Abdi v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 110

Bashir Bare Abdi, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

No. 20200341

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

James A. Hope, Assistant State’s Attorney, Dickinson, ND, for respondent and
appellee; submitted on brief.
 Abdi v. State
No. 20200341

McEvers, Justice.

[¶1] Bashir Bare Abdi appeals from a district court order denying his
application for post-conviction relief, seeking to withdraw his guilty plea. On
appeal, Abdi argues the court erred because he received ineffective assistance
of counsel, and as a result his plea was not knowingly, intelligently, and
voluntarily made. Specifically, Abdi argues he would not have entered a plea
of guilty had he been properly advised on the virtual certainty of deportation.
We affirm.

I

[¶2] Abdi was charged with luring minors in violation of N.D.C.C. § 12.1-20-
05.1, a class B felony, on January 30, 2019. This charge resulted from Abdi’s
alleged communications with a person he believed to be a fourteen year-old
girl, but was in fact an undercover agent, after Abdi arranged to engage in
sexual activity with her in exchange for a candy bar.

[¶3] An initial appearance hearing was held on January 30, 2019. Abdi’s
native language is Somali, and a Somali-speaking interpreter’s services were
engaged for the hearing. At the hearing, the district court informed Abdi that
deportation could result from being convicted or pleading guilty on these
charges, and Abdi indicated he understood through his interpreter. On August
5, 2019, Abdi pleaded guilty to an amended charge of corruption or solicitation
of minors, a class C felony.

[¶4] Abdi filed an application for post-conviction relief on August 11, 2020. In
his application, Abdi argued he received ineffective assistance of counsel
because his attorney did not properly advise him of the immigration
consequences of pleading guilty and therefore his plea was not knowingly,
intelligently, and voluntarily made.

[¶5] On November 2, 2020, a post-conviction evidentiary hearing was held,
and Abdi’s trial counsel testified. Counsel stated that he discussed potential

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immigration consequences with Abdi in their first meeting. Counsel further
testified he told Abdi “that if he either pled guilty or was convicted of the
charges that there would be immigration consequences, that it was a
deportable offense, and that in all likelihood he would be taken into custody.”
Counsel stated he had multiple conversations with Abdi about immigration
consequences throughout the course of his representation.

[¶6] On November 9, 2020, the district court denied Abdi’s application for
post-conviction relief. The court found Abdi’s trial counsel was effective
because he had advised Abdi of the potential immigration consequences of
pleading guilty, and additionally found Abdi failed to establish prejudice. The
court also found Abdi’s plea was knowing, intelligent, and voluntary, stating
Abdi was informed of the consequences of pleading guilty by his counsel and
the court prior to entering his plea.

II

[¶7] On appeal, Abdi argues his attorney did not properly inform him of the
consequences of pleading guilty regarding the virtual certainty of deportation,
rendering his counsel constitutionally ineffective under Padilla v. Kentucky,
559 U.S. 356, 374 (2010). We assume, for purposes of this appeal, that the term
“virtual certainty” is the same as “mandatory deportation,” because that was
the argument Abdi made in the district court. Abdi also argues that because
he was not properly informed of the immigration consequences of pleading
guilty, his plea was not knowingly, intelligently, or voluntarily made. Finally,
Abdi argues a manifest injustice will result if he is not allowed to withdraw his
guilty plea under N.D.R.Crim.P. 11(d)(2).

[¶8] Post-conviction relief proceedings are civil in nature and governed by the
North Dakota Rules of Civil Procedure. Morris v. State, 2019 ND 166, ¶ 6, 930
N.W.2d 195. The applicant bears the burden of establishing grounds for post-
conviction relief. Id. Questions of law are fully reviewable when we review a
district court’s decision in a post-conviction proceeding. Id. A district court’s
findings of fact in a post-conviction proceeding will not be disturbed on appeal
unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Id. A finding of fact
is clearly erroneous if it is induced by an erroneous view of the law, if it is not

3
supported by any evidence, or if, although there is some evidence to support
the finding, a reviewing court is left with a definite and firm conviction a
mistake has been made. Id.

[¶9] When an applicant for post-conviction relief seeks to withdraw his guilty
plea, the application is treated as one made under N.D.R.Crim.P. 11(d) and the
district court considers whether relief is necessary to correct a manifest
injustice. Kremer v. State, 2020 ND 132, ¶ 5, 945 N.W.2d 279. This Court
reviews whether circumstances establish a manifest injustice under an abuse
of discretion standard:

When resolving a motion to withdraw a guilty plea, the
district court applies N.D.R.Crim.P. 11(d)(2), which provides:
“Unless the defendant proves that withdrawal is necessary to
correct a manifest injustice, the defendant may not withdraw a
plea of guilty after the court has imposed sentence.” To establish
manifest injustice, a defendant must “prove serious derelictions on
the part of the defendant’s attorney that kept a plea from being
knowingly and intelligently made.” Whether the circumstances
establish a manifest injustice is within the district court’s
discretion, and we reverse only for an abuse of discretion. A court
abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or it misinterprets or misapplies the law.

State v. Awad, 2020 ND 66, ¶ 2, 940 N.W.2d 613 (internal citations omitted).

[¶10] An applicant seeking to withdraw his plea based on a claim of ineffective
assistance of counsel must surmount the Strickland test by showing: (1)
counsel’s representation fell below an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). This Court has stated:

When a defendant pleads guilty on the advice of counsel, the
defendant “‘may only attack the voluntary and intelligent
character of the guilty plea.’” Damron v. State, 2003 ND 102, ¶ 9,
663 N.W.2d 650 (quoting Tollett v. Henderson, 411 U.S. 258, 267,
(1973)). Unless a defendant can prove “serious derelictions” on the
part of the defendant’s attorney that kept a plea from being

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 knowingly and intelligently made, the defendant will be bound by
that guilty plea. Damron, at ¶ 13 (citing McMann v. Richardson,
397 U.S. 759, 774 (1970)). “In criminal cases, the defendant has
the burden to present evidence to overcome the presumption that
defense counsel is competent and adequate, and to do so, the
defendant must point ‘to specific errors made by trial counsel.’”
Damron, at ¶ 13 (quoting State v. Slapnicka, 376 N.W.2d 33, 36
(N.D. 1985)).

Lindsey v. State, 2014 ND 174, ¶ 17, 852 N.W.2d 383. An applicant for post-
conviction relief bears a “heavy burden” to prevail on an ineffective assistance
of counsel claim. Bahtiraj v. State, 2013 ND 240, ¶ 8, 840 N.W.2d 605.

[¶11] Generally, to meet the first prong of Strickland, the applicant must
“overcome the ‘strong presumption’ that trial counsel’s representation fell
within the wide range of reasonable professional assistance, and courts must
consciously attempt to limit the distorting effect of hindsight.” Hunter v. State,
2020 ND 224, ¶ 12, 949 N.W.2d 841. The first prong is measured against
“prevailing professional norms.” Bahtiraj, 2013 ND 240, ¶ 10. In cases
involving noncitizens, “[t]he weight of prevailing professional norms supports
the view that counsel must advise her client regarding the risk of deportation.”
Padilla, 559 U.S. at 367. In Padilla, the United States Supreme Court
analyzed the first prong of Strickland and held that if the law is clear,
constitutionally competent counsel would advise a noncitizen client that a
conviction or guilty plea would result in mandatory deportation. 559 U.S. 356.
Conversely, if the law is not clear, constitutionally competent counsel “need do
no more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.” Id. at 369.

[¶12] To meet the second prong of the Strickland test in the context of a guilty
plea, an applicant must establish there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial. Lindsey, 2014 ND 174, ¶ 19. When an applicant is claiming
ineffective assistance of counsel based on allegedly inadequate advice
regarding the impact of the plea on the applicant’s immigration status, the
applicant must establish prejudice by convincing “the court that a decision to

5
reject the plea bargain would have been rational under the circumstances.”
Padilla, 559 U. S. at 372.

[¶13] All courts require something more than a defendant’s subjective, self-
serving statement that, with competent advice, he would have rejected the plea
agreement and insisted on going to trial. Bahtiraj, 2013 ND 240, ¶ 16. The
United States Supreme Court has stated:

“Surmounting Strickland’s high bar is never an easy task,”
and the strong societal interest in finality has “special force with
respect to convictions based on guilty pleas.” Courts should not
upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s
deficiencies.

Lee v. United States, 137 S. Ct. 1958, 1967 (2017) (internal citations omitted).
However, the Supreme Court also rejected the government’s argument that an
applicant could not establish prejudice when deportation would almost
certainly result from proceeding to trial as well as taking the plea, stating “this
Court cannot say that it would be irrational for someone . . . to risk additional
prison time in exchange for holding on to some chance of avoiding deportation.”
Id. at Syll. 1962. The Court stated whether prejudice has been established
should be evaluated by looking “to contemporaneous evidence to substantiate
a defendant’s expressed preferences.” Id. at 1967.

[¶14] To determine whether a guilty plea or conviction of a state crime would
result in mandatory deportation, an attorney must review the Immigration
and Naturalization Act (“INA”). See Padilla, 559 U.S. at 368-69 (holding
defendant’s counsel was ineffective because counsel failed to look to the INA to
determine a guilty plea would result in mandatory deportation when the terms
of the statute were clear and explicit regarding the removal consequence).
Section 237(a)(2)(A)(iii) of the INA, 8 U.S.C.S. § 1227(a)(2)(A)(iii), subjects an
alien convicted of an aggravated felony to mandatory removal. “Aggravated
felony” is defined in 8 U.S.C.S. § 1101(a)(43), which enumerates 21 different
categories of qualifying offenses. However, “[e]scaping aggravated felony

6
treatment does not mean escaping deportation, though. It means only avoiding
mandatory removal.” Moncrieffe v. Holder, 569 U.S. 184, 204 (2013).

[¶15] Abdi relies on Padilla to argue his counsel was constitutionally
ineffective. In Padilla, the Supreme Court considered whether a defendant’s
attorney was constitutionally ineffective for failing to advise him as to the
deportation consequences of pleading guilty to a crime considered an
aggravated felony under the INA. See Padilla, 559 U.S. 356. Specifically, the
defendant pleaded guilty to the transportation of a large quantity of marijuana
in his tractor-trailer. Id. at 359. Under 8 U.S.C.S. § 1101(a)(43)(B) “illicit
trafficking in a controlled substance . . . including a drug trafficking crime” is
an aggravated felony subjecting an alien to mandatory deportation.

[¶16] The Supreme Court ultimately held Padilla had been given ineffective
assistance of counsel under the first prong of Strickland because the removal
statute was unambiguous and his counsel failed to advise him that pleading
guilty would result in mandatory removal. Padilla, 559 U.S. at 368-69.
However, the Supreme Court also noted there would “undoubtedly be
numerous situations in which the deportation consequences of a particular
plea are unclear” and asserted a defense attorney “need do no more than advise
a noncitizen client that pending criminal charges may carry adverse
immigration consequences” in those cases. Id. at 369.

[¶17] This is one such case, where the consequences of Abdi’s plea are unclear.
Abdi pleaded guilty to corruption or solicitation in violation of N.D.C.C. § 12.1-
20-05(2), which states, “[a]n adult who solicits with the intent to engage in a
sexual act with a minor under age fifteen or engages in or causes another to
engage in a sexual act when the adult is at least twenty-two years of age and
the victim is a minor fifteen years of age or older, is guilty of a class C felony.”
Corruption or solicitation of minors is not included in the enumerated list of
aggravated felonies under the INA as stated in 8 U.S.C.S. § 1101(a)(43). It is
not clear from the face of the INA whether Abdi’s guilty plea to corruption or
solicitation would be considered an aggravated felony.

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[¶18] At the evidentiary hearing on post-conviction relief, Abdi argued “he was
advised it [his conviction] was a deportable offense but not that it was
mandatory deportation.” However, Abdi did not specify which statutory
provision mandated his removal either at the district court or on appeal, and
no removal proceeding documents are a part of the record for our review.

We have repeatedly stated we are not ferrets and we “will not
consider an argument that is not adequately articulated,
supported, and briefed.” See, e.g., State v. Haibeck, 2006 ND 100,
¶ 9, 714 N.W.2d 52; see also Riemers v. City of Grand Forks, 2006
ND 224, ¶ 9, 723 N.W.2d 518 (declining to consider an issue raised
for the first time on appeal); Riemers v. Grand Forks Herald, 2004
ND 192, ¶ 11, 688 N.W.2d 167 (“‘[A] party waives an issue by not
providing supporting argument and, without supportive reasoning
or citations to relevant authorities, an argument is without
merit.’”) (quoting Riemers v. O’Halloran, 2004 ND 79, ¶ 6, 678
N.W.2d 547).

Holden v. Holden, 2007 ND 29, ¶ 7, 728 N.W.2d 312.

[¶19] Abdi bears the burden to establish grounds for post-conviction relief, and
Abdi has failed to meet his burden to show he received ineffective assistance of
counsel. As a threshold matter, in order to prevail on an ineffective assistance
of counsel claim predicated upon a plea agreement having mandatory adverse
immigration consequences, Abdi needed to show the agreement did in fact
carry mandatory consequences.

[¶20] Based on this record, Abdi has not shown he received ineffective counsel
under Padilla. The immigration consequences of Abdi’s plea are unclear from
the face of the INA. Under United States Supreme Court precedent, as well as
our own precedent, a defense attorney need do no more than advise a defendant
that the pending criminal charges may carry a risk of adverse immigration
consequences when it is not clear from the face of the INA that a state crime
qualifies as an aggravated felony. The district court’s finding that Abdi’s trial
counsel was effective, because he had properly advised Abdi on potential
adverse immigration consequences of pleading guilty, was not clearly

8
erroneous. Abdi failed to meet the first prong of the Strickland test because he
has not established his counsel was ineffective.

[¶21] It is unnecessary to our decision to determine if Abdi established he was
prejudiced by his decision to plead guilty. “Courts need not address both prongs
of the Strickland test, and if a court can resolve the case by addressing only
one prong it is encouraged to do so.” Osier v. State, 2014 ND 41, ¶ 11, 843
N.W.2d 277.

[¶22] Abdi’s argument that his plea was not knowingly, intelligently, or
voluntarily made because he was ineffectively counseled on the consequences
of the plea also fails, because Abdi failed to show he was ineffectively
counseled. Without establishing his counsel was ineffective, Abdi cannot show
a manifest injustice would result if he was not allowed to withdraw his plea.
We conclude the district court did not abuse its discretion by denying Abdi’s
motion to withdraw his guilty plea.

III

[¶23] We have considered the remaining issues and arguments and consider
them to be unnecessary to our decision or without merit. The district court
order is affirmed.

[¶24] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

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