Rodriguez-Penton v. United States, 15-6306

• Citation: 905 F.3d 481
• Decision Date: 02 October 2018
• Docket Number: No. 15-6306,15-6306
• Parties: Daynel L. RODRIGUEZ-PENTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

905 F.3d 481

Daynel L. RODRIGUEZ-PENTON, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 15-6306

United States Court of Appeals, Sixth Circuit.

Argued: May 2, 2018

Decided and Filed: October 2, 2018

ARGUED: Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, for Appellant. Terry M. Cushing, Candace G. Hill, Russell M. Coleman, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

Before: DAUGHTREY, STRANCH, and THAPAR, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J. (pp. 490–95), delivered a separate dissenting opinion.

JANE B. STRANCH, Circuit Judge.

Petitioner Daynel L. Rodriguez-Penton, a lawful permanent resident from Cuba, appeals the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255. He argues that his counsel performed deficiently by failing to warn him of the adverse immigration consequences of pleading guilty and that he was prejudiced by this failure. The district court denied his motion, relying on the standard for ineffective assistance of counsel claims set forth in Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). But the legal landscape for such claims has changed in material ways since Hill , especially in the context of non-citizens faced with criminal charges. Because the district court applied the wrong analytical framework, we REVERSE and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Rodriguez-Penton, now twenty-nine years old, moved from Cuba to the United States with his parents when he was fifteen. He has lived in Louisville, Kentucky since his arrival and is a permanent resident in possession of a green card. In 2011, the Government indicted Rodriguez-Penton and his parents on a single count of conspiracy to distribute and possess Oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). The Government dismissed the charges against Rodriguez-Penton’s parents approximately six months after indictment.

Rodriguez-Penton was detained pending trial and represented by retained counsel William M. Butler. Rodriguez-Penton cooperated with the Government at first, but eventually stopped, in large part because he feared for his family’s safety. The Government offered Rodriguez-Penton at least two separate plea deals in the year after his arrest, including one verbal offer and one written offer for a six-year sentence. Rodriguez-Penton eventually moved for re-arraignment. At the re-arraignment hearing in October 2012, he entered an open guilty plea to the single charge in the indictment.

Rodriguez-Penton’s Cuban citizenship arose at three points during the plea hearing. First, when Rodriguez-Penton mentioned his Cuban citizenship, the district court responded that there was no need to review the civil rights one forfeits by pleading guilty because they did not apply to non-citizens. Second, the district court inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing. The parties answered in the negative. Third, when asking about releasing Rodriguez-Penton from custody pending trial, the district court asked if "there is any legal reason your client should be released from custody, or is there an [Immigration and Customs Enforcement] detainer on him?" Butler responded "no," although it is not clear whether he was saying no legal reason existed or no detainer existed. At no point during the plea hearing did the district court advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences.

In March 2013, the district court sentenced Rodriguez-Penton to a prison term of 121 months, to be followed by four years of supervised release.¹ The sentencing court mentioned that it did not know "if this conviction would result in deportation" when discussing the supervised release portion of Rodriguez-Penton’s sentence. Rodriguez-Penton alleges that he was unaware of the risk of deportation until after sentencing. He learned of the risk when he had his "first appointment" with his prison counselor, who gave him "a sheet of paper where it said that [he] could possibly be deported."²

Rodriguez-Penton filed a direct appeal while still represented by Butler in which he argued that his guilty plea was not knowing and voluntary because the district court failed to advise him of the risk of deportation. He also argued that the evidence did not support the drug quantities attributed to him at sentencing. This court rejected both arguments. United States v. Rodriguez-Penton , 547 F. App'x 738 (6th Cir. 2013).

Rodriguez-Penton then filed a § 2255 motion to vacate, set aside, or correct his sentence. The district court eventually appointed counsel and a magistrate judge scheduled an evidentiary hearing where Rodriguez-Penton and Butler both testified. Butler estimated that he met with Rodriguez-Penton fifteen times during the year between Rodriguez-Penton’s arrest and plea, although Rodriguez-Penton said they met closer to ten times. Because Rodriguez-Penton does not speak English, a Spanish interpreter was present during the majority of these meetings. An interpreter was also present at all relevant hearings.

Based on the testimony and oral argument at the evidentiary hearing, the magistrate judge issued Findings of Fact and Conclusions of Law. The magistrate judge described Butler’s performance as follows: "[H]e merely told Rodriguez-Penton that, based on Butler’s own experience, and what several immigration attorneys had told Butler, [Rodriguez-]Penton did not have to worry about deportation because the Government would not return him to Cuba." The record confirms that Butler was not alone in reaching this conclusion—the Government also noted that Cuban defendants are rarely subject to deportation. Yet neither Butler nor the Government cited any authority in support of this position. The magistrate judge then noted that "Butler conceded on cross-examination that he did not recall ever telling Rodriguez-Penton that deportation nonetheless was a possibility." This differed from Rodriguez-Penton’s testimony that Butler "never discussed the subject of deportation, nor did they ever discuss the impact of his status as a Cuban national lawfully present in the United States."

Rather than reconcile the conflicting testimony, the magistrate judge presumed "to the benefit of Rodriguez-Penton that attorney Butler’s performance was deficient." He concluded that Rodriguez-Penton’s claim of ineffective assistance of counsel failed on the prejudice prong because Rodriguez-Penton testified unequivocally that he "would not have gone to trial, even if he could not have negotiated a better plea arrangement than the open plea of guilty that he previously chose to enter." Absent a showing of prejudice, the magistrate judge held, Rodriguez-Penton could not prevail on his § 2255 petition. The district court adopted the magistrate judge’s findings over Rodriguez-Penton’s objections, denied the § 2255 motion, and dismissed the case with prejudice.

Rodriguez-Penton filed a timely notice of appeal and moved this court for a Certificate of Appealability (COA). This court granted his request after finding that "Rodriguez-Penton has arguably made a substantial showing that his attorney’s performance was deficient and that he was actually prejudiced by counsel’s alleged error." More specifically, the COA stated:

Rodriguez-Penton has arguably shown that, had he been advised that he could be deported, he might have accepted a similar plea offer especially if it contained a non-deportation clause, particularly in light of the prosecutor’s acknowledgement that citizens of Cuba are generally not deported following a guilty plea. Therefore, Rodriguez-Penton has made a substantial showing that counsel’s error prejudiced him because, even though he insisted on not going to trial, the error may have affected the outcome of the plea process.

With this background in mind, we turn to Rodriguez-Penton’s arguments on appeal.³

II. ANALYSIS

A. Standard of Review

This court reviews a district court’s denial of a § 2255 motion de novo. Short v. United States , 471 F.3d 686, 691 (6th Cir. 2006). The reviewing court "will accept the district court’s factual findings unless they are clearly erroneous." McPhearson v. United States , 675 F.3d 553, 558 (6th Cir. 2012). The de novo review standard also applies to a claim of ineffective assistance of counsel, which is a mixed question of law and fact. Id. at 559.

B. Ineffective Assistance of Counsel

The basic contours of ineffective-assistance-of-counsel claims are well defined. To prevail on a claim that he was denied effective assistance, Rodriguez-Penton must meet the two-part test established in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and subsequently tailored to the guilty-plea context, see Lafler v. Cooper , 566 U.S. 156, 162–63, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). "The performance prong of Strickland requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness." Id. at 163, 132 S.Ct. 1376 (citation and internal quotation marks omitted). The prejudice prong requires a defendant to show that there is a reasonable probability the outcome of the plea process would have been different had he received competent advice. Id.

Here, the district court assumed deficient performance, and rightly so. Under either version of the facts, that of Butler or that of Rodriguez-Penton, Butler’s conduct was objectively unreasonable. Counsel has an obligation to "advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla v. Kentucky ...