United States v. Rasheed Kayode

Maryland recovering terns from under the anti-spam

and California statutes.2

IV. above, For find that the reasons we (cid:127)

Beyond Systems cannot for the recover e-

mails sent Kraft or to Be- from Connexus

yond Systems’ servers. because And we above,

resolve matter as this detailed we

need not therefore do not address the

parties’ arguments. other thus affirm We judgment.

the district court’s

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee,

v. KAYODE,

Rasheed Babatunde also Kayode,

known as Babatunde Rasheed

also known as Rasheed Babatunde

Kayode, Defendant-Appellant.

No. 12-20513. Appeals,

United States Court of

Fifth Circuit.

Dec. not, by suggest injuria” opinion, principle, plaintiffs 2. We do but like that a Be- plaintiff legitimate is a service yond System, which internet "gratuitously who created cir- provider impacted whose business has been legal cumstances that would claim who, by deceptive spam preparation but collecting acted with chief aim of -a lawsuit, gathers deceptive and retains e- damage award” cannot. Gordon Virtumun- "spam help traps” mails and even sets do, (9th Cir.2009) identify responsible prevented those will (Gould, J., concurring). bringing suit the "volenti non fit Haden, Ann

Katherine Lisa Renata Attorneys, At- Gowie, Assistant U.S. TX, Office, Houston, for Plaintiff- torney’s Appellee. Kayode, Bastrop, Babatunde

Rasheed TX, se. pro STEWART, Judge, and Before Chief ELROD, Judges. DENNIS and Circuit ELROD, WALKER JENNIFER Judge: Circuit Babatunde was sen- Rasheed imprisonment after tenced to months’ fraud, aggravated to mail pleading guilty theft, identity procurement and unlawful subsequently peti- naturalization. tioned the district court vacate § to 28 pursuant U.S.C. him failed to arguing that warn likely deportation consequences granted guilty plea. The district court summary for government’s motion Kayode’s § 2255 judgment, and denied of appealability. motion and certificate preju- failed to Because show failure to dice as a result of his counsel’s likely deportation him the conse- advise we AF- quences agreement, judgment court. FIRM the I. became a naturalized citizen May postal

June On Kayode’s home and inspectors searched cards, than credit numer- more seized letters, hundred reports, ous credit several appli- credit card pre-approved about vices. defendant was therefore ine- cations, statements, state- bank credit card ligible to citizenship admitted be- checkbooks, ments, other mail meant cause good unable establish Kayode, social people other than as well as moral character. numbers, birth, security dates of other Kayode only contends that he of learned belong- personal identification information the deportation consequences of plea ing In large to number of individuals. 23, 2008, during September his addition, postal inspectors discovered rearraignment hearing. Before accepting $63,000 currency, in U.S. an undetermined guilty plea, his the district court engaged foreign currency, amount of and various in following colloquy Kayode. with of such as flat-screen forms merchandise First, said, the district court “I’m to going laptop computers television sets and you mention also to possibil- that there is a purchased to with appeared ity, if guilty convicted or found of this fraudulent credit cards. count, there might citizenship be a loss of Kayode was indicted on June in given you that was through naturaliza- forty-four count indictment that included tion.” When asked if he understood the twenty fraud, counts mail twenty counts “nature of the charges possible and the fraud, of bank count of possession one penalties pending against you,” Kayode mail, stolen one count fraud with access answered, ‘Yes, Your Honor.” The dis- devices, aggravated identity one count of Kayode trict court then if asked he under- theft, and one count of unlawful procure- if stood that his was revoked ment of naturalization. On September your that “conviction deporta- lead 2008, Kayode pleas entered of guilty to exclusion country.” tion or from the Kay- (Count 1), aggravated identity mail fraud “Yes, responded, ode sir.” (Count 43),

theft procure- unlawful (Count 44) ment of pursuant naturalization during Later hearing same the dis- plea agreement. exchange to a trict court asked whether he in- Kayode’s government tended to commit the acts described in the agreed charges remaining dismiss the (PSR) pre-sentencing report investigation indictment, request reduction for “No, responded, sir.” The acceptance responsibility, district court then warned that he request departure. an upward go have to on all forty-four to trial Kayode’s plea agreement Kayode signed The counts answer conflicted with agreement, plea stated: and sent meeting meet his attorney. After On June the defendant became attorney, Kayode with his told the district a naturalized citizen.... On court that he intended to commit the acts date and April defen- described the PSR and knew what he dant stated oath that he had not doing at the time. The PSR itself knowingly committed or of- crime conviction, says that “due to the offense of fense for which he had not been arrest- materially appears deportable ed. This statement was false be stripped because the should of his naturalization.” defendant knew at the time had, fact, Kayode hearing he swore stated on at the under oath that he the record fraud, committed the crimes of mail read and understood the fraud, bank possession agreement. mail The court then stolen ac- and fraud in Kayode’s plea. connection with access de- cepted does, however, plea. It sequences moved to 2009, Kayode April On my indictment that he I had known alleging state guilty plea, “[i]f withdraw his dismissed, I never waiver of have been about the was “concerned” pled guilty.” no that he had recollection right appeal, his discussions with counsel case motion for sum- government The filed a he was medication prescription because of judgment, seeking to enforce mary condition, health taking for a agreement. waiver in appeal to trial and state to take case “want[ed] granted govern- court The district re- The district court his innocence.” summary judgment and ment’s motion for Kayode took and each medication viewed Kayode’s § motion. The dis- denied the medications that none of confirmed Kayode’s ap- trict determined competence. mental hampered his voluntary knowing and peal waiver was motion and the denied this district court dis- was therefore enforceable. The and sentencing. case court that the waiver did not trict noted his assistance counsel Kay- bar ineffective The district then sentenced claim, af- but dismissed that claim 1, instead on 120 months ode 210 months Count met determining Kayode not concurrently ter run to Count on Count 44 to test set forth Strickland v. Wash- 1, to run and 24 months on Count 43 668, 104 S.Ct. ington, 466 U.S. for total im- consecutively Count concluding In L.Ed.2d 674 prisonment of months. The district Kayode prejudice, could establish Kayode pay a total court also ordered (1) the court considered: district $24,865.94 district restitution of to three financial during the col- court’s admonishments In a va- separate appeal, institutions. we (2) deportation; over- loquy regarding for Kayode’s cated conviction sentence whelming against Kay- of guilt evidence the matter for Count and remanded ode; ability government The district court proceedings. further revocation of his even on to seek judgment final entered an amended proceeding insisted on trial January 14, received all acquitted counts. remaining two 210 month sentence for the counts. Kayode’s district court cer- denied (COA). appealability tificate of We subse-

Kayode then filed a motion under 28 granted only issue quently COA § con- attacking remaining U.S.C. 2255 his ineffective as- of whether counsel rendered including grounds, victions on numerous by failing to inform sistance allegation an received ineffective consequences deportation associated attorneys his of counsel because assistance for guilty plea. denied motion We the deportation failed to advise him of respects. a COA all other plea. Kayode consequences affidavit, asserting an submitted II. impression giv- was under the he had to the issues enu- up right to trial time the Our review “is limited en in the COA.” United States possi- district court warned him about the merated Cir.2006) (5th Edwards, 442 F.3d deportation consequences ble 2253(c)(1)). In § review- signed (citing 28 already because he had U.S.C. §aof Kayode’s ing a district court’s denial agreement. affidavit does motion, court’s fac- if he we review gone state that he would have trial legal clear possible deportation findings con- tual for error its had known of quences conclusions de novo. United States v. process, into this defense Cavitt, Cir.2008). prosecution well be able to reach

agreements satisfy that better the inter- ests of both parties.” III. Id. Given unique and extreme consequence deportation, Kentucky, Padilla v. 559 U.S. is incumbent on counsel to warn their 176 L.Ed.2d 284 clients guilty plea when a could have such (2010), Supreme held that Court coun (“The an impact. severity Id. deporta- failure to permanent sel’s advise a lawful tion—the equivalent of ex- banishment or likely deportation alien of impli resident ile—only underscores how critical it right cates the Sixth Amendment to effec counsel to inform her noncitizen client that counsel, assistance of as set tive forth in (internal he faces a deportation.” risk of Strickland, S.Ct. 2052. omitted)). quotation marks and citations parties agree Both Padilla applies It has now more years than three here because conviction became since the Supreme Court issued decided, after ap final Padilla was as his and defense should be well aware peal pending still when the decision of its clear requirement clients was issued. warned of deportation risks. Su- As the relief, In order to obtain must preme recently Court noted: (1) both perform- show that his counsel’s reality The plea bargains is that have (2) deficient, prejudice. ance was become so central to the administration Strickland, 687, U.S. at S.Ct. 2052. of the justice system criminal de- that fense responsibilities counsel have in the A. plea bargain process, responsibilities To show attorney’s per that his that must be met render the adequate deficient, Kayode formance was must show assistance of counsel that the Sixth attorney’s that the representation fell be Amendment in requires the criminal objective low an of standard reasonable process stages. at critical ness and that “counsel made errors so Frye, - U.S. -, Missouri v. 132 S.Ct. serious that functioning counsel was not as (2012). 1399, 1407, 182L.Ed.2d 379 ‘counsel’ guaranteed the Sixth Here, in Kayode averred a sworn Amendment.” Id. attorneys affidavit that his never warned Padilla,

In Supreme him prior Court de sentencing hearing to his termined that the defendant’s counsel could was lose his if he pleaded for failing guilty deficient to “advise her client to Count and never indicated regarding deportation.” the risk of might deported. 367, 369, also attorneys S.Ct. The stated that re did not Supreme decision underscored view his plea agreement -with him. Ac recognition Court’s unique cording role that to Kayode, he told his deportation play punish can in criminal go he wanted to trial and never ment. Id. at agreed 1473. As the plead guilty. further Supreme Court explained, “informed con stated that plea agree he did not read the possible sideration of deportation only can ment signing September before on benefit both the attorneys State and noncitizen de and that did not review during plea-bargaining fendants it with pro him. has thus submitted By bringing deportation cess. sufficient genuine conse- evidence to create a is- the likelihood depend will on inquiry to whether his fact as of material sue discovery of the evidence would constitutionally assistance was change counsel to his recom- of have led prong Strick- first deficient That assess- plea. as mendation land. See turn, ment, part in (“[W]hen depend large will deportation conse- S.Ct. 1473 case, clear, on of whether the evidence prediction it was in truly as quence is changed the outcome likely is would have duty give equally correct advice true, trial. allegations as Accepting clear. sufficiently alleged constitu- Padilla has Scott, Armstead the first deficiency satisfy prong

tional Cir.1994). Strickland.”). recognized that Supreme Court has possible contexts it is also dem- some B. showing even absent a onstrate prong turn to the second We now in a likely would have resulted a trial years Nearly twenty-five be- Strickland. See, e.g., v. Coo- different outcome. Lafler decided, the Supreme fore Padilla — -, per, Lockhart, that in explained Hill v. Court stand (“Having 182 L.Ed.2d 398 context, “prejudice” prong it, choosing preju- is the to waive test ineffective assis- the Strickland alleged. dice these circumstances requires defen- tance counsel must that but for the inef- defendant show “that there is reasonable dant show there a reason- fective advice errors, that but for counsel’s probability that the offer would probability able pleaded would not have (i.e., presented to the court going to trial.” 474 U.S. have insisted accepted 88 L.Ed.2d 203 prosecution not have plea and the light intervening it in circum- withdrawn of prong, to the a regard prejudice With stances), accept- court would have “affirmatively must prove” defendant terms, or ed and that conviction its Strickland, 466 U.S. at prejudice. both, sentence, terms or under the offer’s allegation A of 104 S.Ct. 2052. mere have been less severe than would satisfy not prejudice sufficient in fact judgment and sentence that — prong of the Strickland test. prejudice Frye, imposed”); were Missouri A must establish but for 1399, 1409, -, 132 182 S.Ct. advice, alleged his counsel’s erroneous (“To (2012) prejudice show L.Ed.2d 379 not have but pleaded he would of counsel from ineffective assistance upon going would have insisted to trial. lapsed offer has or been where Collins, Carter v. per- deficient because of counsel’s Cir.1990). formance, must demonstrate defendants assessment, turn, they would have ac- depend probability This will in reasonable they cepted the outcome the earlier offer part prediction on a of what counsel.”); of have Hill v. effective assistance might of trial been. Lock afforded States, hart, S.Ct. Glover v. United [106 56-58 L.Ed.2d 604 example, For 203] 88 L.Ed.2d S.Ct. a mini- (“Authority suggest that alleged of is a does not where the error time in prison mal investigate failure discover amount additional poten Quite evidence, to the tially prejudice. cannot constitute exculpatory prejudice trial, contrary, jurisprudence suggests our success the risks jail any amount of actual time has Sixth faced at Kayode’s representa- significance.”). Amendment tions about his desire retract his his connections to the United Strickland’s “Surmounting high bar is the district court’s admonishments.2 Giv- easy never an task.” 559 U.S. at here, en the facts agree we with the dis- so, In 1473. order to do trict Kaydode court that has not demon- Kayode “must convince the court that a prejudice. strated reject plea bargain decision have been rational under the circum We consider a number factors when counsel, Id.1 “An error even stances.” whether, determining totality under the unreasonable, professionally if not does circumstances, a defendant has estab- of a setting judgment warrant aside under Strickland. prejudice lished Kay- proceeding, criminal the error had no ode argues that he prejudiced because Hill, judgment.” on the 474 U.S. at effect proceeded would have to trial if he had Strickland, (citing 106 S.Ct. 366 likely immigration known conse- 2052). U.S. at quences of plea.3 his begin We therefore by considering

Here, put whether Kayode has not met his bur forth evidence to support In his prejudice. assessing prej den to show assertion that udice, he would have totality we cir to trial if consider he had cumstances, including Kayode’s likely immigration evidence known conse- assertion, quences his likelihood of plea. Kayode did not.4 Supreme opinion Padilla Court did not reach does identify possibly what could question gleaned of whether the defendant had evidentiary hearing. be from an Kay- affidavit, face, prejudice demonstrated and instead remand- ode's never its states that ed for the Id. at determination. gone would have to trial had his 374, 130 S.Ct. 1473. attorney likely informed immigra him of consequences guilty plea. tion specify 2. We note does that the factors we here affidavit different consider course only are not the factors that consid- of action that taken had prejudice analysis. ered might under the While we known lose his United States case, Instead, discuss the most deported. factors relevant to this and be the af this list of is not be ex- par factors intended to asserts fidavit was minor crimes, haustive. ticipant in avers pressured through legal him incorrect advice above, it, plea sign agreement reading Supreme As to without discussed has Court 3. recognized Kayode and avers that that certain first learned of the in circumstances possible possible immigration consequences to show absent a from the even showing rearraignment likely hearing. that a trial would have district court at resulted However, Kayode in Kayode a different While outcome. averred in his affidavit that he any arguments pleaded does not such raise As a would not have had he here. "known result, dismissed,” analysis we limit our he [his] to whether indictment would been have prejudiced by proceeding was not quickly to trial. and his did not act on his instruction to file a to withdraw the motion plea, Kayode never that he dissenting averred would opinion 4. The there contends that proceeded have to he is a trial had known of the dispute factual as to whether immigration likely consequences pleading would have to trial had he known guilty. likely procedure, As a immigration consequences matter of one cannot of his First, plea. baffling. by stating create a fact issue new facts for This is never issue, evidentiary-hearing appellate briefed the in an either in first time brief. Smith v. Olin appeal. Corp., or in motion for COA his brief on Chem. Cir. Second, (en 1977) banc). importantly, dissenting glaring and more This omission in and flat-screen television sets a number of sworn dise such as Kayode makes While in actions have computers appeared his counsel’s that laptop statements about he affidavit, not aver that he does with fraudulent credit purchased been had known gone trial would have cards. plea. consequences immigration these Kayode’s apparent defense to Instead, I had that “[i]f his affidavit states checkbooks, mail, charges was that indictment would have my known else belonged other materials someone dismissed, pled I would never have only participant that “a minor he was result, weighs this factor guilty.”5 As n had] of which been ac- [he events against finding prejudice. minor, not that [he cused. So sure was] factor is whether important Another role even have deemed indict- would [his] defendant has demonstrated prison time.” than his own ment Other Armstead, at trial. See likely to succeed testimony, Kayode does not point sworn Here, Kayode has F.3d at 206. additional evidence district court found done so. The record, Kayode his defense. Based on this against “overwhelming evidence there was likely shown he was suc- great Kayode.” finding This is entitled to trial, weighs factor thus ceed Urias-Marrufo, 744 F.3d at deference. against finding prejudice. Specifically, there was evidence 369. belonging mail Kayode received stolen de assessing whether a reasonable people, than 250 he defraud- more rationally go fendant would chosen institutions. Postal ed least 98 financial circumstances, to trial we also inspectors seized more than 350 credit risks faced a defendant consider the own, issued in names other than his cards selecting plea bargain. rather than a a trial containing the reports numerous credit 559 U.S. at Cf. numbers, names, security social and dates trial, Kayode faced By going to convictions birth other identification personal higher all forty-four on counts and much large belonging information to a number explained, the district court sentence. As individuals, let- as well as several hundred had

ters, card pre-approved about 800 credit pro- statements, card applications, bank credit would have faced ceeded to statements, checkbooks, and mail other prison. He substantially more time parties. for third The dates meant issue counts, and charged forty-four far No- for these items went as back as plead him to agreement allowed 21, 1997—almost a decade before vember three, guilty to while the Government Kayode became a naturalized citizen. forty-one. $63,000 agreed to dismiss the other cur- inspectors also found in U.S. foreign deportation, To avoid rency, an undetermined amount of all currency, acquittal an and various forms merchan- receive likely justify "if she she had known for sure that affidavit alone Armstead, result, deported as she affirmance. 37 F.3d at would be a would Cf. 361, (mere allegation guilty plea.” have F.3d that defendant would have entered the insufficient). There, (5th Cir.2014). byis In we insisted on a trial itself determined event, conclusively any undisputed sufficiently presented facts that the defendant had to relief. establish that entitled to a Padilla claim in motion withdraw plea, and the district court remanded to 369, contrast, at In in States v. consider her claim. Id. 5. United stating Urias-Marrufo, an affidavit 1473. submitted

727- occurring during prior counts to and ties to the United States could make a Otherwise, citizenship. application likely rational defendant accept less § by plea he still have violated that result in depor- tation, lying citizenship application in likely and more risk in knowingly asserting hopes avoiding that had not certain “exile” from the acquittal committed crimes. While United States. 559 U.S. at Cf. theory, improba- 370-71, (“When it possible in was 130 S.Ct. 1473 attorneys case, given ble in this Government’s possible know that their clients face exile against Kayode. evidence overwhelming country separation from this families, they their should not be encour- Given were found that there documents aged say all.”); nothing at United 1997, in his home from as far back as Akinsade, States v. 255-56 that the PSR indicated the scheme to (4th Cir.2012) (“We found began commit crimes in we these defendant, where the whose counsel misin- agree with the district court that deportation consequences, formed him of acquitted was unlikely to be of all counts significant familial to the ties United prior for conduct that his natu- occurred reasonably States and thus go- risk ralization in 2006. See Sandoval-Moschet- ing to trial instead of pleading guilty and to, EP-11-CV-199-KP, Nos. EP-09-CR- facing Here, deportation.”). certain 89291-KC, *11 2013 WL Kayode’s PSR indicates three of five (W.D.Tex. 2013) (no (unpublished) Jan. States, in siblings live the United and that prejudice when “the evidence in case this young has a child residing in overwhelming so that Sandoval would Houston, Texas. consistently likely inclined to accept Houston, Texas, resided in entry since his regardless immigration consequences”); into United States in 1982. While States, Zapata-Banda v. United B:10- No. facts, standing alone, these do not (S.D.Tex. estab- WL *10 prejudice, they lish do indicate that 2011) 7,Mar. (unpublished) (finding that would be more reasonable for someone in viable overwhelming evidence lack of a Kayode’s going circumstances to risk indicate, in part, petitioner defense that a trial rather than deportation. face This pleaded guilty would have even if advised weighs factor thus in finding prej- favor of immigration consequences). It is thus unlikely udice. person a rational position would have to trial. analysis Another factor our is wheth-

Accordingly, factor weighs against previously er the defendant moved to with- finding prejudice. guilty plea. draw his See Gonzalez v.

Next, (2d States, we con- consider defendant’s United 132-33 Cir.2013).6 nections to Significant sentencing, Kayode the United States. Prior to Gonzalez, his ini- preju amended found Gonzalez establish could not issued, petition tial overwhelming habeas after Padilla was of the dice because evidence of asserting provide guilt that his counsel failed against him. After the district court by neglecting effective petition, during assistance to advise denied Gonzalez's habeas immigration consequences him of the pendency appeal to the Second Circuit, plea. Supreme Without consideration fact Court issued its decision Chaidez, unsuccessfully sought holding ap Gonzalez had with- does not Padilla ply retroactively appeal. draw his court considered Chai collateral (in -, Gonzalez’s claim other Padilla addition to v. United - U.S. dez claims) Thus, ineffective-assistance-of-counsel 185 L.Ed.2d 149 allegedly sub- trial but asserting [counsel’s] con- plea, his moved to withdraw al- to en- performance, and we decline appeal waiver standard regarding his cern pro- recollection of no court’s conclusion leging had dorse with counsel. or discussions ceedings requi- his failed to make the petitioner] [the his motion to withdraw Although Kayode’s showing prejudice. site counsel’s not based on guilty plea was added). inas (emphasis at 132-33 Just Id. Padilla, fact deficiencies Gonzalez, unsuccessfully here plea asserted to his sought withdraw guilty plea. to his moved withdraw trial, inno- proclaiming togo his interest to whether Finally, we also consider cence, preju- relevant to is nonetheless ad judicial Gonzalez, the defendant received 133. analysis.7 dice possible de although regarding monishments explained, Circuit As Second plea, plea had of a when portation consequences withdraw the motion to performance, to As have nothing evaluating prejudice. previ do with we noted, relevant the motion is still court’s admonish ously a district de- ability to that a rational demonstrate determining in are “irrelevant” ments have circumstances would fendant under the first whether error has occurred proceed- agreement and plea prong: Strickland a factor and thus should be ed new, clearly which announced a inquiry. prejudice the court’s defined, relatively duty for limited ease, the present In the stated basis attorneys, concerns a criminal defense request petitioner’s] to withdraw [the inquiry compared, to most narrow factual to any performance related plea was not claims: whether the defen- Strickland by [Ac- lack [counsel].... thereof coun- was informed dant defendant’s attempt cordingly, fact an t]he consequences, immigration sel certain go plea the ^guilty made withdraw there- and whether resulted on the dispositive to trial not be duty, It from. is counsel’s however, is a it prejudice; issue IAC court’s, immigration of certain warn by the must be considered factor can- consequences, and counsel’s failure a assessing there is whether by plea colloquy. not be saved sub- probability reasonable that but for F.3d at Warn- Urias-Marrufo, counsel, the standard performance during colloquy ings judge plea eschew have chosen to for effective assistance are not substitute that' go [the to trial. Given counsel, bearing have no and therefore petitioner’s] attempt withdraw However, prong. first on the Strickland appear to trial go does not a judicial admonishments are while considered the district been of coun- for effective assistance proba- substitute assessing court in the reasonable sel, they under the second go are relevant bility that he would chosen yet decided at the time it consid- 7. Padilla had not Second found that could not Circuit Cir- claim. The Second withdraw his er Gonzalez’s Padilla filed his motion to cuit, however, analyzed court's the district argue motion did not in his reasoning under Strickland and concluded in assist- that his had been ineffective endorse” the district court's "did not plea. ing him with prejudice analysis to consid- because it failed sought er the relevant fact Gonzalez Gonzalez, guilty plea. See to withdraw his 122 F.3d at 132-33. prong determining Strickland whether a that he understood consequence.” prejudiced by was defendant counsel’s er- Such open “[s]olemn declarations in court carry ror. strong presumption of verity.” Allison, Blackledge v. 431 U.S. weigh against The admonishments here 52 L.Ed.2d 136 This finding prejudice.8 accepting Before his weighs against factor thus finding preju Kayode the district court informed dice. today We need decide whether “that is a if possibility, there convicted or Kayode’s affirmative responses to these count, found of this guilty might there be a admonishments, alone, standing would be citizenship given you loss of that was sufficient prejudice defeat prong through naturalization.” The district court Strickland,9 Under totality Kayode also asked if he understood that if here, present circumstances Kayode his revoked “convic has not affirmatively preju demonstrated your tion deportation lead or exclu dice, and thus failed to surmount sion the country” before accepting high bar. Strickland’s plea. Kayode ‘Tes, responded, sir.” S.Ct. 1473. The court district also that “during noted Kayode’s rearraignment, prior to his IV. guilty, him Court asked three if times he understood that he could face claim fails as he has shown deportation as a result of pleading guilty, prejudiced by the fact Kayode stated on the each record time warn did not him of the likely 8. The dissent characterizes admonish- preju Given the fact-intensive nature of merely "perfunctory,” analysis, ments in case as dice signifi courts have varied in the but the record they judicial demonstrates the district cance that attribute to admonish court far script. assessing did more than read from a prong ments when this second Rather, experienced actively court Compare district the Strickland test. DeVillev. Whit Kayode (5th Cir.1994) ("court’s ley, ensured that received the information 21 F.3d that he guilty needed to enter an informed any deficiency admonishment cured in coun court, plea. only performance Not did the on its sel's district made the error harm initiative, court, counsel, inquire own whether was a less” when the but not admon citizen waiving naturalized and choose to make ished the defendant that he was loss-of-citizenship right suppression hearing); admonishments over coun- to a Abraham v. they (8th unnecessary, sel’s assertion that were but United Cir. 2012) (“[A] stopped satisfy also later the hear- defendant cannot Strick ing prejudice prong when testified did not land 's PSR when 'the indi intend to commit the described acts in the cated a that [the defendant] likelihood convicted; deported PSR. The district court allowed then [the defendant] con PSR, attorney resuming meet with before firmed that he had read the discussed it clarified, counsel, it; rearraignment hearing and on the with his and [the understood record, attorney and his had time moved defendant] never to withdraw his Blackburn, ”) to meet plea.' and discuss the issue before the hear- with Bonvillain v. choice, ing Cir.1986) (counsel’s The resumed. district court’s initiative, its own ju to include loss-of-citi- failure when harmless received admonishments, zenship the district dicial court’s admonishments and there was also evi during rearraignment active hearing, role dence unlikely that defendant was to succeed trial); Sandoval-Moschetto, Kayode’s opportunity confer with his 2013 WL loss-of-citizenship (treating judicial after the admon- at *4 admonish made, analysis). ishments were belie assertion that ments as factor in one merely "perfuncto- approach adopt today admonishments were we allows courts to Thus, ry." properly weight we accord have the continued freedom to consider all assessing prejudice. admonishments in this case. relevant factors majority the district to.” The affirms consequences deportation Strickland, petition § Kayode’s 2255 agreement. See court’s denial (“Unless a defendant determining 104 S.Ct. 2052 whether motion without it be said showings, cannot makes both case and files records of the “con- and ... from a that the conviction resulted prisoner that the is entitled clusively show adversary process that breakdown 2255(b). § 28 to no relief.” See U.S.C. unreliable.”). We the result rendered motion, files Because the and records AFFIRM the district court’s therefore conclusively, do not or undoubt- case summary judgment. grant of no edly, is entitled to show my view, relief, respectfully In I dissent. DENNIS, Judge, L. Circuit JAMES court’s this court should vacate the district dissenting: for further order and remand case a federal Kayode, Babatunde Rasheed including evidentiary an hear- proceedings,, § prisoner, moved under USC 2255 ing. alia, inter alleging, vacate his sentence Additionally, disagree majori- I attorney provid- that his retained defense vague ty’s that the and indeter- conclusion ed of counsel under ineffective assistance judicial provided minate admonishment Kentucky, 559 Padilla v. Kayode during guilty plea proceeding, (2010). 1473, 176 L.Ed.2d pleaded guilty, weighs moments before he grant- and district court denied his motion against prejudice a finding of Strick- to dismiss ed the Government’s motion Washington, land v. evidentiary hearing. an Section without L.Ed.2d 2255(b) pertinent part, pro- of Title cases, one, including present most motion vides: “Unless the and files judge merely perfuncto- which the adds a conclusively and case records show ry,1 warning possible general adverse relief, prisoner that the is entitled to no consequences near the end of immigration the court shall cause notice thereof to be plea colloquy, guilty defendant’s upon attorney, served United States eliminate, excuse, thereon, judicial warning cannot grant prompt hearing a deter- or findings the issues and make of fact diminish mine by and law with been caused the ineffective respect conclusions of there- majority suggests by describing http://www.oed.com/view/Entry/ 1. The Dictionary, (last 22, 2014) judicial (defining ‘'perfunctory” here Dec. admonishment as visited as, alia, "superficial” erroneously "perfunctoiy” I characterize the district inter or court's nothing merely duty”). judge A than a a matter of admonishment as more recita- "done as Rather, duty guilty plea proceeding script. a is at the tion from That not so. fulfills here, by vague, equivocal providing general, a the district court’s admonishment like judicial during warning deportation potential is a conse- most admonishments “perfunctory” quence guilty plea. proceedings, was of a See Fed.R.Crim.P. 11 because (2013 part duty advisory note Amend- of the court’s routine committee’s nature, ments, (b)(l)(0)) (explaining superficial very provided only its Subdivision generic warning, provide "a warning meaning- must that contained none of the advice, concerning guidance, specific in- or that a advice the defendant's ful counsel defense situation.”). provide This is of course not the required to his dividual client. required Definition, advocacy advice that is Perfunctory See kind of Merriam-Web- Amendment, http://www.merriam-webster.com/ Sixth of counsel under the ster.com, (last "perfunctory,” superficial dictionary/perfunctory or warn- visited Dec. thus is 2014) consequence (defining regarding "perfunctory” ing the adverse as "character- exposure superficiality”); see loss of ized routine or also Definition, Perfunctory English deportation. OED: Oxford to his leading up assistance of his Would the be entitled to judicial post-conviction legal relief guilty plea. perfunctory as a matter if Such allegations those factual which are not warning, coming only after the defendant conclusively refuted the record and step the final prejudicial has taken all but within Judge’s person- matters the Trial conviction, defen- toward his affords such a knowledge al are in recollection fact protection genuine against dant no true? omissions, wrongful acts or If inquiry the answer to the first is a weigh against therefore does not offset or negative one and the answer the sec- caused the the one, ond an inquiry affirmative then s. his counsel. derelictions of requires 2255 Court District to con- evidentiary duct an hearing on those Evidentiary Hearing Right I. to an which, allegations factual if found to be presented today, As the case is to us true, would entitle petitioner post- proper question is not the ultimate merits relief. conviction of claim of ineffective-assistance- States, 1010, Friedman v. United 588 F.2d rather, but, of-counsel whether the (5th Cir.1979) (footnote omitted). 1015 denying without erred the claim Thus, a district court abuses its discretion granting evidentiary an hearing. We re by denying an evidentiary hearing if the view the district court’s for an decision forth specific, motion sets controverted is abuse of v. discretion. United States Cer sues of facts that are conclusively ne (5th vantes, 1106, Cir.1998). 132 F.3d 1110 that, gated by the if proved record and hearing, petitioner would entitle the A. See, Smith, e.g., relief. Mack v. 659 (5th Cir.1981) (“[W]here F.2d [the Section 2255 permits prisoner federal petitioner] post-con would be entitled to bring moving a collateral challenge by allegations viction if relief his factual were aside, vacate, court to sentencing set true, proven requires s. 2255 an evidentia or correct his sentence. U.S.C. 28 ry hearing on those allegations.”) (citing 2255(a). § § a petitioner Once 2255 files a Friedman, 1010, 588 approvingly); F.2d motion, the district court required is see Thompson, also United States v. 721 “[ujnless a hearing statute to hold — (D.C.Cir.) 711, denied, 713 cert. motion files of and the and records U.S. -, 629, L.Ed.2d 407 187 conclusively prisoner case show that the (2013) (“[Wjhere a defendant raises a col 2255(b); § entitled to no relief.” 28 U.S.C. previously unexplored orable ineffec Reed, see also States v. United 719 F.3d appeal, tive assistance claim on we remand (5th Cir.2013); Dupart 373 United v. for proceedings further district court un States, (5th Cir.1976) 541 F.2d 1149 conclusively less record alone shows curiam). (per As this court has explained, is not the defendant either is or enti Application statutory of command (internal relief.”) quotation tled to marks ... two-step inquiry: demands a omitted); Winthrop-Redin v. United (1) case, sup- (11th Cir.2014) Does the record in the States, as 767 F.3d plemented (“[A] “per- the Trial Judge’s only allege need petitioner —not knowledge recollection,” sonal or con- prove reasonably specific, non-conclusory — clusively that, negate predicates true, the factual if facts him would entitle relief.”) asserted in (quotation the motion for marks and citation omitted). post-conviction relief? coerced); all “[cjontested guilty” were fact counseled

Further, issues Allison, Blackledge v. 431 U.S. § must on the basis cases be decided (explain- v. 52 L.Ed.2d 136 evidentiary hearings.” Reagor Unit- Cir.1973). administering the States, ing that writ “[i]n ed counterpart, §its explained, corpus even habeas Supreme As the Court fairly per adopt federal courts cannot peti- if the contends Government excluding rule all de- “improbable possibility se allegations are tioner’s time unbelievable,” spe- representations makes fendant’s if the accepted were so much the guilty plea was in his motion cific assertions and detailed product of such factors as misunderstand- that create contested issue and affidavit duress, misrepresentation by others relief, ing, true, an that, him to fact entitle guilty plea a constitutional- as make Ma- is warranted. evidentiary hearing inadequate imprisonment,” ly basis chibroda United because the “record (1962); remanding L.Ed.2d 473 not, hearing allegations did view of States, 411 see Fontaine v. United also made, the conclusively prisoner show that 214-15, 1461, 213, L.Ed.2d U.S. 93 S.Ct. 36 relief’) (footnote (was) to no and entitled (1973) remanding and for an (vacating 169 omitted).2 internal citations the evidentiary hearing petitioner’s where out motion for “relief under s. 2255 sets B. that, true, allegations” factual detailed claims his that his “con- Ineffective-assistance-of-counsel contention counsel, require un- Amendment fession, waiver of and the under the Sixth his "directly by prior court that is refuted” their sworn 2. To demonstrate that See, e.g., testimony. v. Cer- denying with United States abused its a claim discretion vantes, 1106, (5th Cir.1998) has, 1111 evidentiary hearing, 132 F.3d out this court an petitioner’s (reasoning that where claims of of depending on the facts and circumstances case, unkept promise directly refuted her an sworn required petitioner sometimes testimony that she had "not been induced to likely present "independent indicia of the sign any promises, repre- by See, e.g., allegation.” United [his] merit of coercion,” sentations or she nonetheless Cavitt, (5th Cir. v. 550 F.3d 442 States hearing granted evidentiary [she] be an "if "However, 2008). requirement this must likely produces independent indicia of the practically, in the context of the understood allegations, typically merit of her in the form Reed, being presented,” F.3d at claim 719 of one affidavits from reliable third or more inapplicable and is to this case. Smith, parties”); v. see also Harmason 888 "independent requirement The of indicia” (5th Cir.1989) (likewise 1529 re- by panel was articulated in United first likely quiring "independent indicia Raetzsch, is, it, properly and as I see States v. petitioner’s] merit of contentions” when [the facts; analogous cases with limited to petitioner’s alleged claim based on an was allegations example, petitioner's where the promise represen- that was "inconsistent testimony directly by prior are refuted his court”). open requirement A tations made in "inconsistent with the bulk his conduct beyond petition- “independent indicia” (5th Cir.1986). date.” appropriate where er’s sworn affidavit thus Raetzsch, In this with a claim faced negated by allegations are otherwise such record, petitioner’s guilty plea that the was involun- applied and should not be across "unkept tary induced an because was every petitioner's board to habeas claims and here, se, plea bargain,” yet allegation directly re- pro particularly indi- when (albeit petitioner’s testimony un- gent petitioner futed the incarcerated submits sworn) plea hearing. specific Id. at the at 1150. with detailed and fac- sworn affidavit "directly propo- refuted” majority allegations vast of case law that cites this tual that are not testimony. prior Machibro- involves cases in which or rebutted his sition likewise da, petitioner unkept promise 82 S.Ct. 510. makes claims of an (1) petitioner requests proceed demonstrate coercively him representation, directing sign provided plea agreement deficient berating him guilty plea to enter a all prejudiced that the that, advising result, without ever him as a attorney’s deficiencies. Strickland lose and be de- Washington, that, ported. He alleges further but for Prejudice 80 L.Ed.2d errors, by inquiring must be determined whether deal to trial. The that, probability “there is a reasonable but majority, although acknowledging that unprofessional errors, for counsel’s the re- genuine there disputes regard- are of fact sult of the proceeding would have ing counsel’s deficiency, concludes that probability different. A reasonable is a Kayode has not established he was probability confi- sufficient undermine prejudiced by represen- counsel’s deficient dence in the outcome.” Id. at However, tation. neither the district court S.Ct. 2052. nor majority, concluding before the Court new broke Kayode failed prejudice, to demonstrate ground3 holding that defense counsel’s motion, actually examined the files and immigration failure his client to advise records this case to determine whether consequences guilty plea amounts to they “conclusively” that Kayode showed a violation of the criminal defendant’s thereby was not entitled to ignor- relief — right Sixth Amendment effective assis- 2255(b) ing the dictates of Section tance of counsel. U.S. at denying Kayode right develop the S.Ct. Applying 1473. the Strickland two- factual basis for his claims. While test, pronged Court concluded significant have hurdles overcome Padilla’s counsel’s failure to advise him prove deficiency that his prej- counsel’s that a guilty plea would result in his re- him, I agree udiced cannot that the limited country moval from the amounted to defi- conclusively Kay- record here shows that cient representation under Strickland. Id. prejudiced by ode was not counsel’s defi- 130 S.Ct. 1473. The then Court Rather, specific ciencies. factual alle- for a remanded the case determination of gations averred in affidavit his sworn are prejudiced whether Padilla coun- and, if negated proven the record and, thus, sel’s errors whether he was true, “might support a constitutional claim entitled to relief. Id. at counsel.” ineffective assistance of See explained 1473. The Court that to show Friedman, 588 F.2d at 1017. Accordingly, context, prejudice in this Padilla must I would reverse and for “as full a remand reject demonstrate that “a decision id., hearing necessary” as is so that the plea bargain un- would been rational record, may develop district court re- der the circumstances.” Id. at issues, solve contested fact and reconsider S.Ct. 1473. analysis light its the find- alleges his defense ings impact of fact that ultimate legal violated his Sixth Amendment to ef- right necessary conclusions to determine wheth- fective by ignoring assistance er is entitled to relief.4 States, - U.S. -, (or 3. give) immigration v. United advice fails about Chaidez (2013) (“It consequences”). 185 L.Ed.2d 149 was Padilla first ... made the Strickland While, record, 4. on this the contested issues operative! lawyer gives test when a criminal appear evidentiary full fact to warrant a regarding of material fact counsel’s dispute

1. deficiency and Strickland. under Padilla in the case does not “conclu- The record Ante, at 723. assert- sively predicates the factual negate allegations regarding to the post-convic- for In addition of the motion ed deficiencies, Friedman, he further F.2d at See tion relief.” fail- as a of counsel’s pro affida- contends that result Construing Kayode’s se 1015. must,5 ures, plea alleged, signed he before we he has liberally, vit as alia, colloquy re- so much as read- plea without inter that counsel: dismissed understanding consequences it or not-guilty plea pro- ing quests to enter and, he trial; guilty plea entering him with the writ- presented ceed to provided in the counsel who the first time effective plea agreement ten court, him that he just properly moments would have advised district before explain failed lose his removed plea proceeding; would guilty country as plea agreement a result the contents of written plea deal opportunity him an to read nor allow it; Further, Kayocle sign never ex- trial. insisting before citi- had minor in the him that he would lose his avers that he role plained to inculpatory if that the zenship pleaded and be fraudulent scheme and deported actually plea agreement; misad- evidence from his residence guilty under seized agreement, belonged Nigerian.” once In his him that the “fellow vised also irrevocably appeal, Kayode (1993) evidentiary hearing testimony (acknowledging Supreme is that the full with live warranted, pre pleadings whether other Court has “insisted that the indeed or some to proceeding develop pared prisoners to the rec do not have access would suffice who fact, construed”) (citing liberally ord and resolve contested issues such counsel be of Kerner, discovery proceedings obtaining 404 92 as affida Haines v. U.S. Gamble, (1972), vits counsel other wit 30 L.Ed.2d 652 and Estelle v. and relevant See, Allison, e.g., Blackledge v. 431 429 97 S.Ct. 50 L.Ed.2d nesses. Thaler, 63, 82-83, (1976)). 52 L.Ed.2d 136 251 See also Hernandez (“The (5th Cir.2011) (1977) (“[I]t may filings upon that a F.3d turn out remand proceed evidentiary hearing required. But habeas who full is not of federal is petitioner] ing pro liberal is entitled to careful consider se are entitled to the benefit of [the Quarterman, claim,) construction.”); (his plenary processing ation of Johnson v. and (5th Cir.2007) ("Briefs opportunity presentation by pro including for se full facts”) (internal quotation litigants marks are afforded liberal construc the relevant omitted); ...”); Kaylo, 259 F.3d and Friedman v. United tion. Melancon v. footnote (5th Cir.1979) (5th Cir.2001) (reasoning pro that the se argument (vacating remanding petitioner’s habeas that he should "for reconsideration punished improper setting hearing for petition as full a as not after as a necessary the return date should be construed to decide all these unresolved which, true, despite sup request equitable tolling, fail allegations might his factual for equitable port "explicitly the issue of claim of ineffective assis ure to raise constitutional counsel.”). tolling”). tance of on Kayode’s fingerprints right not were found to trial.” He averred that in pre- plea meetings with rejected the stolen mail. he proposed plea first agreement and told minor regarding claims counsel he wanted go to trial. role in the and his fraud insistence additionally contended during that off-the- to trial coun- would have but for record discussions during with counsel re- representation sel’s deficient are not con- arraignment, he again if he go asked could record, clusively by the negated but trial, but counsel informed him that he that majority Kayode’s petition concludes already signed had the plea so without an properly denied evidentia- he “no plead guilty.” choice but to ry hearing. majority The erred majority considers this affidavit question addressing presented the first that, “[w]hile concludes makes a §a in which the case number of sworn statements about his evidentiary has denied relief without an affidavit, counsel’s actions in his he does viz., hearing, whether motion and that gone not aver he would have to trial “conclusively files and records the case had he known of the immigration conse- show” that prisoner is entitled no Ante, quences plea.” Despite at 725. reasons, majority seemingly relief. The Kayode’s assertions, majority errone- factors, Kay- after various considering ously disregards Kayode’s averment prej- ode is from demonstrating foreclosed he his attorney go told he wanted (1) udice he did forth put because: him failing and faults for to expressly that, support evidence to his assertion but that, in one articulate clear statement but errors, pro- he would have for counsel’s failure to him of inform (2) trial; unlikely ceeded to he was immigration consequences he (3) trial; succeed at because he unlike- rejected plea would have and insisted ly acquitted prison to be and faced less proceeding Construing Kay- trial. plea time as a agreement, result of se pro liberally, ode’s affidavit in accor- did not that a person demonstrate rational Supreme dance with Court and Circuit proceed- I precedent, would conclude his sworn trial; ed to he was admonished which, noted, allega- as contains judge may lose affidavit — tions that counsel failed inform him of country.6 be removed from the immigration consequences of his summary In affirming judgment for the that he told counsel he wanted to Government, majority, like the district right exercise his to trial twice—is suffi- court, disregards improperly contested cient present- to conclude that fact issues without the benefit of an evi- ed evidence to assertion dentiary to conclude hearing deficiencies, but for counsel’s he would cannot prejudiced by establish he was rejected plea agreement have the and in- First, representation. counsel’s deficient proceeding sisted on to trial. These facts noted, Kayode as asserted via sworn affi- conclusively are not rebutted the record davit that his never him he told his claim counsel’s that defi- would lose signing before prejudiced ciencies him. that, the plea agreement and on based Second, with his attorney, majority Kayode’s communications the discounts thought by signing plea agree- that the regarding purported assertions defense irrevocably up ment he had “given charges. to the the Although district II, my 6. judicial I will views on ad- address the monishment factor in section infra. asserted, repeatedly however inar that the finding a fact Gov court made his minimal ticulately unconvincingly, against ernment’s evidence example, no in the crime. For at rear finding court made role “overwhelming,” the the raignment, when asked regard to alle whatsoever only minor court whether he what he was “kn[e]w role gations that he time,” which, responded, the doing at estab fraudulent scheme— “No, Similarly, sentencing, Kay- at lished, against charges sir.” could defend allegations oth ode refuted the contained aided and abetted knowingly pre-sentence report and insisted that a scheme and artifice to devising ers in from his home seemingly some of evidence seized various banks. While defraud trying to others that he was guilt may belonged relevant strong evidence of them, “in items for and later prejudice- inquiry help storing in the consideration that “all stuff reiterated does asmuch as reasonable defendant account,” In fact belong pre-sentence to me.” surely take into United States (4th Akinsade, investigation prepared by pro report v. F.3d Cir. at 2012), department bation least six the evidence here is far “invin reflects face,” were on fingerprints its and does not dictate others’ found the sto cible on mail, Kay- len cannot demon does indicate conclusion fingerprints that a rational ode’s were discovered on strate have from his home. The circumstances would the evidence seized these negate Kayode’s to trial. See record therefore does not id. (4th Cir.2012) allegations pro (explaining 255-56 that the factual he would that “counsel’s ceeded to trial to assert his defense to the Fourth Circuit found charges, satisfying affirmative on collateral conse Friedman’s first misadvice Friedman, quences guilty plea prejudicial prong. to a 588 F.2d Rather, prosecution’s ‘proved “incomplete evidence we are faced with an where enough’ for a ver record on relevant factor” and thus [this] be more than ‘hardly an dict but was its the “district court should held invincible ”); evidentiary hearing dismissing see before face.’ also Gonzalez United (2d Cir.2013) § application.” States v. Ri United (rejecting vas-Lopez, district court’s Cir. 2012) solely court’s analysis (vacating which was “based on the the district order strength government’s denying petitioner’s case and the ineffective-assistance- upon remanding for longer of a sentence conv of-counsel claim and an evi likelihood iction”).7 dentiary hearing where the representa provided conflicting Despite government’s contention re regarding purported tions misad garding the seizure hundreds credit therefrom, prejudice resulting vice and the books, cards, check stolen merchan was inconclusive as to sev record dise, Kayode’s allegation that these items impact eral relevant facts belonged to someone else and that he had analysis). Strickland only a minor role in the fraud is not “con Moreover, clusively negated” by although Kayode limited does not record Rather, present beyond reveals evidence his affidavit to here. the record Indeed, recently right despite that im- 7. this has found a video evidence court rea- that, drug conspiracy. probability plicated in a sonable absent district defendant violation, 666, Hemphill, 748 F.3d Rule defendant United States v. court’s 11 See Cir.2014). (5th a deal and exercised his 677

737 allegation, support this “it is not clear how would have been irrational for a defendant [Kayode, who incarcerated without under these is and reject circumstances legal ed representation,] could have obtained and to trial. “A mentally competent allegation] evidence to this ... [other has the Reed, right constitutional prior filing his motion.” 719 on going See insist record, trial rather than pleading guilty, at F.3d 374. current which even if strength of the prosecution’s contains the Government’s and evidence accusations a make summary investigation of the undertak- insistence seem irrational.” Gonzalez, 722 F.3d at by pro- (citing en—all 132-33 untested adversarial Jones Barnes, Machibroda, v. 463 cess—can no real U.S. 103 light,” “cast S.Ct. 3308, (1983)). 494-95, 77 L.Ed.2d 510, 987 Accordingly, 368 U.S. at 82 S.Ct. on the npt Kayode need potential Kayode’s go so far as undeveloped merit demonstrat ing theory necessarily Kayode’s “[s]pecific of defense. would have been ..., acquitted based on his defense to detailed factual assertions while charges. States, See improbable, at Kovacs v. juncture cannot be said United 744 (2d Cir.2014) (“[T]he 44, Thus, F.3d 53 question to be Id. incredible.” his “motion fact, is not raise whether the issues of defense ultimate ] affidavit successful.”). ly Rather, have been requires hearing Section 2255 that a be must establish that reject held to these “a decision to resolve issues.” See Roberts plea bargain v. would have been United rational 982 Cir.1973) circumstances,” Padilla, under (vacating the district court’s de- 559 U.S. at 130 S.Ct. petitioner’s nial of that but Section 2255 motion and errors, for counsel’s is a there reasonable remanding evidentiary hearing, for an con- probability outcome, of a more favorable cluding that “a Section 2255 has Strickland, 466 at U.S. S.Ct. 2052. a right present evidence in support of Contrary implicit suggestions by the allegations when there exists issues majority, and the fact, though position ‘improba- even be Strickland, Kayode need establish ”). not ble and unbelievable’ deficient likely

“counsel’s conduct more 2. case,” than altered the outcome of the but, rather, he only most demonstrate Kayode’s true, allegations, sup- “might probability reasonable of a different out port claim a constitutional of ineffective come, “sufficient to undermine confidence Friedman, assistance of counsel.” See 693-94, in the outcome.” Id. at 104 S.Ct. allegations regarding 1017. If the 2052.8 Kayode’s role in minor the crime were true, proven likely Here, then taking into consideration able to rebut the Government’s contention strong ties the United States — that the that it weighty evidence so thirty years, resided Texas for over Strickland, (1982).” appropriate prejudice “[T]he test for finds L.Ed.2d 2052; materiality exculpa its roots in the test for also id. at see J., (Brennan, tory concurring information disclosed to the defense 104 S.Ct. 2052 prosecution, Agurs, part dissenting part) ("[R]ejecting United States v. 97, 104, 112-113, employed strict 'outcome-determinative' test courts, (1976), adopts L.Ed.2d 342 ap- in the test materi as the for some Court ality testimony propriate require- made to the standard unavailable for deportation defense Government of wit ment that the that there defendant ‘show ness, Valenzuela-Bernal, that, United probability States reasonable but 872-874, errors, unprofessional pro- result

738 tiary to facts to hearing develop currently child lives—as his young where claim, of I respectfully that of the counts potentially as fact one viable well appeal be has been vacated judicial conviction ad- disagree perfunctory that by the basis submitted cause factual provided Kayode moments to monishment rearraignment was insuffi at Government guilty plea could he entered his before one an cient to establish element Kayode’s to or lessen the excuse if could have estab charges,9 then attorney’s ineffective defense caused knowingly did commit lished that he assistance. fraud, may' to have been able bank totality-of- in its Among other factors that but for counsel’s defi demonstrate prejudice analysis, the-eircumstances have ration representation, cient the fact that moments majority considers ally rejected deál obtained Kayode pleaded guilty, judge outcome. more favorable before 372, 130 at S.Ct. 1473. “may” deported. U.S. him that he warned in- district court specifically, More here, limited record it is Based on the Kayode and two other defendants formed [Kayode] “not at all clear that not been him alongside you pleading guilty allegedly deficient prejudiced “if States, you are not a citizen of the United Reed, 719 F.3d at 375. performance.” See felony need understand that a conviction Therefore, court this should reverse or including may your deportation exclusion proceedings, further lead remand for See, Then, evidentiary hearing. e.g., country.” directing at an id. from the 375; Kayode, Reagor, 488 F.2d 517. Kayode, judge whom not- attention heard, opportunity an to be ‘has citizen, “denied ed was a naturalized indispensable, however con- something lost that, your asked understood “if ” showing.’ vincing the See [Government’s] also ... you is revoked Hayman, 342 U.S. United States v. your deportation conviction lead 96 L.Ed. 232 majori- country?” from the exclusion (quoting Snyder Commonwealth of ty judicial concludes this admonish- Massachusetts, response ment and affirmative (1934)). 330, 78 L.Ed. 674 question to whether judge’s as consequences, potential understood such Perfunctory II. Lack of Relevance of Ante, “weighs against” finding prejudice. Preju- Judicial Admonishments at 728. Inquiry dice possible It a different may be majority’s to the failure to addition case, receipt kind of a Kayode’s right petitioner’s to an eviden- acknowledge different,’ Government) (as ceeding defining a conceded would have been probability’ probability ‘a suffi- ‘reasonable as to establish an factual basis insufficient cient to undermine confidence in the out- element the crime—that essential (citation omitted); ”) id. come.’ see means identification used or “knew the Marshall, (Justice dissenting) 104 S.Ct. 2052 belonged person[,]” possessed actual as to an ("[T]he only majority an holds error required aggravated identity con for an theft impact on a counsel that has sufficient trial viction, Flores-Figueroa pursuant v. United confidence in the outcome’ ‘undermine conviction.”). overturning grounds for Kay States v. See United L.Ed.2d Cir.2010) (un ode, Fed.Appx. aggravated Specifically, identity theft charge Kayode pleaded guilty to was published). which vacated when court determined

739 See, judicial regarding immigra- deportation. e.g., admonishment v. Cooper, Lafler — -, a consequences weigh against 1376, tion mil 1384, U.S. 132 S.Ct. However, (2012) finding preju- prejudice. the L.Ed.2d 398 (holding counsel inquiry fact-specific10 dice is context- and encouraged reject who the defendant to a a faced with an thus ineffective- plea favorable offer proceed to trial assistance-of-counsel claim Padilla based on erroneous advice that the defen ’ automatically should not consider and trial,” dant “could be at pro convicted weigh general, judicial such tentative ad- counsel). vided ineffective assistance of every Applying monishments in case. this by As noted the majority, Supreme analysis, fact-specific I would conclude Court’s Sixth Amendment jurisprudence that, case, in the judge’s tentative that prejudice makes clear is a context- plea to warning provided at the inquiry. specific Depending on the nature diminish, colloquy weigh against, does not of the in petitioner’s allegations, some finding prejudice or excuse caused establishing cases prejudice may require a ineffective assistance his counsel. showing errors, that but for counsel’s petitioner the plea A. trial, on proceeding insisted to Hill v. Prehminarily, important it is recog- Lockhart, 52, 59, 106 474 U.S. nize that a Amendment inef- Sixth claim of (1985) L.Ed.2d 203 inquiry that “will —an fective-assistance-of-counsel under Padilla depend part prediction in on a of what the may variety take a wide A forms. been,” might outcome of trial if for petitioner may, like contend example, petitioner alleges that coun provided ineffective assistance adequately investigate sel failed to his case failing regarding to advise him the adverse or failed to inform him of an affirmative immigration consequences of a proposed Scott, defense. Armstead v. guilty plea entering before Pa- plea. Cir.1994). cases, In other for dilla, S.Ct. 1473. example petitioner if the alleges that coun Alternatively, may a petitioner allege that sel plea- failed communicate a favorable despite communicating to counsel that prosecution deal offer to the potential deportation “most client, petitioner must show there important part penalty may ... “a probability reasonable that the end imposed,” id. 130 S.Ct. process result of the criminal would have “plea bargain creatively counsel failed to plea been more favorable of a reason prosecutor order craft a charge or a prison lesser sentence of less conviction and sentence that reduce the — -, Frye, time.” Missouri v. deportation,” likelihood of id. at 1399, 1409, 132 S.Ct. 182 L.Ed.2d 379 instead, and, encouraged the defendant to to a plead charge deportation. would result in petition- prejudice inquiry Or a Because itself contours, er may allege provided depending that counsel inac- changes on the legal claim, curate that encouraged petitioner’s judi- advice Sixth Amendment petitioner proceed foreclosing provided cial admonishments at the the, ability negotiate for a deal that are not relevant colloquy every could have avoided or reduced risk of inquiry ineffective-assistance-of- See, ("[T]he e.g., Upton, [prejudice] inquiry requires Sears Strickland probing fact-specific analysis____”). 177 L.Ed.2d [a] sentence, or terms, conviction in- in which the defendant counsel claim both, [likely to example, ... would have been less For vokes Padilla. that, although judg- he was aware under the deportation] than concede result immigration of adverse in fact im- of a small chance sentence that were ment and consequences pleaded guilty, before he at 1385. In such posed.” Lafler, 132 S.Ct. failing to by claim, advise counsel was ineffective an ineffective-assistance-of-counsel deporta- or him of near-certain the,certain the comprehension the of petitioner’s plea. In guilty of his consequence tion judge’s warnings do not refute or tentative case, of judicial warning possible a such a asser- any light post-conviction shed on his simply mirrors the bad advice deportation provide reason- that counsel failed tions him failing to advise of defense counsel ably advocacy on his behalf effective certainly that would result deportation light deportation. his desire to avoid of plea. preju- establish guilty To the Therefore, petitioner if able to dem- were dice, have show the would prejudiced by coun- onstrate was of the that he been advised certain had plea sel’s failure to seek a more favorable he consequences of would deportation, bargain actually that would have been Padilla, rationally rejected the him, then the available 372, 130 and that not case not and be excused would should of a dif- probability there is a reasonable judicial warning of or diminished a Strickland, outcome, ferent “possible deportation.” judicial 2052. The admon- deportation regarding possible ishment B. consequences would be irrelevant because fact-bound, context-specif- Applying “[ejven aware, petitioner] when [the analysis, judicial ic I conclude that the that pled, ‘possibility’ might the he of here does and should admonishment by entering incur risk of deportation some of weigh against finding prejudice. does not plea, this show Kayode avers via affidavit that gone plead to trial rather than sworn not have attorney once” guilty properly he been that a defense “never discussed advised virtually plea deportation consequence make his with him the of immigration Bonilla, plea certain.” United States nor reviewed the con- guilty even (9th Cir.2011). of, provided opportunity or him an tents read, plea agreement the written before Likewise, if a Amend- petitioner’s Sixth guilty coercing sign him to it and enter a ment claim is ineffective certainly result in his loss plea that would “plea bargain creatively in his failure to citizenship. Kayode avers that he in order to craft a prosecutor with the plea signed plea agreement before that reduce the conviction sentence understanding the immi- colloquy without deportation,” likelihood gration consequences guilty plea, of his then the U.S. at that, based his communications judge’s provided af- general admonishment counsel, upon signing he believed that plea bargaining ter has terminated will be going whether, agreement, “there was no determining irrelevant in but irrevocably he had back”—he believed that during representation counsel’s deficient right trial and was bound forfeited his plea bargaining stage, “plea offer guilty plea. to enter deportation] the chances of [that reduced Further, entry of court[,] no one him that his to the told presented would have been in his guilty plea would result accepted proposed its sum, citizenship exposure loss of it is possible certain while judicial though judge Even deportation. admonishment be relevant to the subject possible prejudice inquiry broached the revocation in' a different kind of case, deportation weight, in his warn- if any, given to the ad- plea colloquy, ing depend at the defense counsel monishment will upon particu- case, change told he could not lar specific facts of as well as the signing plea agree- arguments because his raised allegations evi- Kayode argues Here, ment was irrevocable. dence presented petitioner. if his light affidavit, had warned him the allegations, (ie., consequences arguments, I fail judi- to see how the certain revocation of citi- his naturalized cial admonishment is inconsistent with or zenship consequent exposure depor- weighs against a finding prejudice. tation), Moreover, he would have the plea I dissent judgment from the deal trial. affirms court’s dismissal Kayode’s petition habeas without an evi- judge’s The advisory regarding tentative dentiary hearing, despite a limited record potential deportation consequences provid- not conclusively does he is show that ed to mere moments before he entitled to no relief on his Sixth Amend- pleaded guilty, plea bargaining after ment claim. complete, Kayode signed plea after thought by, he he was bound provide does not us with information advocacy pro-

as to what advice or

vided, what outcome could have resulted effectively represented Kay-

had counsel throughout plea

ode bargaining stage. judge’s tentative admonishment is not Individually FONTENOT, Bertha M. inconsistent assertions Similarly and on Behalf of Those Sit prior plea colloquy, never uated; Miller; David Zamar Santa advised counsel of the de- near-certain ron, Plaintiffs-Appellees portation consequences plea and be- lieved, counsel, based' discussions with agreement, that he was bound McCRAW, capacity Steve his official signed

which court at his counsel’s Department as Director Texas direction before the final proceeding. Safety; Combs, of Public Susan in her Accordingly, judge’s warning at the capacity Comptroller official as Texas plea proceeding not make it does less Accounts, Defendants-Ap of Public probable that a different could outcome pellants. have resulted com- received No. 13-20611. petent advice from his and liad afforded an effective advocate United States Court of Appeals, throughout pre-plea proceedings. For Fifth Circuit. reasons, disagree these I particu- that the judicial lar realistically admonishment here Jan.

brings any significant weight bear finding

against prejudice. and that brief on notes signed, binding vindictively punish him of a latent examination judge fingerprint results if mail from his a harsher he did of the stolen recovered imposing sentence home, agreement. In- the fin- go through purportedly with the which revealed deed, majority gerprints alle- of at least six identifiable individ- agrees these no gations genuine are sufficient to create a uals. There is indication whether See, remanded, e.g., hearing, McNeil v. United 124 L.Ed.2d 21 have the discretion to determine whether

Case Details

Case Name: United States v. Rasheed Kayode

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 23, 2014

Citation: 777 F.3d 719

Docket Number: 12-20513

Court Abbreviation: 5th Cir.