Opinion
0309-2021
03-01-2022
MAMADOU SALL v. STATE OF MARYLAND
Circuit Court for Baltimore City Case No. 808267026
Zic, Ripken, Wright, Alexander, Jr. (Senior Judge, Specially Assigned) JJ.
OPINION [*]
Ripken, J. 1
In September 2008, Mamadou Sall ("Sall") pled guilty to trademark counterfeit greater than or equal to $1,000 in the Circuit Court for Baltimore City. The court sentenced him to one year of prison with all but one day suspended and one year of probation. Sall satisfactorily completed his sentence. In January 2021, Sall filed a petition for writ of error coram nobis in the Circuit Court for Baltimore City and requested the court vacate his conviction. The court denied the Petition, and Sall noted a timely appeal.
On appeal, Sall contends the circuit court erred in denying the claim in his petition- that he received ineffective assistance of counsel when defense counsel failed to properly advise him of the immigration consequences of his guilty plea. For the reasons to follow, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2008, Sall-neither a United States citizen nor legal permanent resident-appeared with defense counsel in the Circuit Court for Baltimore City to enter a plea agreement that he reached with the State. Pursuant to the plea agreement, Sall pled guilty to one count of trademark counterfeit greater than or equal to $1,000, and the State recommended a suspended sentence of eighteen months incarceration, one year of probation, and a fine of $1,000 in restitution.
During the plea proceeding, in response to the court's questions, Sall stated that he understood the maximum penalty his offense carried and the litany of constitutional and trial rights that he would forfeit as a result of his guilty plea. Sall also indicated that his decision to plead guilty was voluntary. The court then stated that it was satisfied that Sall's 2 plea was "intelligent, voluntary and knowing, with the full understanding of the rights and privileges [] give[n] up by pleading guilty."
Before the court sentenced Sall, defense counsel raised concerns about the immigration consequences of Sall's guilty plea. The following discussion with the court occurred:
[DEFENSE COUNSEL]: Your Honor, may I be heard very quickly? I did make a mistake on Mamadou Sall (inaudible). He is actually not from the U.S., and I believe he actually may incur immigration consequences as a result of pleading guilty.
THE COURT: Mr. Sall, you understand what he's saying?
[SALL]: Yes.
THE COURT: Is that you're from a foreign country and as a result, I don't know if Immigration and Naturalization is going to take any action against you, but they could use this conviction to do so. You understand that?
[SALL]: Yes.
THE COURT: And you still wish to proceed with the plea in light of that?
[SALL]: Yes.
THE COURT: Very well.
[DEFENSE COUNSEL]: Your Honor, I believe the State is agreeable to one year suspended and one year probation. If it's a year, Your Honor, I don't believe he's eligible to be deported. I'm not an immigration expert, but that's my understanding.
THE COURT: Actually, it's not what the sentence that was rendered, but it's what the possible sentence that could have been rendered and under the federal guidelines, 15 years would be a felony.
[DEFENSE COUNSEL]: Of course, Your Honor.3
THE COURT: In their belief.
[DEFENSE COUNSEL]: Of course, Your Honor.
After Sall represented that he wanted to proceed with his guilty plea, the court sentenced Sall to one year of incarceration with all but one day suspended; one year of supervised probation; and $1,000 in restitution payable within sixty days. Sall successfully completed his sentence.
On January 29, 2021, Sall filed a petition for writ of error coram nobis in the Circuit Court for Baltimore City and requested the court vacate his sentence. Sall alleged that because of his criminal conviction in 2008, he was unable to apply for legal permanent residency in the United States. According to Sall, he was admitted to the United States with nonimmigrant status in 2002 pursuant to his B1/B2 visitor's visa. Sall failed to leave the United States before his visa expired and did not maintain his nonimmigrant status. Because of his conviction, Sall maintained that he was not able to apply for an adjustment of status to become a legal permanent resident through his spouse's sponsorship. Sall further stated that his spouse is a United States citizen.
See Immigration and Naturalization Act, 8 U.S.C. § 1255(a) (requiring that an alien must be admissable to the United States to apply for a status adjustment); 8 U.S.C. § 1182(a)(2)(A)(i) (stating that an alien convicted of a crime of moral turpitude is inadmissible to the United States).
In his petition, Sall claimed that he received ineffective assistance of counsel because defense counsel failed to properly advise him, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), 4 of the immigration consequences of his guilty plea. In Padilla, the Supreme Court held that defense counsel must inform a non-citizen defendant of whether his or her guilty plea carries a risk of deportation or, at least, a risk of adverse immigration consequences. Padilla, 559 U.S. at 367-69, 374. In his petition, Sall asserted that "he was not aware that as a direct consequence of the plea he would be ineligible to apply for a legal status in the United States or could be charged with being removable from the United States[.]" Sall posited that if he "had been given any warning whatsoever that he would be facing removability[, ] he would not have taken the guilty plea and instead would have chosen to go to trial." In its responsive pleading, the State did not oppose Sall's petition and agreed that he was not correctly advised on the immigration consequences of his plea. The State asserted that "in the interest of justice, based on the fact that [Sall] completed probation and paid the fine, and given the nature of the charges, the State is agreeing to . . . vacate [Sall's] sentence[.]"
In the Petition, Sall also argued that his guilty plea was invalid because the record did not demonstrate that he understood the nature of the charge included in his plea to comport with the Due Process Clause of the Fourteenth Amendment and Maryland Rule 4-242. Sall does not raise this argument on appeal.
On April 12, 2021, the court held a hearing on the Petition, at which Sall rested on his petition and memorandum, and he presented no further argument or witnesses. The State also rested on its memorandum without further argument. On April 13, 2021, the court issued a memorandum opinion and order in which it denied Sall's petition for relief. The court found that Sall failed to meet his burden to demonstrate his ineffective assistance of counsel claim, and therefore, his entitlement to coram nobis relief. The court also noted 5 that the State "put[] forth no basis, argument, or statutory and/or case law to support [its] agreement to provide [Sall] with coram nobis relief." Sall timely appealed the court's denial of his petition.
ISSUE PRESENTED FOR REVIEW
Sall presents one issue on appeal: Whether the court abused its discretion in denying Sall's petition for writ of error coram nobis based on an ineffective assistance of counsel claim concerning defense counsel's statements at the plea hearing regarding the immigration consequences of Sall's guilty plea.
Rephrased from: Did the Baltimore City Circuit Court err in denying Mr. Sall's coram nobis petition premised on ineffective assistance of counsel, where, after not providing any immigration advice before the plea was entered, defense counsel provided an incorrect explanation of the potential immigration consequences, and that after-the-fact explanation was not corrected by the circuit court?
Sall centers his ineffective assistance of counsel claim on the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010). However, the guilty plea that Sall challenges was entered in 2008-before Padilla was decided. Because Padilla's precedent does not have a retroactive effect in Maryland, see Miller v. State, 435 Md. 174, 194 (2013), we evaluate Sall's claim without applying the holding in Padilla. For the reasons discussed below, we hold that the court did not abuse its discretion in denying Sall's petition for coram nobis relief.
DISCUSSION
A writ of error coram nobis "is extraordinary relief designed to relieve a petitioner of substantial collateral consequences outside of a sentence of incarceration or probation 6 where no other remedy exists." State v. Smith, 443 Md. 572, 623 (2015). Such relief is "available to raise fundamental errors in attempting to show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier." Franklin v. State, 470 Md. 154, 174 (2020) (quoting Smith, 443 Md. at 597).
A petitioner is entitled to coram nobis relief only if
(1) the petitioner challenges a conviction based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal; (2) the petitioner rebuts the presumption of regularity that attaches to the criminal case; (3) the petitioner faces significant collateral consequences from the conviction; (4) the issue as to the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and (5) the petitioner is not entitled to another statutory or common law remedy[.]Id. at 174-75 (emphasis added) (quoting Jones v. State, 445 Md. 324, 338 (2015)). Of note, the burden of proof is on the coram nobis petitioner to rebut the presumption of regularity that attaches to the case. Smith, 443 Md. at 600.
Here, as the coram nobis court found, Sall meets four of the five requirements: Sall's ineffective assistance counsel claim is constitutional in nature; Sall is suffering collateral consequences because his conviction makes him ineligible to apply for permanent legal residence status; Sall did not waive his right to challenge his plea; and Sall did not possess any other remedy to seek relief. Thus, the only remaining issue is whether Sall carried his burden to rebut the presumption of regularity that attaches to his criminal case and to demonstrate his ineffective assistance of counsel claim. We conclude that he did not. 7
I. Standard of Review.
We review a court's disposition of a petition for writ of error coram nobis for an abuse of discretion. State v. Rich, 454 Md. 448, 470-71 (2017). With this review, "appellate courts should not disturb the coram nobis court's factual findings unless they are clearly erroneous, while legal determinations shall be reviewed de novo." Id. at 471. With respect to a claim for ineffective assistance of counsel, "the appellate court must exercise its own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any[.]" State v. Sanmartin Prado, 448 Md. 664, 679 (2016) (quoting State v. Jones, 138 Md.App. 178, 209 (2001)).
II. The Court Did Not Abuse its Discretion In Denying Sall's Petition for Coram Nobis Relief.
On appeal, Sall relies on the holding in Padilla v. Kentucky and argues that he received ineffective assistance of counsel when defense counsel "provided affirmatively incorrect advice regarding the immigration consequences of his guilty plea." The State contends that (1) Sall "is not entitled to the benefit of the holding in Padilla" because his conviction was final before Padilla was decided; and (2) Sall failed to meet his burden at the coram nobis hearing to establish prejudice as a result of the claimed mis-advice. We agree with the State.
The Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights each guarantee a criminal defendant the right to the effective assistance of counsel during the critical stages of the trial proceedings. Strickland v. Washington, 466 U.S. 668, 685 (1984); Testo v. State, 204 Md.App. 334, 377 (2012). 8
A claim for ineffective assistance of counsel requires a defendant to satisfy a two-prong test. Strickland, 466 U.S. at 687. First, a defendant must show that the counsel's performance was deficient such that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The court determines whether, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. "The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Second, the defendant must show prejudice as a result of the counsel's deficient performance. Id. at 687. The defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The two-part test in Strickland applies to a guilty plea challenge based on ineffective assistance of counsel. Denisyuk v. State, 422 Md. 462, 470 (2013), abrogated on other grounds, Miller, 435 Md. at 194. In Padilla v. Kentucky, the Supreme Court held that where a defendant is not a United States citizen, defense counsel must inform the defendant of whether his or her guilty plea carries a risk of deportation or a risk of adverse immigration consequences. Padilla, 559 U.S. at 367-69, 374. Defense counsel's failure to do so falls below an objective standard of reasonableness, satisfying the first prong of Strickland. Id. 9 at 367-69. The Supreme Court recognized that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." 559 U.S. at 368 (internal quotations and alterations omitted). In this context, a defendant demonstrates the second prong of Strickland, prejudice, if there is a reasonable probability that, but for counsel's error, the defendant would not have pled guilty and would have insisted on going to trial. Denisyuk, 422 Md. at 470.
To determine the extent of the advice required, the Supreme Court clarified that, "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 369 (2010).
While Padilla imposes this immigration advice obligation, its holding does not apply retroactively. Chaidez v. United States, 568 U.S. 342, 344 (2013). In Maryland specifically, the Court of Appeals held that Padilla does not apply retroactively to a plea entered before Padilla was decided unless an independent state law basis supports the challenge to the alleged deficient performance. Miller, 435 Md. at 194. Following the decision in Miller, this Court applied Miller and denied retroactive application of Padilla to a guilty plea that was entered in 2008-before Padilla was decided. Guardado v. State, 218 Md.App. 640, 653 (2014) ("The circuit court did not err in denying Guardado's petition for a writ of error coram nobis because the linchpin of his contentions, namely, that Padilla applied retroactively to his case, was incorrect."). 10
When the Supreme Court decided Padilla v. Kentucky in 2010, it was unclear whether its holding would apply retroactively. In 2011, the Court of Appeals held that the holding in Padilla applied retroactively to postconviction claims arising from guilty pleas obtained in Maryland state courts after April 1, 1997. Denisyuk v. State, 422 Md. 462, 466, 473 (2011). However, in February 2013, the Supreme court decided Chaidez v. United States, in which it held that Padilla did not apply retroactively because Padilla announced a new rule of constitutional criminal procedure. 568 U.S. 342, 344 (2013). In 2013, the Court of Appeals was presented with a case to revisit its decision in Denisyuk. Miller v. State, 435 Md. 174 (2013). In Miller, the Court of Appeals abrogated its retroactivity decision in Denisyuk and stated that "we cannot create a federal remedy denied by the Supreme Court[.]" Id. at 194.
Here, as noted, Sall's guilty plea was entered in 2008 prior to the Supreme Court's holding in Padilla. Pursuant to Miller and Guardado, Padilla does not apply retroactively to Sall's guilty plea. Therefore, Sall cannot rely on Padilla to challenge his guilty plea. Sall does not assert an independent state law basis to challenge his guilty plea.
Although the circuit court discussed Padilla in denying Sall's petition, as we have explained, Padilla does not apply retroactively to Sall's claim. See Unger v. State, 427 Md. 383, 406 (2012) (explaining that an appellate court may affirm a judgment on any ground that is adequately supported by the record and is legally correct).
In Miller, the Court of Appeals further explained that Article 21 of the Maryland Declaration of Rights alone does not provide "an independent state basis for finding counsel deficient based upon a failure to provide advice regarding adverse immigration consequences prior to or during guilty plea proceedings." 435 Md. at 199.
Sall's attempt to distinguish Miller and Guardado is not persuasive. Sall contends that Padilla did not apply retroactively in Miller and Guardado because the ineffective assistance of counsel claims in those cases were based on a failure to provide any advice on immigration consequences as opposed to affirmative mis-advice on such consequences. This distinction is inconsequential because the dispositive factor in Miller and Guardado, as in this case, was that the guilty plea at issue preceded Padilla's precedential effect. And, Padilla expressly rejected any distinction in the application of its holding between a failure to advise and a giving of mis-advice. Padilla, 559 U.S. at 370-71 ("A holding limited to 11 affirmative misadvice would invite two absurd results . . . First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available . . . Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.").
Sall also cites numerous jurisdictions outside of Maryland to support his argument. However, we need not address them because Miller and Guardado are binding precedent in Maryland that Padilla cannot be used retroactively.
Sall further contends that Padilla applies because the Court of Appeals applied Padilla in State v. Sanmartin Prado. In Sanmartin Prado, the plea at issue was entered in 2011, after Padilla was decided. 448 Md. at 715. Thus, the retroactive application of Padilla was not an issue, and the Court's application of Padilla has no bearing on our analysis.
To further his retroactivity argument, Sall relies on Lee v. United States, 137 S.Ct. 1958 (2017). In Lee, the defendant filed a petition to vacate his conviction resulting from a guilty plea entered in 2009 based on the ineffective assistance of counsel. Id. at 1963. The defendant based his claim on the fact that his defense counsel misadvised him that he would not be deported as a result of his plea. Id. The District Court and the Sixth Circuit denied the relief, but the Supreme Court held that the defendant received ineffective assistance of counsel. Id. at 1964. Sall argues that the Supreme Court's decision "suggests that in cases of affirmative mis-advice, such as this one, Padilla's precedent is retroactive, and that providing affirmative mis-advice regarding immigration consequences constitutes deficient performance." However, Sall fails to consider the full opinion in Lee.
While the Court in Lee concluded that the defendant received ineffective assistance of counsel, it did not apply Padilla retroactively. The government conceded the prong that counsel's performance was deficient under Strickland, and the Supreme Court's analysis was limited only to whether the defendant was prejudiced under the second prong. Id. at 1964. Thus, Lee cannot be used for the distinction that Sall proffers because the Supreme Court did not determine that defense counsel was deficient under Strickland pursuant to Padilla. Significantly, nothing in Lee suggested a holding contrary to Chiadez, which held that Padilla does not have a retroactive effect. 568 U.S. at 344. 12
To be clear, because Padilla does not apply, we evaluate Sall's argument under Strickland without the precedential effect of Padilla. We note that the parties appear to agree that defense counsel made an incorrect statement during the plea proceeding. We focus our analysis on the prejudice prong of Strickland.
The State argues that, even if Padilla applies to this case, the complexity of the deportation consequences resulting from Sall's plea only warranted a general warning. Sall responds that deportation consequences of his plea were not complex and that defense counsel was required in inform him of the risk of deportation. Because Padilla does not apply to Sall's claim, we need not address these alternative arguments.
Based on the record, defense counsel's statement as to the immigration consequences could not have been prejudicial. When defense counsel raised the issue of immigration consequences after the court accepted the plea, the court explained to Sall that "you're from a foreign country and as a result, I don't know if Immigration and Naturalization is going to take any action against you, but they could use this conviction to do so. You understand that?" After Sall indicated that he understood, the court gave Sall an opportunity to change his mind on pleading guilty by stating that "[a]nd you still wish to proceed with the plea in light of that?" Sall did not indicate he had changed his mind, and he agreed to proceed with his plea. Defense counsel then made an incorrect comment to the court on the deportation consequences of Sall's plea, which the court immediately corrected:
DEFENSE COUNSEL]: Your Honor, I believe the State is agreeable to one year suspended and one year probation. If it's a year, Your Honor, I don't believe he's eligible to be deported. I'm not an immigration expert, but that's my understanding.
THE COURT: Actually, it's not what the sentence that was rendered, but it's what the possible sentence that could have been rendered and under the13
federal guidelines, 15 years would be a felony.
[DEFENSE COUNSEL]: Of course, Your Honor.
Defense counsel's misstatement to the court did not occur until after Sall chose to proceed with his plea in light of adverse immigration consequences. Therefore, it is not apparent from the record the manner in which this incorrect statement, which was immediately corrected, could have been prejudicial to Sall's decision to accept the guilty plea.
Furthermore, Sall did not offer any evidence to demonstrate prejudice as a result of defense counsel's misstatement. Sall's coram nobis petition claimed that if he "had been given any warning whatsoever that he would be facing removability[, ] he would not have taken the guilty plea and instead would have chosen to go to trial." However, Sall did not present any testimony or evidence at the coram nobis hearing by which the court could reach the conclusion that but for defense counsel's misstatement of the deportation consequences, he would have rejected the plea agreement. See Denisuyk, 442 Md. 468 (stating that petitioner demonstrated prejudice by presenting an affidavit that "but for trial counsel's conduct he would not have pled guilty and would have proceeded to trial"). Sall offers the transcript of the plea proceeding as support, but nothing in the record suggests that but for defense counsel's misstatement of the law to the court, Sall would not have pled guilty and would have insisted on going to trial. 14
Sall contends that he was not required to show that he would have proceeded to trial but for defense counsel's misstatement because his familial ties to the United States suggest a rational desire to remain in the United States. See United States v. Akinsade, 686 F.3d 248, 255 (4th Cir. 2012) ("We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation."). While Sall's petition, in 2021, stated that he is married to a U.S. citizen, has children, and has lived in the United States since 2002, he did not present any supporting evidence of his familial connections at the time of his guilty plea in 2008.
At oral argument, Sall acknowledged that he did not present evidence at the hearing that he would have rejected the plea but for defense counsel's misstatement. Sall urges that context is important. He argues that he did not present evidence of prejudice at the coram nobis hearing because the State did not oppose his petition for relief. However, the State's lack of contest does not relieve Sall of his burden to demonstrate prejudice and his entitlement to coram nobis relief. It is the court that must determine whether the burden has been met, and Sall offers no authority for the proposition that the State's agreement to coram nobis relief relives him of the burden to rebut the presumption of regularity.
By analogy, the sole fact that the State has reached an agreement is insufficient for the court to accept and enter the plea. To accept a plea, Maryland Rule 2-242(c) requires the court to determine that "there is a factual basis for the plea." Md. Rule 4-242. The burden is on the State to demonstrate this factual basis. Thus, as it is the court's role to determine whether there is a factual basis to support the plea, it is the court's role to determine whether the petitioner has presented evidence to rebut the presumption of regularity to receive coram nobis relief.
Relying on United States v. Akinsade, Sall argues that the court's correction of defense counsel's misstatement was insufficient to cure the prejudice. In Akinsade, defense counsel erroneously advised the defendant, on multiple occasions before the plea proceeding, that he could not be deported based on a single conviction. 686 F.3d 248, 250 (4th Cir. 2012). The evidence showed the defendant pled guilty based on that advice. Id. During the plea proceeding, the trial court told the defendant, "if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. 15 Do you understand that?" Id. In response, the defendant stated that he understood and that he still wished to plead guilty. Id. The Fourth Circuit held that the trial court's statement that the defendant's conviction "could lead to deportation" was a "general and equivocal admonishment [] insufficient to correct counsel's affirmative misadvice that Akinsade's crime was not categorically a deportable offense." Id. at 254.
In contrast to Akinsade, there was no mis-advice from defense counsel to Sall before the plea proceeding for the court to correct or admonish during the plea proceeding. As discussed, the court's correction of defense counsel's misstatement regarding the deportation consequences occurred after Sall agreed to proceed with the plea. Of note, the court's correction of defense counsel was immediate, and there is no allegation of any other misstatement or misadvice.
Sall also posits that his plea proceeding violated Maryland Rule 4-242, rendering defense counsel's assistance deficient. Maryland Rule 4-242 states in pertinent part, "the court, the State's Attorney, the attorney for the defendant, or any combination thereof shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship[.]" Md. Rule 4-242(f). Here, the court advised Sall that he could face immigration consequences, and Sall agreed to proceed. 16
While there was no violation of the rule, we also note that "a violation of the rule alone is not a basis to set aside the plea." Guardado v. State, 218 Md.App. 640, 653 (2014).
Accordingly, Sall failed to establish a claim of ineffective assistance of counsel, and the court did not abuse its discretion in denying Sall's petition for writ of error coram nobis.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIOMRE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 17
[*] This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.