Bahtiraj v. State

• Decision Date: 19 December 2013
• Docket Number: No. 20130113.,20130113.
• Parties: Sulejman Moni BAHTIRAJ, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

840 N.W.2d 605

2013 ND 240

Sulejman Moni BAHTIRAJ, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130113.

Supreme Court of North Dakota.

Dec. 19, 2013.

Charles Justin Sheeley (argued), Fargo, ND, for petitioner and appellant.

Tristan Jones Van de Streek (appeared), Assistant State's Attorney, and Benjamin J. Sand (argued), Fargo, ND, for respondent and appellee.

MARING, Justice.

[¶ 1] Sulejman Moni Bahtiraj appeals from the district court's order denying his application for post-conviction relief from an April 2011 conviction entered upon his guilty plea to a burglary charge. We hold the district court did not err in denying Bahtiraj's motion for post-conviction relief. Bahtiraj failed to prove the prejudice necessary to satisfy the second prong of the two-prong Strickland test. We affirm.

I

[¶ 2] In March 2011, Bahtiraj was charged with burglary, a class C felony, for stealing two cash registers from the Peking restaurant in West Fargo. Bahtiraj was also charged with two misdemeanors for the offenses of false report and issuing a check without an account. Counsel was appointed to represent Bahtiraj. Bahtiraj and his counsel met on two occasions,March 10, 2011, and April 7, 2011, immediately before the preliminary hearing. Bahtiraj is a citizen of Bosnia, and his counsel was aware of that status.

[¶ 3] On April 7, 2011, Bahtiraj waived the preliminary hearing and his right to trial and pled guilty to the burglary charge. He also pled guilty to the two misdemeanors. Before Bahtiraj entered these guilty pleas, the court explained that the maximum sentence for the burglary charge was five years in prison, a $5,000 fine, or both. The court also explained the maximum sentence for the misdemeanors was one year in jail, a $2,000 fine, or both. As to the burglary charge, the State recommended the court sentence Bahtiraj to one year and one day imprisonment due to Bahtiraj's past failures to appear and abscond. Bahtiraj's counsel told the court a sentence of one year and one day would not be conducive to Bahtiraj's situation. Bahtiraj's counsel indicated that Bahtiraj “came clean with the burglary” and gave a complete and accurate statement regarding the burglary when law enforcement questioned him. The court sentenced him to one year and one day for the burglary charge.

[¶ 4] On December 28, 2011, Bahtiraj received a notice to appear regarding removal proceedings under 8 U.S.C. § 1229a. The notice to appear states Bahtiraj is subject to removal based on 8 U.S.C. § 1227(a)(2)(A)(ii), in that he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct, and based on 8 U.S.C. § 1227(a)(2)(A)(iii), in that he had been convicted of an aggravated felony.

[¶ 5] On July 25, 2012, Bahtiraj petitioned for post-conviction relief. On July 31, 2012, the State responded. On January 4, 2013, the district court heard the petition for post-conviction relief. At that hearing, Bahtiraj's counsel and Bahtiraj's testimony regarding immigration discussions were consistent. Bahtiraj's counsel advised Bahtiraj that a sentence of one year and one day would subject him to possible deportation. His counsel did not advise Bahtiraj that a sentence of one year and one day would result in an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) or that an aggravated felony would result in “automatic and mandatory deportation.” Bahtiraj's counsel did not explain to Bahtiraj the distinction between crimes of moral turpitude and aggravated felonies.

[¶ 6] Bahtiraj's counsel testified that Bahtiraj wanted “to attempt to secure a concurrent sentence with the sentence that he was presently serving” and that Bahtiraj was not concerned when the possibility of deportation was discussed. At the time the guilty plea was entered, Bahtiraj testified he was in the process of serving his one-day-under-one-year sentence for a different burglary conviction entered on March 16, 2011. Further, he understood “concurrent sentence” to mean he would get time served and he would not receive a sentence of one year and one day. Bahtiraj claims he was not worried about the possibility of deportation based on this incorrect understanding of “concurrent.” Bahtiraj also testified he was sentenced to “120 some days” for another burglary conviction entered on July 28, 2011. Bahtiraj testified that he applied for waivers but was denied due to the fact waivers are not available for aggravated felonies and he would have been eligible for a waiver but for the aggravated felony. The record did not contain a copy of the denial of waivers or the order to deport. Bahtiraj testified he was subsequently ordered deported by an immigration judge on August 13, 2012. Bahtiraj submitted an affidavit and testified that he would not have pled guilty and would have insisted on going to trial if he had known that a sentence of one year and one day would constitute an aggravated felony and would essentially result in automatic and mandatory deportation without any possibility of waiver.

[¶ 7] The district court denied Bahtiraj's petition for post-conviction relief and Bahtiraj appealed arguing the district court erred in denying his motion because his attorney failed to provide effective assistance of counsel by inadequately advising him of the immigration consequences of his guilty plea.

II

[¶ 8] Post-conviction relief applications are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. The Sixth Amendment of the United States Constitution, applied through the Fourteenth Amendment to the States, and Article I, Section 12, of the North Dakota Constitution guarantee criminal defendants effective assistance of counsel. State v. Garge, 2012 ND 138, ¶ 10, 818 N.W.2d 718. An ineffective assistance of counsel claim is a mixed question of law and fact, fully reviewable by this Court. Flanagan, at ¶ 9. “The burden of establishing grounds for post-conviction relief rests upon the petitioner.” Id. at ¶ 10. The petitioner raising a post-conviction relief claim for ineffective assistance of counsel has the “heavy burden” set forth in the two-prong Strickland test. Id.

[¶ 9] In order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) “show that counsel's representation fell below an objective standard of reasonableness” and (2) “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Surmounting Strickland 's high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial or in pretrial proceedings, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a most deferential one.... It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence.

Premo v. Moore, ––– U.S. ––––, –––– – ––––, 131 S.Ct. 733, 739–40, 178 L.Ed.2d 649 (2011) (internal quotations and citations omitted). The two-part Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “Thus, a defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation.” Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992).

A. First Prong

[¶ 10] The first prong is measured using “prevailing professional norms,” Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524, and is satisfied if Bahtiraj proves counsel's conduct consisted of errors serious enough to result in denial of the counsel guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

[¶ 11] Bahtiraj argues that his counsel's advice fell below prevailing norms when his counsel (1) stated Bahtiraj “might” be deported, constituting misadvice;(2) failed to provide clear legal advice by explaining Bahtiraj would automatically be deported if the sentence issued was more than 364 days because the immigration consequences were clear from the statute; (3) failed to correct Bahtiraj's misstatements about immigration consequences; (4) failed to provide full explanation of collateral consequences; and (5) failed to consult an immigration expert.

[¶ 12] In Padilla v. Kentucky, the United States Supreme Court analyzed the first prong of Strickland and held that if the law is clear, constitutionally competent counsel would advise a noncitizen client that a conviction would result in automatic deportation. 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Conversely, if the law is not clear, constitutionally competent counsel “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 369, 130 S.Ct. 1473. Padilla pled guilty to a drug offense after counsel incorrectly advised him not to worry about immigration consequences due to the length of time Padilla had been in the United States. Id. at 359, 130 S.Ct. 1473. The Court concluded that the drug conviction under 8 U.S.C. § 1227(a)(2)(B)(i) made Padilla's “deportation virtually mandatory.” Id. The terms of 8 U.S.C. § 1227(a)(2)(B)(i) were “succinct, clear, and explicit in defining the removal consequences for Padilla's conviction.” Id. at 368, 130 S.Ct. 1473.Section 1227(a)(2)(B)(i) provides that any alien convicted of an offense relating to a controlled substance is deportable with the exception of a conviction of an...