United States v. Elizabeth Rodriguez-Vega ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-56415
Plaintiff-Appellee,
D.C. Nos.
v. 3:12-cv-01996-WVG
3:12-cr-02053-WVG
ELIZABETH RODRIGUEZ-
VEGA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
William V. Gallo, Magistrate Judge, Presiding
Argued and Submitted
July 7, 2015—Pasadena, California
Filed August 14, 2015
Before: Stephen Reinhardt, Ferdinand F. Fernandez,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Reinhardt
2 UNITED STATES V. RODRIGUEZ-VEGA
SUMMARY*
Habeas Corpus
Vacating a conviction of misdemeanor attempted
transportation of illegal aliens, the panel held that the district
court erred in failing to hold, upon a petition under 28 U.S.C.
§ 2255, that defendant’s counsel was ineffective in failing to
advise her that her plea agreement rendered her removal from
the United States a virtual certainty.
The panel held that the district court applied the wrong
legal standard in deciding whether counsel’s representation
fell below an objective standard of reasonableness because
the law was clear on the immigration consequence of
defendant’s plea where the immigration statute expressly
identified defendant’s conviction as a ground for removal,
rendering her removal practically inevitable. The panel held
that the government’s performance in including provisions
regarding removal in the plea agreement, and the district
court’s performance at the plea colloquy, were irrelevant to
the question whether counsel’s performance was adequate.
In addition, counsel’s statements made after defendant had
already pled guilty did not satisfy his duty to accurately
advise her of the removal consequences of the plea before she
entered into it.
The panel held that defendant satisfied the prejudice
prong of the ineffective assistance of counsel test by showing
a reasonable probability that, but for counsel’s deficient
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RODRIGUEZ-VEGA 3
performance, she would have negotiated a different plea
agreement not requiring her removal or, alternatively, would
have gone to trial.
The panel also held that the district court did not abuse its
discretion in failing to conduct a full evidentiary hearing.
The panel vacated the conviction and remanded the case to
the district court.
COUNSEL
Doug Keller (argued), Federal Defenders of San Diego,
California, for Defendant-Appellant.
Julia A. Cline (argued), Special Assistant United States
Attorney; Bruce R. Castetter, Assistant United States
Attorney, Chief, Appellate Section, Criminal Division; Laura
E. Duffy, United States Attorney, San Diego, California, for
Plaintiff-Appellee.
Rebecca Sharpless, Immigration Clinic, University of Miami
School of Law, Coral Gables, Florida; Sejal Zota, National
Immigration Project of the National Lawyers Guild, Boston,
Massachusetts; Jeffrey L. Fisher, NACDL Amicus
Committee, Stanford, California; Manual D. Vargas and
Dawn Seibert, Immigrant Defense Project, New York, New
York, for Amici Curiae National Association of Criminal
Defense Lawyers, National Association for Public Defense,
National Immigration Project of the National Lawyers Guild,
Immigrant Defense Project, and Immigrant Legal Resource
Center.
4 UNITED STATES V. RODRIGUEZ-VEGA
OPINION
REINHARDT, Circuit Judge:
Elizabeth Rodriguez-Vega appeals the magistrate judge’s
denial of her 28 U.S.C. § 2255 petition1 to vacate her
conviction of misdemeanor Attempted Transportation of
Illegal Aliens in violation of 8 U.S.C. § 1324(a)(2)(A). She
asserts that she was deprived of effective assistance of
counsel because her attorney failed to advise her that her plea
agreement rendered her removal a virtual certainty, and that
the court erred in dismissing her petition without holding an
evidentiary hearing. We hold that the district court did not
abuse its discretion in failing to conduct an evidentiary
hearing, but that it did err in failing to hold that under the
controlling law Rodriguez-Vega’s counsel’s assistance was
ineffective. Accordingly, we order the conviction vacated.
I.
Rodriguez-Vega was born in Mexico in 1989. She came
to the United States with her family when she was twelve
years old, and became a lawful permanent resident the
following year. In 2012, she was arraigned on an Information
charging her with felony Attempted Transportation of Illegal
Aliens and Aiding and Abetting in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II).
1
Although the Judicial Code describes § 2255 petitions as “motions,”
28 U.S.C. § 2255, we utilize the popular terms “petition” and “petitioner”
for ease of reference. See United States v. Howard, 381 F.3d 873, 877 &
n. 4 (9th Cir. 2004).
UNITED STATES V. RODRIGUEZ-VEGA 5
Rodriguez-Vega’s attorney2 initially presented her with a
plea agreement requiring her to stipulate to removal
following her criminal sentence. A section entitled
“Stipulated Removal” provided that “[i]f defendant is not a
United States citizen or national, . . . defendant agrees to an
order of removal from the United States” following
completion of her criminal sentence, and “waives any right to
appeal, reopen or challenge the removal order.” When
Rodriguez-Vega rejected the agreement her attorney obtained
a revised plea agreement that did not include the stipulation
for removal upon completion of her sentence, reduced a $100
assessment to $25, and recommended a base offense level of
12 and downward departures of 2 points each for acceptance
of responsibility and fast track. The revised plea replaced the
stipulated removal provision with a provision entitled
“Immigration Consequences,” stating that
Defendant recognizes that pleading guilty
may have consequences with respect to her
immigration status if she is not a citizen of the
United States. . . . Defendant nevertheless
affirms that she wants to plead guilty
regardless of any immigration consequences
that his [sic] plea may entail, even if the
consequence is his [sic] automatic removal
from the United States.
The final section of the plea stated that “Defendant has
discussed the terms of this agreement with defense counsel
and fully understands its meaning and effect.” Both plea
2
All references in this opinion to Rodriguez-Vega’s counsel are to the
attorney that represented her in her criminal case.
6 UNITED STATES V. RODRIGUEZ-VEGA
agreements were to a reduced charge of misdemeanor
Transportation of an Illegal Alien.3
Rodriguez-Vega pled guilty to a single misdemeanor. At
her plea colloquy, the magistrate judge4 informed Rodriguez-
Vega that “potentially you could be deported or removed,
perhaps.” (Emphasis added.) Later, at her sentencing
hearing, Rodriguez-Vega’s counsel, addressing the court,
stated that “even though this is a misdemeanor, there is a high
likelihood that she’ll still be deported. It’s still probably
considered an aggravated felony for purposes of immigration
law.” (Emphasis added.) The district court sentenced
Rodriguez-Vega to 60 days in custody followed by one year
of supervised release. Fifteen days later, Rodriguez-Vega
was issued a Notice to Appear, alleging that she was
removable because her conviction qualified as an aggravated
felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
Rodriguez-Vega filed a petition to vacate her conviction
under 28 U.S.C. § 2255 on the ground that her counsel
provided ineffective assistance by failing to adequately advise
her regarding the immigration consequence of her plea. In
the alternative, she requested that the court order an
evidentiary hearing. In support of her petition, Rodriguez-
Vega filed a declaration denying that her counsel ever told
her that her plea would cause her to be removed.
3
The record does not contain the complete initial plea agreement offered
to Rodriguez-Vega. However, the government does not contest
Rodriguez-Vega’s description on appeal of the first plea agreement as
being the same as the second except as described in the above paragraph
of the text.
4
The parties stipulated that a magistrate judge could conduct all
proceedings in the district court. See 28 U.S.C. § 636(c)(1).
UNITED STATES V. RODRIGUEZ-VEGA 7
The district court ordered an expansion of the record and
supplemental briefing, and directed the government to file a
declaration from Rodriguez-Vega’s counsel. Her counsel
stated in his declaration that
[p]rior to Ms. Rodriguez [sic] guilty plea I
had several conversations with here
[sic] regarding potential immigration
consequences. I explained to Ms. Rodriguez
that there was a potential to be deported based
on her immigration status. I explained to Ms.
Rodriguez that . . . I believed she had a better
chance with Immigration with a misdemeanor
than a felony.
The district court denied the petition without holding any
further hearing. It held that her counsel was required to
advise his client only that her plea created a general risk of
removal. The district court found this duty satisfied by his
statement prior to Rodriguez-Vega’s guilty plea that she faced
a “potential” of removal, and by his statement at the
sentencing hearing that she faced a “high likelihood” of
removal. It also found that even assuming that counsel’s
performance was ineffective, Rodriguez-Vega was not
prejudiced by that conduct. Rodriguez-Vega appeals.
II.
To prevail on her claim of ineffective assistance of
counsel, Rodriguez-Vega must demonstrate that her
attorney’s representation “fell below an objective standard of
reasonableness,” and that she suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
8 UNITED STATES V. RODRIGUEZ-VEGA
A.
With respect to the ineffective performance prong, the
district court erred because it applied the wrong legal
standard. “When the law is not succinct and straightforward
. . . , a criminal defense attorney need do no more than advise
a noncitizen that pending criminal charges may carry a risk of
adverse immigration consequences.” Padilla v. Kentucky,
559 U.S. 356, 369 (2010). However, where the law is
“succinct, clear, and explicit” that the conviction renders
removal virtually certain, counsel must advise his client that
removal is a virtual certainty. Id. at 368–69 (“[W]hen the
deportation consequence is truly clear, . . . the duty to give
correct advice is equally clear.”); United States v. Bonilla,
637 F.3d 980, 984 (9th Cir. 2011) (“A criminal defendant
who faces almost certain deportation is entitled to know more
than that it is possible that a guilty plea could lead to
removal; he is entitled to know that it is a virtual certainty.”)
(emphasis in original).5
Where the immigration statute or controlling case law
expressly identifies the crime of conviction as a ground for
removal, “the deportation consequence is truly clear.”
Padilla, 559 U.S. at 369. Here, as in Padilla and Bonilla, the
immigration statute expressly identifies Rodriguez-Vega’s
conviction as a ground for removal. See 8 U.S.C.
§§ 1101(a)(43)(N), § 1227(a)(2)(A)(iii); see also Padilla,
559 U.S. at 368 (“Padilla’s counsel could have easily
determined that his plea would make him eligible for
deportation simply from reading the text of the statute”). Her
conviction of a removable offense renders her removal
5
Many opinions use the terms “removal” and “deportation”
interchangeably.
UNITED STATES V. RODRIGUEZ-VEGA 9
“practically inevitable.” Padilla, 559 U.S. at 363–64.
Accordingly, we hold that Rodriguez-Vega’s counsel was
required to advise her that her conviction rendered her
removal virtually certain, or words to that effect. See Bonilla,
637 F.3d at 984.
That Rodriguez-Vega might theoretically avoid removal
under the family member exception for first-time offenders,
see 8 U.S.C. § 1101(a)(43)(N), by receiving withholding of
removal, see 8 U.S.C. § 1231(b)(3), or by qualifying for relief
under the Convention Against Torture (“CAT”), see 8 C.F.R.
§ 1208.16(c), does not alter our conclusion that on the record
before us her removal was virtually certain.6
We also reject the government’s arguments that counsel’s
performance was not ineffective because Rodriguez-Vega
received notice that she might be removed from a provision
in the plea agreement and the court’s plea colloquy under
Federal Rule of Criminal Procedure 11. The government’s
performance in including provisions in the plea agreement,
and the court’s performance at the plea colloquy, are simply
irrelevant to the question whether counsel’s performance fell
below an objective standard of reasonableness. See Padilla,
559 U.S. at 371 (quoting Hill v. Lockhart, 474 U.S. 52, 62
(1985) (White, J., concurring in the judgment) (“It is
quintessentially the duty of counsel to provide her client with
available advice about an issue like deportation and the
failure to do so ‘clearly satisfies the first prong of the
Strickland analysis.’” (emphasis added))); see also Libretti v.
United States, 516 U.S. 29, 50–51 (1995); United States v.
6
Bonilla described the likelihood of the appellant’s removal as “virtually
certain” notwithstanding the availability of withholding and CAT relief,
which is not surprising given how rarely such relief is granted.
10 UNITED STATES V. RODRIGUEZ-VEGA
Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. 2014) (“It is
counsel’s duty, not the court’s, to warn of certain immigration
consequences, and counsel’s failure cannot be saved by a plea
colloquy.”)
Nor do counsel’s statements made after Rodriguez-Vega
had already pled guilty, that she faced a “high likelihood” of
removal, satisfy his duty to accurately advise his client of the
removal consequences of a plea before she enters into it. See
Padilla, 559 U.S. at 364 (“Before deciding whether to plead
guilty, a defendant is entitled to ‘the effective assistance of
competent counsel’” (emphasis added)); Lafler v. Cooper,
132 S. Ct. 1376, 1384 (2012) (“During plea negotiations
defendants are ‘entitled to the effective assistance of
competent counsel.’” (citation omitted) (emphasis added)).
This is because, had she been properly and timely advised,
Rodriguez-Vega could have instructed her counsel to attempt
to negotiate a plea that would not result in her removal. See
Padilla, 559 U.S. at 373 (“Counsel who possess the most
rudimentary understanding of the deportation consequences
of a particular criminal offense may be able to plea bargain
creatively with the prosecutor in order to craft a conviction
and sentence that reduce the likelihood of deportation, as by
avoiding a conviction for an offense that automatically
triggers the removal consequence.”); Vartelas v. Holder,
132 S. Ct. 1479, 1492 n. 10 (2012) (“Armed with knowledge
that a guilty plea would preclude travel abroad, alien[ ]
[defendants] might endeavor to negotiate a plea to a
nonexcludable offense”); see also Hernandez-Cruz v. Holder,
651 F.3d 1094, 1110–11 (9th Cir. 2011) (discussing a plea
agreement in which “[t]he state secured convictions on the
charges that are punished more harshly under state law
without incurring the expense and hassle of a trial” and the
defendant “agreed to plead guilty to a charge that, although
UNITED STATES V. RODRIGUEZ-VEGA 11
more serious, had a smaller chance of causing adverse
immigration consequences”). “In order that the[] benefits [of
plea bargaining] can be realized, however, criminal
defendants require effective counsel during plea negotiations.
Anything less . . . might deny a defendant effective
representation by counsel at the only stage when legal aid and
advice would help him.” (Internal quotation marks omitted)
(alteration in original) (emphasis added). Missouri v. Frye,
132 S. Ct. 1399, 1407–08 (2012).
The undisputed evidence clearly demonstrates that
counsel’s performance was constitutionally ineffective.
According to counsel’s own declaration, before Rodriguez-
Vega pled guilty he never informed her that she faced
anything more than the mere “potential” of removal. Because
the immigration consequences of her plea were clear and her
removal was virtually certain, we hold counsel’s performance
constitutionally ineffective. Strickland, 466 U.S. at 688.
B.
The government also argues that Rodriguez-Vega did not
satisfy the prejudice prong of the ineffective assistance of
counsel test. To satisfy the prejudice prong, a petitioner must
demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. A “reasonable probability” is a standard of proof
“sufficient to undermine confidence in the outcome” and is
“somewhat lower” than a preponderance of the evidence. Id.
“[T]o obtain relief on this type of claim, a petitioner must
convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.” Padilla,
559 U.S. at 372. Where ineffective assistance leads a
12 UNITED STATES V. RODRIGUEZ-VEGA
petitioner to accept a plea bargain, a different result means
that “but for counsel's errors, [Rodriguez-Vega] would either
have gone to trial or received a better plea bargain.” Howard,
381 F.3d at 882.
1.
Rodriguez-Vega alleges that she would not have accepted
the plea had she known she would be removed. Instead, she
declares, “I would have insisted on A) proceeding to trial; or
B) an offer that would not have caused my deportation.”
A petitioner may demonstrate that there existed a
reasonable probability of negotiating a better plea by
identifying cases indicating a willingness by the government
to permit defendants charged with the same or a substantially
similar crime to plead guilty to a non-removable offense. Cf.
United States v. Raya-Vaca, 771 F.3d 1195, 1209 (9th Cir.
2014) (statistical evidence regarding proportion of aliens
receiving relief in conjunction with individualized evidence
supports finding of a plausible basis for alien’s relief). In her
opening brief, Rodriguez-Vega cites four recent cases from
the Southern District of California in which defendants
originally charged with Transportation of Illegal Aliens in
violation of 8 U.S.C. § 1324 pled guilty to being an accessory
after the fact in violation of 18 U.S.C. § 3.7 These cases
7
See Information, United States v. Gonsalez-Sanchez, No. 3:13-CR-
00477-RBB (S.D. Cal. Feb. 7, 2013), ECF No. 14; Judgment, Gonsalez-
Sanchez, No. 3:13-CR-00477-RBB (S.D. Cal. Mar. 8, 2013), ECF No. 32;
Information, United States v. Camey-Arriaza, No. 3:14-CR-01449-WVG
(S.D. Cal. May 27, 2014), ECF No. 20; Judgment, Camey-Arriaza, No.
3:14-CR-01449-WVG (S.D. Cal. June 11, 2014), ECF No. 38;
Information, United States v. Godinez-Aviles, No. 3:14-cr-01531-DHB
(S.D. Cal. June 3, 2014), ECF No. 28; Judgment, Godinez-Aviles, No.
UNITED STATES V. RODRIGUEZ-VEGA 13
demonstrate a reasonable probability that, but for counsel’s
deficient performance, Rodriguez-Vega could similarly have
negotiated a different plea agreement not requiring her
removal.
A petitioner may also demonstrate a reasonable
probability by showing that she settled on a charge in a
purposeful attempt to avoid an adverse effect on her
immigration status. See Kovacs v. United States, 744 F.3d
44, 53 (2d Cir. 2014) (finding petitioner’s “single-minded
focus in the plea negotiations [on] the risk of immigration
consequences” and evidence that he “settled on [the felony
charge] for the sole reason that [counsel] believed it would
not impair [petitioner’s] immigration status. . . . show[ed] a
reasonable probability that he could have negotiated a plea
with no effect on his immigration status.”). Rodriguez-Vega
rejected an initial plea bargain containing a stipulated
removal provision, and accepted the revised plea bargain only
after this provision had been removed. In addition, counsel’s
declaration states that his client accepted the revised plea
after he advised her that “she had a better chance with
Immigration with the misdemeanor conviction” than with the
charged felony. These facts indicate that Rodriguez-Vega
settled on the misdemeanor charge with the stipulated
removal provision deleted specifically in order to limit her
chances of removal and, consequently, showed a reasonable
probability that, but for counsel’s failure to provide adequate
advice, she would have negotiated a plea bargain not
requiring her removal.
3:14-cr-01531-DHB (S.D. Cal. July 1, 2014), ECF No. 40; Indictment,
United States v. Jarillo-Ochoa, No. 3:12-cr-01818-AJB (S.D. Cal. May 9,
2012), ECF No. 17; Judgment, Jarillo-Ochoa, No. 3:12-cr-01818-AJB
(S.D. Cal. Feb. 5, 2013), ECF No. 87.
14 UNITED STATES V. RODRIGUEZ-VEGA
2.
Alternatively, Rodriguez-Vega has demonstrated
prejudice by showing a reasonable probability that, even in
the absence of a more favorable plea agreement, she would
have gone to trial. It is often reasonable for a non-citizen
facing nearly automatic removal to turn down a plea and go
to trial risking a longer prison term, rather than to plead guilty
to an offense rendering her removal virtually certain. See
Padilla, 559 U.S. at 368 (“[P]reserving the client’s right to
remain in the United States may be more important to the
client than any potential jail sentence.” (quoting INS v. St.
Cyr, 533 U.S. 289, 322 (2001) (alteration omitted))). We
have found prejudice where a non-citizen demonstrates
clearly that she placed a “particular emphasis” on the
immigration consequence of a plea in deciding whether or not
to accept it. United States v. Kwan, 407 F.3d 1005, 1017–18
(9th Cir. 2005), abrogated on other grounds by Padilla,
559 U.S. 356.
Here, as noted, Rodriguez-Vega made a concerted effort
to avoid separation from her family, all of whom reside in the
United States, by rejecting an initial plea agreement
containing a stipulated removal provision. See id. at 1017
(“Kwan has also gone to great lengths to avoid deportation
and separation from his wife and children, who are all United
States citizens.”); see also United States v. Akinsade,
686 F.3d 248, 255 (4th Cir. 2012) (“We have . . . 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.”). She also demonstrated that she placed great
emphasis on remaining in the United States by having
UNITED STATES V. RODRIGUEZ-VEGA 15
numerous conversations with her counsel regarding the
immigration consequences of her plea. See Kwan, 407 F.3d
at 1017 (alteration in original) (“That Kwan asked counsel
about the immigration consequences of pleading guilty before
agreeing to do so demonstrates clearly ‘that he placed
particular emphasis on [immigration consequences] in
deciding whether or not to plead guilty.’” (quoting Hill, 474
U.S. at 60)).
Rodriguez-Vega was just twenty-two years old at the time
she entered into the plea agreement. Had she gone to trial on
the initial felony charge, she faced a prison term likely
spanning just 10–16 months.8 A young lawful permanent
resident may rationally risk a far greater sentence for an
opportunity to avoid lifetime separation from her family and
the country in which they reside. See United States v. Orocio,
645 F.3d 630, 645 (3d. Cir. 2011), abrogated on other
grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013)
(“Mr. Orocio was only 27 years old at the time he entered the
plea agreement, and he rationally could have been more
concerned about a near-certainty of multiple decades of
banishment from the United States than the possibility of a
single decade in prison.”). Taken together, these facts
demonstrate that Rodriguez-Vega placed a particular
emphasis on preserving her ability to remain in the United
States, and that had she known that her removal was virtually
certain she would have acted rationally in rejecting the
8
Because she had no apparent prior criminal history, had she been
convicted at trial of the initial charge of felony Attempted Transportation
of Illegal Aliens, Rodriguez-Vega’s base offense level likely would have
been 12, and she would have been in Criminal History Category I,
yielding a Guideline range of 10–16 months. See U.S.S.G. § 2L1.1; id.
Chap. 5, Part A.
16 UNITED STATES V. RODRIGUEZ-VEGA
second plea agreement and going to trial. Accordingly, she
has demonstrated prejudice on this ground as well. See
Kwan, 407 F.3d at 1017–18.
3.
The government relies on inapposite cases outside of the
immigration context in which we have held that defendants
were not prejudiced where they were advised, either by the
plea agreement or the court, that there existed a possibility of
a harsher sentence than they anticipated receiving. See
Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007);
United States v. Turner, 881 F.2d 684, 687 (9th Cir. 1989);
United States v. Thornton, 23 F.3d 1532, 1533–34 (9th Cir.
1994). Unlike in criminal cases, in which it is the courts that
retain discretion over criminal sentencing, courts have no
discretion over the immigration consequences of a conviction
for a removable crime. Padilla, 559 U.S. at 363–64. Here,
the court’s advisement and the statements in the plea
agreement that Rodriguez-Vega faced the possibility of
removal did not purge prejudice, if for no other reason than
that they did not give her adequate notice regarding the actual
consequences of her plea. The plea agreement and plea
colloquy, like the advice of her lawyer, each notified
Rodriguez-Vega only that there existed a possibility of
removal, when in fact her removal was virtually certain. The
plea agreement stated that “Defendant recognizes that
pleading guilty may have consequences with respect to her
immigration status.” (Emphasis added.) While warning of a
dire consequence, the plea agreement characterizes its
likelihood only as something that “may” happen. Warning of
the possibility of a dire consequence is no substitute for
warning of its virtual certainty. As Judge Robert L. Hinkle
explained, “Well, I know every time that I get on an airplane
UNITED STATES V. RODRIGUEZ-VEGA 17
that it could crash, but if you tell me it’s going to crash, I’m
not getting on.” United States v. Choi, Case No. 4:08-CV-
00386-RH, Transcript, Docket No. 96, at 52 (D. Fla. Sept. 30,
2008).9
Counsel’s statement at Rodriguez-Vega’s sentencing
hearing that “there is a high likelihood that she’ll still be
deported. It’s still probably considered an aggravated felony
for purposes of immigration law” (emphasis added), is
similarly deficient because it likewise fails to state accurately
the plain and clear status of the law, see Padilla, 559 U.S. at
368–69; Bonilla, 637 F.3d at 984, and thus understates the
likelihood that his client would be removed. Moreover, even
had counsel accurately stated that Rodriguez-Vega’s removal
was virtually certain, we would still find his statement
inadequate to purge prejudice because it came too late. Prior
to pleading guilty, Rodriguez-Vega could have simply
rejected the plea and gone to trial, or directed counsel to
attempt to negotiate a plea not requiring her removal. By the
time counsel made his statement at the sentencing hearing,
however, she could not do either unless she first obtained the
court’s permission to withdraw her plea. See Orocio,
645 F.3d at 646 (court’s advice at sentencing came “far too
late in the process . . . to effectively alert Mr. Orocio to the
9
Even though the plea agreement also stated that “Defendant
nevertheless affirms that she wants to plead guilty regardless of any
immigration consequences that his [sic] plea may entail, even if the
consequence is his [sic] automatic removal,” this statement also did not
cure prejudice. We give little weight to such a hypothetical provision,
which lacked any reference to the specifics of Rodriguez-Vega’s case.
Moreover, the effectiveness of this written warning was substantially
diminished by the context in which it was given, i.e. the oral statements
by Rodriguez-Vega’s counsel and the court that she faced only a
possibility of removal.
18 UNITED STATES V. RODRIGUEZ-VEGA
severe removal consequences of his guilty plea of five
months before”). Moreover, as stated above, by the time of
her sentencing hearing plea bargaining had ended and with it
Rodriguez-Vega’s ability to derive benefit from her counsel’s
advice during the most critical period. Missouri, 132 S. Ct. at
1407–08; see also Padilla, 559 U.S. at 373; Vartelas, 132
S. Ct. at 1492 n. 10; Hernandez-Cruz, 651 F.3d at 1110–11.
C.
Petitioner contends that the district court erred in failing
to conduct an evidentiary hearing and asks that we remand for
further proceedings.10 However, the district court ordered an
expansion of the record by directing the government to file a
declaration from Rodriguez-Vega’s former counsel as to all
communications between himself and his former client
regarding deportation consequences. The declaration was
filed along with the declaration regarding communications as
to deportation consequences previously filed by Rodriguez-
Vega. These declarations, along with the other material
before the district court, were adequate to allow it to resolve
the question presented by the § 2255 petition. An oral
hearing is not necessary in all cases. Frequently, as here, an
expansion of the record accompanied by supplemental briefs
will suffice for that purpose. See Blackledge v. Allison,
431 U.S. 63, 80–83 (1977) (holding that the district court
erred in summarily dismissing petitioner’s habeas petition
and stating that, on remand, the district court may either hold
an evidentiary hearing or utilize other measures, such as
ordering expansion of the record, which may render a hearing
10
Although this request is moot in view of our ruling for Petitioner on
the merits, we believe it worth explaining that the district court did not
commit the procedural error that Petitioner charges it with.
UNITED STATES V. RODRIGUEZ-VEGA 19
unnecessary); Chang v. United States, 250 F.3d 79, 86 (2d
Cir. 2001) (courts may use methods under § 2255 to expand
the record without conducting a full-blown testimonial
hearing); United States v. Pollard, 959 F.2d 1011, 1031 (D.C.
Cir. 1992) (“Only where the § 2255 motion raises ‘detailed
and specific’ factual allegations whose resolution requires
information outside of the record or the judge’s ‘personal
knowledge or recollection’ must a hearing be held.”).11 Even
in the non-habeas context, courts frequently decide motions
on the paper record without holding oral hearings. See
FED.R.CIV.PROC.43(c) (“When a motion relies on facts
outside the record, the court may hear the matter on affidavits
or may hear it wholly or partly on oral testimony or on
depositions.”).
The district court did not abuse its discretion in failing to
conduct a full evidentiary hearing in this case. The expanded
record provides an adequate basis on which to resolve both
the ineffective performance and the prejudice inquiries.12 The
district court resolved both issues, and the parties fully
briefed both on this appeal. Accordingly, it is appropriate for
us to decide those issues here. See Kovacs, 744 F.3d at 54
(reversing district court’s dismissal of a coram nobis petition
11
Of course, a district court may not summarily dismiss a petition
without holding an evidentiary hearing unless the petitioner fails to allege
facts which, if true, would entitle him to relief, or the petition, files and
record of the case conclusively show that he is entitled to no relief.
28 U.S.C. § 2255; Howard, 381 F.3d at 877.
12
As the government itself points out in its brief on appeal, “The court
record itself is voluminous for this misdemeanor case. The record contains
56 items before the magistrate’s order. The magistrate judge made a
complete and thorough record of this case and the case should not be
remanded for further evidentiary hearing.
20 UNITED STATES V. RODRIGUEZ-VEGA
without holding an evidentiary hearing, and directing that the
district court issue the writ). Because, for the reasons set
forth above and under the controlling cases, Rodriguez-Vega
prevails both on ineffective performance and on prejudice,
her conviction cannot stand.
CONCLUSION
We hold that Rodriguez-Vega received ineffective
assistance of counsel. Accordingly, we vacate the conviction
and remand to the district court.
VACATED AND REMANDED.