UNITED STATES of America, Plaintiff-Appellee, v. Innocent Rutahagara BATAMULA, Defendant-Appellant.
No. 12-20630.
United States Court of Appeals, Fifth Circuit.
June 2, 2015.
George William Vie, III (argued), Galveston, TX, for Defendant-Appellant.
Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge.*
*Innocent Rutahagara Batamula, a citizen of Tanzania, after entering the United States on a student visa, marrying a United States citizen, and applying for a change in his immigration status, pleaded guilty pursuant to a written plea agreement to one count of making a false statement to a federal agent,
I.
Batamula is a Tanzanian citizen who entered the United States in 2001 on a student visa and has since resided in Houston, Texas. In 2008, Batamula applied for and obtained a United States passport for his biological son, B.B.,1 a citizen and then-resident of Tanzania. To secure the passport, Batamula used the name and birth date of a different Tanzanian child whom we will refer to as Z.M.—born in Tanzania to a couple with whom Batamula was acquainted. Approximately three years later, on May 11, 2011, Z.M.‘s parents applied for a passport for their son and discovered that a passport had already been issued in his name but displayed a photograph of someone else‘s child—Batamula‘s son, B.B. When questioned by federal agents, Batamula said that he did not know the child pictured in the fraudulent passport.
Batamula was initially charged with one count of false representation to a United States agent under
Batamula‘s guilty plea proceeding was conducted alongside another non-citizen defendant who was pleading guilty to an unrelated felony charge. During the proceeding, Batamula informed the court that he spoke with his attorney about the charges approximately ten times, that his attorney answered all of his questions, that he was “fully satisfied with the advice and counsel provided” by his attorney, and that his attorney had done everything asked of him. Moments before accepting the plea, the court addressed both Batamula and the other defendant present at the proceeding, stating: “The offenses that you‘re pleading guilty to are felonies. That means that each of you will likely be deported after you serve your sentence.” The court then found that Batamula‘s guilty plea was knowing and voluntary and accepted his guilty plea to both counts.
On May 1, 2012, Batamula moved to vacate or set aside his conviction and sentence pursuant to
The district court granted the Government‘s motion for summary judgment and denied Batamula‘s
This is an issue of law which we review
II.
“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea bargaining process.” Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (citing Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 1407-08, 182 L.Ed.2d 379 (2012); Padilla, 559 U.S. at 373, 130 S.Ct. 1473; 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.‘” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The right to effective representation during the pre-guilty-plea stage of proceedings requires defense counsel to, inter alia, fulfill the “quintes-sential[] ... duty ... to provide [the] client with available advice about an issue like deportation.” Padilla, 559 U.S. at 371, 130 S.Ct. 1473.
The familiar two-pronged ineffective assistance analysis set forth in Strickland applies to alleged violations of the right to effective assistance of counsel during pre-guilty-plea proceedings. See Lafler, 132 S.Ct. at 1384 (citing Hill, 474 U.S. at 58, 106 S.Ct. 366); Frye, 132 S.Ct. at 1405; Padilla, 559 U.S. at 366, 130 S.Ct. 1473. Establishing prejudice under Strickland in the context of a claim that defense counsel failed to advise the defendant that the entry of his guilty plea would result in deportation requires the defendant to demonstrate a reasonable probability that “but for counsel‘s unprofessional errors, the outcome of the plea process would have been different.” Lafler, 132 S.Ct. at 1384 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Frye, 132 S.Ct. at 1410). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Additionally, to demonstrate prejudice and “obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372, 130 S.Ct. 1473. In conducting this prejudice inquiry “we consider the totality of the circumstances.” United States v. Kayode, 777 F.3d 719, 725 (5th Cir.2014).
Recently, emphasizing that it is “counsel‘s duty, not the court‘s, to warn of certain immigration consequences,” id. at 728 (quoting United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir.2014)), we held that “[w]arnings from a judge during a plea colloquy are not a substitute for effective assistance of counsel, and therefore have no bearing on the first Strickland prong,” id. We further reasoned that, “while judicial admonishments are not a substitute for effective assistance of counsel, they are relevant under the second Strickland prong in determining whether a defendant was prejudiced by counsel‘s er-
Here, the district court, without conducting an evidentiary hearing, denied Batamula‘s
A.
The Supreme Court has made clear that “[t]he Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding.” Lafler, 132 S.Ct. at 1385. “The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel‘s advice.” Id. Convictions by guilty plea—which make up between ninety-four and ninety-seven percent9 of convictions nationwide—“have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Frye, 132 S.Ct. at 1407. “Indeed, this Circuit has observed that providing counsel to assist a defendant in deciding whether to plead guilty is ‘[o]ne of the most
Counsel has “the critical obligation to advise the client of ‘the advantages and disadvantages of a plea agreement,‘” Padilla, 559 U.S. at 370, 130 S.Ct. 1473 (quoting Libretti v. United States, 516 U.S. 29, 50-51, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)), an obligation that requires counsel to advise a “noncitizen client that he faces a risk of deportation,” id. at 374, 130 S.Ct. 1473. Effective advice from counsel regarding the deportation consequences of conviction is essential to provide constitutionally adequate representation during the pre-plea proceedings because, as the Supreme Court has repeatedly recognized, “‘[p]reserving the client‘s right to remain in the United States may be more important to the client than any potential jail sentence.‘” Id. at 368, 130 S.Ct. 1473 (alteration in original) (quoting INS v. St. Cyr, 533 U.S. 289, 322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Given the Court‘s repeated emphasis on the paramount importance of providing effective representation and competent advice regarding the immigration consequences of conviction before entry of the defendant‘s guilty plea, we cannot conclude that the prejudice caused by a violation of that duty can be categorically erased by a judge‘s general and laconic statement during the plea colloquy that deportation is “likely,” after that bargaining process is complete, and immediately prior to the court‘s acceptance of the guilty plea. See, e.g., United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[T]he adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.‘“) (emphasis added) (quoting Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)); Padilla, 559 U.S. at 370-71, 130 S.Ct. 1473; see also Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013) (“[T]his Court held [in Padilla] that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea.” (emphasis added)).
Indeed, as the Supreme Court in Lafler and Frye makes clear, if a full and fair trial or an otherwise voluntary guilty plea cannot “inoculate[] [counsel‘s] errors in the pretrial process” from collateral attack under Strickland, see Frye, 132 S.Ct. at 1407, neither can a trial judge‘s mere statement at a plea colloquy that deportation is “likely” function to bar a petitioner from demonstrating that he was prejudiced by counsel‘s deficiencies during the pre-guilty-plea stage of proceedings. More specifically, in Frye the Court rejected the State‘s argument that, despite counsel‘s failure to inform Frye of a formal plea offer from the prosecution, Frye was not “deprived of any legal benefit to which he was entitled” because “the guilty plea that was [ultimately] accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel.” Id. at 1406. The State further contended that the “ultimate goal of the Sixth Amendment—reliability of Mr. Frye‘s conviction—was met by Mr. Frye‘s knowing, intelligent, and voluntary admission of guilt.” Brief for Petitioner at 33, Missouri v. Frye,
Similarly, the Court in Lafler rejected the State and Solicitor General‘s argument that Strickland prejudice cannot arise from defective representation during plea bargaining if the defendant is later convicted after a fair trial. Lafler, 132 S.Ct. at 1385. The Court reasoned that “[t]he fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney‘s deficient performance during plea bargaining.” Id. at 1388. The Court in both Lafler and Frye therefore made clear that if the defendant establishes ineffective assistance of counsel during the plea negotiation stage of proceedings, a subsequent, otherwise-voluntary guilty plea or even a full and fair trial does not necessarily “wipe[] clean any deficient performance by defense counsel during plea bargaining.” Id. Likewise, a judge‘s admonition at the plea colloquy that deportation is “likely” does not automatically “wipe clean” any prejudice caused by counsel‘s failure to advise his client of the immigration consequences of the guilty plea. See id.; see also Frye, 132 S.Ct. at 1406-08.
Our conclusion that the district court‘s plea colloquy warning does not bar Batamula from demonstrating prejudice caused by counsel‘s failure to advise him of the deportation consequences of his plea is further confirmed by the Padilla Court‘s own discussion of similar admonitions. The Court specifically recognized that defendants in many jurisdictions receive generalized deportation warnings on plea forms or at plea colloquies. See Padilla, 559 U.S. at 374 n. 15, 130 S.Ct. 1473 (noting that many states, including Kentucky, “currently ... provide[] notice of possible immigration consequences“). The Court never intimated that such admonitions could prove fatal to ineffectiveness claims, rejecting arguments from several states appearing as amici curiae that defense counsel need not be constitutionally required to advise their clients regarding deportation consequences of guilty pleas because “states and judges are already addressing” the issue. See Brief for the State of Louisiana et al. as Amici Curiae in Support of Respondent at 24-26, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (No. 08-651). To the contrary, the Court cited such practices in support of its conclusion that “[t]he severity of deportation—‘the equivalent of banishment or exile‘—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Padilla, 559 U.S. at 373-74, 130 S.Ct. 1473 (citation omitted) (emphasis added).
Moreover, the Supreme Court has long contrasted the unique and critical obligations of defense counsel during the plea bargaining process with the far more limited role of a district court to ensure a minimally valid guilty plea, further supporting our conclusion that the judicial warning of “likely” deportation does not prevent prejudice caused by counsel‘s deficient performance in fulfilling his constitutional obligation to serve as a client‘s advocate and advisor before deciding whether to plead guilty. See Frye, 132 S.Ct. at 1406; Lafler, 132 S.Ct. at 1390; Padilla, 559 U.S. at 364-65, 130 S.Ct. 1473. The judicial plea colloquy merely “assist[s] the district judge in making the constitutional-ly required determination that a defendant‘s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
Further, and perhaps most significantly, by the time the plea colloquy occurs, the plea bargaining process is over—and with it, defense counsel‘s opportunity to negotiate and advise the client based on an adequate understanding of deportation consequences. Counsel is obligated to effectively investigate and advise his client regarding immigration consequences “[b]efore [the client] decid[es] whether to plead guilty,” a decision made before the judicial plea colloquy occurs. See Padilla, 559 U.S. at 364, 130 S.Ct. 1473 (emphasis added). If the negotiation process that preceded the plea hearing was not informed by counsel and his client‘s consideration of the immigration consequences of the plea, a judge‘s statement that warns the defendant of likely deportation, provided after counsel‘s opportunity to effectively represent and advise his client has passed, does not alone prevent or remedy any prejudice that may have been caused by counsel‘s deficient representation nor does it foreclose the defendant‘s ability to bring a Sixth Amendment claim of ineffective assistance of counsel.
Because “an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney,” Brady v. United States, 397 U.S. 742, 748 n. 6, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), information regarding deportation disclosed by the judge for the first time at the plea colloquy may not spur a noncitizen defendant to reassess the advantages and disadvantages of a plea that her attorney has advised her to take. See Padilla, 559 U.S. at 370-71, 130 S.Ct. 1473 (stating that noncitizens are “a class of clients least able to represent themselves“). As Batamula asserts on appeal, it defies logic to presume that a
The court‘s warning comes just before the plea is taken, and may not afford time for mature reflection. The defendant cannot, without risk of making damaging admissions, discuss candidly with the court the questions he or she may have. Moreover, there are relevant considerations which will not be covered by the judge in his or her admonition. A defendant needs to know, for example, the probability of conviction in the event of trial. Because this requires a careful evaluation of problems of proof and of possible defenses, few defendants can make this appraisal without the aid of counsel.
ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2 cmt. at 118 (3d ed.1990); see also id. at 126 (“[O]nly defense counsel is in a position to ensure that the defendant is aware of the full range of consequences that may apply in his or her case.“).10
Accordingly, the mere fact that a defendant, who has already signed a plea agreement upon counsel‘s advice, is told by the trial judge that the plea will likely result in deportation does not foreclose the defendant‘s ability to demonstrate that “counsel‘s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366.11 Were we to hold that the judge‘s mere statement to Batamula during his plea colloquy that he would “likely” be deported vitiated his ability to establish prejudice under Strickland and Padilla, we would be turning a blind eye to the reality of the plea bargaining and plea colloquy process and flouting the Supreme Court‘s mandate that a defendant has a constitutionally protected right to the effective assistance of counsel throughout the pre-plea stage—a right that carries more than can be supplied by a judge‘s general and equivocal last-moment warning that deportation is likely to result from the guilty plea. “[C]riminal defendants require effective counsel during plea negotiations. Anything less ... might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” Frye, 132 S.Ct. at 1407-08 (emphasis added) (internal quotation marks omitted) (second alteration in original).
B.
To the extent that the district court‘s ruling can be interpreted as a holding that Batamula, by pleading guilty in compliance with Rule 11, forfeited his right to collater-
Addressing the general question of the extent to which constitutional claims survive the entry of a guilty plea, the Supreme Court has repeatedly stated that a guilty plea effects a forfeiture of certain constitutional claims if the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel. See, e.g., Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) (“It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.“), disapproved of on other grounds by Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (emphasis added). Claims of ineffective assistance of counsel that affected the validity of the guilty plea are necessarily excluded from this general rule that constitutional defenses are forfeited by entry of a guilty plea. See, e.g., Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, ... [h]e may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [deficient.]“); see also 5 Wayne R. LaFave et al., Criminal Procedure, The Adversary System and the Determination of Guilt and Innocence § 21.6(a) (3d ed.2014) (concluding that the general rule that defendants forfeit certain constitutional claims upon pleading guilty “has no application to defects which go directly to the guilty plea itself,” including “defects concerning advice of counsel,” because such circumstances “taint the plea“).
The Court has therefore made it abundantly clear that although entering a guilty plea results in the forfeiture of certain constitutional claims, it does not bar a post-conviction collateral attack on the conviction and sentence based upon ineffective representation leading up to the entry of the guilty plea. Padilla exemplifies this well-established rule that entry of a guilty plea, despite generic warnings from the court regarding the possible consequences of the guilty plea, does not foreclose the defendant from demonstrating that counsel‘s ineffective advice regarding the deportation consequences of conviction prejudiced the proceedings. See Padilla, 559 U.S. at 374 & n. 15, 130 S.Ct. 1473.
CONCLUSION
For these reasons, we conclude that a judge‘s statement at the guilty plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom. Batamula thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is “likely,” and the district court erred in holding to the contrary. The record is currently insufficiently developed for us to apply the fact-intensive, totality of the circumstances prejudice analysis12 necessary to deter-