Isxaaq v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 148

Yaasiin Aweis Isxaaq, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Nos. 20210066-20210068

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Stephannie N. Stiel, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

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

Alexis Madlom (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, and Nicholas A. Samuelson (appeared),
Assistant State’s Attorneys, Fargo, ND, for respondent and appellee.
 Isxaaq v. State
Nos. 20210066-20210068

McEvers, Justice.

Yaasin Aweis Isxaaq appeals from a district court order denying his
applications for post-conviction relief, in which he sought to withdraw his
guilty pleas in three underlying criminal cases. We affirm, concluding the
district court did not err in denying Isxaaq’s applications for post-conviction
relief.

I

Isxaaq is a citizen of Somalia who gained lawful permanent resident
status in 2018 after seeking asylum as a refugee in 2014. Isxaaq filed post-
conviction relief applications regarding three underlying criminal cases, which
were consolidated for hearing in the district court. Isxaaq was charged with
theft in June 2016, and pleaded guilty to an amended charge of disorderly
conduct later that month. Isxaaq was later charged with misdemeanor sexual
assault in February 2017 and pleaded guilty in March 2017. Isxaaq was then
charged with misdemeanor theft, and pleaded guilty in January 2020. All three
charges were class B misdemeanors. Isxaaq was detained by Immigration and
Customs Enforcement (“ICE”), pending deportation proceedings, on January
29, 2020. In all three cases, Isxaaq argued his guilty pleas were not knowingly,
intelligently, or voluntarily made because he had not been properly advised on
adverse immigration consequences, and because an interpreter was not used
when he communicated with his attorneys.

At the evidentiary hearing on his applications, Isxaaq testified, as did
two of his former trial attorneys. Isxaaq testified in all three cases he would
not have pleaded guilty and instead would have proceeded to trial had he been
properly advised on immigration consequences. Isxaaq alleged his guilty pleas
were not knowing, intelligent, and voluntary due to a language barrier, and
argued his counsel was ineffective for failing to utilize an interpreter. Both
former trial attorneys testified they discussed potential adverse immigration

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consequences with Isxaaq, had no trouble communicating with Isxaaq in
English, and did not require an interpreter’s services to advise him.

The district court entered an order denying Isxaaq’s applications for
post-conviction relief on February 17, 2021, finding the record did not support
his claim that his guilty pleas were not knowing and voluntary because he did
not understand English, and Isxaaq failed to establish prejudice in all three
cases.

II

On appeal, Isxaaq argues the district court erred because he received
ineffective assistance of counsel and his pleas were not knowingly, intelligently,
or voluntarily made in all three cases for two reasons: (1) he had difficulty
understanding English without an interpreter, and his attorneys did not
provide an interpreter, and (2) he was not properly advised on the immigration
consequences of pleading guilty.

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 on appeal of 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
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.

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:

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 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).

An applicant seeking to withdraw his guilty plea alleging ineffective
assistance of counsel must surmount the two-prong test set out by Strickland
v. Washington, 466 U.S. 668 (1984). 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.

To satisfy the first prong under Strickland, an applicant must show his
or her counsel’s representation fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 688, 694. To satisfy the second prong,
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 v. State, 2014 ND 174, ¶ 19, 852 N.W.2d 383.

The first prong is measured against “prevailing professional norms.”
Bahtiraj, 2013 ND 240, ¶ 10. In Padilla v. Kentucky, 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, 360 (2010). 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.

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 To meet Strickland’s second prong, an applicant must establish prejudice
by convincing “the court that a decision to reject the plea bargain would have
been rational under the circumstances.” Padilla, 559 U. S. at 372. “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). Determining whether rejecting the
plea was reasonable requires looking to “contemporaneous evidence to
substantiate a defendant’s expressed preferences.” Id. 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.

“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.

III

We first address Isxaaq’s argument his counsel was ineffective and his
pleas were not knowing, intelligent, or voluntary because his attorneys did not
use an interpreter to confer with him. Whether a defendant is able to
adequately understand English without an interpreter is a finding of fact. See
Morris v. State, 2017 ND 104, ¶ 8, 893 N.W.2d 475. Findings of fact in a post-
conviction proceeding will not be disturbed unless they are clearly erroneous
under N.D.R.Civ.P. 52(a). Id. Conflicts in testimony are resolved in favor of
affirmance, as this Court has recognized the district court is in a superior
position to assess credibility of witnesses and weigh the evidence. Dodge v.
State, 2020 ND 100, ¶ 17, 942 N.W.2d 478.

Isxaaq testified he had difficulty understanding his attorneys because
English is not his first language, and he did not understand the consequences
of pleading guilty. Both of Isxaaq’s former attorneys testified they had no
difficulty speaking with Isxaaq in English and did not need an interpreter to
advise him. One of the attorneys testified she was familiar with Isxaaq, having
previously represented him prior to the case that is the subject of this appeal.

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 The district court found the record does not support Isxaaq’s claim that
he was unable to understand English or that his guilty pleas were not knowing
and voluntary on that basis. The court also found the record contained
colloquies that showed Isxaaq’s understanding of English. These findings are
not clearly erroneous. The court did not err in denying Isxaaq’s claims of
ineffective assistance of counsel based on a failure to use an interpreter.

IV

A

Isxaaq gave uncontradicted testimony that his attorney in the 2016
disorderly conduct case did not advise him on the immigration consequences of
pleading guilty. The district court relied on the prejudice prong of Strickland
to resolve this claim of ineffective assistance of counsel. Discussing the
prejudice prong, the court summarized Isxaaq’s testimony as follows:

MS. KRAUS-PARR: If you understood the immigration consequences of
your conviction, would you have proceeded to trial?

THE WITNESS [Isxaaq]: Yes.

MS. KRAUS-PARR: Can you explain to the Court why that would have
been a reasonable decision to go to trial?

THE WITNESS: Right now I know the consequences—the immigration
consequences for me so that’s why I have taken this position.

MS. KRAUS-PARR: Okay. You’re currently being detained by
immigration—or Department of Homeland Security—on an immigration
hold. Is that correct?

THE WITNESS: Yes. Yes, because of these cases as we are.

...

MS. KRAUS-PARR: The maximum punishment if you had gone to trial
and lost would have been 30 days in custody. Thirty days in custody

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 versus possibly being deported. Would you have taken your chances at
trial?

THE WITNESS: Thirty days in jail.

The district court went on to find this evidence was insufficient to meet
the prejudice burden, concluding Isxaaq did not identify any weaknesses in the
State’s case, but rather simply testified if he knew in 2016 what he knows now,
after four years and several intervening convictions, he would have gone to
trial. The court found Isxaaq failed to allege any facts, if proven, that would
support a conclusion that going to trial would have been rational. The court
also considered the amendment of the charge from theft to disorderly conduct.
The court found there was no reasonable probability that but for the alleged
errors by his attorney, Isxaaq would not have pled guilty. In making these
findings, the court relied on the analysis set forth in Bahtiraj v. State.

In Bahtiraj, this Court listed a number of examples of how an applicant
could allege facts that, if proven, would support a conclusion that the decision
to reject a plea bargain would have been rational. 2013 ND 240, ¶ 16. Examples
included valid defenses, a pending suppression motion that could undermine
the prosecution’s case, or the realistic potential for a lower sentence. Id. This
Court further stated, “Under the Strickland test, the potential strength of the
state’s case must inform the court’s analysis, when determining prejudice,
inasmuch as a reasonable defendant would surely take it into account.” Id. at
¶ 17 (citations omitted). Additional factors listed for the district court to
consider may include:

(a) whether the defendant pleaded guilty in spite of knowing that
the advice on which he claims to have relied might be incorrect, (b)
whether pleading guilty gained him a benefit in the form of more
lenient sentencing, (c) whether the defendant advanced any basis
for doubting the strength of the government’s case against him,
and (d) whether the government would have been free to prosecute
the defendant on counts in addition to those on which he pleaded
guilty.

Id. (quoting Chhabra v. United States, 720 F.3d 395, 408 (2d Cir. 2013)).

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 However, these examples are not an all-inclusive list, nor do they
preclude other rational arguments why a defendant would choose to go to trial
rather than plead guilty despite long odds. In Lee, 137 S.Ct. 1958, the United
States Supreme Court acknowledged there may be unusual circumstances
where a defendant can demonstrate a reasonable probability he would have
rejected the plea had he known it would lead to mandatory deportation. In Lee,
the Supreme Court concluded the defendant had met his burden to show
prejudice. Id. at 1967-68. This conclusion, however, was based on a record
where his attorney testified he incorrectly advised Lee he was not subject to
mandatory deportation, when in fact he was. Id. at 1960. In addition, both he
and his attorney testified that Lee would have gone to trial had he known the
deportation consequences, and Lee was able to demonstrate the same with
contemporaneous evidence using the colloquy from his change of plea hearing.
Id. at 1961.

The facts here are distinguishable from Lee. Here, no argument was
made that Isxaaq was subject to mandatory deportation for pleading guilty to
disorderly conduct. Isxaaq did not testify or provide any contemporary
evidence that he was more concerned with the possible immigration
consequences rather than getting the plea deal, which amended his charge
from theft, a potential crime of moral turpitude, to disorderly conduct. While
it is not conclusive, the plea bargain to the amended charge may have
benefitted Isxaaq, because this conviction was not listed on the notice from ICE
as one of the convictions ICE relied on as a reason to deport him.

It does not appear the district court considered the progression in the
law under Lee as it pertains to another possible rational argument why a
defendant may wish to withdraw a guilty plea based on immigration
consequences. Regardless of the court’s lack of analysis under Lee, Isxaaq
presented no contemporaneous evidence showing immigration consequences
were the determining factor in his decision to accept the plea bargain in this
case. The court did not err in concluding Isxaaq failed to meet his burden to
show a reasonable probability that but for the alleged errors by his attorney,
he would have pleaded guilty to disorderly conduct and would have insisted on
going to trial.

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 B

Isxaaq testified his attorney in the 2017 sexual assault case did not
advise him on how the conviction would affect his ability to become a citizen or
reenter the country, and stated he would have gone to trial rather than plead
guilty had he been properly advised. Isxaaq’s attorney in this matter testified
that he advised Isxaaq that a sexual assault conviction carried a risk of
deportation as a crime of moral turpitude, but stated the immigration
consequences of the plea were not clear at the time of his representation.

The district court again relied on the prejudice prong of Strickland to
resolve this claim of ineffective assistance of counsel. Although Isxaaq testified
he was not informed of the immigration consequences, the court found the
record from the dispositional conference held on March 7, 2017 contradicted
his assertions, quoting a portion of the transcript where Isxaaq’s attorney
stated he discussed the immigration consequences and admonished him that
ICE may take an interest in him. In addition, the court noted that at the
change of plea hearing, Isxaaq expressed no concern about going ahead with a
plea despite this advice. The court also found Isxaaq did not identify any
weakness in the State’s case and his statements speculating on a different
outcome were insufficient to show prejudice under Strickland. The court also
noted Isxaaq entered an Alford plea agreeing that if the facts as alleged were
presented to a jury, they were sufficient for a jury to find him guilty beyond a
reasonable doubt at his change of plea hearing. The court found there was no
reasonable probability that but for alleged errors, Isxaaq would have insisted
on going to trial. Again, Isxaaq presented no contemporaneous evidence
showing immigration consequences were the determining factor in his decision
to accept the plea bargain in this case. The court did not err in concluding
Isxaaq failed to meet his burden to show a reasonable probability that but for
the alleged errors by his attorney, he would not have pleaded guilty and would
have insisted on going to trial.

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 C

Isxaaq testified his attorney in his 2020 theft case did not advise him the
conviction would result in removal or discuss how the conviction would impact
his legal permanent resident status. Isxaaq stated he would have rejected the
plea and proceeded to trial with proper counsel. His attorney in this matter
testified she advised Isxaaq the theft conviction “could make him a noncitizen”
and could bar his reentry.

The district court again disposed of the claims for lack of prejudice under
prong two of Strickland. The court discussing the prejudice prong in this case,
summarized Isxaaq’s testimony as follows:

MS. KRAUS-PARR: Sure. If [you] had known about the immigration
consequences at the time, would [you] have risked going to trial or would
[you] still have plead guilty to the charge?

THE WITNESS [Isxaaq]: I would go to trial.

...

KRAUS-PARR: Sure. Which risk is greater? The immigration
consequences – so losing [your] status, being removed, not being able to
reenter, possibly never becoming a citizen, those are the risks –
immigration risks are greater than a conviction of the 30 days if [you]
had gone to trial? Which is greater?

THE WITNESS: So it would be better for me to go to the trial and I would
select that. Whatever is better, that.

Here there was contemporaneous evidence of Isxaaq’s position regarding
his immigration status, but it is not helpful to his position. His attorney
testified Isxaaq was already subject to an ICE hold, and stated Isxaaq wanted
to change his plea when the hearing was only scheduled to address his bond.
His attorney testified she explained his conviction would result in his removal,
could affect his lawful permanent resident status, and he would not be allowed
back into the United States. She explained that because deportation

9
proceedings had already started, this conviction would be included as part of
the deportation process.

The district court found Isxaaq’s testimony was insufficient to meet his
burden in this case because again he failed to allege any weakness in the
State’s case, and failed to allege facts if proven would support a conclusion that
going to trial would be rational. The court did not err in concluding Isxaaq
failed to meet his burden to show a reasonable probability that but for the
alleged errors by his attorney, he would not have pleaded guilty, and would
have insisted on going to trial.

“All courts require something more than defendant’s subjective, self-
serving statement that, with competent advice, he would not have pled guilty
and would have insisted on going to trial.” Bahtiraj, 2013 ND 240, ¶ 16
(internal quotations omitted). Regardless of whether his attorneys provided
effective counsel, Isxaaq’s claims fail on the second prong of Strickland,
because he offered no evidence contemporaneous with the entry of his plea to
suggest proceeding to trial would have been rational, and therefore did not
establish prejudice. Isxaaq failed to meet his burden to establish prejudice
under the second prong of Strickland to support any of his ineffective
assistance of counsel claims.

Without establishing he was prejudiced by his counsels’ performance,
Isxaaq cannot show a manifest injustice would result if not allowed to
withdraw his guilty pleas. The district did not abuse its discretion in denying
Isxaaq’s applications for post-conviction relief, because he failed to establish a
manifest injustice would result if not allowed to withdraw his pleas.

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 V

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.

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

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