       Case: 12-20630      Document: 00513490574      Page: 1   Date Filed: 05/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                       No. 12-20630                            FILED
                                                                            May 3, 2016
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                Plaintiff - Appellee

v.

INNOCENT RUTAHAGARA BATAMULA,

                Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge, joined by STEWART, Chief Judge,
and JOLLY, DAVIS, JONES, SMITH, PRADO*, OWEN, ELROD,
SOUTHWICK, HAYNES*, HIGGINSON, and COSTA, Circuit Judges:

         The court voted to rehear this case en banc to consider whether Innocent
Rutahagara Batamula has made a sufficient showing of prejudice in his
ineffective assistance of counsel claim to survive summary judgment. We hold




*   Concurring in the judgment only.
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                                       No. 12-20630
that Batamula failed to allege a non-frivolous prejudice claim and accordingly
we AFFIRM the district court.
                                               I.
       Batamula, a Tanzanian citizen, entered the United States on a student
visa in 2001 and remained in the country after his visa expired. He married a
United States citizen, applied for a change in his immigration status, and, in
2008, applied for and obtained a United States passport for his biological son,
B.B., 1 a citizen and then-resident of Tanzania. To secure the passport,
Batamula used his son’s photograph along with the name and birth date of a
different Tanzanian child, Z.M., who was a United States citizen.
Approximately three years later, Z.M’s parents applied for a passport for their
son only to discover that a passport had already been issued, displaying the
photograph of someone else’s child. When questioned by federal agents,
Batamula denied knowing the boy pictured in the fraudulent passport.
       Batamula was indicted on a single count of making a false statement to
a United States agent under 18 U.S.C. § 1001. By superseding criminal
information, he was charged with making a false statement to a federal agent
and an additional count of making a false statement in an application for a
United States passport in violation of 18 U.S.C. § 1542. Batamula pleaded
guilty pursuant to a written plea agreement. During the plea proceeding,
Batamula informed the court that he had spoken with his attorney about the
charges approximately ten times and that he was “fully satisfied” with his
attorney’s advice and counsel. Before accepting the plea, the district court
judge admonished both Batamula and a second defendant present at the
proceedings, stating: “The offenses that you’re pleading guilty to are felonies.



       1 To protect the identity of the minor children involved, we refer to them by their first
and last initials.
                                               2
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                                     No. 12-20630
That means that each of you will likely be deported after you serve your
sentence.” The court found Batamula’s guilty plea knowing and voluntary,
accepted his guilty plea as to both counts, and sentenced him to time served,
one year of supervised release, and a $2000 fine.
       Batamula then moved to set aside his conviction and sentence pursuant
to 28 U.S.C. § 2255, claiming that his attorney provided ineffective counsel
under Padilla v. Kentucky, 559 U.S. 356 (2010), by failing to advise him that
pleading guilty to both charges could result in his deportation. In support of
his § 2255 motion, Batamula averred in a sworn affidavit that if his attorney
had advised him of the mandatory deportation consequences of pleading guilty,
then he would have refused to “make the plea,” would have pleaded not guilty,
and would have insisted on going to trial “as that would have been [his] only
alternative to avoid deportation.” Batamula attached an affidavit from his trial
counsel, which stated that the attorney did not advise him that pleading guilty
to both charges would make him mandatorily deportable. He also submitted
an affidavit from his immigration attorney, which explained that his guilty
plea rendered him presumptively deportable under 8 U.S.C. § 1227(a)(2)(A)(ii)
because his convictions are considered crimes of moral turpitude.
       The district court granted the Government’s motion for summary
judgment and denied Batamula’s § 2255 motion without an evidentiary
hearing, finding that Batamula had “shown no right to relief.” 2 The court
reasoned that “even if Batamula’s attorney was deficient in failing to inform
[him] of the immigration consequences of his guilty plea,” Batamula failed to
show the deficiency prejudiced him. The court concluded that Batamula did
know about the deportation consequences because “before accepting his guilty


       2  See United States v. Guerra, 588 F.2d 519, 521 (5th Cir. 1979) (explaining that
district courts may dismiss § 2255 petitions without a hearing when the petitioner presents
a “patently frivolous claim[]”).
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                                      No. 12-20630
plea the court informed him that he would likely be deported after he served
his sentence.” This court granted Batamula a COA, and in a per curiam opinion
reversed the district court on the narrow question of whether a judicial
warning of likely deportation alone forecloses a defendant’s claim of prejudice.
Thereafter, we granted en banc rehearing.
                                            II.
            We review de novo a district court’s legal conclusions in denying a
motion under 28 U.S.C. § 2255. United States v. Ghali, 699 F.3d 845, 846 (5th
Cir. 2012). We review factual findings for clear error. United States v. Cavitt,
550 F.3d 430, 435 (5th Cir. 2008). “[W]e may affirm for any reason supported
by the record, even if not relied on by the district court.” United States v.
Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009).
       Batamula’s claim for relief turns on whether he affirmatively showed
that counsel’s deficient advice regarding the deportation consequences of his
guilty plea resulted in prejudice. 3 He alleges that: (1) instead of insisting on
trial on the original one-count indictment, he pleaded guilty to the two charges;
(2) his “plea made his deportation presumptively mandatory”; (3) his “lawyer
did not advise him that [his] guilty plea . . . would render his deportation
presumptively mandatory”; and (4) had his lawyer “informed him about the
immigration consequences of his plea, [he] would have plead[ed] not guilty and
insisted on going to trial or sought to eliminate one count” in the plea deal.
Batamula’s allegations are supported by the affidavits he filed with his
petition.




       3On appeal, the parties focus their arguments on whether Batamula can establish
prejudice as a result of his counsel’s performance. Accordingly, we do not address whether
counsel provided deficient representation, and confine our analysis to the second Strickland
prong—whether Batamula has made a sufficient showing of prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
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                                        No. 12-20630
       To avoid summary dismissal and obtain a hearing, however, Batamula
had to allege a non-frivolous prejudice claim. See Guerra, 588 F.2d at 521.
Establishing prejudice under Strickland, requires Batamula to show a
reasonable probability that “but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985). In other words, Batamula has to demonstrate that going to trial
under the one-count indictment would have given him a reasonable chance of
obtaining a more favorable result. The court’s prediction about whether the
defendant had a reasonable chance of obtaining a more favorable result “should
be made objectively, without regard for the ‘idiosyncrasies of the particular
decisionmaker.’” Id. at 60 (quoting Strickland, 466 U.S. at 695); see also Pilla
v. United States, 668 F.3d 368, 373 (6th Cir. 2012) (“[Defendant] cannot [show
prejudice] merely by telling us now that she would have gone to trial then if
she had gotten different advice. The test is objective, not subjective[.]”).
       We explained, in United States v. Kayode, that “[i]n assessing prejudice,
we consider the totality of the circumstances.” 777 F.3d 719, 725 (5th Cir.
2014). 4 Unlike the defendant in Kayode, Batamula did “aver that he would
have gone to trial had he known of the immigration consequences of his plea.”
Id. at 725–26. On the other hand, Batamula did not attempt to show that he
was likely to succeed at trial. Indeed, in response to the Government’s
argument that his chances at trial were slim, Batamula claimed that


       4  In Kayode, we also mentioned a non-exhaustive list of potentially relevant factors,
including: (1) the defendant’s “evidence to support his assertion” that he would have gone to
trial had he known the likely deportation consequences of his plea; (2) “his likelihood of
success at trial”; (3) “the risks [he] would have faced at trial”; (4) his “representations about
his desire to retract his plea”; (5) “his connections to the United States”; and (6) “the district
court’s admonishments.” Id. Although Kayode was not published until after this case was
fully briefed on appeal, it was established at the time Batamula filed his habeas petition that
the prejudice inquiry “requires [a] probing and fact-specific analysis.” Sears v. Upton, 561
U.S. 945, 955 (2010). Batamula cannot be excused for failing to adduce available evidence
that was relevant to the prejudice analysis.
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                                       No. 12-20630
questioning the likelihood of success at trial was “beyond the prejudice prong
of Strickland.” And on this point, the record shows that at least two federal
agents could testify at trial that Batamula lied to them by claiming not to
recognize a picture of his own son. Batamula does not address the risks that
he would have faced at trial, while the Government points to evidence that
going to trial would have increased the length of his sentence. Batamula did
not attempt to show that he had significant connections with the United
States, and the record suggests that he does not have the depth of connection
that we found favored the defendant in Kayode. Batamula did not move to
withdraw his plea, and thus never mentioned that factor in his habeas petition.
Most importantly, the district court admonished Batamula and another
defendant that they were pleading guilty to felonies, and thus “each of [them]
[would] likely be deported after you serve your sentence.” While the district
court did not examine Batamula as thoroughly on the deportation issue as the
district court did in Kayode, cf. 777 F.3d at 729, the district court’s warning to
Batamula that deportation was “likely” was stronger than the court’s
admonishment in Kayode that pleading guilty “may lead to your deportation,”
id. 5 See McCarthy v. United States, 394 U.S. 459, 465 (1969) (“[T]he more
meticulously [Rule 11] is adhered to, the more it tends to discourage, or at least
to enable more expeditious disposition of, the numerous and often frivolous



       5 Here, the district court’s analysis mirrors the analysis cited by Kayode as an example
of a fact-intensive inquiry. 777 F.3d at 729 n.9 (citing DeVille v. Whitley, 21 F.3d 654, 660
(5th Cir. 1994)). In DeVille, a panel of this court reasoned as follows:
        Even assuming that Appellants’ counsel were in some respect deficient in their
        explanation of the motion to suppress, the state trial court asked both
        petitioners whether they understood that they were entitled to a suppression
        hearing and whether they were willing to waive that hearing. Both Appellants
        responded that they understood and were willing to waive the right to the
        hearing. The court’s admonishment cured any deficiency in counsel’s
        performance and made the error harmless.
21 F.3d at 660.
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                                      No. 12-20630
post-conviction attacks on the constitutional validity of guilty pleas.”); Kayode,
777 F.3d at 729.
       Comparing this case to Kayode, Batamula’s prejudice showing is the
weaker of the two. Before the district court, Batamula—who has the burden to
establish prejudice—made allegations and adduced evidence suggesting only
that he would have proceeded to trial had he known the deportation
consequences of his conviction. Batamula failed to adduce any other evidence
relevant to the prejudice determination. The district court did not err by
concluding, under a totality of the circumstances test, that “Batamula ha[d]
not shown that [his attorney’s] deficiency prejudiced him.” The district court
was not required to cast about in the record looking for allegations and
evidence concerning other potential factors mentioned in Kayode; 6 the court
rightly held Batamula to his burden.
       Stepping back and addressing the totality of the circumstances shows
that Batamula failed to allege even a rational explanation for his desire to
proceed to trial. Batamula’s argument is that, with competent advice from
counsel, he “could have faced trial on a single count and avoided an automatic
deportation.” This argument is based on the fact that, under 8 U.S.C.
§ 1227(a)(2)(A), an alien who has been in the country for more than five years
is deportable only if he commits two separate crimes involving moral
turpitude. 7




       6  See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
       7  Section 1227(a)(2)(A)(i) provides that “[a]ny alien who–(I) is convicted of a crime
involving moral turpitude committed within five years . . . after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is
deportable.” Section 1227(a)(2)(A)(ii) provides that “[a]ny alien who at any time after
admission is convicted of two or more crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct . . . is deportable.”
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                                  No. 12-20630
      Batamula’s theory of prejudice relies on two dubious assertions: first,
that he was not deportable under § 1227 at the time he pleaded guilty; and
second, that if he had refused to plead guilty, the Government would have gone
to trial under the one-count indictment without adding additional charges. The
Government argues that Batamula failed to show prejudice because he was
already deportable for having overstayed his visa under § 1227(a)(1)(C)(i). The
record and controlling law unequivocally support the Government’s position.
Because the undisputed record evidence shows that Batamula’s first assertion
is false, we do not address the second.
      Section 1227(a)(1)(C)(i) provides that “[a]ny alien who was admitted as
a nonimmigrant and who has failed to maintain the nonimmigrant status in
which the alien was admitted . . . is deportable.” Batamula is deportable under
this subsection if he “was admitted as a nonimmigrant for a temporary period,
. . . the period has elapsed[,] and . . . [he] has not departed.” Equan v. INS, 844
F.2d 276, 278 (5th Cir. 1988). Undisputed record evidence shows that
Batamula entered the U.S. on a non-immigrant F-1 student visa, the visa
expired, and Batamula did not depart the country. Accordingly, Batamula’s
deportability under § 1227 was a fait accompli before he pleaded guilty under
the two-count information. Proceeding to trial under the one-count indictment
would not change his deportable status. Under these circumstances, Batamula
has failed to put forward a rational explanation of his desire to proceed to trial.
See Padilla, 559 U.S. at 372.
      Batamula contends that the Government’s “claim that [he] was in a class
of deportable alien[s] under 8 U.S.C. § 1227(a)(1)(C)(i) ignores his marriage, or
infers too much from a limited record concerning a petition for alien relative
(I-130).” This is mistaken. First, even assuming—contrary to the undisputed
record evidence—that United States Citizenship and Immigration Services
(“USCIS”) was not revoking Batamula’s approved I-130 petition, “nothing in
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                                        No. 12-20630
the Immigration and Nationality Act immunizes a deportable alien from
deportation when a[n] [I-130] visa petition filed on his behalf is approved.”
Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990). 8 Accordingly, whether
or not Batamula’s marriage is bona fide, 9 his marriage and approved I-130
petition do not alter his deportable status under § 1227(a)(1)(C)(i). Second,
Batamula fails to even allege, much less to adduce any evidence, that he has
submitted an I-485 petition for adjustment of non-immigrant status. 10 Thus,
this court has no basis to infer that Batamula’s marriage and approved I-130
petition have any effect on his deportable status under § 1227(a)(1)(C)(i).
Because Batamula was already deportable under § 1227(a)(1)(C)(i) before he
pleaded guilty under the two-count information, it would not have been
rational for him to proceed to trial in the hopes of avoiding deportability under
another subsection of § 1227. Batamula’s failure to put forth even a rational
explanation for his desire to proceed to trial means that he did not carry his
burden to show prejudice.




       8   Accord Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1104–05 (9th Cir. 2011)
(quoting Perales for same proposition); United States v. Atandi, 376 F.3d 1186, 1192 (10th
Cir. 2004) (stating that “courts have consistently held that an alien is not authorized to be in
the United States simply because an I-130 visa petition had been filed on his or her behalf
and/or approved by the government,” and quoting Perales for same proposition); Der-Rong
Chour v. INS, 578 F.2d 464, 468 (2d Cir. 1978) (holding that “the approval of the [petitioner’s]
I-130 petition [did not] permit him to remain in the United States”); see also United States v.
Elrawy, 448 F.3d 309, 314 (5th Cir. 2006) (explaining that, even after I-130 petition is
approved, “an alien who has acquired unlawful or illegal status . . . by overstaying a visa
. . . cannot relinquish that illegal status until his [I-485] application for adjustment of status
is approved”).
         9 The record evidence suggests that the marriage is not bona fide. Two prior

applications for residency had been denied for failure to meet the burden of proof of marriage,
and Batamula’s third application was in the process of being denied for marriage fraud.
         10 See generally National Immigration Project of the National Lawyers Guild, 1

Immigration Law & Defense § 4:145, Westlaw (database updated Feb. 2015) (explaining that
alien files application for adjustment of status after preliminary procedures, such as getting
I-130 petition approved, have been completed); id. § 4:149 (discussing Form I-485 for
adjustment of status).
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                                No. 12-20630
                                     III.
      Batamula failed to allege facts or adduce evidence showing that the
outcome of the plea process would have been different with competent advice.
The record conclusively established that he was deportable before his guilty
plea, and he remained so afterward. Thus, his prejudice claim is frivolous. The
district court was correct to summarily dismiss the claim without holding an
evidentiary hearing. We AFFIRM.




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                                  No. 12-20630
      JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge,
joins, dissenting:

      The en banc majority’s triple derelictions of its appellate court duties in
a single opinion may be a record-breaker. Accordingly, I respectfully dissent.
       First, the majority opinion fails to correct the district court’s threshold
error of law—its holding that a judicial admonition of possible deportation
during a guilty-plea colloquy automatically erases any prejudice caused a
defendant by the deficient performance of his counsel.          This holding was
reversible error for the reasons assigned by the panel opinion. See United
States v. Batamula, 788 F.3d 166 (5th Cir. 2015).           The majority opinion,
however, leaves the error unaddressed and uncorrected by passing over it in
silence as it attempts to uphold the district court’s judgment on other grounds.
In doing so, the majority opinion tacitly encourages other judges to repeat the
same error. If the error becomes widely imitated by other district courts, non-
citizens’ ineffective assistance of counsel claims established by Padilla v.
Kentucky, 559 U.S. 356 (2010), will be severely undermined in our circuit. The
majority opinion’s failure to correct the threshold error by the district court is
thus a serious and harmful dereliction of the en banc court’s appellate
responsibility.
      Second, the majority opinion errs again by tacitly approving the district
court’s refusal to grant a federal prisoner an evidentiary hearing on his well
pleaded motion for habeas corpus under 28 U.S.C. § 2255, although the files
and records of the case do not conclusively show that he is entitled to no relief.
This court has explained that “where petitioner’s allegations, if proven would
entitle him to relief, he is entitled to an evidentiary hearing and an opportunity
to prove the truth of the matters asserted” unless his claims are “fully refuted
by the record and files.” Powers v. United States, 446 F.2d 22, 24 (5th Cir.
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                                        No. 12-20630
1971). The district court’s refusal was therefore an abuse of discretion, and the
majority opinion errs in failing to correct it.
        Third, in light of the district court’s error and abuse of discretion, the
majority opinion should have vacated the district court’s judgment and
remanded the case for further proceedings based on the applicable legal
principles. Instead, the majority opinion exponentially compounds its own
mistakes by improperly acting as a fact-finding tribunal; by finding facts not
ruled upon or subjected to adversarial testing below; and by testing the
boundaries of its jurisdiction in acting as an immigration court to determine
that Batamula is irrevocably deportable and therefore incapable of suffering
any prejudice because of his ineffectively counseled guilty plea.
       I.     Substantive Error of Law
       In response to Batamula’s 28 U.S.C. § 2255 motion, the district court
without granting a hearing or taking evidence, reversibly erred by holding as
a matter of law that the guilty plea judge’s generic, unilateral statement
during the Federal Rule of Criminal Procedure 11 colloquy that Batamula
would “likely be deported” after serving his sentence, by itself, cured any
prejudice Batamula may have suffered as a result of his attorney’s failure to
properly advise him that his guilty plea to two offenses involving moral
turpitude would make him mandatorily deportable. In Padilla, the Supreme
Court held that the Sixth Amendment requires an attorney for a noncitizen
criminal defendant to provide advice about the risk of deportation arising from
a guilty plea. 1 559 U.S. at 369-70. The Court noted that “the negotiation of a


       1 In Padilla, the Court noted that “when the deportation consequence is truly clear,
as it was in this case, the duty to give correct advice is equally clear.” 359 U.S. at 369-70. As
in that case, the terms of the relevant immigration statute are succinct, clear, and explicit in
defining the removal consequence for Batamula’s convictions. See 8 U.S.C. § 1227(a)(2)(A)(ii)
(“Any alien who at any time after admission is convicted of two or more crimes involving
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                                       No. 12-20630
plea bargain is a critical phase of litigation for purposes of the Sixth
Amendment right to effective assistance of counsel” and recognized that “[t]he
severity of deportation—‘the equivalent of banishment or exile’—only
underscores how critical it is for counsel to inform her noncitizen client that he
faces a risk of deportation.” Id. at 373-74 (quoting Delgadillo v. Carmichael,
332 U.S. 388, 390-391 (1947)). If imitated by other habeas courts, the rule
imposed by the district court—and left uncorrected by the en banc majority
opinion—would render Padilla’s holding null and void by permitting
sentencing judges to categorically erase any claim of prejudice and eliminate
any chance of relief by simply including a rote “likely deportation” advisory
during every guilty plea colloquy.
       The erroneous assumption that a generic judicial statement, after the
plea has already been entered, 2 that deportation is “likely,” by itself, cures any
prejudice caused by counsel’s deficient performance during plea negotiations
also ignores the realities of plea negotiations and plea colloquies—primarily
the facts that a defendant chooses to plead guilty before the plea hearing and
is not likely to change his mind during the hearing. As the Padilla court
recognized, “[c]ounsel who possess the most rudimentary understanding of the
deportation consequences of a particular criminal offense may be able to plea
bargain creatively with the prosecutor in order to craft a conviction and
sentence that reduce the likelihood of deportation.” Padilla, 559 U.S. at 373.
In his habeas petition and supporting affidavit, Batamula alleged that if his



moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of
whether confined therefor and regardless of whether the convictions were in a single trial, is
deportable.”).
       2 Although the district court had not yet accepted Batamula’s guilty plea when it made

its admonition, Batamula had previously signed a plea agreement and had affirmed that he
“wish[ed] to plead guilty.”
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                                  No. 12-20630
“plea attorney had correctly informed him about the immigration consequences
of his plea, [he] would have plead[ed] not guilty and insisted on going to trial
or sought to eliminate one count” from the charge. It is undisputed that if
Batamula had successfully eliminated one count, his plea would not have
rendered him mandatorily deportable. See 8 U.S.C. § 1227(a)(2)(A)(ii). By
ignoring this very real form of prejudice, the categorical rule applied by the
district court flouts Padilla’s directive and defeats its impact.
      In Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012), the Court made clear,
as it did in Padilla, that it has firmly “rejected the argument . . . that a knowing
and voluntary plea supersedes errors by defense counsel.” See also Lafler v.
Cooper, 132 S. Ct. 1376, 1390 (2012) (“An inquiry into whether the rejection of
a plea is knowing and voluntary . . . is not the correct means by which to
address a claim of ineffective assistance of counsel.”). And the Court has long
distinguished the unique and critical obligations of defense counsel during the
plea bargaining process from the far more limited role of a district court to
ensure a minimally valid guilty plea. See Frye, 132 S.Ct. at 1406; Lafler, 132
S.Ct. at 1390; Padilla, 559 U.S. at 364-65. As the panel opinion in this case
aptly explained, the straightforward logic of these cases leads to the conclusion
that a sentencing judge’s generic advisory of “likely” deportation does not
categorically erase prejudice stemming from the ineffective assistance of
counsel in negotiating and advising on the plea. By grounding its decision that
Batamula did not suffer prejudice as a result of his counsel’s errors in his
immigration status, the en banc majority opinion may have implicitly rejected
the categorical approach taken by the district court. But by failing to explicitly
correct the district court’s error and adopt the panel’s holding that “a judge’s
admonition at the plea colloquy that deportation is ‘likely’ does not
automatically ‘wipe clean’ any prejudice caused by counsel’s failure to advise
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                                  No. 12-20630
his client of the immigration consequences of the guilty plea,” Batamula, 788
F.3d at 173, the majority opinion has left the door open for other district courts
to repeat the same mistake and, in doing so, has imperiled the Sixth
Amendment rights of noncitizen defendants in our circuit.
      II.   Failure to Grant Evidentiary Hearing
      Under 28 U.S.C. § 2255, when a federal prisoner alleges facts that, if
proven, would entitle him to relief from an unconstitutional sentence, the
district court is required to grant a hearing to “determine the issue and make
findings of fact and conclusions of law with respect thereto” unless “the motion
and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In Machibroda v. United States, 368
U.S. 487, 494-95 (1962), the Supreme Court explained that the relevant “files
and records” relate only to proceedings before the district court, not to
“occurrences outside the courtroom” or to circumstances that are not “of a kind
that the District Judge could completely resolve by drawing upon his own
personal knowledge or recollection.”        The district court, in determining
whether summary dismissal is appropriate, is not permitted to make findings
on controverted issues of fact without a hearing, United States v. Hayman, 342
U.S. 205, 219-20 (1952), or to judge ex parte the plausibility of a petitioner’s
allegations, Walker v. Johnston, 312 U.S. 275, 287 (1941).         As this court
explained in Powers:
            Dismissal of a complaint without a hearing is justified when
      assuming the factual allegations pleaded by the prisoner to be true
      (or finding them fully refuted by the record and files) it
      conclusively appears that he would not be entitled to relief.
      Conversely stated, where petitioner’s allegations, if proven would


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                                 No. 12-20630
      entitle him to relief, he is entitled to an evidentiary hearing and
      an opportunity to prove the truth of the matters asserted.

      446 F.2d at 24 (internal citation omitted). In other words, where a
petitioner makes specific factual claims that are “not speculative, conclusory,
plainly false, or contradicted by the record,” he is entitled to an evidentiary
hearing. See United States v. Reed, 719 F.3d 369, 374 (5th Cir. 2013).
      The district court’s threshold substantive error necessarily stopped
short the analysis required by § 2255—having erroneously concluded that
Batamula could not establish prejudice because he was warned that he would
“likely” be deported after he served his sentence, the district court did not
determine whether his pleadings were otherwise sufficient.           In order to
warrant relief under Strickland v. Washington, 466 U.S. 668, 688 (1984), a
petitioner must show that counsel’s performance was deficient and that the
deficient performance prejudiced the defense.         “In the context of pleas a
defendant must show the outcome of the plea process would have been different
with competent advice.” Lafler, 132 S. Ct. at 1384 (citing Frye, 132 S. Ct. at
1388-89; Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
      Batamula’s allegations, if proven, meet this standard, and his motion
and the files and records of his case do not “conclusively show” that he is not
entitled to relief. In his § 2255 motion, Batamula asserted that “[his] plea
lawyer did not advise him that a guilty plea to two [crimes of moral turpitude]
would render his deportation presumptively mandatory” and that “[i]f [his]
plea attorney had correctly informed him about the immigration consequences
of his plea, [he] would have plead[ed] not guilty and insisted on going to trial
or sought to eliminate one count.” In his affidavit, Batamula again asserted
that his attorney “told [him] nothing of the legal consequences under the
immigration laws of the U.S. to the plea of guilty [he] made to two counts” and
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                                   No. 12-20630
that, had he received the correct information, he would have refused to take
the plea and would have attempted to proceed to trial on the original one count
indictment, “as that would have been [his] only alternative to avoid
deportation.” Leroy Simms, Batamula’s trial attorney, stated in an affidavit
that he “advised [Batamula] on immigration consequences solely based on the
language (if any) of the plea agreement provided by the [U.S. Attorney’s]
office.”      It is undisputed that the written plea agreement contained no
reference to the immigration consequences of Batamula’s guilty plea.
       Batamula is not required at the initial pleading stage to prove that he
could have successfully pleaded to a single count or prevailed at trial. Powers,
446 F.2d at 24 (“We express no view as to [the petitioner’s] chances of ultimate
success in proving his case. We simply direct that a forum be provided him in
which to attempt proof of them.”). Taken as true, Batamula’s statements are
sufficient to establish that he received constitutionally deficient assistance of
counsel and that but for counsel’s error he would not have pleaded guilty to
two crimes of moral turpitude. Cf. Reed, 719 F.3d at 374-75 (petitioner’s
allegations of deficient plea advice and resulting prejudice, supported by an
affidavit in which he makes “a specific factual claim based on personal
knowledge,” are sufficient to warrant a hearing under § 2255). The district
court thus did not proceed in conformity with § 2255 when it passed over the
controverted issues of fact relating to Batamula’s own knowledge without
granting him a hearing thereon, and the majority opinion ignores this court’s
appellate duties in failing to correct the district court’s error.
       III.     Compounding Structural and Jurisdictional Errors Committed by
                the Majority Opinion
       In an attempt to justify the district court’s dismissal of Batamula’s
petition the en banc majority opinion applies the incorrect legal standard and

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                                  No. 12-20630
mischaracterizes the factual record.         The majority opinion states that
“Batamula’s claim for relief turns on whether he affirmatively showed that
counsel’s deficient advice regarding the deportation consequences of his guilty
plea resulted in prejudice.” Op. at 4 (emphasis added). This is a patent
mischaracterization of the applicable standard that would place an
erroneously heightened burden on habeas petitioners at the summary
dismissal stage. A petitioner is not required to prove with evidence that he is
entitled to relief in order to obtain an evidentiary hearing; he must only allege
facts that, if proven true, would entitle him to relief. See, e.g., Powers, 446 F.2d
at 24; Arrastia v. United States, 455 F.2d 736, 740 (5th Cir. 1972) (remanding
for an evidentiary hearing pursuant to § 2255 because “if [the defendant] can
prove that which he has alleged . . . then he . . . must be granted relief”).
      Then, finding that Batamula failed to meet this exaggerated and
unprecedented burden, the majority opinion asserts that summary dismissal
was proper because Batamula failed to show that his attorney’s deficient
performance prejudiced him. Specifically, the majority opinion argues that
“[b]ecause Batamula was already deportable under § 1227(a)(1)(C)(i) before he
pleaded guilty under the two-count information, it would not have been
rational for him to proceed to trial in the hope of avoiding deportability under
another subsection of § 1227” and he thus cannot demonstrate prejudice. Op.
at 8-9. First, and contrary to the majority opinion’s contentions, Batamula
does not make any assertions relating to his deportability under §
1227(a)(1)(C)(i).    Rather, he alleges that he was attempting to adjust his
immigration status at the time of his prosecution by having his marriage to a
citizen recognized and that a conviction for two crimes of moral turpitude
adversely affected him by rendering him “presumptively” or “manditor[ily]”
deportable. Under these circumstances, seeking to avoid an outcome that
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                                 No. 12-20630
would destroy his chances of adjusting his status and result in near-certain
deportation—even by rolling the dice and going to trial in hopes of a long-shot
acquittal—would certainly be “rational.”
      Furthermore, the record as it related to Batamula’s immigration status
is far from conclusive. Although Scott Stalla, a special agent with the Bureau
of Diplomatic Security, testified at the July 29, 2011 detention hearing that
Batamula was “out of status currently,” and “ha[d] an I.C.E. detainer,” he
repeatedly clarified that Batamula was not in the country illegally, and he did
not state that Batamula was subject to deportation. Josephine Anassi, the
immigration attorney who was employed by Batamula’s wife to prepare the
couple’s marriage-based residency applications, testified that even after
Batamula’s application for residency had been denied three times, “there [is]
still a chance that [Batamula] can still get an immigration visa.”           And
Magistrate Judge Nancy Johnson, who presided over the detention hearing,
was not called upon to make, and did not make, a conclusive finding as to
Batamula’s immigration status.       The record thus does not demonstrate
conclusively that “Batamula’s deportability under § 1227 was a fait accompli
before he pleaded guilty under the two-count information,” Op. at 8, and it does
not conclusively show that he cannot prove that his guilty plea worsened his
chances of avoiding deportation.     “The Government’s contention that his
allegations are improbable and unbelievable cannot serve to deny [him] an
opportunity to support them by evidence [at an evidentiary hearing].” Walker
312 U.S. at 287. Because the files and records of the case were not conclusive,
Batamula was entitled to an opportunity to be heard, “however convincing the
[Government’s] ex parte showing.” Hayman, 342 U.S. at 220.
      Whether a defendant suffered prejudice is a question of fact that requires
determination by the district court. See United States v. Kayode, 777 F.3d 719,
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                                      No. 12-20630
729 n.9 (5th Cir. 2014) (discussing the “fact-intensive nature of the prejudice
analysis”). Batamula’s specific factual allegations of prejudice are not fully
refuted by the record; the majority opinion’s finding that he did not suffer
prejudice is based on mere conjecture regarding his immigration status and his
likelihood of deportation, not on the files and records of the case. Batamula
has therefore adequately raised the issue of whether he was prejudiced as a
result of his attorney’s failure to advise him of the immigration-related
consequences of his plea. See Powers, 446 F.2d at 24. To settle that issue
without allowing him to present evidence at an evidentiary hearing is to violate
§ 2255 and to flout the Supreme Court’s clear directives. See Hayman, 342
U.S. at 220 (“[T]he District Court did not proceed in conformity with Section
2255 when it made findings on controverted issues of fact . . . without notice to
respondent and without his being present.”); Townsend v. Sain, 372 U.S. 293,
312-13 (1963) (“[A] federal evidentiary hearing is required unless the . . . trier
of fact has after a full hearing reliably found the relevant facts.”). 3
       Finally, even absent § 2255’s clear mandate, the majority opinion’s
decision to reach the Government’s fallback arguments that Batamula was
deportable even in the absence of the conviction—which the district court itself
never reached 4—is inappropriate and inconsistent with the rules of orderly



       3 Although Townsend involved a § 2254 petition, the Supreme Court made clear in
Kaufman v. United States, 394 U.S. 217, 227 (1969), that the same standard applied to both
state and federal prisoners. While AEDPA amended the fact-finding procedures for petitions
under § 2254, it did not amend those for petitions under § 2255.
       4 The district court considered only the Rule 11 colloquy in holding that Batamula

“cannot” establish prejudice as a matter of law, asserting that “even if Batamula’s attorney
was deficient in failing to inform Batamula of the immigration consequences of his guilty
plea, Batamula has not shown that such a deficiency prejudiced him because before accepting
his guilty plea the court informed him that he would likely be deported after he served his
sentence.” It is factually incorrect to say that the district court here somehow implicitly
applied a totality of the circumstances test.
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                                  No. 12-20630
judicial procedure.   In Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982),
the Supreme Court observed that it is “elementary” that “[w]hen an appellate
court discerns that a district court has failed to make a finding because of an
erroneous view of the law, the usual rule is that there should be a remand for
further proceedings to permit the trial court to make the missing findings.”
And while this court has recognized that we may affirm a grant of summary
judgment on any appropriate ground that was raised to the district court, such
ground must be one “upon which both parties had the opportunity to introduce
evidence.”   Conkling v. Turner, 18 F.3d 1285, 1296 n.9 (5th Cir. 1994))
(emphasis added). Because of its erroneous view of the law, the district court
did not make factual findings and did not afford Batamula any opportunity to
introduce evidence to prove the facts alleged in his habeas claim, including
those related to his immigration status. To affirm on the basis of his purported
deportability therefore contravenes established appellate procedure.
      Further, to the extent that it decides the question of Batamula’s
deportability, the majority opinion approaches, if not exceeds, the limits of this
court’s jurisdiction. In Reno v. American Arab Anti-Discrimination Committee,
525 U.S. 471, 492 (1999), the Supreme Court held that the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 deprives federal courts of
jurisdiction to decide whether the Attorney General can commence deportation
proceedings, adjudicate cases, or execute deportation orders. Yet by holding
that Batamula cannot prove prejudice because he is certain to be deported, the
majority opinion appears to have decided that the Attorney General can—and
will—commence deportation proceedings against him. Viewed in this light,
the majority opinion rests on a premise that this court lacks the authority to
declaim. See 8 U.S.C. § 1252(g); AAADC, 525 U.S. at 492.
                                            *
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                                 No. 12-20630
      The en banc majority opinion affirms the judgment of the district court
without expressly correcting that court’s serious legal error and without
affording the petitioner the opportunity to present evidence in support of his
allegation of prejudice. Instead of vacating the district court’s decision, which
was based on a clear error of law and constituted an abuse of discretion, the
majority finds facts at the appellate level from a record that is woefully
inadequate and incomplete for that purpose. The majority defaults on its duty
to correct errors of law committed by district courts and supersedes the
function of the district court in conducting evidentiary hearings and making
factual findings in the first instance. As a result, the majority unconscionably
casts Batamula out in its error-filled decision based on rank speculation as to
Batamula’s fate in any future immigration proceedings.            Because this
resolution is inconsistent with this court’s precedent, the requirements of
§ 2255, and the clear directives of the Supreme Court, I must respectfully
dissent.




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