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In re Personal Restraint Petition of Jagana

Court of Appeals of Washington, Division 1

August 13, 2013

In re Personal Restraint Petition of MUHAMMADOU JAGANA.

Order Date August 21, 2013.

ORDER WITHDRAWING OPINION

This case was remanded to this court by a special department of the supreme court "for reconsideration in light of Chaidez v. United States. 133 S.Ct. 1103 (2013)." Having reconsidered the case, as ordered by the supreme court, it is hereby

ORDERED that this court's opinion, filed on August 13, 2012, is withdrawn.

COX, J.

Muhammadou Jagana seeks collateral review of his final judgment and sentence that was based on his guilty plea to possession of cocaine. His request is more than four years after the entry of his June 2006 final judgment and sentence. Based on Padilla v. Kentucky, [1] which was decided in March 2010, Jagana argues that he was denied effective assistance of counsel because his attorney did not inform him of the immigration consequences of his guilty plea. He also claims that his plea was not knowing and voluntary for the same reason.

Jagana has borne the burden of showing that his ineffective of counsel claim falls within RCW 10.73.100(6). Thus, this claim is an exception to the one year bar against collateral review of final judgments. Accordingly, we reach the merits of his claim.

On the merits, we hold that the ineffective assistance of counsel rule applied in Padilla is not a "new" rule, as defined in Teague v. Lane[2] and subsequent cases.[3] Based on Padilla, Jagana has demonstrated that his plea counsel's representation fell below the objective standard of reasonableness that Strickland v. Washington[4] requires. We remand to the superior court for a determination whether he can also establish prejudice under the second prong of Strickland.[5]

In 2006, the State charged Jagana with one count of violation of the uniform controlled substances act (VUSCA): possession of cocaine. He met with his appointed attorney several times. Jagana states that his attorney did not advise him of any immigration consequences of pleading guilty to the felony charge.[6] Moreover, his attorney did not tell him to contact an immigration attorney before pleading guilty. His attorney told him to plead guilty, and he did. The felony judgment and sentence was entered on June 9, 2006. Jagana did not appeal.

In November 2010, Jagana moved, pursuant to Criminal Rule (CrR) 7.8, to withdraw his guilty plea and for the court to vacate the judgment and sentence. First, he argued that his defense counsel in the VUCSA prosecution did not inform him of the immigration consequences of his guilty plea, in violation of Padilla. Second, he argued that his plea was not intelligently and voluntarily made, based on the lack of proper advice of his attorney as to the immigration consequences of his plea.

The State moved to transfer Jagana's motion to this court for consideration as a personal restraint petition. The trial court granted the State's motion.

COLLATERAL REVIEW OF FINAL JUDGMENT

Jagana seeks to withdraw his guilty plea on two bases. First, he argues that he was denied effective assistance of counsel under Padilla. Second, he argues that his plea was not intelligently and voluntarily made. We address the first argument and need not reach the second.

A personal restraint petition is not a substitute for direct appeal and availability of collateral relief is limited.[7] In order to obtain relief, Jagana must first overcome statutory and rule based procedural bars.[8] Then, in order to successfully argue a claim not previously raised, Jagana must demonstrate by a preponderance of the evidence either a constitutional error that worked to his actual and substantial prejudice, or a non-constitutional error that constitutes a fundamental defect inherently resulting in a complete miscarriage of justice.[9]

A motion to withdraw a plea may be transferred to the appellate court for treatment as a personal restraint petition.[10] A personal restraint petition is a collateral attack on a judgment.[11] Generally, a defendant may not collaterally attack a judgment and sentence in a criminal case more than one year after it becomes final.[12] A judgment and sentence generally becomes final either on entry or on the day an appellate court issues its mandate disposing of a timely direct appeal from the conviction.[13]

There are exceptions to RCW 10.73.090(1)'s one-year time bar. Jagana relies on RCW 10.73.100, which states in pertinent part:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.[14]

Jagana has satisfied these requirements.

Significant Change in the Law

The first requirement of RCW 10.73.100(6) is that there must be a "significant change in the law."[15] We hold that there is such a change here.

Our supreme court discussed the "significant change in the law" requirement in In re Personal Restraint of Greening.[16] There, the court considered whether Greening's personal restraint petition was time barred under RCW 10.73.090.[17] He claimed that RCW 10.73.100(6) exempted his claim from that one year time bar.[18]

In considering Greening's argument, the supreme court referred to its emphasis of the "'[b]road exceptions'" provided in RCW 10.73.100 when it earlier upheld the constitutionality of this statute.[19] More specifically, the court stated:

These exceptions are broader than is necessary to preserve the narrow constitutional scope of habeas relief. The Legislature, of course, is free to expand the scope of collateral relief beyond that which is constitutionally required, and here it has done so to include situations which affect the continued validity and fairness of the petitioner's incarceration.[20]

The Greening court held that "where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a 'significant change in the law' for purposes of exemption from procedural bars."[21]

The question here is whether the Supreme Court decision in Padilla is a "significant change in the law" for purposes of this statute.

The Court described Padilla as a native of Honduras who was a lawful permanent resident of the United States for over 40 years.[22] Following his guilty plea to possessing marijuana in a state case, he faced federal deportation proceedings.[23] In response to this, Padilla sought relief in state court based on the claimed ineffectiveness of his plea counsel.[24] Specifically, he claimed counsel did not advise him of the potential adverse immigration consequences of pleading guilty to the charged offenses.[25] The Kentucky Supreme Court denied his request for post-conviction relief.[26] The denial was based on the rationale that the Sixth Amendment right to effective assistance of counsel did not include the duty to advise a client about deportation because it is a collateral, not a direct, consequence of a conviction.[27]

Reversing and remanding for further proceedings, the Supreme Court held that, under the Sixth Amendment and Strickland, "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel."[28] To the contrary, such advice falls within that domain.[29]

The Court reasoned that deportation is "intimately related to the criminal process" and that "recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders."[30] The Court stated that it "ha[d] long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel."[31] The Court also observed that the "weight of prevailing professional norms supports the view that counsel must advise" a client of the risk of deportation as part of the plea process.[32]

Before Padilla, many other courts, including the Washington State Supreme Court, believed that the Sixth Amendment right to effective assistance of counsel did not include advice about the immigration consequences of a criminal conviction.[33] This was based on the rationale that there was a distinction between "direct" and "collateral" consequences of a plea bargain.[34]

For example, in In re Personal Restraint of Yim, [35] the Washington Supreme Court noted that immigration consequences to a plea are merely collateral to the plea.[36] Thus, the court stated there was no duty for counsel to advise a client of the possibility of deportation.[37] Under this rationale, defense counsel only had a duty to warn clients of direct consequences of a criminal conviction, which ...


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