Opinion
A11-0898
01-14-2013
Salim El Eid, petitioner, Appellant, v. State of Minnesota, Respondent.
Deborah Ellis, Ellis Law Office, St. Paul, Minnesota; and Jennifer M. Maccaulay, Maccaulay Law Offices, Ltd., St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Thomas Rolf Ragatz, Assistant County Attorneys, St. Paul, Minnesota (for respondent)
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Schellhas, Judge
Ramsey County District Court
File No. 62-K5-95-2228
Deborah Ellis, Ellis Law Office, St. Paul, Minnesota; and Jennifer M. Maccaulay, Maccaulay Law Offices, Ltd., St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Thomas Rolf Ragatz, Assistant County Attorneys, St. Paul, Minnesota (for respondent) Considered and decided by Schellhas, Presiding Judge; Johnson, Chief Judge; and Toussaint, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SCHELLHAS , Judge
This postconviction appeal is on remand from the Minnesota Supreme Court "for reconsideration in light of Campos v. State, 816 N.W.2d 480 (Minn. 2012), petition for cert. filed (U.S. Sept. 17, 2012). Appellant seeks to withdraw a 1995 guilty plea to second-degree criminal sexual conduct. We affirm the district court's denial of appellant's postconviction petition.
FACTS
Appellant Salim El Eid was born in Lebanon and entered the United States legally on a student visa in 1979. Around 1981, he became a lawful permanent resident.
In 1995, respondent State of Minnesota charged El Eid with one count of second-degree criminal sexual conduct, and he pleaded guilty. The district court accepted El Eid's plea, stayed imposition of sentence, and placed him on probation.
During the pre-plea proceedings, three different attorneys represented El Eid at different times. The record before this court does not include any transcripts of the proceedings and the records have been destroyed. The record does include a copy of El Eid's plea petition, which does not include a warning that his guilty plea could result in immigration consequences. El Eid claims that neither the district court nor his attorneys advised him that his guilty plea could have adverse immigration consequences.
Prior to 1999, the Minnesota Rules of Criminal Procedure did not require that counsel or the district court provide an immigration advisory to a defendant pleading guilty. See Campos, 816 N.W.2d at 499; see also Minn. R. Crim. P. 15 cmt. (Supp. 1999) (noting that 1996 amendments to federal immigration laws greatly expanded deportation grounds for non-citizens convicted of crimes, and that defense counsel should advise defendants of those consequences and courts should inquire whether such advice has been given).
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In August 2010, with the permission of his probation agent, El Eid left the United States to visit Lebanon. He successfully completed probation, the district court discharged him from probation on September 1, 2010, and, by operation of law, El Eid's felony conviction became a misdemeanor conviction. On September 12, 2010, when El Eid attempted to re-enter the United States, customs officials advised him that he was ineligible to re-enter because of his 1995 felony conviction.
In November 2011, El Eid petitioned for postconviction relief, seeking to set aside his conviction on the ground that, prior to pleading guilty, he received ineffective assistance of counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In support of his petition, El Eid submitted an affidavit stating that had he been advised in 1995, that pleading guilty may have immigration consequences, he would not have pleaded guilty. The district court summarily denied El Eid's petition, concluding that Padilla was a new rule of law that was not retroactive and that El Eid's postconviction petition therefore was untimely. This court reversed the district court, and the supreme court reversed and remanded to this court "for reconsideration in light of" the Minnesota Supreme Court's decision in Campos, which held that Padilla is a new rule of criminal procedure that is not a watershed rule and is not applied retroactively. El Eid v. State, No. A11-0898, 2012 WL 539186 (Minn. App. Feb. 21, 2012), rev'd and remanded (Minn. July 17, 2012).
DECISION
I.
We first address El Eid's request in his supplemental brief that this court stay further action in this case pending a decision by the United States Supreme Court in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) (holding that Padilla announced new rule of criminal procedure inapplicable on collateral review), cert. granted 132 S. Ct. 2101 (2012). On October 30, 2012, the Supreme Court heard oral arguments in Chaidez, and El Eid claims that the Supreme Court should issue a decision by the end of summer 2013. El Eid argues that if the Supreme Court reverses Chaidez and holds that Padilla is not a new rule and should be applied retroactively, the decision would effectively reverse the Minnesota Supreme Court's decision in Campos, because states cannot deny a citizen a federally protected constitutional right. El Eid therefore argues that a stay would further the interests of judicial economy and eliminate further appeals.
For two stated reasons, the state opposes El Eid's request for a stay. First, the state notes that the Minnesota Supreme Court could have continued the stay of this appeal pending Chaidez but did not do, instead remanding the case to this court for reconsideration in light of Campos. Second, although the state agrees that a decision in Chaidez about the retroactivity of Padilla would be persuasive, the state argues that the decision would not necessarily be binding on Minnesota courts or require a reversal of Campos. See Danforth v. State, 761 N.W.2d 493, 500 (Minn. 2009) ("Still, even as we formally adopt the Teague standard of our own volition, we are not bound by the U.S. Supreme Court's determination of fundamental fairness. Rather, we will independently review cases to determine whether they meet our understanding of fundamental fairness.")
This court may defer scheduling of a case "[i]f a case pending in the [Minnesota] Supreme Court will be dispositive." Minn. App. Spec. R. Pract. 1. In Campos, the Minnesota Supreme Court cites the Seventh Circuit's opinion in Chaidez, noting that the Supreme Court granted certiorari. See Campos, 816 N.W.2d at 486, 490, 491, 492, 493, 494. The supreme court decided Campos without awaiting a final decision in Chaidez. Because the effect of the Supreme Court's decision in Chaidez on the disposition in this case is unclear, El Eid has failed to establish good cause to delay the processing of this appeal and we therefore deny his request to stay this appeal.
II.
The district court determined that El Eid's postconviction petition was untimely and failed to meet the exception for retroactive application of a new interpretation of constitutional law. See Minn. Stat. § 590.01, subd. 4(b)(3) (2010). The court concluded that Padilla announced a new rule of law and rejected El Eid's argument that the rule was a watershed rule so as to deserve retroactive application. In Padilla, the Supreme Court held that the Sixth Amendment right to counsel extends to the right to be informed by counsel of the deportation consequences that arise from a guilty plea. 130 S. Ct. at 1482. The Court applied the test for ineffective assistance of counsel stated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. The Court held that "when the deportation consequence [of a guilty plea] is truly clear . . . , the duty to give correct advice is equally clear." 130 S. Ct. at 1483.
In Campos, the supreme court held that Padilla announced a new rule of federal constitutional criminal procedure, that the new rule was not a watershed rule and therefore did not apply retroactively to the defendant's ineffective-assistance-of-counsel claim raised on collateral review, and that defense counsel's failure to inform the defendant of the immigration consequences of pleading guilty was not deficient under governing law at the time the defendant's conviction became final. 816 N.W.2d at 485, 490 (citing Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989)). The Supreme Court decided Padilla on March 31, 2010. In light of Campos, we conclude that the district court was correct that Padilla does not apply to El Eid's 1995 guilty plea.
Because Padilla does not apply, El Eid's attorneys did not provide ineffective assistance by not providing him with an immigration advisory. We conclude that the district court properly determined that El Eid's petition was untimely and failed to meet the exception set out in Minn. Stat. § 590.01, subd. 4(b)(3) (providing exception to two-year statute of limitations to file postconviction petition when petitioner asserts a new interpretation of law by either the United States Supreme Court or a Minnesota appellate court and petitioner establishes that this interpretation is retroactively applicable to petitioner's case).
We also conclude that El Eid's postconviction petition lacks substantive merit. When El Eid's conviction became final in 1995, prior to Padilla, Minnesota law did not require that defense counsel or a district court provide an immigration advisory to a criminal defendant. And ignorance of collateral immigration consequences did not entitle a criminal defendant to withdraw his plea. Alanis v. State, 583 N.W.2d 573, 578-79 (Minn. 1998) (affirming denial of motion to withdraw guilty plea, based on district court's and counsel's failure to advise defendant that he could be deported, because deportation is collateral and not a direct consequence of criminal conviction arising from guilty plea and does not create manifest injustice warranting withdrawal of that plea); see Berkow v. State, 583 N.W.2d 562, 563 (Minn. 1998) (relying on Alanis); Barragan v. State, 583 N.W.2d 571, 572-73 (Minn. 1998) (same).
Because El Eid's deportation was a collateral consequence of his 1995 plea and because neither the district court nor El Eid's attorneys were required to provide him with an immigration advisory, the district court properly denied El Eid's postconviction petition.
Affirmed.