                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0428n.06

                                        Case No. 16-6295                             FILED
                                                                                Jul 21, 2017
                          UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.                                                    )        COURT FOR THE WESTERN
                                                      )        DISTRICT OF KENTUCKY
ASO POLA,                                             )
                                                      )
       Defendant-Appellant.                           )                 OPINION


       BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Aso Pola, a citizen of Canada and lawful

permanent resident of the United States, was sentenced in February 2010 to 46 months in prison

after being convicted of one count of possessing oxycodone with intent to distribute. He was

released from prison in September 2012 and, because his conviction subjected him to

deportation, he assented to removal to Canada later that month. Pola continues to be aggrieved

and seeks relief from the collateral consequences of his conviction.

       The case has had a tortured procedural history, having already been visited twice by the

Sixth Circuit in an untimely pro se appeal and in § 2255 proceedings. See Pola v. United States,

778 F.3d 525 (6th Cir. 2015). Now before the court, on delayed direct appeal of his judgment of

conviction, Pola contends he was denied effective assistance of counsel in the trial court in two

ways. The existing record fails to show entitlement to relief on either of Pola’s ineffective-
Case No. 16-6295. United States v. Pola


assistance theories, despite the additional factual development afforded by earlier § 2255

proceedings. Accordingly, the district court’s judgment is affirmed.

                                       I. BACKGROUND

       Pola was born in Iraq, but is a citizen of Canada. On January 6, 2009, a federal grand

jury indicted Pola and charged him with knowingly and intentionally possessing oxycodone with

intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At the time of the

indictment, Pola was in the United States as a lawful permanent resident and living in Louisville,

Kentucky, with his wife and two children, all of whom are U.S. citizens. On September 21,

2009, Pola entered an Alford plea,1 declining to admit guilt, but conceding that the government

had sufficient evidence for a jury to find him guilty of the charged offense. On February 16,

2010, the district court sentenced him to 46 months’ incarceration and three years’ supervised

release. On April 19, 2010, slightly more than two months after the judgment was entered, Pola

filed a pro se notice of appeal. A panel of this court dismissed Pola’s appeal as untimely.

       On August 5, 2011, Pola filed a motion to vacate his sentence under 28 U.S.C. § 2255,

alleging that his counsel was ineffective for failing to file a notice of appeal, among other claims.

The district court denied the motion in January 2014, holding that Pola had failed to show

deficiency in counsel’s performance. On appeal, a panel of this court vacated the order denying

relief and remanded the matter to the district court for an evidentiary hearing on the question




       1
         In North Carolina v. Alford, 400 U.S. 25 (1970), the Court recognized that a defendant
may rationally and validly waive his right to trial and knowingly consent to the imposition of
punishment for a charged offense notwithstanding his inability or unwillingness to admit
participation in the crime. Pola decided to plead under Alford because he was addicted to
oxycodone at the time of the charged conduct and had no recollection of the relevant events, and
because he and his attorney acknowledged that the government’s evidence was sufficient to
warrant a jury finding that he was guilty of the charged offense.
                                                -2-
Case No. 16-6295. United States v. Pola


whether Pola’s counsel rendered ineffective assistance by failing to file a notice of appeal at

Pola’s request. Pola, 778 F.3d at 535–36.

       Meanwhile, in September 2012, Pola had completed his prison sentence, had been

released from the custody of the Bureau of Prisons, and had been deported to Canada. Still, Pola

persevered in pursuit of his remedies. On remand to the district court, an evidentiary hearing

was conducted in November 2015. In July 2016, the court issued an opinion and order finding

that Pola had requested counsel to file an appeal and counsel failed to do so. Concluding that

Pola had been denied effective assistance of counsel in this respect, the court granted Pola’s §

2255 motion, vacated the original judgment, and ordered entry of a new judgment (re-imposing

the forty-six-month term of imprisonment and noting that the term had already been served), so

that Pola could perfect his right of appeal.

       Represented by different counsel, Pola timely filed this appeal, asserting two challenges

to the validity of his plea-based conviction. Due to counsel’s deficient advice at the time he

entered his plea, Pola contends he was denied his Sixth Amendment right to effective assistance

of counsel in two additional ways. As a consequence, Pola further contends, the waiver of his

right to trial was not “knowing and intelligent” and he was therefore denied due process, as

guaranteed by the Fifth Amendment. Pola contends he should be allowed to withdraw his plea

and face re-prosecution in the hope of undoing the conviction that triggered his deportation.

                                          II. ANALYSIS

       A. Standard of Review

       Pola asserts claims for relief under both the Fifth Amendment and the Sixth Amendment.

The relief requested is the same under both theories. In practical effect, the two claims are

redundant. Granted, Pola’s waiver of rights is not valid if it is shown not to have been “knowing



                                               -3-
Case No. 16-6295. United States v. Pola


and intelligent.” But Pola’s waiver is alleged to have been not knowing and intelligent due to

counsel’s deficient representation. If Pola is able to prevail on either ineffective-assistance

theory—showing deficient performance and prejudice—he will obtain the relief he asks for,

irrespective of his entitlement to relief on the Fifth Amendment due process theory. Conversely,

the notion that Pola could prevail on his due process theory without first showing ineffective

assistance of counsel is implausible under the facts of this case. See Hill v. Lockhart, 474 U.S.

52, 56–57 (1985) (recognizing that a defendant who pleads guilty on the advice of counsel may

only attack the “voluntary and intelligent character” of the plea by showing that counsel’s advice

was not “within the range of competence demanded of attorneys in criminal cases.”). Hence, we

focus on Pola’s ineffective-assistance claim.

       The relevant standards governing an ineffective-assistance claim are succinctly stated in

Lafler v. Cooper, 566 U.S. 156 (2012), as follows:

               Defendants have a Sixth Amendment right to counsel, a right that extends
       to the plea-bargaining process. Missouri v. Frye, 566 U.S. 133, 140 (2012); see
       also Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52,
       57 (1985). During plea negotiations defendants are “entitled to the effective
       assistance of competent counsel.” McMann v. Richardson, 397 U.S. 759, 771
       (1970). In Hill, the Court held “the two-part Strickland v. Washington [466 U.S.
       668 (1984)] test applies to challenges to guilty pleas based on ineffective
       assistance of counsel.” Hill, 474 U.S. at 58. The performance prong of
       Strickland requires a defendant to show “‘that counsel’s representation fell below
       an objective standard of reasonableness.’” Id. at 57 (quoting Strickland, 466 U.S.
       at 688).

                                                ****

               To establish Strickland prejudice a defendant must “show that there is a
       reasonable probability that, but for counsel’s unprofessional errors, the result of
       the proceeding would have been different.” Strickland, 466 U.S. at 694. In the
       context of pleas a defendant must show the outcome of the plea process would
       have been different with competent advice. See Frye, 566 U.S. at 148 (noting that
       Strickland’s inquiry, as applied to advice with respect to plea bargains, turns on
                                                -4-
Case No. 16-6295. United States v. Pola


       “whether ‘the result of the proceeding would have been different’” (quoting
       Strickland, 466 U.S. at 694); see also Hill, 474 U.S. at 59 (“The . . . ‘prejudice’
       requirement . . . focuses on whether counsel’s constitutionally ineffective
       performance affected the outcome of the plea process”). In Hill, when evaluating
       the petitioner’s claim that ineffective assistance led to the improvident acceptance
       of a guilty plea, the Court required the petitioner to show “that there is a
       reasonable probability that, but for counsel’s errors, [the defendant] would not
       have pleaded guilty and would have insisted on going to trial.” Ibid.

Id. at 162–63.

       In this appeal, Pola identifies two distinct ways in which counsel’s representation fell

below Strickland’s objective standard of reasonableness, to his detriment. First, Pola contends

attorney Fred Partin failed to advise him of the immigration consequences of his guilty plea.

Second, Pola contends counsel failed to accurately advise him of the likely duration of his

sentence.

       B. Immigration Consequences

       As a consequence of his Alford plea to the drug-trafficking charge, Pola now

acknowledges that, being a citizen of Canada, he was subject to deportation after his conviction.

Implying that he did not know this at the time of the plea hearing, Pola contends the record fails

to show that either his attorney or the court advised him that such immigration consequences

would flow from his conviction. Citing Padilla v. Kentucky, 559 U.S. 356 (2010), Pola contends

this failure shows he was denied effective assistance of counsel at the time of the plea.

       In Padilla, the defendant Jose Padilla had pled guilty to a drug-trafficking charge and

then faced deportation as a consequence. In state-court post-conviction proceedings, Padilla

challenged his conviction, alleging that his attorney did not advise him of the immigration

consequences of his conviction. But for this deficiency, Padilla alleged, he would not have pled

guilty, but would have insisted on going to trial. The Court held these allegations made out a


                                                -5-
Case No. 16-6295. United States v. Pola


facially valid ineffective-assistance claim, holding that “constitutionally competent counsel

would have advised him that his conviction for drug distribution made him subject to automatic

deportation.” Id. at 360. The Court remanded the matter to the state courts for development of

the facts.

        Padilla was decided one month after Pola was sentenced. But the rule of Padilla applies

in this case because Pola’s conviction has not yet become final.2 Here, as in Padilla, Pola

challenges the adequacy of counsel’s advice regarding immigration consequences. The issue is

raised for the first time in this, Pola’s delayed direct appeal. Pola concedes he knew there would

be immigration consequences, but claims his attorney did not advise him that the conviction

would subject him to automatic deportation. Pola correctly argues that the transcript of the plea

hearing includes no indication that his attorney expressly advised him that his Alford plea would

subject him to deportation. However, the issue was indirectly raised at the plea hearing by the

Assistant U.S. Attorney, who advised the district court that Pola “knows that . . . deportation

proceedings are going to be initiated against him” after sentencing. R. 70, Plea Hrg. Tr. at 36,

Page ID 282. In fact, the AUSA further advised the court that Pola’s Canadian passport had

already been surrendered to U.S. Immigration Customs and Enforcement (“ICE”) Agent Tom

Perryman, who was present in the courtroom. Despite these acknowledgements that Pola was

aware of the specter of deportation, neither he nor his attorney raised any question, concern or

        2
          The holding of Padilla does not apply retroactively to convictions that had become final
before Padilla was decided. Chaidez v. United States, 568 U.S. 342, 344 (2013). Due to the
unusual procedural history of this case, Pola’s direct appeal is still pending, and his conviction
has thus not yet become “final.” See Beard v. Banks, 542 U.S. 406, 411 (2004) (“[C]onvictions
are final for purposes of retroactivity analysis when the availability of direct appeal . . . has been
exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely filed
petition has been finally denied.”) (internal quotation marks omitted). It follows that the “new
rule” of Padilla does apply even though Pola’s attorney could hardly have known at the time of
the plea hearing in September 2009 that effective representation necessarily included the duty to
advise Pola of the immigration consequences of his plea.
                                                -6-
Case No. 16-6295. United States v. Pola


objection in the plea hearing. Hence, although counsel did not explicitly advise Pola on the

record during the plea hearing that he would be subject to automatic deportation, the conclusion

is inescapable, and unrefuted, that Pola was advised that his plea would implicate deportation.

       The issue was also apparent, albeit not well developed, at Pola’s sentencing hearing. Yet,

again, Pola did not object to the prospect of deportation at sentencing either. Nor did his

attorney. In fact, ICE Agent Perryman was on hand again during the sentencing hearing on

February 16, 2010, to take Pola into custody if he were not sentenced to a prison term with the

Bureau of Prisons. The issue of deportation became moot, for the time being, when the district

court sentenced Pola to 46 months in prison, at the low end of the advisory Guidelines range.

       Pola served his sentence and was released from the custody of the Bureau of Prisons on

September 4, 2012. Two weeks later, he was removed by ICE to Canada, when Pola declined to

contest deportation. In the meantime, his original appeal had been dismissed as untimely and he

had filed his § 2255 motion to vacate his sentence. Pola’s 25-page pro se motion for relief under

§ 2255, filed on August 5, 2011, asserted five grounds for relief, including two theories based on

ineffective assistance of counsel. However, the motion contained no allegation of deficient

advice concerning immigration consequences.          The district court denied relief on all five

grounds, adopting the magistrate judge’s report and recommendation over Pola’s objections.

       Pola preserved his right to appeal the denial of § 2255 relief—by objecting to the report

and recommendation—but only as to one ruling: the district court’s denial of his request for an

evidentiary hearing. Pola did in fact appeal this ruling and did prevail on appeal. The matter

was remanded for an evidentiary hearing, but the scope of the hearing was limited to the question

whether counsel was ineffective for having failed to file notice of appeal on Pola’s behalf. The




                                               -7-
Case No. 16-6295. United States v. Pola


district court conducted an evidentiary hearing and granted relief, effectively restoring Pola’s

right of appeal. Hence, this appeal.

       This review of the procedural history brings us to the point: Pola’s opening brief in this

appeal, filed more than six years after his sentencing and nearly four years after he was deported,

is the first mention of his displeasure over counsel’s failure to adequately advise him about the

immigration consequences of his plea. The issue not having been raised before, the claim finds

little support in the existing district court record.3 Not surprisingly, Pola’s argument on appeal is

based almost exclusively on the facial similarities between mere allegations in this case and in

Padilla. The record is devoid of direct factual support for the allegation that attorney Partin did

not advise Pola, or advised him erroneously, about the immigration consequences. Both Pola’s

affidavit and Partin’s affidavit, filed in connection with the § 2255 motion, are silent on the

issue. Nor did testimony received in the evidentiary hearing touch on the issue. And although

there is no direct evidence that Partin did so advise Pola, all relevant indications, summarized

above, show that Pola was advised that deportation was looming as soon as his term of

imprisonment was completed. Counsel for the government so advised the district court in Pola’s

presence at the plea hearing. Yet, no question, concern or objection was heard from Pola or his

attorney. Moreover, Pola’s own testimony at the § 2255 evidentiary hearing strongly suggests he

knew he would be subject to deportation after his prison sentence was completed, but hoped he

would be sentenced to time served, and would be released and granted permission for voluntary

departure to Canada.




       3
         Despite the novelty of the issue, Pola insists that the record is adequately developed,
due to the prior § 2255 proceedings, to enable a ruling on this ineffective-assistance claim at this
time.
                                                -8-
Case No. 16-6295. United States v. Pola


        Pola’s best argument asks the court to draw an inference that simply is not justified. He

contends that Partin’s evident “surprise” about the presence of ICE Agent Perryman at the

sentencing hearing warrants a reasonable inference that Partin was not aware, and had not

advised Pola, that he would be subject to deportation. A fair reading of Partin’s testimony at the

evidentiary hearing and his colloquy with the court at the start of the sentencing hearing indicates

that his surprise was not related to the prospect of deportation as a consequence of the

conviction. Rather, Partin was surprised by the possibility that Pola would be taken into ICE

custody immediately if, as Partin had hoped, Pola was either sentenced to time served and

released, or sentenced to a longer term but released pending self-surrender to the Marshal at a

later date.

        Partin thus appears to have miscalculated the likelihood of Pola’s release from the

courtroom after sentencing and the potential imminence of ICE involvement. Nevertheless, the

possibility of imminent deportation quickly became moot when the district court imposed a

prison sentence of 46 months, declined to allow self-surrender, and committed Pola to the

custody of the Marshal for transfer to the Bureau of Prisons.            In other words, Partin’s

misunderstanding and misadvisement of Pola about the likelihood of his being released after

sentencing—even if suggestive of deficient performance—had no actual prejudicial effect on his

immigration status because Pola was committed to the custody of the Marshal, not ICE.4 Pola’s

immigration status and the matter of his deportation would then remain dormant until he was

released from the custody of the Bureau of Prisons some thirty-one months later.




        4
         Insofar as Partin’s miscalculation regarding the likelihood of a below-Guidelines prison
sentence contributed to his surprise, his error is addressed below in relation to Pola’s second
theory of ineffective representation.


                                               -9-
Case No. 16-6295. United States v. Pola


       Pola has thus failed to identify facts that satisfy either prong of the Strickland ineffective-

assistance standard. He has not, on the present record, pointed to evidence, beyond his own bald

statement, that Partin failed to advise him his conviction would result in his deportation. Nor has

he shown prejudice. He has not shown how more accurate advice by Partin about the likelihood

of his release from the courtroom after sentencing (which did not in fact have any impact on his

immigration status) would have altered his decision to waive his right to trial and enter an Alford

plea. That is, if, as his own testimony indicates, Pola was aware that his conviction would

subject him to removal, voluntary or not, there is no apparent reason to conclude that Partin’s

having more clearly advised him that he might not be released from the courtroom after

sentencing would have made a difference.

       To show the requisite prejudice, Pola was obliged to show there was a reasonable

probability that, but for counsel’s errors, he would not have entered the Alford plea and would

instead have insisted on going to trial. Hill, 474 U.S. at 59. The Supreme Court recently

clarified this standard in Lee v. United States, 137 S. Ct. 1958 (2017), noting that the inquiry

demands “a case-by-case examination of the totality of the evidence.” Id. at 1966 (internal

quotation marks omitted). The Court elaborated:

       “Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky,
       559 U.S. 356, 371 (2010), and the strong societal interest in finality has “special
       force with respect to convictions based on guilty pleas.” United States v.
       Timmreck, 441 U.S. 780, 784 (1979). 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. Judges should instead look to
       contemporaneous evidence to substantiate a defendant’s expressed preferences.

Lee, at 1967. The Lee Court went on to grant relief for three reasons: it was undisputed that

Lee’s counsel had erroneously advised him that he would not be deported; deportation was




                                               - 10 -
Case No. 16-6295. United States v. Pola


clearly the determinative issue in Lee’s decision to plead guilty; and both Lee and his attorney

testified that Lee would have gone to trial if he had known about the deportation consequences.

       Here, in contrast with the substantial evidence presented in Lee, we have only Pola’s post

hoc assertions. Here, for the first time in his reply brief, we have Pola’s argument that the

government’s case was hardly insurmountable and that he could have asserted substantial

defenses to the charged offense. Even assuming Pola’s attorney’s advice was deficient, the

record simply does not establish, by contemporaneous evidence, that Pola would not have

entered the Alford plea had he known that he would not be sentenced to time served and would

not be granted opportunity for voluntary departure to Canada.

       In sum, the record is devoid of evidence supporting Pola’s claim that he was denied

effective assistance of counsel based on inadequate advisement of immigration consequences.

        C. Length of Sentence

        Pola’s second ineffective-assistance claim also suffers from infirmities. Pola contends

his attorney overestimated the likelihood that the district court would impose a below-Guidelines

sentence and led him to believe he would be sentenced to a prison term of only nine months and

be released from the courtroom. This contention does enjoy some support in the record. At the

time of the plea hearing, Pola’s attorney filed a motion for Pola’s release pending sentencing,

stating that the parties contemplated a potential sentence of time served.      Counsel for the

government expressly disavowed this statement on the record in the plea hearing. Yet, the

statement does substantiate Pola’s position that Partin led him to believe his prison sentence

would be shorter than it turned out to be.

       On the other hand, at the same plea hearing, Pola said: (1) he understood that his plea

subjected him to the possibility of a maximum prison term of twenty years; (2) that he had



                                             - 11 -
Case No. 16-6295. United States v. Pola


“studied” the Sentencing Guidelines and “absolutely, 100 percent” understood them; (3) he

understood that the court was not bound by any agreement between the parties as to what the

sentence should be; (4) that no one had forced or coerced him to enter the Alford plea; and (5) he

understood that, once accepted, his plea could not be withdrawn except upon a showing of a fair

and just reason. Further, at the sentencing hearing, neither Pola nor his attorney lodged any

objection to the advisory Guidelines range of 46 to 57 months proposed in the presentence

report; neither the AUSA nor Pola’s attorney presented persuasive grounds for departure or

variance from the Guidelines range; and even after the sentence was tentatively announced and

the court invited any final objections, neither Pola nor his attorney stated any objection. At no

time did Pola move for leave to withdraw his plea.

       Pola did raise this issue in his § 2255 motion, alleging he received ineffective assistance

in that he was erroneously led to believe a sentence to time served was a “fait accompli.” In

support, Pola attached to his motion a copy of a letter from attorney Partin to the AUSA just

before the plea hearing, explaining why Partin anticipated a sentence to time served. This theory

was also supported by Pola’s affidavit, stating that he and Partin both believed he would be

sentenced to time served. Attorney Partin filed an affidavit as well, but it did not touch on the

nature of his communications with Pola regarding the likely length of sentence.

       Eventually, Pola was granted an evidentiary hearing, where both Pola and Partin testified.

Pola testified that when he entered his plea, it was his understanding that there was a plea

agreement, that he would be sentenced to time served, and that he would be allowed to return to

Canada on his own. Pola said his understanding was based on what his attorney told him. Partin

testified that he had been practicing law since 1971 and had represented criminal defendants in

hundreds of cases during that period. Partin testified that he thought he had a very persuasive



                                              - 12 -
Case No. 16-6295. United States v. Pola


argument that Pola should continue to be released and under supervision after sentencing. When

he counseled Pola regarding the Alford plea, Partin said it was his “expectation and belief” that

Pola would be sentenced to time served. He said he told Pola that this was his belief and he

thought he had an excellent argument, but that the actual sentence might be different. This

continued to be Partin’s belief at the time of sentencing until it became apparent that an ICE

agent was present to arrest Pola in the event the district court did not commit him to the custody

of the Bureau of Prisons. Partin thought this development altered the chances that Pola would be

released after sentencing. He therefore moved for a brief continuance, so Pola could get his

affairs in order and to otherwise explore the issue before sentencing, but his motion for a

continuance was denied.

       Thus, in contrast with Pola’s first ineffective-assistance claim, the record of district court

proceedings gives a fairly clear picture of many facts material to his second claim (particularly

the deficient performance prong), especially as augmented with the testimony elicited in the

evidentiary hearing. Yet, the more fully developed record does not undermine the conclusion

that Pola has still failed to show that his attorney’s performance was constitutionally defective in

the ways now asserted.

       Granted, both Pola and Partin were undisputedly surprised and upset about the sentence

imposed. And Pola may have been genuinely misled by Partin’s opinion about the likelihood of

a lenient sentence. Partin’s testimony is undisputed, however, that, while he told Pola this was

his belief, he also told Pola the actual sentence might be something different. Further, Pola was

alerted to the government’s objection to Partin’s suggestion of a sentence to time served at the

plea hearing. This possibility of a different outcome was made even clearer by the district court

during the plea colloquy. Pola’s hopes for a lenient sentence were disappointed, but the longer-



                                               - 13 -
Case No. 16-6295. United States v. Pola


than-expected within-Guidelines sentence can hardly be deemed to have automatically

transformed the Alford plea recommendation into objectively unreasonable advice—especially

given the “strong presumption” of reasonableness that applies under Strickland, 466 U.S. at 689.

       The plea hearing colloquy also reveals that Pola understood, notwithstanding his

attorney’s questionable advice about the likely length of sentence, that there was no agreement

about the appropriate sentence; that the district judge would be responsible for imposing the

sentence after a presentence report was prepared in accordance with the Sentencing Guidelines;

and that he could be sentenced to a prison term of up to twenty years.

       When an ineffective-assistance claim is based on misleading information regarding the

consequences of a plea, a proper plea colloquy is generally deemed to cure any misunderstanding

the defendant may have had about the consequences of the plea. Ewing v. United States, 651 F.

App’x 405, 410 (6th Cir. 2016) (citing Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)).

The court’s proper advisement of rights is thus deemed to “foreclose” any showing of actual

prejudice attributed to counsel’s erroneous advice, because the defendant is deemed bound by his

statements in response to the court’s inquiry. Id. Otherwise, the plea colloquy process would be

rendered meaningless if a defendant could reopen the record by later asserting that actually, he

misunderstood. Ramos, 170 F.3d at 566.

       And even if attorney Partin’s communication to Pola of his expectation that he would be

sentenced to time served were deemed objectively unreasonable, the record is devoid of evidence

tending to support a finding of Strickland prejudice. To establish prejudice, Pola must show a

reasonable probability that, but for his attorney’s unreasonable assessment of the likely length of

sentence, he would not have entered the Alford plea.            Again, this assessment requires

“examination of the totality of the evidence.” Lee, 137 S. Ct. at 1966. Among the relevant



                                              - 14 -
Case No. 16-6295. United States v. Pola


circumstances, the reviewing court considers whether the defendant had a viable defense, as well

as the respective consequences of a conviction after trial and by plea.

        The record simply does not support a finding of a “reasonable probability” that Pola

would have chosen to go to trial but for counsel’s questionable advice. In the evidentiary

hearing, Pola was not asked whether, and did not testify that, he would have insisted on his right

to trial if he had known he would be sentenced to more than nine months in prison. Nor has he

made such an assertion by way of affidavit. Although Pola, due to his drug addiction, had no

recollection of the events that resulted in the drug-trafficking charge against him, both he and his

attorney acknowledged in the plea hearing that the government had enough evidence—including

testimony, audio-recording, and phone records of a confidential informant—to convict him. By

all appearances, there was nothing for Pola to gain and much to lose by insisting on a trial.

        Lacking evidentiary support, Pola tries to make his claim based on argument, citing

several reasons to conclude it would have been rational for him to go to trial if he had known he

faced the possibility of a prison term longer than nine months. Despite his concessions about the

strength of the government’s proofs in the plea hearing, Pola now argues that the government’s

evidence is “hardly insurmountable,” that the audio-recording is “virtually unintelligible,” and

that the confidential informant’s credibility could have been impeachable. He points out that he

has never admitted guilt and now characterizes himself as “an innocent man proclaiming his own

innocence.”     Further, Pola now contends that the collateral consequences of permanent

banishment from the United States and separation from his wife and children represented strong

incentive to take a chance in trial.




                                               - 15 -
Case No. 16-6295. United States v. Pola


       Again, these are precisely the kinds of unsupported “post hoc assertions” and mere

“expressed preferences” we are adjured to ignore in favor of “contemporaneous evidence.” Lee,

at 1967. In the end, Pola has failed to make his case based on evidence.

                                      III. CONCLUSION

       The procedural history of this case makes for a convoluted analysis.            Ultimately,

however, it is abundantly clear that appellant Pola has, on the present record, failed to carry his

burden on either prong of the Strickland standard that applies to the two ineffective-assistance

claims asserted in this delayed direct appeal. It cannot be denied that deportation is, under the

circumstances, a regrettably harsh consequence of Pola’s conviction, but he has failed to show

that any wrong is attributable to deficient representation by his attorney. Accordingly, the

district court’s judgment is AFFIRMED.




                                              - 16 -
