Cubur-Tocay v. Immigration and Naturalization Service

          Hon. Paul L. Maloney

          REPORT AND RECOMMENDATION

          RAY KENT, UNITED STATES MAGISTRATE JUDGE

         Juan 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.

         I. Background

         Cubur-Tocay was charged in the Kent County (17th) Circuit Court with assault with a dangerous weapon (felonious assault), M.C.L. § 750.82.^[1] 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 PageID.174.

         The 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 part:

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 omitted).

         Attorney 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 voluntary:

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 conviction.

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 negotiations.

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.

         Motion Trans. at PageID.144. The trial court denied the motion in a written order entered that day. See Order (ECF No. 1-1, PageID.31).

         On 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 issues:

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).

         On 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).

         On 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 ...