797 F.3d 781 (9th Cir. 2015), 13-56415, United States v. Rodriguez-Vega

Docket Nº:13-56415
Citation:797 F.3d 781
Opinion Judge:REINHARDT, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELIZABETH RODRIGUEZ-VEGA, Defendant-Appellant
Attorney:Doug Keller (argued), Federal Defenders of San Diego, California, for Defendant-Appellant. Julia A. Cline (argued), Special Assistant United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney, ...
Judge Panel:Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Richard R. Clifton, Circuit Judges. Opinion by Judge Reinhardt.
Case Date:August 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Defendant, convicted of misdemeanor Attempted Transportation of Illegal Aliens, appealed the magistrate judge’s denial of her 28 U.S.C. 2255 petition to vacate her conviction. The court held that the district court did not abuse its discretion in failing to conduct an evidentiary hearing. The court concluded, however, that the district court erred in failing to hold that counsel's performance was ... (see full summary)

 
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797 F.3d 781 (9th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ELIZABETH RODRIGUEZ-VEGA, Defendant-Appellant

No. 13-56415

United States Court of Appeals, Ninth Circuit

August 14, 2015

Argued and Submitted July 7, 2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of California. D.C. Nos. 3:12-cv-01996-WVG, 3:12-cr-02053-WVG. William V. Gallo, Magistrate Judge, Presiding.

SUMMARY [*]

Habeas Corpus

Vacating a conviction of misdemeanor attempted transportation of illegal aliens, the panel held that the district court erred in failing to hold, upon a petition under 28 U.S.C. § 2255, that defendant's counsel was ineffective in failing to advise her that her plea agreement rendered her removal from the United States a virtual certainty.

The panel held that the district court applied the wrong legal standard in deciding whether counsel's representation fell below an objective standard of reasonableness because the law was clear on the immigration consequence of defendant's plea where the immigration statute expressly identified defendant's conviction as a ground for removal, rendering her removal practically inevitable. The panel held that the government's performance in including provisions regarding removal in the plea agreement, and the district court's performance at the plea colloquy, were irrelevant to the question whether counsel's performance was adequate. In addition, counsel's statements made after defendant had already pled guilty did not satisfy his duty to accurately advise her of the removal consequences of the plea before she entered into it.

The panel held that defendant satisfied the prejudice prong of the ineffective assistance of counsel test by showing a reasonable probability that, but for counsel's deficient performance, she would have negotiated a different plea agreement not requiring her removal or, alternatively, would have gone to trial.

The panel also held that the district court did not abuse its discretion in failing to conduct a full evidentiary hearing. The panel vacated the conviction and remanded the case to the district court.

Doug Keller (argued), Federal Defenders of San Diego, California, for Defendant-Appellant.

Julia A. Cline (argued), Special Assistant United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney, San Diego, California, for Plaintiff-Appellee.

Rebecca Sharpless, Immigration Clinic, University of Miami School of Law, Coral Gables, Florida; Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; Jeffrey L. Fisher, NACDL Amicus Committee, Stanford, California; Manual D. Vargas and Dawn Seibert, Immigrant Defense Project, New York, New York, for Amici Curiae National Association of Criminal Defense Lawyers, National Association for Public Defense, National Immigration Project of the National Lawyers Guild, Immigrant Defense Project, and Immigrant Legal Resource Center.

Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Richard R. Clifton, Circuit Judges. Opinion by Judge Reinhardt.

OPINION

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REINHARDT, Circuit Judge

Elizabeth Rodriguez-Vega appeals the magistrate judge's denial of her 28 U.S.C. § 2255 petition1 to vacate her conviction of misdemeanor Attempted Transportation of Illegal Aliens in violation of 8 U.S.C. § 1324(a)(2)(A). She asserts that she was deprived of effective assistance of counsel because her attorney failed to advise her that her plea agreement rendered her removal a virtual certainty, and that the court erred in dismissing her petition without holding an evidentiary hearing. We hold that the district court did not abuse its discretion in failing to conduct an evidentiary hearing, but that it did err in failing to hold that under the controlling law Rodriguez-Vega's counsel's assistance was ineffective. Accordingly, we order the conviction vacated.

I.

Rodriguez-Vega was born in Mexico in 1989. She came to the United States with her family when she was twelve years old, and became a lawful permanent resident the following year. In 2012, she was arraigned on an Information charging her with felony Attempted Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II).

Rodriguez-Vega's attorney2 initially presented her with a plea agreement requiring

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her to stipulate to removal following her criminal sentence. A section entitled " Stipulated Removal" provided that " [i]f defendant is not a United States citizen or national, . . . defendant agrees to an order of removal from the United States" following completion of her criminal sentence, and " waives any right to appeal, reopen or challenge the removal order." When Rodriguez-Vega rejected the agreement her attorney obtained a revised plea agreement that did not include the stipulation for removal upon completion of her sentence, reduced a $100 assessment to $25, and recommended a base offense level of 12 and downward departures of 2 points each for acceptance of responsibility and fast track. The revised plea replaced the stipulated removal provision with a provision entitled " Immigration Consequences," stating that

Defendant recognizes that pleading guilty may have consequences with respect to her immigration status if she is not a citizen of the United States. . . . Defendant nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that his [sic] plea may entail, even if the consequence is his [sic] automatic removal from the United States.

The final section of the plea stated that " Defendant has discussed the terms of this agreement with defense counsel and fully understands its meaning and effect." Both plea agreements were to a reduced charge of misdemeanor Transportation of an Illegal Alien.3

Rodriguez-Vega pled guilty to a single misdemeanor. At her plea colloquy, the magistrate judge4 informed Rodriguez-Vega that " potentially you could be deported or removed, perhaps." (Emphasis added.) Later, at her sentencing hearing, Rodriguez-Vega's counsel, addressing the court, stated that " even though this is a misdemeanor, there is a high likelihood that she'll still be deported. It's still probably considered an aggravated felony for purposes of immigration law." (Emphasis added.) The district court sentenced Rodriguez-Vega to 60 days in custody followed by one year of supervised release. Fifteen days later, Rodriguez-Vega was issued a Notice to Appear, alleging that she was removable because her conviction qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).

Rodriguez-Vega filed a petition to vacate her conviction under 28 U.S.C. § 2255 on the ground that her counsel provided ineffective assistance by failing to adequately advise her regarding the immigration consequence of her plea. In the alternative, she requested that the court order an evidentiary hearing. In support of her petition, Rodriguez-Vega filed a declaration denying that her counsel ever told her that her plea would cause her to be removed.

The district court ordered an expansion of the record and supplemental briefing, and directed the government to file a declaration from Rodriguez-Vega's counsel. Her counsel stated in his declaration that

[p]rior to Ms. Rodriguez [sic] guilty plea I had several conversations with here [sic] regarding potential immigration consequences. I explained to Ms. Rodriguez

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that there was a potential to be deported based on her immigration status. I explained to Ms. Rodriguez that . . . I believed she had a better chance with Immigration with a misdemeanor than a felony.

The district court denied the petition without holding any further hearing. It held that her counsel was required to advise his client only that her plea created a general risk of removal. The district court found this duty satisfied by his statement prior to Rodriguez-Vega's guilty plea that she faced a " potential" of removal, and by his statement at the sentencing hearing that she faced a " high likelihood" of removal. It also found that even assuming that counsel's performance was ineffective, Rodriguez-Vega was not prejudiced by that conduct. Rodriguez-Vega appeals.

II.

To prevail on her claim of ineffective assistance of counsel, Rodriguez-Vega must demonstrate that her attorney's representation " fell below an objective standard of reasonableness," and that she suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A.

With respect to the ineffective performance prong, the district court erred because...

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