February 6, 2015
STATE OF NEBRASKA, APPELLEE,
RAMEZ MERHEB, APPELLANT
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.
[290 Neb. 84] Heavican, C.J.
Ramez Merheb filed a verified motion to set aside his plea. The district court denied the motion. Merheb appeals. We affirm.
On October 6, 2008, Merheb pled guilty to attempted possession of marijuana with intent to deliver. On December 2, he was sentenced to 1 to 2 years' imprisonment. No direct appeal was filed.
On May 22, 2009, Merheb filed a motion for postconviction relief. In the motion, Merheb alleged that he received ineffective assistance of counsel when his immigration counsel provided erroneous advice regarding the consequences of his conviction. Merheb further alleged that he would not have pled guilty and would have pursed an appeal on the denial of a motion to suppress in his case had his counsel acted effectively.
The district court denied Merheb's motion on June 26, 2009. Merheb appealed to the Nebraska Court of Appeals on July 7. On December 17, the State filed a suggestion of mootness, because Merheb had been released from prison on May 23 and his parole had expired on November 17. The State argued that because he was no longer under a term of imprisonment or parole, Merheb had no right to postconviction relief. The Court of Appeals dismissed Merheb's appeal as moot on January 20, 2010. We denied Merheb's petition
for [290 Neb. 85] further review on March 10, and the mandate was spread by the district court on March 26.
On March 31, 2010, the U.S. Supreme Court decided Padilla v. Kentucky. In Padilla, the Court held that in order to comply with Sixth Amendment standards regarding competent representation, counsel must inform a client whether a plea carries a risk of deportation. On February 20, 2013, the Court held in Chaidez v. U.S. that its decision in Padilla was a new rule and not retroactive, and that defendants whose convictions became final before Padilla could not benefit from its holding.
On August 16, 2012, Merheb filed a motion to set aside his plea. He alleged that his immigration counsel was ineffective in providing " clearly erroneous and unreasonable information as the immigration consequences of the plea agreement and resulting conviction." Merheb further alleged that if not for the erroneous immigration advice, he would have proceeded to trial or otherwise preserved his right to appeal the order denying his motion to suppress, and that the relief was necessary to correct a manifest injustice.
The district court denied Merheb's motion, reasoning that his conviction was final prior to the Court's decision in Padilla and that thus, Padilla was inapplicable to Merheb. The district court further noted that under this court's decision in State v. Gonzalez, the common-law right to withdraw a plea after final judgment was narrow. The district court reasoned that because Merheb's motion to set aside his plea was filed more than 2 years after Padilla, it was not timely for Gonzalez purposes.
ASSIGNMENT OF ERROR
Merheb assigns, restated and consolidated, that the district court erred in denying his motion to set aside his plea.
[290 Neb. 86] STANDARD OF REVIEW
To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.
On appeal, Merheb assigns a number of errors which can be consolidated as one: that the district court erred in denying his motion to set aside his plea.
In his motion, Merheb attempts to set aside his plea on just one ground--that his immigration counsel was ineffective. He had previously filed a motion for postconviction relief which was denied as moot; he makes no argument in this motion that postconviction relief is currently available to him. Nor does he argue that he could withdraw his plea due to the failure of the trial court to inform him of the necessary advisements under Neb. Rev. Stat. § 29-1819.02 (Reissue 2008). In fact, a review of the trial record reveals that Merheb was given the necessary advisements under § 29-1819.02.
Thus, the only avenue Merheb seeks to use here is that of the " manifest injustice" procedure which this court recognized
in State v. Gonzalez. A manifest injustice common-law claim must be founded on a constitutional right that cannot and never could have been vindicated under the Nebraska Postconviction Act or by any other means. Merheb seeks to vindicate the constitutional right set forth in Padilla, where the U.S. Supreme Court held that Sixth Amendment standards of competent representation require counsel to inform his or her client whether a plea carries a risk of deportation.
We assume for the purposes of this appeal that Merheb could not have vindicated this claimed constitutional right in a postconviction action, because he was released from prison and parole before his postconviction claim could be decided [290 Neb. 87] on appeal. But we conclude that the district court did not err in dismissing Merheb's motion, because Merheb is not entitled to relief.
As a general proposition, counsel's advice about collateral matters--those not involving the direct consequences of a criminal conviction--are irrelevant under the Sixth Amendment. Such an analysis is excluded from a Strickland v. Washington  analysis on the ineffectiveness of counsel. But in Padilla, the Court concluded that no such distinction should apply in the case of deportation, because deportation was " unique"  in that it was " particularly severe,"  was " intimately related to the criminal process,"  and was " nearly an automatic result"  of some convictions. Later, in Chaidez, the Court noted that the rule from Padilla counted as " 'break[ing] new ground' or 'impos[ing] a new obligation'"  for purposes of a retroactivity analysis under Teague v. Lane, and thus was not retroactive in its application.
There is no distinction in the application of these principles based upon whether counsel failed to give any advice regarding immigration consequences or whether counsel instead gave erroneous advice. As noted by the Seventh Circuit in Chavarria v. U.S., the Court in neither Padilla nor Chaidez found any relevant distinction between the two: " There is no question that the [ Chaidez ] majority understood that Padilla announced a new rule for all advice, or lack thereof, with [290 Neb. 88] respect to the consequences of a criminal conviction for immigration status."
Thus, prior to the decision in Padilla, whether counsel informed a defendant of the potential immigration consequences of a conviction was excluded from analysis under Strickland. And under Chaidez, the right granted in Padilla is not retroactive. Thus, if a conviction was final as of the date of the Court's decision in Padilla,
a criminal defendant cannot benefit from the Padilla holding.
Because Merheb did not appeal from his conviction and sentence, Merheb's conviction became final in early January 2009--30 days after his sentence was imposed by the trial court. Padilla was not decided until March 31, 2010. Thus, the constitutional right under which Merheb seeks relief is inapplicable as a matter of law and the procedure set forth under Gonzalez is unavailable. Merheb's argument that the district court erred in denying his motion to set aside his plea is without merit.
The district court's denial of Merheb's motion to set aside his plea is affirmed.
Cassel, J., not participating.