Hatem M. Shata v. Denise Symdon, No. 16-CV-574 (E.D. Wis. Dec. 12, 2018)
Shata’s case was one of two our supreme court decided on the same day–both held counsel not ineffective for failing to give accurate advice on immigration consequences. You can see our prior post for the facts and our analysis of those decisions. Basically, counsel told Shata that pleading to the charged drug count would carry a “strong chance” of deporation, when in fact deportation was mandatory. Unlike our supreme court, the federal court now says that this wasn’t good enough–and further, that the supreme court’s conclusion that it was good enough was an unreasonable application of the law that SCOTUS clearly established in Padilla v. Kentucky, 559 U.S. 356 (2010).
Shata’s lawyer testified, at his Machner hearing, that Shata was concerned about being deported as a result of his potential plea. He did not, however, conduct any research on the question, instead contacting several federal prosecutors, who told him deportation was possible.
The circuit court, though, denied relief, saying “strong likelihood” was the same as “presumptively mandatory” and adding that it didn’t believe Shata when he said he would have gone to trail had he known about mandatory deportation.
The court of appeals reversed, but our supreme court granted the state’s petition for review. That court reversed, over dissent, noting, among other things, that it wasn’t an absolute certainty that Shata would be deported–the executive branch might just use its prosecutorial discretion to decline to deport him.
In the federal court’s view, this was an unreasonable application of Padilla. Among other things, that case imposed a duty on counsel, where the federal immigration consequences of a conviction are “truly clear,” to give “correct advice.” This duty is not present where the relevant immigration law is “not succinct and straightforward”–there counsel must only advise the defendant that a plea “may carry a risk of adverse immigration consequences.”
Here, the court holds, the immigration law imposed a “truly clear” consequence–mandatory deportation. So that was what counsel was required to tell Mr. Shata.
The federal court also faults the SCOW majority for letting slide counsel’s failure to research the issue, which it calls “inarguably unreasonable under prevailing professional norms”:
The Wisconsin Supreme Court concluded that Padilla did not require defense attorneys to read the relevant immigration statutes and suggested that other facts showed that Mr. Shata’s lawyer understood the consequences of a guilty plea. To be sure, Padilla’s command is that counsel provide accurate advice, and this command could be satisfied by way of blind luck rather than laborious research—the ends are the focus, not the means. But blind luck did not save the day here. As discussed above, Mr. Shata’s counsel failed to provide accurate advice regarding the consequences of pleading guilty to the charged offense.
The habeas court also decides, after de novo review (because SCOW didn’t reach the question), that Shata’s testimony that he wouldn’t have pleaded had he been properly advised satisfied the Padilla requirement that such a decision would have been “rational under the circumstances.” Shata had been in the U.S. for over 20 years and didn’t want to leave his family. Thus, given that a plea would certainly result in conviction, it could have made sense to opt for a trial, even if the chance of acquittal was remote, and even if being convicted at trial might have led to a longer sentence. As the court put it, “it is reasonable to infer that he would have risked a lengthier term of imprisonment for the chance at avoiding deportation. Indeed, he may have preferred a longer prison stay in Wisconsin, close to his family, over swifter freedom and deportation. “
