Opinion
Court of Appeals No. A-9158.
February 15, 2006.
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka, Judge. Trial Court No. 3AN-04-6833 CI.
Leslie Hiebert, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Mikhail Djioev, a Russian citizen, filed an application for post-conviction relief, seeking to withdraw his no contest plea to third-degree theft. He argued that he entered his plea in reliance on his trial attorney's assurances that he would not be deported based on that plea. The federal government has apparently since ordered him deported.
District Court Judge Gregory J. Motyka dismissed Djioev's application after ruling as a matter of law that the risk of deportation is a collateral consequence of a conviction that does not give rise to a cognizable claim for post-conviction relief. For the reasons discussed below, we remand the case for additional proceedings.
Facts and proceedings
Djioev is a Russian citizen with permanent residency status in the United States. In November 2002, he pleaded no contest to third-degree theft for stealing a television from Wal-Mart. Djioev claims that the federal immigration officials initiated deportation proceedings against him based on that conviction. Those federal proceedings have apparently resulted in a deportation order, which Djioev has appealed.
Djioev filed a pro se application for post-conviction relief, arguing that the advice he received from his attorneys regarding the potential consequence of his plea on his immigration status was incompetent.
An attorney from the Office of Public Advocacy was appointed to represent Djioev. That attorney filed an amended application asserting that Djioev's public defender, and an immigration attorney his public defender had consulted, had incompetently advised Djioev about his deportation risk. According to the amended application, the State initially offered Djioev a 1-year suspended imposition of sentence, 40 hours of community work service, and restitution if he entered a plea to third-degree theft. But, the application alleged, because Djioev was advised that he needed a conviction of record with a sentence of less than 360 days to avoid deportation, he negotiated a different plea bargain: a 60-day jail term, all suspended, 40 hours of community work service, and 3 years of probation.
In support of the amended application, Djioev filed an affidavit asserting that he had been "very worried" about the immigration consequences of his plea, that his attorney told him she had spoken to "an immigration prosecutor of some kind," and that his attorney assured him that his plea "would be okay for immigration, and I would be safe from deportation." Djioev said he believed he had a defense to the charge, and that he would not have entered his plea if he knew he risked deportation.
Djioev also supplemented his application with an affidavit from his public defender. She said she negotiated the second plea bargain that Djioev accepted because "it was my understanding per discussions and presentations, made to the Public Defender Agency by [immigration] attorneys at Catholic Social Services, that a person needed a conviction of record with less than 360 days to help them from being deportable." The attorney said she and Djioev discussed the risks associated with his plea and with going to trial on the felony charge, including the possible immigration and deportation risks. She said she urged Djioev to contact an immigration attorney at Catholic Social Services for further advice. She said Djioev told her he understood his options and that he wanted to accept the State's offer.
The State filed a motion to dismiss Djioev's application, arguing that it was legally insufficient because immigration consequences are collateral consequences of a conviction that never give rise to a cognizable claim for post-conviction relief.
Judge Motyka summarily dismissed the application. Djioev then moved for reconsideration. Djioev also moved to amend his application to add a claim that his plea was unknowing and involuntary, and to specify that the relief he was seeking was withdrawal of his plea. Lastly, he asked the court to issue findings of fact and conclusions of law.
In a second order, Judge Motyka clarified that he was denying Djioev's application because deportation is a collateral consequence of a conviction, and that Djioev therefore had not made a prima facie case for post-conviction relief. Because the "ultimate thrust" of Djioev's argument did not state a claim for relief, Judge Motyka declined to grant Djioev's motion to amend his application.
Did the court err in summarily dismissing the application on this ground?
On appeal, Djioev argues that the district court erred by dismissing his application for post-conviction relief as a matter of law.
Judge Motyka ruled that even if Djioev was misadvised on the immigration consequences of his plea, and even if he would have refused the State's plea offer and gone to trial on the felony charge if he had been correctly advised — in other words, even if all the assertions in Djioev's affidavit are true — he would not be entitled to relief.
In reaching this conclusion, Judge Motyka relied on Tafoya v. State. In Tafoya, the Alaska Supreme Court ruled that a defense attorney's failure to inform his client of the possibility of deportation did not constitute ineffective assistance of counsel because deportation is a collateral, rather than direct, consequence of a conviction.
500 P.2d 247 (Alaska 1972).
Id. at 252.
Djioev's claim is different: he does not assert that his attorney neglected to advise him about his risk of deportation, but that he was affirmatively misadvised that his plea would protect him from that risk. Although Alaska courts have not addressed this circumstance, federal courts have held that once a defense attorney advises a defendant regarding the immigration consequences of a plea, advising the defendant incorrectly might amount to ineffective assistance.
See, e.g., United States v. Kwan, 407 F.3d 1005, 1015 (9th Cir. 2005); United States v. Couto, 311 F.3d 179, 183, 188 (2nd Cir. 2002); Downs-Morgan v. United States, 765 F.2d 1534, 1536, 1538-41 (11th Cir. 1985); Riviere v. United States, 2005 WL 2614860 at *2-3 (N.D.N.Y. 2005); United States v. Mora-Gomez, 875 F. Supp. 1208, 1213-15 (E.D. Va. 1995); see also Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979) (calling two federal cases holding that the defendants were not entitled to withdraw their pleas because of incorrect advice on the immigration consequences of their pleas "aberrations").
For instance, in United States v. Kwan, the defendant pleaded guilty to bank fraud after his attorney assured him that deportation was "not a serious possibility." In fact, federal law at the time made it almost certain that Kwan would be deported. The Ninth Circuit concluded that "where, as here, counsel has not merely failed to inform, but has effectively misled, his client about the immigration consequences of a conviction, counsel's performance is objectively unreasonable under contemporary standards for attorney competence." The court concluded that Kwan had established prejudice because it was reasonably probable that he would have moved to withdraw his plea if he had been properly advised.
Id. at 1008.
Id. at 1009.
Id. at 1015.
Id. at 1017.
Because the parties did not bring Kwan and other recent authority to Judge Motyka's attention, he apparently assumed that Tafoya resolved Djioev's case as a matter of law. We therefore remand the case to the district court for reconsideration in light of this additional authority.
Conclusion
The order dismissing Djioev's application is REVERSED.