United States District Court, W.D. Michigan, Southern Division
Paul L. Maloney
REPORT AND RECOMMENDATION
KENT, UNITED STATES MAGISTRATE JUDGE
Cubur-Tocay (sometimes referred to as
“petitioner”), through his attorney, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. For the reasons discussed below, I recommend
that the petition be denied.
was charged in the Kent County (17th) Circuit Court with
assault with a dangerous weapon (felonious assault), M.C.L.
§ 750.82. See Docket sheet (ECF No. 7-1,
PageID.126). The state court appointed him counsel, and on
October 13, 2014, Cubur-Tocay entered a plea of no contest to
the charge pursuant to a plea agreement. Plea Trans. (ECF No.
7-2, PageID.133-138). Sometime later, Cubur-Tocay retained
Attorney Anthony Greene. On November 25, 2014, Attorney
Greene filed a motion to withdraw the plea on the basis of
ineffective assistance of counsel. See Docket Sheet
at PageID.128; Motion (ECF No. 7-4, PageID.173-175).
Cubur-Tocay stated the following facts in support of his
motion. He is a citizen of Mexico and a permanent resident of
the United States. His appointed counsel did not provide any
information to his questions on “whether or not the
plea would effect [sic] his immigration status.” Prior
to entering his no contest plea, he met with substitute
counsel for the first time who provided no advice to him of
the immigration consequences of his plea. At that time,
Cubur-Tocay did not know that he had pled to an aggravated
felony, a crime of moral turpitude, which would
“subject him to arrest and mandatory detention and for
which deportation is mandated”. Cubur-Tocay further
alleged that while the trial court issued “a brief
warning at the time of the plea, ” this “should
not be a substitute for advice that counsel is required to
provide” and “did not cure the ineffective
assistance of counsel by failing to provide advice to [him]
of the immigration consequences of a plea.” Motion at
PageID.173-174. Cubur-Tocay asked the court to adjourn the
sentencing scheduled for December 11, 2014, to hold an
evidentiary hearing on the ineffective assistance, and to
grant his motion to withdraw the plea. Id. at
trial court heard the motion on December 5, 2014.
See Motion Trans. (ECF No. 7-3). At that time,
Attorney Greene argued that the trial judge's warning at
the plea hearing was insufficient to cure the ineffective
assistance of counsel under Padilla v. Kentucky, 559
U.S. 356 (2010). While counsel did not get much of an
opportunity to develop an argument, this Court is aware of
the Padilla decision, which stated in pertinent
It is our responsibility under the Constitution to ensure
that no criminal defendant-whether a citizen or not-is left
to the “mercies of incompetent counsel.” To
satisfy this responsibility, we now hold that counsel must
inform her client whether his plea carries a risk of
deportation. Our longstanding Sixth Amendment precedents, the
seriousness of deportation as a consequence of a criminal
plea, and the concomitant impact of deportation on families
living lawfully in this country demand no less.
Padilla, 559 U.S. at 374 (internal citation
Greene appeared to raise two claims related to the holding in
Padilla: (1) that Cubur-Tocay's trial counsel
was ineffective for failing to provide him with any advice
regarding the risk of deportation; and, (2) that the trial
court's questioning of Cubur-Tocay during the plea
colloquy did not cure this error. In addressing the motion,
the judge believed that his advice to Cubur-Tocay at the plea
hearing was sufficient to establish that the plea was
THE COURT: Well, I'm establishing, pursuant to
Padilla, that the Supreme Court came out with, that
he needs to know that if he pled guilty to this, he could be
deported. I'm the only judge that I'm aware of in
this - - in this building, in this county, that specifically
warns every single defendant at every single plea about,
Padilla, that they could potentially be - - you know
- - lose their right to be in this country if there's a
MR. GREENE: I would like to read the quote for you. The
Supreme Court made clear that negotiations for a plea bargain
is a critical phase of litigation for purposes of a Sixth
Amendment right to effective assistance of counsel. It also
rejected the argument made by petitioner in this case that a
knowing and voluntary plea supersedes errors by defense
counsel - -
THE COURT: You're talking about a knowing, voluntary
plea. I'm talking here about he knew that he could be
deported. And that's what Padilla talks about.
MR. GREENE: He did not know that, Your Honor. A one - - a
one-sentence - -
THE COURT: All right. Anything else, briefly, counsel?
MR. GREENE: Yes. A one-sentence warning at - - at the plea
cannot wipe out all of the things that Padilla said
that counsel must do. Counsel must research the potential
consequences. They must advise of the potential consequences,
and then they must use that information in their
THE COURT: Well, Mr. Green, you know, quite frankly, if
he'd have stopped me at that time, - - and now his answer
was yes. If he'd have said no, I want to talk to my
client more (sic) about that, we wouldn't have proceeded.
MR. GREENE: Well, that is, again, placing the onus on the
defendant to understand that he - - his counsel has not done
what the Supreme Court says his counsel must do.
THE COURT: Ms. Eslinger [the prosecutor], do you have a
position in this matter?
MS. ESLINGER: No, Your Honor. We're leaving it to your
discretion and review of the record.
THE COURT: All right. Thank you. I'm going to deny it,
counsel. I've - - I warned him. I think I've complied
with Padilla. I think there's no basis to
withdraw this plea. Thank you. Ms. Eslinger, if you would
submit an order, please.
Trans. at PageID.144. The trial court denied the motion in a
written order entered that day. See Order (ECF No.
December 10, 2014, Cubur-Tocay, through counsel, filed an
interlocutory appeal with the Michigan Court of Appeals
asking that court to stay the proceedings to address three
I. Plea colloquy warnings by the court does not cure
ineffective assistance by defendant's attorney.
II. The defendant should be allowed to withdraw his plea
because of ineffective assistance of counsel.
III. The defendant was prejudiced by following the advice of
his defense counsel.
Application for interlocutory appeal (ECF No. 7-4,
PageID.154). The Michigan Court of Appeals denied the motion
to stay and the application for leave to appeal because it
was not persuaded “of the need for immediate appellate
review.” People v. Cubur-Tocay, No. 325002
(Order) (Mich. App. Dec. 10, 2014) (ECF No. 7-4, PageID.148).
December 12, 2014, the trial court entered a sentence of
judgment based upon the no contest plea, sentencing
Cubur-Tocay to 243 days with restitution and fees totaling
$4, 786.00. Judgment (ECF No. 7-5, PageID.259).
February 4, 2015, Cubur-Tocay, through counsel, filed an
application for leave to appeal the order denying the
interlocutory appeal to the Michigan Supreme Court, raising
three similar issues:
I. Does the plea colloquy warnings by the trial court cure
the ineffective assistance by defendants' attorney?
II. The defendant should have been allowed to withdraw his
plea because of ineffective ...