather, must explain—whether through legal briefing, a lawyer‘s testimony, both, or otherwise—how the immigration consequences of a plea wоuld have been clear and easily ascertainable to any competent attorney, including identifying the relevant sources of law. Relatedly, in the post-conviction setting, the court‘s task is to review the identified sources of law and determine
Here, petitioner has not adequately demonstrated that the immigration consequences of his plea were clear and easily ascertainable. Plaintiff relies on Carter‘s unrefuted affidavit to establish the point, but, in reality, it does not.
In her affidavit, Carter does not identify any statute or regulation that petitioner‘s trial counsel could have read and thereby learned of a clear immigration consequence of petitioner‘s plea. See Padilla, 559 US at 369 (looking to the “terms of the relevant immigration statute,” which were “succinct, clear, and explicit” about the removal consequences of the petitioner‘s conviction). Instead, Carter asserts that ”competent immigration counsel would realize that the second DUII would trigger detainment and charges“; that ”this information would be available [to trial counsel] by consulting with a competent immigration attorney“; and that the immigration consequences of petitioner‘s plea “are clear and easily ascertainable by consulting enforcement priority memos and consulting with a practicing immigration attorney.” (Emphases added.) Again, the fact that an attorney with specialized knowledge of immigration law would have had an opinion as to the immigration consequences of a partiсular criminal plea does not mean that those consequences were “clear and easily ascertainable.” As used in Padilla, “clear and easily ascertainable” means that any competent attorney would have been able to discern the immigration consequences of a particular plea by consulting readily available sources of law.
The only potential source of law that Carter identifies as relevant to whether the immigration consequences of petitioner‘s plea were clear—at least in conjunction with consulting an immigration attorney—is unspecified “enforcement priority memos.” But petitioner has not identified the specific “enforcement priority memos” that existed in 2013, established that those memoranda were readily available to all attorneys in 2013, or addressed their contents in any way. Thus, even assuming arguendo that such memoranda are a source of law that a competent nonimmigration
Given the particular immigration consequences that petitioner contends flowed from his guilty plea—that is, that the second DUII conviction made it more difficult for him to obtain a discretionary cancellation of removal, based on good moral character—it is difficult to see how those immigration consequences could have been “clear and easily ascertainable” within the meaning of Padilla. That is, it is difficult to see how trial counsel could have accurately advised petitioner in 2013 that he will be deported if he pleads guilty to the second DUII (which is the advice that petitioner now claims that he should have been given) if whether petitioner would actually be deported depended on some combination of the federal executive branch‘s enforcement priorities, which are presumably subject to change, and the discretionary decision of an immigration judge regarding petitioner‘s “moral character.”7
Padilla could be read to suggest that immigration consequences that turn on issues like “moral character” are inherently unclear or uncertain. The majority in Padilla emphasized that the statute at issue there was specific, rather than “address[ing] some broad classification of crimes,” and noted that “many of the scenarios posited by Justice Alito” in his concurrence involved “situations in which the deportation consequences of a particular plea are unclear or uncertain.” Padilla, 559 US at 368-69. In the concurrence, then, Justice Alito discussed that “[m]ost crimes
We need not go so far today, however, as to hold that any immigration consequence that involves an exercise of executive or judicial discretion is per se unclear or uncertain. We do not foreclose the possibility of a circumstance in which the immigration consequences of a plea are clear and easily ascertainable, notwithstanding the involvement of some executive or judicial discretion. But, in this case, petitioner has fallen far short of establishing that the immigration consequences of his guilty plea to the second DUII charge were clear and easily ascertainable in 2013.
In that regard, the case is similar to Daramola. There, we concluded that a post-conviction petitioner had failed to establish that the crime to which he pleaded guilty was clearly an “aggravated felony” under
That leaves only the question of whether trial counsel advised petitioner that the DUII charge “may carry a
In any event, we agree with the state that evidence in the record supports the post-conviction court‘s implicit finding that petitioner was advised that pleading guilty to the second DUII charge might carry a risk of adverse immigration consequences.
When trial counsel was appointed, petitioner had already been detained by ICE in connection with his first DUII charge, had an immigration attorney, and was on an immigration hold. Moore met with petitioner at trial counsel‘s behest, on the day that counsel was appointed, and discussed with him, among other things, petitioner‘s immigration hold. Two weeks later, trial counsel himself talked to petitioner about the fact that petitioner had an immigration attorney. In that context, trial counsel went over the plea agreement with petitioner three days prior to the plea hearing8—which plea agreement contained an express statement that, if petitioner was not a United States citizen, “deportation/removal, exclusion from future entry into the United States or denial of naturalization” were “significant additional consequences” of pleading guilty. Trial counsel contemporaneously signed a certificate attesting that he had gone over all of the plea agreement provisions with petitioner
On that record, the post-conviction court did not err in finding that petitioner was advised that his guilty plea might have immigration consequences. And, because petitioner failed to demonstrate that the specific immigration consequences of his plea were clear and easily ascertainable, that was the оnly advice that trial counsel was required to provide under Padilla.9
CONCLUSION
The post-conviction court did not err in denying relief on petitioner‘s post-conviction claims. Accordingly, we affirm.
Affirmed.