United States v. Aso PolaUnited States v. Aso Pola
J. Kent Wicker, Dressman Benzinger LaVelle, Louisville, KY, for Defendant-Appellant
BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge.
Defendant Aso Pola, a citizen of Canada and lawful permanent resident of the United States, was sentenced in February 2010 to 46 months in prison after being convicted of one count of possessing oxycodone with intent to distribute. He was released from prison in September 2012 and, because his conviction subjected him to deportation, he assented to removal to Canada later that month. Pola continues to be aggrieved and seeks relief from the collateral consequences of his conviction.
The case has had a tortured procedural history, having already been visited twice by the Sixth Circuit in an untimely pro se appeal and in
I. BACKGROUND
Pola was born in Iraq, but is a citizen of Canada. On January 6, 2009, a federal grand jury indicted Pola and charged him with knowingly and intentionally possessing oxycodone with intent to distribute it, in violation of
On August 5, 2011, Pola filed a motion to vacate his sentence under
Meanwhile, in September 2012, Pola had completed his prison sentence, had been released from the custody of the Bureau of Prisons, and had been deported to Canada. Still, Pola persevered in pursuit of his remedies. On remand to the district court, an evidentiary hearing was conducted in November 2015. In July 2016, the court issued an opinion and order finding that Pola had requested counsel to file an appeal and counsel failed to do so. Concluding that Pola had been denied effective assistance of counsel in this respect, the court granted Pola’s
Represented by different counsel, Pola timely filed this appeal, asserting two challenges to the validity of his plea-based conviction. Due to counsel’s deficient advice at the time he entered his plea, Pola contends he was denied his Sixth Amendment right to effective assistance of counsel in two additional ways. As a consequence, Pola further contends, the waiver of his right to trial was not “knowing and intelligent” and he was therefore denied due process, as guaranteed by the Fifth Amendment. Pola contends he should be
II. ANALYSIS
A. Standard of Review
Pola asserts claims for relief under both the
The relevant standards governing an ineffective-assistance claim are succinctly stated in Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), as follows:
Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Missouri v. Frye, 566 U.S. 134, 140, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012); see also Padilla v. Kentucky, 559 U.S. 356, 373, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). During plea negotiations defendants are “entitled to the effective assistance of competent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). In Hill, the Court held “the two-part Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill, 474 U.S. at 58, 106 S. Ct. 366. The performance prong of Strickland requires a defendant to show “ ‘that counsel’s representation fell below an objective standard of reasonableness.’ ” Id. at 57, 106 S. Ct. 366 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. 2052).
* * * *
To establish Strickland prejudice a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. 2052. In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. See Frye, 566 U.S. at 148, 132 S. Ct. 1399 (noting that Strickland’s inquiry, as applied to advice with respect to plea bargains, turns on “whether ‘the result of the proceeding would have been different’ ” (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052); see also Hill, 474 U.S. at 59, 106 S. Ct. 366 (“The ... ‘prejudice’ requirement ... focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”). In Hill, when evaluating the petitioner’s claim that ineffective assistance led to the improvident acceptance of a
Id. at 162-63, 132 S. Ct. 1376.
In this appeal, Pola identifies two distinct ways in which counsel’s representation fell below Strickland’s objective standard of reasonableness, to his detriment. First, Pola contends attorney Fred Partin failed to advise him of the immigration consequences of his guilty plea. Second, Pola contends counsel failed to accurately advise him of the likely duration of his sentence.
B. Immigration Consequences
As a consequence of his Alford plea to the drug-trafficking charge, Pola now acknowledges that, being a citizen of Canada, he was subject to deportation after his conviction. Implying that he did not know this at the time of the plea hearing, Pola contends the record fails to show that either his attorney or the court advised him that such immigration consequences would flow from his conviction. Citing Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), Pola contends this failure shows he was denied effective assistance of counsel at the time of the plea.
In Padilla, the defendant Jose Padilla had pled guilty to a drug-trafficking charge and then faced deportation as a consequence. In state-court post-conviction proceedings, Padilla challenged his conviction, alleging that his attorney did not advise him of the immigration consequences of his conviction. But for this deficiency, Padilla alleged, he would not have pled guilty, but would have insisted on going to trial. The Court held these allegations made out a facially valid ineffective-assistance claim, holding that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at 360, 130 S. Ct. 1473. The Court remanded the matter to the state courts for development of the facts.
Padilla was decided one month after Pola was sentenced. But the rule of Padilla applies in this case because Pola’s conviction has not yet become final.2 Here, as in Padilla, Pola challenges the adequacy of counsel’s advice regarding immigration consequences. The issue is raised for the first time in this, Pola’s delayed direct appeal. Pola concedes he knew there would be immigration consequences, but claims his attorney did not advise him that the conviction would subject him to automatic deportation. Pola correctly argues that the transcript of the plea hearing includes no indication that his attorney expressly advised him that his Alford plea would subject him to deportation. However, the issue was indirectly raised at the plea hearing by the Assistant U.S. Attorney, who advised the district court that Pola “knows that ... deportation proceedings are going
The issue was also apparent, albeit not well developed, at Pola’s sentencing hearing. Yet, again, Pola did not object to the prospect of deportation at sentencing either. Nor did his attorney. In fact, ICE Agent Perryman was on hand again during the sentencing hearing on February 16, 2010, to take Pola into custody if he were not sentenced to a prison term with the Bureau of Prisons. The issue of deportation became moot, for the time being, when the district court sentenced Pola to 46 months in prison, at the low end of the advisory Guidelines range.
Pola served his sentence and was released from the custody of the Bureau of Prisons on September 4, 2012. Two weeks later, he was removed by ICE to Canada, when Pola declined to contest deportation. In the meantime, his original appeal had been dismissed as untimely and he had filed his
Pola preserved his right to appeal the denial of
This review of the procedural history brings us to the point: Pola’s opening brief in this appeal, filed more than six years after his sentencing and nearly four years after he was deported, is the first mention of his displeasure over counsel’s failure to adequately advise him about the immigration consequences of his plea. The issue not having been raised before, the claim finds little support in the existing district court record.3 Not surprisingly, Pola’s argument on appeal is based almost exclusively on the facial similarities between mere allegations in this case and in Padilla. The record is devoid of direct factual support for the allegation that attorney Partin did not advise Pola, or advised him erroneously, about the immigration consequences. Both Pola’s affidavit and Partin’s
Pola’s best argument asks the court to draw an inference that simply is not justified. He contends that Partin’s evident “surprise” about the presence of ICE Agent Perryman at the sentencing hearing warrants a reasonable inference that Partin was not aware, and had not advised Pola, that he would be subject to deportation. A fair reading of Partin’s testimony at the evidentiary hearing and his colloquy with the court at the start of the sentencing hearing indicates that his surprise was not related to the prospect of deportation as a consequence of the conviction. Rather, Partin was surprised by the possibility that Pola would be taken into ICE custody immediately if, as Partin had hoped, Pola was either sentenced to time served and released, or sentenced to a longer term but released pending self-surrender to the Marshal at a later date.
Partin thus appears to have miscalculated the likelihood of Pola’s release from the courtroom after sentencing and the potential imminence of ICE involvement. Nevertheless, the possibility of imminent deportation quickly became moot when the district court imposed a prison sentence of 46 months, declined to allow self-surrender, and committed Pola to the custody of the Marshal for transfer to the Bureau of Prisons. In other words, Partin’s misunderstanding and misadvisement of Pola about the likelihood of his being released after sentencing—even if suggestive of deficient performance—had no actual prejudicial effect on his immigration status because Pola was committed to the custody of the Marshal, not ICE.4 Pola’s immigration status and the matter of his deportation would then remain dormant until he was released from the custody of the Bureau of Prisons some thirty-one months later.
Pola has thus failed to identify facts that satisfy either prong of the Strickland ineffective-assistance standard. He has not, on the present record, pointed to evidence, beyond his own bald statement, that Partin failed to advise him his conviction would result in his deportation. Nor has he shown prejudice. He has not shown how more accurate advice by Partin about the likelihood of his release from the courtroom after sentencing (which did not in fact have any impact on his immigration status) would have altered his decision to waive his right to trial and enter an Alford plea. That is, if, as his own testimony indicates, Pola was aware that his conviction would subject him to removal, voluntary or not, there is no apparent reason to conclude that Partin’s having more clearly advised him that he might not be released
To show the requisite prejudice, Pola was obliged to show there was a reasonable probability that, but for counsel’s errors, he would not have entered the Alford plea and would instead have insisted on going to trial. Hill, 474 U.S. at 59, 106 S. Ct. 366. The Supreme Court recently clarified this standard in Lee v. United States, — U.S. —, 137 S. Ct. 1958, 198 L. Ed. 2d 476 (2017), noting that the inquiry demands “a case-by-case examination of the totality of the evidence.” Id. at 1966 (internal quotation marks omitted). The Court elaborated:
“Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and the strong societal interest in finality has “special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979). Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.
Lee, at 1967. The Lee Court went on to grant relief for three reasons: it was undisputed that Lee’s counsel had erroneously advised him that he would not be deported; deportation was clearly the determinative issue in Lee’s decision to plead guilty; and both Lee and his attorney testified that Lee would have gone to trial if he had known about the deportation consequences.
Here, in contrast with the substantial evidence presented in Lee, we have only Pola’s post hoc assertions. Here, for the first time in his reply brief, we have Pola’s argument that the government’s case was hardly insurmountable and that he could have asserted substantial defenses to the charged offense. Even assuming Pola’s attorney’s advice was deficient, the record simply does not establish, by contemporaneous evidence, that Pola would not have entered the Alford plea had he known that he would not be sentenced to time served and would not be granted opportunity for voluntary departure to Canada.
In sum, the record is devoid of evidence supporting Pola’s claim that he was denied effective assistance of counsel based on inadequate advisement of immigration consequences.
C. Length of Sentence
Pola’s second ineffective-assistance claim also suffers from infirmities. Pola contends his attorney overestimated the likelihood that the district court would impose a below-Guidelines sentence and led him to believe he would be sentenced to a prison term of only nine months and be released from the courtroom. This contention does enjoy some support in the record. At the time of the plea hearing, Pola’s attorney filed a motion for Pola’s release pending sentencing, stating that the parties contemplated a potential sentence of time served. Counsel for the government expressly disavowed this statement on the record in the plea hearing. Yet, the statement does substantiate Pola’s position that Partin led him to believe his prison sentence would be shorter than it turned out to be.
On the other hand, at the same plea hearing, Pola said: (1) he understood that his plea subjected him to the possibility of a maximum prison term of twenty years; (2) that he had “studied” the Sentencing Guidelines and “absolutely, 100 percent” understood them; (3) he understood that
Pola did raise this issue in his
Eventually, Pola was granted an evidentiary hearing, where both Pola and Partin testified. Pola testified that when he entered his plea, it was his understanding that there was a plea agreement, that he would be sentenced to time served, and that he would be allowed to return to Canada on his own. Pola said his understanding was based on what his attorney told him. Partin testified that he had been practicing law since 1971 and had represented criminal defendants in hundreds of cases during that period. Partin testified that he thought he had a very persuasive argument that Pola should continue to be released and under supervision after sentencing. When he counseled Pola regarding the Alford plea, Partin said it was his “expectation and belief” that Pola would be sentenced to time served. He said he told Pola that this was his belief and he thought he had an excellent argument, but that the actual sentence might be different. This continued to be Partin’s belief at the time of sentencing until it became apparent that an ICE agent was present to arrest Pola in the event the district court did not commit him to the custody of the Bureau of Prisons. Partin thought this development altered the chances that Pola would be released after sentencing. He therefore moved for a brief continuance, so Pola could get his affairs in order and to otherwise explore the issue before sentencing, but his motion for a continuance was denied.
Thus, in contrast with Pola’s first ineffective-assistance claim, the record of district court proceedings gives a fairly clear picture of many facts material to his second claim (particularly the deficient performance prong), especially as augmented with the testimony elicited in the evidentiary hearing. Yet, the more fully developed record does not undermine the conclusion that Pola has still failed to show that his attorney’s performance was constitutionally defective in the ways now asserted.
Granted, both Pola and Partin were undisputedly surprised and upset about the sentence imposed. And Pola may have been genuinely misled by Partin’s opinion about the likelihood of a lenient sentence. Partin’s testimony is undisputed, however, that, while he told Pola this was his belief,
The plea hearing colloquy also reveals that Pola understood, notwithstanding his attorney’s questionable advice about the likely length of sentence, that there was no agreement about the appropriate sentence; that the district judge would be responsible for imposing the sentence after a presentence report was prepared in accordance with the Sentencing Guidelines; and that he could be sentenced to a prison term of up to twenty years.
When an ineffective-assistance claim is based on misleading information regarding the consequences of a plea, a proper plea colloquy is generally deemed to cure any misunderstanding the defendant may have had about the consequences of the plea. Ewing v. United States, 651 Fed.Appx. 405, 410 (6th Cir. 2016) (citing Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)). The court’s proper advisement of rights is thus deemed to “foreclose” any showing of actual prejudice attributed to counsel’s erroneous advice, because the defendant is deemed bound by his statements in response to the court’s inquiry. Id. Otherwise, the plea colloquy process would be rendered meaningless if a defendant could reopen the record by later asserting that actually, he misunderstood. Ramos, 170 F.3d at 566.
And even if attorney Partin’s communication to Pola of his expectation that he would be sentenced to time served were deemed objectively unreasonable, the record is devoid of evidence tending to support a finding of Strickland prejudice. To establish prejudice, Pola must show a reasonable probability that, but for his attorney’s unreasonable assessment of the likely length of sentence, he would not have entered the Alford plea. Again, this assessment requires “examination of the totality of the evidence.” Lee, 137 S. Ct. at 1966. Among the relevant circumstances, the reviewing court considers whether the defendant had a viable defense, as well as the respective consequences of a conviction after trial and by plea.
The record simply does not support a finding of a “reasonable probability” that Pola would have chosen to go to trial but for counsel’s questionable advice. In the evidentiary hearing, Pola was not asked whether, and did not testify that, he would have insisted on his right to trial if he had known he would be sentenced to more than nine months in prison. Nor has he made such an assertion by way of affidavit. Although Pola, due to his drug addiction, had no recollection of the events that resulted in the drug-trafficking charge against him, both he and his attorney acknowledged in the plea hearing that the government had enough evidence—including testimony, audio-recording, and phone records of a confidential informant—to convict him. By all appearances, there was nothing for Pola to gain and much to lose by insisting on a trial.
Lacking evidentiary support, Pola tries to make his claim based on argument, citing several reasons to conclude it would have been rational for him to go to trial if he had known he faced the possibility of a
Again, these are precisely the kinds of unsupported “post hoc assertions” and mere “expressed preferences” we are adjured to ignore in favor of “contemporaneous evidence.” Lee, at 1967. In the end, Pola has failed to make his case based on evidence.
III. CONCLUSION
The procedural history of this case makes for a convoluted analysis. Ultimately, however, it is abundantly clear that appellant Pola has, on the present record, failed to carry his burden on either prong of the Strickland standard that applies to the two ineffective-assistance claims asserted in this delayed direct appeal. It cannot be denied that deportation is, under the circumstances, a regrettably harsh consequence of Pola’s conviction, but he has failed to show that any wrong is attributable to deficient representation by his attorney. Accordingly, the district court’s judgment is AFFIRMED.