Leon Juan Zacharias v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 18-0686
Filed August 7, 2019
LEON JUAN ZACARIAS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Joel W. Barrows,
Judge.
Leon Juan Zacarias appeals the dismissal of his application for
postconviction relief. AFFIRMED.
Dan Vondra of Vondra & Malott PLC, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BOWER, Judge.
Leon Juan Zacarias appeals the district court’s dismissal of his application
for postconviction relief (PCR), which challenged his trial counsel’s failure to advise
him about immigration consequences of his guilty plea to identity theft and
fraudulent practices. We affirm the district court.
I. Background Facts & Proceedings.
Zacarias has resided in the United States since 2006, had completed all the
paperwork to adjust his status to a permanent resident, and is married to a United
States citizen. On July 13, 2016, Zacarias was charged with identity theft, forgery,
and two counts of fraudulent practices.
Zacarias hired attorney Michael Said to represent him due to Said’s self-
proclaimed expertise in criminal and immigration law.1 On May 31, 2017, Zacarias
filed a written guilty plea to two misdemeanors: identity theft and one count of
fraudulent practice. The only mention of immigration on the memorandum of plea
agreement is a handwritten provision at the bottom stating, “The defendant has
been notified that any criminal charge or sentence can or will have immigration
consequences.” Zacarias and his interpreter both signed below the provision. On
June 2, the court entered judgment and imposed a two-year suspended sentence
and minimum fine on each count. The offenses related to Zacarias’s use of
another person’s information to obtain employment and register a vehicle. Identity
theft is considered a crime of moral turpitude, and a guilty plea results in clear
1
Zacarias’s previous immigration counsel, who worked from the same office as his PCR
counsel, withdrew from representing Zacarias due to the pending criminal charges and
gave Zacarias his file on July 15, 2016.
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immigration consequences, including mandatory detention and expedited
removal.2
On July 7, Immigration and Customs Enforcement (ICE) took Zacarias into
custody when he went to sign his probation papers. On August 9, Zacarias filed a
PCR application alleging ineffective assistance of counsel.
Following a hearing where the court heard testimony from both Zacarias
and Said, the court dismissed Zacarias’s application. The court expressly found
Said to be a more credible witness. Zacarias filed a motion for new trial claiming
mistake of fact as to whether Zacarias had an immigration attorney and that Said
lied during his testimony. The district court denied the motion. Zacarias appeals.
II. Standard of Review
We review postconviction-relief proceedings for correction of errors at law.
Morales Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017); see also Iowa R. App.
P. 6.907. “But when we are reviewing an ineffective-assistance-of-counsel claim,
we do so de novo because such claims are constitutional in nature.” Hernandez
Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). We give weight to the trial court’s
findings on the credibility of witnesses. Ledezma v. State, 626 N.W.2d 134, 141
(Iowa 2001).
2
In State v. Martinez, 896 N.W.2d 737, 756 (Iowa 2017), released one week after
Zacarias’s sentencing and within the time to appeal, the Iowa Supreme Court found
federal immigration law preempts the relevant identity-theft statutes for purposes of
employment of unauthorized immigrants. The court ruled, “[T]he State in this case cannot
prosecute Martinez for identity theft related to false documentation supplied to her
employer as an unauthorized alien.” Martinez, 896 N.W.2d at 756. Said did not inform
Zacarias of the decision.
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III. Analysis.
On appeal, Zacarias claims the district court erred in finding Said a credible
witness despite evidence of prior attorney discipline relating to misrepresentations.
Zacarias also claims Said provided ineffective assistance of counsel by
misrepresenting the consequences of a guilty plea.
Credibility determination. During cross examination, Zacarias’s attorney
was able to question Said about prior cases against him and disciplinary
proceedings, including judicial findings of dishonesty. The court was aware of, and
expressly found Said more credible than Zacarias, based on the documentary
evidence. The court acknowledged the impeaching evidence and still found in
Said’s favor. The district court was within its discretion in its credibility assessment.
See Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996)
(“The trier of fact—here, the district court—has the prerogative to determine which
evidence is entitled to belief. The district court has a better opportunity than we do
to evaluate the credibility of witnesses.” (internal citation omitted)).
Ineffective assistance of counsel. Zacarias alleges two theories of
ineffective assistance of counsel. “Ineffective-assistance-of-counsel claims
require a showing by a preponderance of the evidence both that counsel failed an
essential duty and that the failure resulted in prejudice.” State v. Schlitter, 881
N.W.2d 380, 388 (Iowa 2016). First, Zacarias claims Said failed to adequately
explain the immigration consequences of his plea. Second, Zacarias claims Said
provided ineffective assistance by failing to advise of any potential benefits to trial.
Just over one week after Zacarias entered his plea and was sentenced, the
Iowa Supreme Court explained attorneys are required to advise their clients of all
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the collateral immigration consequences associated with pleading guilty. Morales
Diaz, 896 N.W.2d at 730. In considering Zacarias’s PCR application, the district
court reasoned the extension constituted “a new rule of constitutional law that
cannot be applied retroactively.” The court applied the standard from Padilla v.
Kentucky, 559 U.S. 356, 372 (2010), obligating counsel to provide advice on
deportation consequences of a plea.
In June 2018, we expressly found, “[Morales] Diaz is not a change in law
but rather an application of the existing law found in Padilla.” Ramirez v. State,
No. 16-1893, 2018 WL 2727707, at *5 (Iowa Ct. App. June 6, 2018). Therefore,
Morales Diaz is the appropriate standard for evaluating Said’s performance.
Under Morales Diaz, defense “counsel has an obligation to inform his or her
client of all the adverse immigration consequences that competent counsel would
uncover.” 896 N.W.2d at 732. These consequences can include “removal,
exclusion, bars to relief from removal, immigration detention, denial of citizenship,
and adverse consequences to the client’s immediate family.” Id. at 732 (citation
omitted). Simply referring a client to alternative immigration counsel is not
sufficient—counsel has a duty to explain statutory consequences “with reasonable
clarity so a full and measured decision to plead guilty can be made.” Id.
Zacarias testified he was never told his criminal plea might result in
detention by ICE. He explained he would not have pleaded guilty because he did
not want to be separated from family. He testified Said “guaranteed that I was
going to come out of my problem clean.”
When discussing the information provided to Zacarias, Said testified,
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I specifically told him under the political climate that existed in
June of 2017, the chances are high that you will be picked up and
the chances are extremely high that you will be picked up. Under the
new policies of this administration, ICE is empowered to arrest
anybody for the smallest crime, and they do. And I warned him, I
said I must tell you more than likely you will be arrested. Get ready
for that.
He further testified to advising Zacarias he might be deported and, for a time, he
would be ineligible to adjust his status and return. He then told Zacarias to go
speak with his immigration attorney, but also admitted to knowing Zacarias was
not able to consult with another attorney.
I did advise him of the risk of pleading guilty prior to the plea.
I explained to him what the risks were, which is way past what Padilla
requires a criminal attorney to do, but I did, and I also told him to go
talk to his immigration attorney to get a second opinion before
pleading guilty. I fulfilled all the requirements of Padilla, and went
way beyond Padilla. . . . I am doing everything possible to notify my
clients of the consequences.
The State submitted an affidavit from Said, which includes the following
statements,
3) I was aware that Mr. Zacarias was not a United States
Citizen. From the beginning of his case we discussed the impact his
criminal case would have on his current immigration status and
eligibility for future relief. Specifically, Mr. Zacarias and I discussed
on numerous occasions the fact that he could be removed from the
United States, that the criminal case will hinder his ability to
consulate process and adjust his status to that of lawful permanent
resident, and could render him ineligible for cancellation of removal
for certain non-permanent residents if he were placed in mandatory
detention. In addition, I warned him that his plea would result in
detention by [ICE] agents.
....
6) The prosecution offered a plea bargain to two
misdemeanor offenses. I explained to Mr. Zacarias that these
criminal convictions would require his removal from the United States
and would result in great difficulties to ever legally come back to the
United States. I then submitted a letter to Mr. Zacarias explaining
our conversation . . . .
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The State submitted as evidence an alternative written plea executed by
Zacarias but not filed in his original case. On the same page as Zacarias’s
signature is a paragraph in bold, capital letters about immigration consequences,
I understand that a criminal conviction, deferred judgment or
deferred sentence may result in my deportation or have other
adverse immigration consequences if I am not a United States
citizen. I have had the opportunity to obtain legal advice about this
matter and understand that it is my obligation to understand my
immigration status before entering a guilty plea in this case.
Said did not provide Zacarias with any writing informing him of the
immigration consequences of the plea. The letter from Said to Zacarias was not
submitted to the court. However, Said testified about the letter after reviewing it to
refresh his memory. This led to the following exchange:
Q. Okay. And in this letter you didn’t talk about any concrete
immigration consequences, did you? A. I did not cite the code
section, nor did I write down—I warned him, and I warned him on
numerous occasions. I understand that you’re complaining no
matter what letter I write, you will be complaining.
....
Q. Okay. And in fact, really the only thing you said about
immigration consequences was, quote, “I explained the immigration
ramifications of said plea, and that in the future, immigration laws
could change for either the better or worse with regard to said plea.”
Does that sound familiar? A. You’re quoting my letter, so I must say
so, yes.
Q. And previously—well, in the same letter you did say that if
he went to trial, he would face jail time and deportation. Do you
remember that? A. Potentially. The—my experience with trials in
the State of Iowa with a Hispanic defendant is not the best, especially
a defendant who has confessed. So that was what I explained to
him at the meeting, which was before this letter.
The State also submitted an email from Zacarias’s attorney to the State and
a letter to Zacarias showing Zacarias went to his prior immigration counsel’s office
three times on June 1, 2017. Counsel, who works in the same office as Zacarias’s
PCR counsel, informed Zacarias she no longer represented him and referred him
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back to Said. In other words, Zacarias attempted to consult with a second
immigration attorney prior to the court accepting his plea and entering judgment.
These attempted consultations appear to show that Zacarias was aware of
potential immigration consequences
Based on the evidence in the record, we find support for the court’s
determination that Said’s testimony—he advised Zacarias of the immigration
consequences to the criminal charges—was more credible than Zacarias’s claim
he was guaranteed he would face no immigration problems. We find Zacarias did
not establish by a preponderance of evidence Said breached a duty to him
regarding immigration consequences to the plea.
Zacarias’s second ineffective-assistance claim is that Said never explained
to him the benefits of going to trial rather than entering a guilty plea. The State
counters with an assertion Zacarias did not raise the issue below as a ground for
relief and the court did not rule on it. The issue was not raised in Zacarias’s PCR
application, was not added in his motion to supplement the application, the court
did not rule on the question, and it was not raised in Zacarias’s motion for new trial.
We agree the issue was not preserved. See Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002).
We affirm the district court’s dismissal of Zacarias’s application for
postconviction relief.
AFFIRMED.