No. 16-1069 - State of West Virginia v. Orville M. Hutton
FILED
November 1, 2017
released at 3:00 p.m.
LOUGHRY, Chief Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015) (“Hutton I”), I
concurred in the majority’s historical analysis of the common law writ of error coram nobis,
as well as its ultimate conclusion that the writ remains available only in extraordinary
circumstances in criminal proceedings in West Virginia. I also concurred in the majority’s
new syllabus point four to the extent it reflected the holding of the United States Supreme
Court in Padilla v. Kentucky, 559 U.S. 356 (2010).1 However, I strongly disagreed with the
majority’s implication that Padilla imposes a duty on lawyers to explore the immigration
status of all criminal defense clients,2 and I expressed my opinion that Padilla has no
1
See Hutton I, 235 W.Va. at 725, 776 S.E.2d at 623, syl. pt. 4 (“Under Padilla v.
Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Sixth Amendment
requires defense counsel to warn an immigrant client of the deportation consequences of a
guilty plea. When the deportation consequence is succinct, clear, and explicit under the
applicable law, counsel must provide correct advice to the client. When the law is not
succinct or straightforward, counsel is required only to advise the client that the criminal
charges may carry a risk of adverse immigration consequences.”).
2
As I explained in my separate opinion in Hutton I,
In footnote eighteen, the majority excuses Mr. Hutton’s admitted
failure to advise his counsel of his immigration status by stating
that the Padilla Court did not place a burden on criminal
defendants to advise their lawyers of their immigration status.
While that statement may be correct, I am concerned that the
inverse implication of footnote eighteen is that the burden is on
lawyers to explore the immigration status of every criminal
(continued...)
1
application under the facts and circumstances of the case at bar. In the instant appeal, Orville
Hutton3 returns to this Court, seeking relief from the circuit court’s order denying relief in
coram nobis, which was entered on remand from Hutton I. Because the majority erroneously
reverses the circuit court’s decision, I am compelled to dissent.
On remand, the circuit court held an evidentiary hearing to determine whether
Mr. Hutton was entitled to relief in coram nobis from his conviction based on his claim of
ineffective assistance of counsel, Thomas Dyer. In addressing that question, the circuit court
was guided by syllabus point five of Hutton I wherein this Court held that
[a] claim of legal error may be brought in a petition for
a writ of error coram nobis only in extraordinary circumstances
2
(...continued)
defense client, notwithstanding the fact that Padilla did not
expressly impose such a duty. Because the focus of Padilla was
on the importance of a lawyer giving his or her client accurate
advice regarding the immigration consequences of a guilty plea,
the Court simply never addressed precisely how immigration
status was to be discerned. See [State v.] Stephens, 265 P.3d
[574,] at 577 (“The only issue the United States Supreme Court
decided was whether defense counsel had a duty to inform his
client, known to be a resident alien, of the effect of a guilty plea
on the client's immigration status.”).
Hutton I, 235 W.Va. at 744-45, 776 S.E.2d at 641-42 (Loughry, J., concurring, in part, and
dissenting, in part).
3
“Mr. Hutton was born in Jamaica in 1962. He came to the United States in 1971, at
the age of nine. Mr. Hutton has resided in this country since that time. He is classified as
a permanent resident of this country, but he is not an American citizen.” Hutton I, 235 W.Va.
at 726, 776 S.E.2d at 623.
2
and if the petitioner shows that (1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the conviction
earlier; (3) there exists a substantial adverse consequence from
the conviction; and (4) the error presents a denial of a
fundamental constitutional right.
235 W.Va. at 726, 776 S.E.2d at 623. This four-part test was taken from the test set forth in
United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), which this Court found “provide[d]
a good framework for limiting the use of the writ of error coram nobis to assert a
constitutional legal error.” Following its consideration of the evidence presented at the
hearing below, the circuit court entered an order on October 18, 2016, finding that Mr.
Hutton failed to meet three of the four factors set forth above.4
Regarding the first factor, the circuit court found that Mr. Hutton has a more
usual remedy through his federal appeal that is pending in the Third Circuit Court of
Appeals. And, because that appeal involves a split among the federal circuit courts, the
circuit court further observed that Mr. Hutton could pursue a petition for certiorari to the
4
Regarding the third factor, the circuit court stated in order, as follows:
Adverse consequences may presently exist for
Petitioner/Defendant as a result of his deportation (removal)
proceedings, regardless of being deemed either direct or
collateral. However, such further developed evidentiary record
herein . . . does not establish the threshold requirement of his
having been denied a fundamental constitutional right
established pursuant to Padilla.
3
United States Supreme Court. The majority does not address this factor and, instead, finds
that the State had “indirectly conceded the issue” when it stated that “[t]o the extent Mr.
Hutton seeks to have his conviction vacated and not merely to avoid the deportation
consequences of his conviction, his federal appeal does not provide a more usual remedy.”
The majority ignores the State’s further argument that “a remedy remains available so long
as jurisdiction would be proper in some other court even if relief is foreclosed.”5 In other
words, even if Mr. Hutton cannot collaterally attack his state conviction through his
deportation appeal pending in federal court, he is pursuing the relief that he seeks in the
instant matter–avoiding deportation–through a more usual remedy in the federal court, and
his likelihood of success in his federal case is irrelevant to whether that avenue is “an
available more usual remedy.”6
5
In support of its argument, the State cites United States v. Payne, 644 F.3d 1111 (l0th
Cir. 2011), wherein the court denied the defendant’s request for a writ of error coram nobis,
finding “[i]t [was] irrelevant that a § 2255 motion would have been untimely by the time he
filed his petition for a writ of coram nobis.” Id. at 1113. The State also relies upon
Matus-Leva v. United States, 287 F.3d 758 (9th Cir. 2002), in which the court found that a
writ of error coram nobis requires that other remedies be unavailable, stating that “Matus-
Leva’s argument that a § 2255 petition is not really available to him because it is time barred
under the Antiterrorism and Effective Death Penalty Act, is unavailing. A petitioner may not
resort to coram nobis merely because he has failed to meet the AEDPA’s gatekeeping
requirements.” Id. at 761 (footnote omitted).
6
The circuit court recounted in its order testimony given by Mr. Hutton’s immigration
expert during the evidentiary hearing below: “[G]enerally . . . the basic law suggests . . . that
if you are convicted of an aggravated felony you are, as a matter of law, deportable[,]” but
that “as with all immigration cases, the government has a great deal of discretion as to
enforcement, and usually the cases . . . of undue hardship to family, extenuating
circumstances, time in the country, time since the crime was committed, etc., etc., which the
(continued...)
4
In addressing the second factor, the circuit court concluded that Mr. Hutton had
not demonstrated a valid reason for failing to attack his conviction earlier through a habeas
corpus petition, particularly where the evidence showed that his post-conviction counsel
advised him of the possibility of filing a habeas petition alleging ineffective assistance of
counsel, even if not on the same basis that Mr. Hutton currently asserts. While Mr. Hutton
was serving his sentence, he pursued numerous post-conviction challenges.7 Had he brought
an ineffective assistance of counsel claim in a habeas proceeding, as his post-conviction
counsel suggested, he might have achieved the relief from his conviction that he currently
seeks through a writ of error coram nobis, which is only available in extraordinary
circumstances.
Although the majority attempts to qualify, through dicta, the second factor in
syllabus point five of Hutton I, by restricting it to whether Mr. Hutton’s Padilla claim was
timely, such was not the intent in Akinsade upon which this Court based the four-part test for
a writ of error coram nobis adopted in Hutton I. In Akinsade, the defendant pled guilty to
6
(...continued)
courts can take into consideration.”
7
In August 2010, Mr. Hutton filed a notice of appeal with the assistance of his
post-conviction counsel in which he identified two issues: (1) ineffective assistance of
counsel; and (2) any other grounds that may be discovered during the investigation of this
case. In a motion for post-conviction bond, Mr. Hutton stated that he might waive his right
to appeal and “prosecute a Writ of Habeas Corpus for ineffective assistance of counsel.”
5
embezzlement after his attorney incorrectly told him that it was not a deportable offense.
Akinsade, 686 F.3d at 250. When the defendant later sought relief from his conviction
through coram nobis, the Fourth Circuit found that the defendant had no basis to challenge
his conviction prior to being detained by immigration authorities because “his attorney’s
advice, up to that point in time, appeared accurate.” Id. at 252. In the instant matter, Mr.
Hutton’s post-conviction counsel had identified a basis for Mr. Hutton to challenge his
conviction–ineffective assistance of trial counsel–but it was not pursued. Accordingly, I
agree with the circuit court’s conclusion that Mr. Hutton failed to meet the second coram
nobis factor because he “was aware of his ability to file a Petition for a Writ of Habeas
Corpus attacking his conviction for ineffective assistance of counsel during his initial period
of incarceration following his sentencing in the underlying criminal matter” and that he had
“not demonstrated the existence of any valid reason for having not attacked his underlying
conviction earlier upon claims of ineffective assistance of counsel towards Mr. Dyer.”
Turning to the fourth coram nobis factor–whether the legal error asserted
presents a denial of a fundamental constitutional right–Mr. Hutton alleges an ineffective
assistance of counsel claim based on Padilla. In West Virginia,
claims of ineffective assistance of counsel are to be governed by
the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1)
Counsel’s performance was deficient under an objective
standard of reasonableness; and (2) there is a reasonable
6
probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.
Syl. Pt. 5, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
In addressing Mr. Dyer’s performance with regard to Padilla, the circuit court
found that Mr. Dyer’s testimony was credible and demonstrated that Mr. Hutton was alerted
to potential immigration issues dependent upon his actual citizenship status in the
conversations he had with Mr. Dyer. The circuit court further found that Mr. Hutton “chose
. . . to not directly disclose . . . the exact nature of [his] status” to Mr. Dyer and that his
evasive responses caused Mr. Dyer to infer that Mr. Hutton was not an immigrant.8 This
inference was reasonable and certainly not indicative of deficient performance. In fact, under
Strickland, “[t]he reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions[,]” particularly since counsel’s
actions “are usually based, quite properly . . . on information supplied by the defendant.” 466
U.S. at 691. Further, “what investigation decisions are reasonable depends critically on such
information.” Id. Moreover, the circuit court found that Mr. Hutton’s contrary testimony was
not credible. See Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985) (finding that
8
The majority disagrees with the circuit court and finds, instead, that Mr. Dyer’s
testimony was vague and inconsistent. However, what is clear from Mr. Dyer’s testimony
is that he did not have any conversations with Mr. Hutton about the immigration
consequences of pleading guilty because when he asked Mr. Hutton whether this was an
issue we should be concerned with, Mr. Hutton responded, “no, don’t worry about it.”
7
credibility determinations are due deference because “only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s understanding
of and belief in what is said.”). As the circuit court aptly observed,
[a]ny constitutional right infirmity alleged for
post-conviction extraordinary relief cannot be prefaced upon
Petitioner/Defendant’s selective memory, his voluntary failure
to adequately apprise his legal counsel of pertinent personal
information which may significantly impact the resulting legal
representation and/or his subjective hindsight upon discovering
adverse consequences to his criminal conviction and resulting
incarceration.
In evaluating Mr. Hutton’s ineffective assistance of counsel claim, “[j]udicial
scrutiny of counsel’s performance must be highly deferential[.]” Strickland, 466 U.S. at 689.
Although the circuit court found that Mr. Hutton had not demonstrated that his counsel was
ineffective, rather than applying deference to that conclusion, the majority “summarily”
disposes of the first prong of Strickland, finding that Mr. Dyer’s performance was deficient
because “Padilla required defense counsel to inform Mr. Hutton that, if he was an immigrant,
his guilty plea would subject him to deportation.”9 Of course, one could read this statement
9
The cases relied upon by the majority for this conclusion are factually
distinguishable. For example, in United States v. Swaby, 855 F.3d 233 (4th Cir. 2017),
counsel “immediately recognized that ‘immigration status would be a significant
consideration’ for Swaby, who had a green card and intended to apply for U.S. citizenship”
and that “from the beginning of the representation, Swaby ‘[wa]s concerned and ha[d] always
been concerned about his immigration status.’” Id. at 236. Similarly, in State v. Favela, 343
P.3d 178 (N.M. 2015), counsel was aware prior to the plea hearing that his client was not a
United States citizen. Unlike these cases, Mr. Dyer testified below that when he asked Mr.
(continued...)
8
as somehow imposing a broad duty upon counsel to investigate the immigration status of
criminal clients. If that is the majority’s intent, I strongly disagree.
First, as I explained in my separate opinion in Hutton I, Padilla does not
provide Mr. Hutton the relief that he seeks. I observed that
[t]he sole similarity between Mr. Hutton in the instant
matter, and the petitioner in Padilla, Jose Padilla, is that both
were longtime, lawful permanent residents of this country, but
not American citizens, when they became subject to deportation
as a direct consequence of their guilty pleas to criminal charges.
What remains are two factually significant differences that
render Padilla inapplicable to Mr. Hutton’s situation.
Hutton I, 235 W.Va. at 743, 776 S.E.2d at 640 (Loughry, J., concurring, in part, and
dissenting, in part). In Padilla, Mr. Padilla told his counsel that he was not a United States
citizen and asked counsel whether a guilty plea would have adverse immigration
consequences. After being assured by his counsel that he “‘did not have to worry about
immigration status since he had been in the country so long[,]’” Mr. Padilla pled guilty.
Padilla, 559 U.S. at 359 (internal citation omitted). That legal advice was incorrect because
Mr. Padilla’s conviction made “deportation virtually mandatory.” Id. Contrasting those
facts with the instant matter, during Mr. Hutton’s first coram nobis hearing, he testified that
he never told his counsel of his immigration status, a fact that was confirmed by Mr. Dyer’s
9
(...continued)
Hutton whether this was an issue that they should be concerned about, Mr. Hutton told him,
“no, don't worry about it.”
9
testimony during the evidentiary hearing held on remand. Moreover, unlike Mr. Padilla, Mr.
Hutton does not assert that his trial counsel gave him incorrect immigration advice. To the
contrary, the evidence presented during the evidentiary hearing below demonstrates that
rather than advising his counsel of his immigration status and/or expressing concern
regarding what his guilty plea would mean for him immigration-wise, Mr. Hutton was
evasive, assuring counsel that it was nothing to worry about.
Second, it is “clear from Padilla that the Supreme Court did not expressly
impose a blanket duty upon lawyers to ask every client charged with a crime whether they
are American citizens.” Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641. Further,
[t]he Supreme Court’s silence in this regard has been recognized
by other courts. For example, in Clarke v. State, 974 N.E.2d
562 (Ind. Ct. App. 2012), the court commented on the issue of
whether criminal defense lawyers must “ascertain the citizenship
of their clients[,]” observing that “this issue is percolating in
other states[.]” Id. at 568. The Indiana court then cited State v.
Stephens, 46 Kan.App.2d 853, 265 P.3d 574, 577 (2011), review
denied, wherein the Kansas court stated that “[t]he Padilla Court
did not . . . impose upon counsel the duty to investigate the
citizenship or immigration status of every client in a criminal
case.”
Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641.10 In the more recent decision of “State v.
Rodriguez, No. 108, 505, 320 P.3d 449 (Table) (Kan. App. Mar. 14, 2014) . . . the Kansas
10
Regarding Padilla, the Stephens court further observed that “[t]he only issue the
United States Supreme Court decided was whether defense counsel had a duty to inform his
client, known to be a resident alien, of the effect of a guilty plea on the client’s immigration
status.” Stephens, 265 P.3d at 577.
10
court relied upon Stephens, again noting that ‘[t]he Padilla majority did not impose a duty
to investigate the citizenship or immigration status of every client in a criminal case.’”
Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641. I agree that if a client informs his or her
lawyer that he or she is an immigrant, then Padilla imposes a duty on counsel to advise that
client of the deportation consequences arising out of a guilty plea. However, because the
United States Supreme Court has not imposed a duty on counsel to investigate the citizenship
or immigration status of every client in a criminal case, I believe that any effort by the
majority to impose such a duty is unfounded.
Regarding the second prong of Strickland, Mr. Hutton had to demonstrate that
he was prejudiced by his counsel’s deficient performance. Not only do I agree with the
circuit court’s conclusion that Mr. Hutton failed to show that his counsel had performed
deficiently, I also agree with the court’s conclusion that he could not show prejudice. The
seriousness of the charges in the underlying criminal proceeding–one count of malicious
assault and three counts of second degree sexual assault–and the strength of the evidence
against him11 made it unreasonable for Mr. Hutton to reject the plea agreement, which
11
The State represents that during Mr. Hutton’s plea hearing, the State proffered that
“the victim [Mr. Hutton’s girlfriend and the mother of his child] was prepared to testify that
Hutton had hit her with his fists, choked her until she almost passed out, threw her into a
wall, and continued to beat her with his fists and hands[;]” that “nine days after the battery,
the victim needed assistance to get out of the house and could not walk on her own[;]” and
that “[h]ospital records from nine days after the battery showed multiple contusions to the
back, chest, abdomen, shoulders, and sides, and a chest wall contusion.” The State further
(continued...)
11
allowed him to plead guilty to one count of unlawful assault (a lessor included offense of
malicious assault) with a dismissal of the other charges. Indeed, Mr. Hutton was facing
overwhelming evidence, including the testimony of his victim, corroborating witnesses, and
his own admissions.
Although the majority states that Lee v. United States, 137 S.Ct. 1958, 582 U.S.
__ (2017),12 supports its conclusion that under the facts of this case, Mr. Hutton would not
have pled guilty had his counsel advised him that he would be deported if he did so, Lee
does not help Mr. Hutton’s cause. Unlike Mr. Hutton, who was evasive with his counsel
concerning his status, Mr. Lee “informed his attorney of his noncitizen status and repeatedly
asked him whether he would face deportation as a result of the criminal proceedings.” Id.
at 1963, 582 U.S. at __. In response, Mr. Lee’s attorney incorrectly advised him that “he
would not be deported as a result of pleading guilty.” Id.
In addressing Mr. Lee’s ineffective assistance of counsel challenge, the
Supreme Court noted that the Court of Appeals had recalled the holding in Hill v. Lockhart,
11
(...continued)
represents that during the hearing on the motion for a protective order arising out of the
underlying criminal matter, the victim testified that Mr. Hutton sexually assaulted her while
she was recuperating from the injuries she sustained in his physical attack upon her.
12
Lee had not yet issued at the time of the circuit court’s decision on remand. Mr.
Hutton’s counsel apprised this Court of the Lee opinion in his notice of additional authority
filed under Rule of Appellate Procedure 10(i).
12
474 U.S. 52 (1985), stating that “when a defendant claims that his counsel’s deficient
performance deprived him of a trial by causing him to accept a plea, the defendant can show
prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.’” Lee, 137 S.Ct. at 1964,
582 U.S. __. The Supreme Court further reasoned, however, that
common sense (not to mention our precedent) recognizes that
there is more to consider than simply the likelihood of success
at trial. The decision whether to plead guilty also involves
assessing the respective consequences of a conviction after trial
and by plea. See INS v. St. Cyr, 533 U.S. 289, 322–323, 121
S.Ct. 2271, 150 L.Ed.2d 347 (2001). When those consequences
are, from the defendant’s perspective, similarly dire, even the
smallest chance of success at trial may look attractive. For
example, a defendant with no realistic defense to a charge
carrying a 20-year sentence may nevertheless choose trial, if the
prosecution’s plea offer is 18 years.
Lee, 137 S.Ct. at 1966-67, 582 U.S. __. Regarding Mr. Lee’s circumstances, the Supreme
Court stated:
We cannot agree that it would be irrational for a
defendant in Lee’s position to reject the plea offer in favor of
trial. But for his attorney’s incompetence, Lee would have
known that accepting the plea agreement would certainly lead
to deportation. Going to trial? Almost certainly. If deportation
were the “determinative issue” for an individual in plea
discussions, as it was for Lee; if that individual had strong
connections to this country and no other, as did Lee; and if the
consequences of taking a chance at trial were not markedly
harsher than pleading, as in this case, that “almost” could make
all the difference. Balanced against holding on to some chance
of avoiding deportation was a year or two more of prison time.
. . . Not everyone in Lee’s position would make the choice to
13
reject the plea. But we cannot say it would be irrational to do
so.
Lee, 137 S.Ct. at 1968-69, 582 U.S. at __.
As the majority observes, similar to Mr. Lee, Mr. Hutton has lived in the
United States for the majority of his life and has family members who live here, including
his son. Critically, however, unlike Mr. Lee, the prison time to which Mr. Hutton was
exposed by pleading guilty, contrasted with his exposure had he gone to trial and been
convicted, were not “ similarly dire.” Lee, 137 S.Ct. at 1966-67, 582 U.S. __. In fact,
dissimilar to the Supreme Court’s hypothetical of going to trial on a charge that carries a
20-year sentence where the prosecution’s plea offer was 18 years,” here, if convicted on all
counts, Mr. Hutton’s potential consecutive sentence was thirty-two to eighty-five years in
prison,13 whereas his plea bargain resulted in a one to five-year prison term.14 Consequently,
for Mr. Hutton, “[b]alanced against holding on to some chance of avoiding deportation was
[] [decades] of prison time.” Id. at 1969, 582 U.S. at __. Because “the consequences of
taking a chance at trial were [] markedly harsher than pleading[,]” a rejection of the plea
bargain would have been irrational under the circumstances. Id. Accordingly, I would affirm
13
See W.Va. Code § 61-8B-4 (2014) (providing for penalty of ten to twenty-five years
for second degree sexual assault); W.Va. Code § 61-2-9(a) (2014) (providing for penalty of
two to ten years imprisonment for malicious assault).
14
Mr. Hutton’s plea bargain allowed him to plead guilty to unlawful assault. See
W.Va. Code § 61-2-9(a) (providing for penalty of one to five years imprisonment for
unlawful assault).
14
the circuit court’s conclusion that Mr. Hutton failed to demonstrate ineffective assistance of
counsel and its decision to deny the writ of error coram nobis.
For these reasons expressed above, I respectfully dissent.
15