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Dat v. United States

United States Court of Appeals, Eighth Circuit

April 11, 2019

Dilang Dat Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: January 16, 2019

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, MELLOY, and KELLY, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Dilang Nhial Dat pled guilty to robbery in violation of 18 U.S.C. §§ 1951 and 2. He moved to vacate his conviction under 28 U.S.C. § 2255, claiming his counsel was ineffective by misadvising him about the immigration consequences of his guilty plea. The district court denied the motion without an evidentiary hearing. Dat appeals. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court reverses and remands.

         I.

         Dat, a South Sudanese citizen, was born in 1993 at a refugee camp in Kenya after his parents fled Sudan. Admitted to the United States around 1994, he became a lawful permanent resident. For most of his life, he lived in Omaha, Nebraska with his parents and five younger siblings. His father is wheelchair-bound, and his mother, the family's sole provider, works in a factory.

         In 2014, Dat was indicted on two counts of Hobbs Act robbery, under 18 U.S.C. §§ 1951 and 2, and one count of brandishing a firearm during a robbery, under 18 U.S.C. §§ 924(c) and 2. He pled guilty to one robbery count. The other charges were dismissed. The district court sentenced him to 78 months' imprisonment.

         In an affidavit, Dat asserts: Before pleading guilty, he asked his counsel about the possibility of deportation. His counsel spoke to an immigration specialist, then advised he would not be deported because he was a long-tenured lawful permanent resident, not an "illegal immigrant." After rejecting two plea agreements with strong deportation language, he accepted a plea acknowledging "there are or may be collateral consequences to any conviction to include but not limited to immigration." His acceptance was based on counsel's assurance his immigration status would be unaffected. He learned, after his conviction, this immigration advice was incorrect, when his mother's attempt to renew his green card was denied.

         Dat moved to vacate his conviction under § 2255, claiming his counsel misadvised him about the immigration consequences of pleading guilty. The district court denied his motion without an evidentiary hearing. In a brief order, the court found he was advised of the immigration consequences by his plea agreement, Petition to Enter a Plea of Guilty, and colloquy with the court at his change-of-plea hearing. Dat appeals, arguing the district court erred in denying his motion and abused its discretion by not holding a hearing.

         II.

         This court reviews § 2255-ineffective-assistance claims de novo, and the underlying factual findings for clear error. Hyles v. United States, 754 F.3d 530, 534 (8th Cir. 2014). "A district court's denial of an evidentiary hearing on a § 2255 motion may be reversed only for an abuse of discretion." Id. To establish ineffective assistance during plea negotiations, "a defendant must show that counsel's representation 'fell below an objective standard of reasonableness' and that he was prejudiced as a result." Jae Lee v. United States, 137 S.Ct. 1958, 1964 (2017), quoting Strickland v. Washington, 466 U.S. 668, 688 (1984). A § 2255 petitioner is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the [petitioner] is entitled to no relief." 28 U.S.C. § 2255(b). "A petitioner's allegations must be accepted as true and a hearing should be held unless they are contradicted by the record, inherently incredible, merely conclusions, or would not entitle the petitioner to relief." Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012).

         A.

         Establishing Strickland deficiency requires showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." White v. Dingle, 757 F.3d 750, 752-53 (8th Cir. 2014), quoting Strickland, 466 U.S. at 687. To provide constitutionally effective assistance, "criminal defense attorneys have a duty to inform clients about the possible immigration consequences of pleading guilty." Barajas v. United States, 877 F.3d 378, 380 (8th Cir. 2017), citing Padilla v. United States, 559 U.S. 356, 374 (2010). ...


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