Pola v. United States
| Decision Date | 19 February 2015 |
| Docket Number | No. 14–5214.,14–5214. |
| Citation | 778 F.3d 525 |
| Parties | Aso POLA, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ON BRIEF:Kent Wicker, Dressman Benzinger La Velle PSC, Louisville, Kentucky, for Appellant. Candace G. Hill, United States Attorney's Office, Louisville, Kentucky, for Appellee.
Before: COLE, Chief Judge; MOORE and CLAY, Circuit Judges.
Petitioner–Appellant Aso Pola wishes to appeal his federal conviction and sentence. We have not been able to review the validity of his conviction or sentence, Pola argues,because his attorney failed to file a notice of appeal as requested. See Roe v. Flores–Ortega, 528 U.S. 470, 480–82, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Pola has served the full term of imprisonment imposed as part of his sentence, and the Immigration and Customs Enforcement (“ICE”) has removed him to Canada, where he now resides. Before Pola's removal and while still imprisoned, he filed a motion to vacate his sentence and requested an evidentiary hearing pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, among other claims. After Pola and his plea counsel, C. Fred Partin, filed affidavits, the district court denied Pola's request for an evidentiary hearing—a decision Pola now appeals. The government asserts that we do not have jurisdiction to review Pola's appeal because he no longer suffers from an injury in fact that a favorable decision will redress. We hold not only that we have jurisdiction, but also that the district court should have granted Pola an evidentiary hearing to develop his ineffective-assistance claim to determine whether he should be able at last to appeal his conviction and sentence. Accordingly, we VACATE the district court's judgment and REMAND the case for an evidentiary hearing.
On January 6, 2009, a federal grand jury indicted Pola and charged him with knowingly and intentionally possessing with the intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). R. 11 at 1 (Indictment) (Page ID # 10). Pola was born in Iraq, but is a citizen of Canada. R. 136–1 at 7 (Tr. Plea Hr'g) (Page ID # 697). At the time of the indictment, Pola was in the United States as a lawful permanent resident and living in Louisville, Kentucky, with his wife and two children, all of whom are U.S. citizens. Id. at 8 (Page ID # 698).
On September 21, 2009, Pola entered an Alford plea, maintaining his innocence, but conceding that the government had sufficient evidence for a jury to find him guilty of the charged offense. R. 50 at 1 (Change of Plea) (Page ID # 185). On February 16, 2010, the district court sentenced him to forty-six months' incarceration and three years' supervised release. R. 136–2 at 23–24 (Tr. Sentencing Hr'g) (Page ID # 755–56). On April 19, 2010, slightly more than two months after the judgment was entered, Pola filed a notice of appeal pro se. R. 59 at 1 (Notice of Appeal) (Page ID # 222). A panel of this court dismissed Pola's appeal for being untimely, noting that he could still “move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, based upon his allegation that counsel provided ineffective assistance by failing to file a notice of appeal upon his explicit request.” R. 73 at 2 (6th Cir. May 13, 2011) (Page ID # 321).
Pola did just that. On August 5, 2011, Pola filed a § 2255 motion, alleging that his counsel was ineffective for failing to file a notice of appeal, among other claims. R. 77 at 1, 8 (§ 2255 Mot.) (Page ID # 333, 340). The district court referred the case to a magistrate judge. R. 83 at 1 (D.Ct. Order) (Page ID # 476). On September 12, 2012, the magistrate judge ordered an evidentiary hearing, appointed counsel, and ordered the U.S. Marshals to transport Pola from the correctional facility in Youngstown, Ohio, to Louisville, Kentucky, for the evidentiary hearing to be held on October 17, 2012. R. 98 at 2 (D.Ct.Order) (Page ID # 585). Unbeknownst to the district court, the Bureau of Prisons had released Pola on September 4, 2012, and had transferred him to ICE custody.
On July 27, 2012, ICE served Pola with a notice to appear for a removal hearing. R. 1331 at 3 (Immigration R.) (Page ID # 672). On September 11, 2012, Pola, who did not have counsel, signed a stipulation and waiver, declining a removal hearing to contest his removability. Id. at 7–15 (Page ID # 676–84). In addition, Pola stipulated that he had been convicted of possession with intent to distribute oxycodone and conceded removability. See id. at 2, 10 (Page ID # 671, 679). On September 19, 2012, ICE removed Pola to Canada, and therefore he could not attend the October 11 hearing. Appellant Br. at 2.
After a flurry of filings and rescheduling orders, the district court ordered the parties to submit affidavits addressing whether Pola had asked Partin to file a notice of appeal. R. 135 at 1 (D.Ct. Order) (Page ID # 688). In response to the court's order, Pola filed an affidavit, and the government filed an affidavit from Partin. R. 136 at 1–2 (Pola Aff.) (Page ID # 689–90); R. 138 at 1–2 (Partin Aff.) (Page ID # 763–64).
On November 15, 2013, the magistrate judge issued a report and recommendation to deny both Pola's request for an evidentiary hearing and his § 2255 motion because Partin's performance was not deficient. R. 139 at 1, 15 (Report & Recommendation) (Page ID # 765, 779). Pola filed objections, arguing that the magistrate judge had erred by recommending the dismissal of Pola's § 2255 motion without an evidentiary hearing. R. 142 at 1–5 (Objections to Report & Recommendation) (Page ID # 792–96). The district court adopted the report and recommendations and overruled Pola's objections thereto. R. 143 at 1–2 (D.Ct.Order) (Page ID # 798–99).
Pola appeals that judgment. We granted a Certificate of Appealability limited to the issues “whether his counsel rendered ineffective assistance by failing to file a notice of appeal upon Pola's request and whether the district court erred by failing to conduct a full evidentiary hearing on the issue.” Pola v. United States, No. 14–5214, at 4 (6th Cir. July 31, 2014).
The government contends that we lack subject-matter jurisdiction to hear Pola's appeal because he no longer suffers from an “injury in fact” as a result of his federal criminal conviction. Appellee Br. at 14–15. When a federal prisoner files a § 2255 motion in federal court, he must satisfy two requirements. First, the petitioner must show that he meets the statutory definition of those who may seek § 2255 relief. Second, the petitioner must demonstrate that he has standing to seek relief from the federal courts. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). “This means that, throughout the litigation, the [petitioner] must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. (internal quotation marks omitted); see also Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) ().
Pola has satisfied the first requirement. “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States” may file a § 2255 motion. 28 U.S.C. § 2255(a). A petitioner who has served the full term of his sentence still satisfies the in-custody requirement of § 2255 provided he filed the motion while incarcerated and shows that he “is suffering, and will continue to suffer, serious disabilities”—collateral consequences—as a result of the conviction. Carafas v. LaVallee, 391 U.S. 234, 238–39, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).
When a petitioner challenges the constitutionality of his conviction, 1 we presume he will experience lasting collateral consequences. See Spencer, 523 U.S. at 12, 118 S.Ct. 978 (); Sibron v. New York, 392 U.S. 40, 55–57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (). Accordingly, we may presume that Pola has satisfied the case-or-controversy requirement because he challenges the constitutionality of his criminal conviction and therefore continues to suffer the burdens of that conviction.
We note, moreover, that among the myriad collateral consequences that criminal defendants face is removal or deportation.2Fiswick v. United States, 329 U.S. 211, 221–22, 67 S.Ct. 224, 91 L.Ed. 196 (1946). Without question, Pola's conviction for possession with intent to distribute oxycodone, a controlled substance, made Pola removable under the Immigration and Nationality Act (“INA”) on two separate grounds. See R. 133–1 at 4 (Immigration R.) (Page ID # 673). The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). Pola's conviction for possession with intent to distribute oxycodone qualifies as an “aggravated felony” within the meaning of the INA. Id. § 1101(a)(43)(B) (). In addition, “[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country...
To continue reading
Request your trial