Eid v. State
| Decision Date | 21 February 2012 |
| Docket Number | A11-898 |
| Parties | Salim El Eid, petitioner, Appellant, v. State of Minnesota, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Reversed and remanded
Ramsey County District Court
Deborah Ellis, Ellis Law Office, St. Paul, Minnesota; and Jennifer M. Macaulay, Macaulay Law Offices, Ltd., St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Mark Nathan Lystig, Thomas R. Ragatz, Assistant County Attorneys, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Johnson, Chief Judge; and Toussaint, Judge.*
UNPUBLISHED OPINION
Appellant challenges the district court's denial of his postconviction petition, arguing that he should be allowed to withdraw his guilty plea due to ineffective assistance of counsel. We reverse and remand.
Appellant Salim El Eid was born in Lebanon in 1957. El Eid legally entered the United States with a student visa in 1979, and in approximately 1981, he became a lawful permanent resident.
In 1995, in Minnesota state court, El Eid pleaded guilty to second-degree criminal sexual conduct, admitting that he engaged in unlawful sexual contact with his then-15-year-old daughter. El Eid's plea petition did not state that a guilty plea may result in immigration consequences. The district court accepted El Eid's guilty plea, stayed imposition of sentence, and placed El Eid on probation.
In August 2010, with permission from his probation officer, El Eid left the United States to visit his mother in Lebanon. On September 1, the district court discharged him from probation, reducing his felony conviction to a misdemeanor by law. But, when El Eid returned to Minnesota from Lebanon, U.S. Customs officials advised him that he was ineligible to re-enter the United States because of his felony conviction. El Eid then filed a petition for postconviction relief, requesting that the district court set aside his conviction on the ground that he received ineffective assistance of counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). He submitted an affidavit with his petition, statingthat none of his attorneys had advised him that pleading guilty may have immigration consequences, and that he would not have pleaded guilty if his attorneys had so advised him.
Concluding that Padilla announced a new rule of criminal procedure, the district court denied El Eid's postconviction petition without a hearing. The court did not address whether the new rule in Padilla is a watershed rule of criminal procedure that should be retroactive because "Petitioner bases this argument on an article and the author's opinion that this was a watershed rule; Petitioner did not base the argument on any case law." The district court concluded that "[b]ecause the Petitioner was unable to establish that the rule in Padilla applied retroactively to [his] case, the Petition for Post-Conviction Relief is untimely."
This appeal follows.
El Eid challenges the district court's dismissal of his postconviction petition without a hearing. Postconviction courts must set an evidentiary hearing on a petition unless "the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (2010). A hearing "is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief." Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). This court reviews the district court's denial of a postconviction petition without a hearing for an abuse of discretion. Chambers v. State, 769 N.W.2d 762, 764 (Minn. 2009).
Because the district court sentenced El Eid on November 8, 1995, and El Eid did not appeal, his conviction became final before August 1, 2005. See Minn. R. Crim. P. 28.02, subds. 2(1), 4(3)(a) (); Minn. R. Crim. P. 28.05, subd. 1(1) (); State v. Hughes, 758 N.W.2d 577, 580 (Minn. 2008) ().
Because El Eid's conviction was final before August 1, 2005, his deadline for filing a postconviction petition was July 31, 2007. Moua v. State, 778 N.W.2d 286, 288 (Minn. 2010). El Eid did not file his postconviction petition until November 15, 2010. The district court determined that El Eid's petition was untimely. We agree. El Eid's petition therefore must be dismissed as untimely unless an exception applies under Minn. Stat. § 590.01, subd. 4(b) (2010). See Roby v. State, 787 N.W.2d 186, 191 (Minn. 2010) ().
A postconviction petition "must invoke an exception." Rickert v. State, 795 N.W.2d 236, 241 (Minn. 2011). But "a petition for postconviction relief does not need to include specific citation to a subdivision 4(b) exception to invoke it." Roby, 787 N.W.2d at 191. "Rather, the postconviction statutes require a court to look at the 'statement of the facts and the grounds upon which the petition is based,' Minn. Stat. § 590.02, subd. 1(1), ' waiv[ing] any irregularities or defects in form' and 'liberally constru[ing]' the petition to ascertain whether the petition raises an exception, Minn. Stat. § 590.03." Id. (alteration in original).
One exception allows a court to hear an untimely petition if "the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice." Minn. Stat. § 590.01, subd. 4(b)(5). A petition is frivolous if it is perfectly apparent, without argument, that the petition is without merit. Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010). A court will hear a petition in the interests of justice only in exceptional situations. Id. The court should consider a nonexclusive list of factors for determining whether the petition is "in the interests of justice," including (1) "the degree to which the party alleging error is at fault for that error"; (2) "the degree of fault assigned to the party defending the alleged error"; (3) "whether some fundamental unfairness to the defendant needs to be addressed"; and (4) the need for protecting the "integrity of judicial proceedings." Id. at 586-87.
El Eid's postconviction petition is based on the United States Supreme Court's decision in Padilla. The petitioner in Padilla was a Honduras native and "a lawfulpermanent resident of the United States for more than 40 years." Padilla, 130 S. Ct. at 1477. The petitioner pleaded guilty to a controlled-substance crime that is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i) (2006). Id. He subsequently filed a postconviction petition, claiming that "his counsel not only failed to advise him of [the deportation] consequence prior to his entering the plea," but also told him not to worry about his immigration status because "'he had been in the country so long.'" Id. at 1478. The petitioner alleged that "he would have insisted on going to trial if he had not received incorrect advice from his attorney." Id.
Citing the two-prong ineffective-assistance-of-counsel test enumerated in Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984), the Supreme Court held that to be constitutionally effective, defense counsel "must inform her client whether his plea carries a risk of deportation." Id. at 1482, 1486. Because the immigration statute in Padilla was "succinct, clear, and explicit in defining the removal consequence," the Supreme Court stated that "counsel could have easily determined that [the petitioner's] plea would make him eligible for deportation." Id. at 1483. "Instead, [the petitioner's] counsel provided him false assurance that his conviction would not result in his removal from this country." Id. The Supreme Court therefore held that the petitioner "sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland," i.e. that the representation fell below an objective standard of reasonableness, and reversed and remanded for a determination of whether the petitioner could show prejudice. Id. at 1483, 1487.
Here, El Eid stated in his postconviction petition that he is a lawful permanent resident, he pleaded guilty to second-degree criminal sexual conduct in 1995, defense counsel failed to advise him of the immigration consequences of pleading guilty, he was denied re-entry into the United States in September 2010 based on his felony conviction, and he would not have pleaded guilty if he had been advised of the immigration consequences of his plea. El Eid asserted that he received ineffective assistance of counsel under Padilla and requested that his conviction "be set aside." In his memorandum in support of his postconviction petition, El Eid stated that "[t]he relief requested in the petition is . . . mandated by the plain language of the Postconviction Relief statute, bedrock axiomatic and fundamental rights guaranteed by the United States and Minnesota State constitutions, and the interests of justice and fairness to which all criminal defendan...
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