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Ambris v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Oct 3, 2018
Court of Appeals No. A-12058 (Alaska Ct. App. Oct. 3, 2018)

Opinion

Court of Appeals No. A-12058 No. 6714

10-03-2018

ERIC AMBRIS, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Darryl L. Thompson, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.


NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-14-5017 CI

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Darryl L. Thompson, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER, writing for the Court.
Judge ALLARD, dissenting.

Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

Eric Ambris, who is not a United States citizen, pleaded guilty to the felony offense of making a fraudulent statement to obtain an identification card. In exchange for his plea, Ambris received a suspended imposition of sentence, and he was placed on probation for one year.

AS 11.46.290(a)(3).

Ambris's plea and sentencing occurred on February 24, 2012. At that hearing, pursuant to Alaska Criminal Rule 11(c)(3)(C), the judge who accepted Ambris's plea warned him that, if he was not a citizen of the United States, his conviction of a crime might potentially lead to his deportation.

This provision of Criminal Rule 11(c) was added in April 2006 by Supreme Court Order No. 1590.

After receiving a suspended imposition of sentence, Ambris finished his year's probation without incident, and his conviction was formally set aside in May 2013.

Several months later, on September 12, 2013, Ambris was shot at his place of business during a robbery attempt, and the Anchorage Daily News published an article about the shooting. One of the paragraphs in this article talked about Ambris's felony conviction:

Ambris took a plea deal on a felony charge of identity fraud back in 2011, according to a state courts database. Anchorage attorney Rex Butler represented him at the time. Butler said Ambris, who is also identified as Erick Ambriz, had a false ID. He's apparently from Mexico.

See www.adn.com/alaska-news/article/anchorage-pizza-seller-shot-critically-hurt-suspected-robbery-attempt/2013/09/12/.

Apparently, Ambris became concerned about his legal status after news of his felony conviction appeared in the newspaper. The following month (October 2013), Ambris consulted an immigration lawyer and discovered that his felony conviction made him deportable, even though he had received a suspended imposition of sentence.

Four months later, on February 13, 2014 (almost exactly two years after he entered his plea to the felony charge), Ambris filed a petition for post-conviction relief. In his petition, Ambris claimed that Rex Butler (the attorney who represented him during the plea negotiations) gave him incompetent advice about the potential immigration consequences of his conviction. According to Ambris, Butler mistakenly assured him that, because he would be receiving a suspended imposition of sentence, he would have no conviction "of record" for immigration purposes.

The State asked the superior court to dismiss Ambris's petition as untimely. As we just explained, Ambris's petition was filed nearly two years after the superior court entered its judgement against him. And at the time of Ambris's plea, the pertinent statute of limitations, AS 12.72.020(a)(3)(A), gave Ambris only 18 months to seek relief from his conviction.

The superior court ruled that this statute of limitations controlled, that no exceptions applied to Ambris's case, and that Ambris's petition was therefore untimely. Accordingly, the court dismissed Ambris's petition.

On appeal, Ambris does not deny that the statute of limitations apparently bars him from seeking post-conviction relief. But he asks this Court to adopt a rule that, in situations where a defendant receives incompetent advice from their attorney, the statute of limitations for seeking post-conviction relief should not begin to run until such time as the defendant comes to understand that their attorney's advice was incompetent — in other words, not until the defendant understands that they have a cause of action.

The State raises several arguments against Ambris's contention. First, the State argues that AS 12.72.020(a)(3) is not the kind of statute of limitations that begins to run when a cause of action "accrues". The State takes the position that, without exception, the limitation period begins running on the date that the judgement is entered against the defendant, even though the defendant may not yet have reason to know that their attorney was ineffective.

Second, the State argues that even if AS 12.72.020(a)(3) is an "accrual" statute of limitations, Ambris's cause of action accrued when he relied on Butler's advice (by entering his guilty plea) — not later, when he discovered that this advice was wrong. The State points out that, if the statute of limitations did not begin running until a defendant came to understand the incompetence of their attorney's advice, there would be essentially no time limit on claims of attorney incompetence.

Third, the State argues that even if some cases might be governed by the rule that Ambris advocates (i.e., that the limitation period does not begin to run until the defendant comes to know of their attorney's incompetence), the law should nevertheless require such defendants to show that they were diligent in investigating and discovering their attorney's incompetence — i.e., that they took timely, reasonable steps to evaluate their attorney's advice before the statute of limitations expired.

We agree with the State's third argument: Even if we assume that a defendant could seek relief from the statute of limitations codified in AS 12.72.020(a)(3) by showing that they did not understand the prejudicial error in their attorney's advice until after the normal limitation period expired, the defendant would have to show that they were diligent in their efforts to evaluate their attorney's advice.

The Supreme Court of Nebraska addressed this issue of diligence in State v. Mamer, 853 N.W.2d 517 (Neb. 2014). In Mamer, the defendant faced deportation because he pleaded guilty to felony sexual assault. He alleged that the attorney who counseled him during the plea negotiations failed to advise him of the immigration consequences of his plea.

The Nebraska court concluded that Mamer's petition for relief was properly dismissed as untimely under Nebraska's post-conviction relief act because Mamer failed to demonstrate that he had exercised due diligence in discovering the factual predicate of his claim for relief.

Id. at 523-24.

The court explained that the "discovery through due diligence" requirement focused on when a defendant could reasonably have discovered the objective facts underlying their claim for relief, rather than when the defendant should have discovered the legal significance of those facts. The court noted that if the time for seeking post-conviction relief remained open until a defendant happened to do enough legal research to understand that they had a claim against their attorney, there would not be any effective time limit on petitions for post-conviction relief.

Id. at 524.

Ibid., quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001).

In Mamer's case, it was clear that Mamer was aware that he was not a United States citizen, and that he was entering a plea to felony sexual assault. Mamer was also aware of the advice that his attorney gave him (or failed to give him).

The last objective fact needed to establish Mamer's claim of ineffective assistance of counsel was the existence of the federal law that subjected him to deportation if he was found guilty of felony sexual assault. Mamer claimed not to know about this law when he entered his plea, but the Nebraska court held that if Mamer had exercised due diligence, he could have discovered this deportation law before the applicable statute of limitations expired.

Ibid.

Here, even under Ambris's version of the facts, Ambris was aware before he entered his guilty plea that a criminal conviction would have potential immigration consequences for him. And even though Ambris retained Butler to represent him in the criminal case, Ambris and his sister also spoke with a paralegal who specialized in immigration law. This paralegal told Ambris (before he entered his guilty plea) that if he received a felony conviction, this could lead to his deportation.

Ambris was therefore on notice that either he or Butler should consult an immigration attorney. According to Ambris's pleadings, Butler assured him that a suspended imposition of sentence would not lead to a conviction "of record", and thus Ambris's guilty plea would not subject him to deportation. This advice was wrong. But the fact that Ambris consulted an immigration paralegal at the same time that he was represented by Butler suggests that Ambris knew enough about the problem to recognize that Butler might be wrong. We also note that, at the change-of-plea hearing itself, the judge independently warned Ambris that his guilty plea could have immigration consequences if Ambris was not a United States citizen.

More importantly, even after Ambris accepted the plea bargain, entered his guilty plea, and received his suspended imposition of sentence, Ambris still had 18 months — the time allotted under the statute of limitations — to seek a second opinion about Butler's advice. But the record shows that Ambris did not seek further advice on this immigration matter until the newspaper article was published (i.e., until the fact that Ambris had pleaded guilty to a felony appeared in the public media).

Under these circumstances, even if we were to rule that the statute of limitations codified in AS 12.72.020(a)(3) does not begin to run until a defendant has a reasonable opportunity to learn of the objective facts needed to support their claim for relief, Ambris's petition would still be untimely.

We therefore uphold the superior court's dismissal of Ambris's petition for post-conviction relief — and we need not reach the merits of the State's other arguments.

Conclusion

The judgement of the superior court is AFFIRMED. Judge ALLARD, dissenting.

According to the pleadings in this case (which we are required to accept as true at this stage of the litigation), Eric Ambris waived his right to trial and pleaded guilty to a class C felony in reliance on his defense attorney's explicit promise that the plea would have no adverse immigration consequences. Approximately nineteen months later, Ambris discovered that his attorney was wrong — his plea did have adverse immigration consequences. But by this time, the statutory deadline for seeking post-conviction relief had already passed. Based on Ambris's failure to meet this deadline, the superior court dismissed his application for post-conviction relief as untimely.

See LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).

Amajority of this Court now affirms that dismissal, concluding (as a matter of law) that Ambris failed to show that he acted diligently in discovering his attorney's mistake. Because I disagree that such a conclusion can be made on the record currently before us, I respectfully dissent.

In support of its decision, the majority cites to a Nebraska case, State v. Mamer. But the facts alleged in Mamer are distinguishable from the facts alleged here. Mamer involved a defense attorney who failed to advise his client of the immigration consequences of his plea. It did not involve a defense attorney who affirmatively misrepresented those immigration consequences. Moreover, Mamer involved a defendant who failed to timely inquire into these immigration matters, even though he was expressly warned during the plea colloquy that his plea could have adverse immigration consequences.

State v. Mamer, 853 N.W.2d 517 (Neb. 2014).

Id. at 522-24; see also Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010).

Id. at 524.

In his appeal, Mamer argued that he had been diligent because (according to Mamer) the "factual predicate" for his ineffective assistance of counsel claim did not arise until he was actually subject to deportation proceedings. The Nebraska Supreme Court properly rejected this claim, noting that the factual predicate for the ineffective assistance of counsel claim was the existence of the immigration law that made Mamer deportable, not the later execution of that law through the government's initiation of deportation proceedings against Mamer. The court also concluded that Mamer had been placed "on notice" of the potential existence of this law through the immigration advisement he received at the plea colloquy. Thus, because the record showed that Mamer could have timely discovered the factual predicate of his claim if he had exercised due diligence in following up on the advisement he received, the court found no basis for granting Mamer the equitable relief he sought.

Id. at 524-25.

Id.

Id.

Id.

Ambris's case presents a very different set of circumstances. Unlike Mamer, the record here suggests that Ambris did diligently inquire into the immigration consequences of his plea. Ambris alleges that he specifically asked his criminal defense attorney about possible adverse immigration consequences from his criminal case, and his attorney expressly told him that he (the attorney) had worked out a plea agreement with the State that would eliminate any such adverse immigration consequences. Ambris also alleges that he directly asked his criminal defense attorney if he should consult with an immigration attorney on these matters. In response, Ambris alleges that his attorney held himself out as knowledgeable in this area of law, and he "convinced" Ambris that no outside consultation was required. Ambris further alleges that his attorney repeatedly told him that his suspended imposition of sentence would not qualify as a conviction of record for federal immigration purposes, and that it would be "set aside" once Ambris successfully completed his probation (which Ambris did). According to Ambris, he "trusted" his attorney, who is an experienced private criminal defense attorney, and he had no reason to doubt his attorney's expertise or the accuracy of his attorney's immigration advice.

(Nor, incidentally, is there anything about this immigration advice that would have made a reasonable lay person doubt its accuracy. After all, it is far from intuitive that a conviction that is set aside under state law would still qualify as a conviction of record for purposes of federal immigration law.)

In its decision, the majority nevertheless faults Ambris for failing to seek a second opinion prior to the expiration of the post-conviction relief statutory deadline. The majority also contends that Ambris was "on notice" that his defense attorney's advice might be wrong based on (1) his earlier "consultation" with the paralegal, and (2) the general advisement he received from the trial court at the plea colloquy.

I disagree with this characterization of the record. The "consultation" with the paralegal appears to have been a single conversation with an immigration paralegal, who warned Ambris and his sister in general terms only that felony convictions could have adverse immigration consequences. Moreover, it is clear from the record that this conversation with the paralegal took place prior to the discussions Ambris had with his criminal defense attorney in which the attorney repeatedly reassured Ambris that, although felony convictions could have adverse immigration consequences, his conviction would not. The trial court's advisement was similarly general in nature, and the court only advised Ambris that felony convictions "may have" adverse immigration consequences for non-citizens. But, unlike Mamer, Ambris had already diligently investigated this question, and there was nothing about this general advisement that would have made Ambris doubt the accuracy of the specific advice he had already received on this matter.

See Alaska R. Crim. P. 11(c)(3)(C) (requiring trial judge to inform defendant at change of plea hearing that "if the defendant is not a citizen of the United States, a conviction of a crime may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to federal law").

Ambris's case therefore appears distinguishable from the circumstances described in Mamer v. State, and more akin to the circumstances described in People v. Martinez-Huerta, a recent case from the Colorado Court of Appeals. Like Ambris, the defendant in Martinez-Huerta entered his plea in reliance on his attorney's assurances that the plea would have no adverse immigration consequences. Also like Ambris, the defendant did not discover that his attorney was wrong until after the time to file a timely petition had already passed. Based on his failure to meet this statutory deadline, the trial court dismissed the petition as untimely. However, on appeal, the Colorado Court of Appeals vacated the dismissal and held that the defendant was entitled to an evidentiary hearing to determine whether his case fell within the narrow statutory exception recognized under Colorado law for defendants who could prove that "the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect."

People v. Martinez-Huerta, 363 P.3d 754 (Colo. App. 2015).

Id. at 755-56.

Id.

Id.

The Colorado court made clear that this case was distinguishable from cases where a defendant had not been affirmatively misled by his attorney. As the court explained, "the absence of, or failure to give, advice does not establish justifiable excuse or excusable neglect" for purposes of this narrow statutory exception. Likewise, "ignorance of the law or a recent discovery of a basis to challenge the conviction also does not constitute justifiable excuse or excusable neglect." The court noted, however, that "[w]hen an individual is represented by an attorney, it is reasonable to expect that he would rely on his attorney's advice." The court therefore concluded that "[a]bsent circumstances that would cause a reasonable person to question his or her counsel's advice, it would be unreasonable to expect an individual, who had affirmatively been advised otherwise, to file a collateral attack on a plea agreement just in case the plea might — contrary to counsel's explicit advice — result in adverse immigration consequences."

Martinez-Huerta, 363 P.3d at 757 (internal citations omitted).

Id.

Id. at 757.

Id. at 757-58.

I find the Colorado court's reasoning sound, and its outcome fair. I recognize that it is predicated on a codified exception that does not exist in our statute. But I note that there are courts in other jurisdictions that have also demonstrated a willingness to extend equitable relief to non-citizen defendants under similar circumstances and for similar reasons. I also note that this Court has previously recognized that there may be extraordinary circumstances for which due process and fundamental fairness will require relaxation of the post-conviction relief statutory deadline. Because the allegations in this case have yet to be litigated, I express no opinion as to whether Ambris's case presents such extraordinary circumstances. But, unlike the majority, I am unwilling to conclude on the limited record currently before us that it does not.

See, e.g., Kovacs v. United States, 744 F.3d 44, 52-54 (2nd Cir. 2014) (permitting defendant who entered plea based on affirmative misrepresentation of its immigration consequences to pursue the extraordinary relief provided by the common law writ of error coram nobis which requires that defendant was diligent in discovering the error); United States v. Chan, 792 F.3d 1151, 1154-58 (9th Cir. 2015) (holdingthat Kwan remains good law post-Padilla); United States v. Kwan, 407 F.3d 1005, 1011-16 (9th Cir. 2005), opinion amended on reh'g, 2005 WL 1692492 (9th Cir. July 21, 2005) abrogated in part by Padilla v. Kentucky, 559 U.S. 356 (2010) (permitting defendant who reasonably relied on attorney's affirmative misrepresentation of applicable immigration law to seek relief through petition for common law writ of coram nobis).

See, e.g., Xavier v. State, 278 P.3d 902, 905 & n.17 (Alaska App. 2012); Hertz v. State, 8 P.3d 1144, 1148 (Alaska App. 2000).

Accordingly, I respectfully dissent from the majority's decision to uphold the dismissal of Ambris's petition as untimely. Instead, I would remand this case to the superior court so that Ambris's attorney can be directed to respond to the allegations in Ambris's pleadings and further litigation on the timeliness question and Ambris's diligence in filing his petition can occur.

Ambris's defense attorney has not responded to Ambris's allegations. In the proceedings below, Ambris requested that the attorney be ordered to respond, but this request became moot when the petition was dismissed as untimely. --------


Summaries of

Ambris v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Oct 3, 2018
Court of Appeals No. A-12058 (Alaska Ct. App. Oct. 3, 2018)
Case details for

Ambris v. State

Case Details

Full title:ERIC AMBRIS, Appellant, v. STATE OF ALASKA, Appellee.

Court:COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Oct 3, 2018

Citations

Court of Appeals No. A-12058 (Alaska Ct. App. Oct. 3, 2018)