Submitted: January 16, 2019
from United States District Court for the District of
Nebraska - Omaha
BENTON, MELLOY, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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).
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).