Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  March 9, 2012                                                                      Robert P. Young, Jr.,
                                                                                               Chief Justice

  142320                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
                                                                                         Brian K. Zahra,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                  Justices
            Plaintiff-Appellee,
  v                                                       SC: 142320
                                                          COA: 298964
                                                          Macomb CC: 1998-003105-FH
  WAMIDH BUTIRUS,
             Defendant-Appellant.
  _________________________________________/

          On order of the Court, the application for leave to appeal the December 1, 2010
  order of the Court of Appeals is considered, and it is DENIED, because the defendant has
  failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

         MARKMAN, J. (concurring).

         I concur in the Court’s order denying leave to appeal. In 1998, defendant, a
  noncitizen, pleaded no contest to fourth-degree criminal sexual conduct. Subsequently,
  the United States Supreme Court held that a criminal defense attorney must “advise a
  noncitizen client that pending criminal charges may carry a risk of adverse immigration
  consequences.” Padilla v Kentucky, 559 US ___; 130 S Ct 1473, 1483; 176 L Ed 2d 284
  (2010). Later, in May 2010, defendant filed a motion for relief from judgment, alleging
  that his trial counsel had provided ineffective assistance of counsel by failing to advise
  him of the immigration consequences of his no-contest plea. The trial court denied this
  motion, and the Court of Appeals denied leave to appeal. In order to obtain relief,
  defendant must establish that he was actually prejudiced by his counsel’s failure to advise
  him concerning the risk of adverse immigration consequences. MCR 6.508(D)(3)(b);
  Padilla, 130 S Ct at 1483. Even assuming that Padilla applies retroactively to this case,
  as the trial court explained, “defendant has not proffered any evidence (i.e., an affidavit)
  establishing that his trial counsel failed to discuss the immigration ramifications of a
  guilty plea.” Defendant also failed to present any evidence that he was actually
  prejudiced by such a failure. Defendant has since filed an affidavit with this Court in
  which he avers that his attorney failed to advise him of the immigration consequences of
                                                                                                               2

his plea and that he would not have pleaded no contest had he known that he would be
deported. He also avers that he has been ordered deported to Iraq, but because of the war
in that country, the Department of Homeland Security has placed him under an order of
supervision until it is safe to physically deport him. However, even assuming that this
affidavit would be a sufficient offer of proof, it was never submitted to the trial court.
Therefore, I cannot conclude that the trial court erred by denying defendant’s motion for
relief from judgment.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 9, 2012                       _________________________________________
       h0306                                                                 Clerk
