Present: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan,
and Powell, JJ., and Koontz, S.J.

MICHAEL BERHANE ZEMENE
                                           OPINION BY
v.   Record No. 140719     SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
                                       February 26, 2015
HAROLD CLARKE, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS

             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Bruce D. White, Judge


      In this appeal, we consider whether the Circuit Court of

Fairfax County erred in dismissing Michael Berhane Zemene's

petition for writ of habeas corpus.    The court dismissed

Zemene's petition on the ground that he failed to establish

actual prejudice resulting from his counsel's failure to

advise him of the collateral consequences upon his immigration

status of accepting a plea agreement.    See Padilla v.

Kentucky, 559 U.S. 356, 367 (2010).

                         STANDARD OF REVIEW

     Because entitlement to habeas relief is a mixed question

of law and fact, the habeas court's findings and conclusions

are not binding upon this Court, but are subject to review to

determine whether the court correctly applied the law to the

facts.    Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d 368, 369

(1997).    Where, as in this case, the habeas court dismissed

the petition based upon a review of the pleadings without an

evidentiary hearing, we review the decision to dismiss the
petition de novo.   See Dominguez v. Pruett, 287 Va. 434, 440,

756 S.E.2d 911, 914 (2014).   "It is also well settled that

where, as here, the well pleaded allegations of the petition

are not denied they must be accepted as true."   Morris v.

Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961)(per

curiam).

                           BACKGROUND

     Zemene, a native of Ethiopia, lawfully immigrated to the

United States on June 29, 2000 at the age of nine.   Zemene's

immigration status as a "derivative asylee" was based upon his

father's membership in the All Amhara People's Organization,

an opposition political group subject to violent repression by

the government of Ethiopia.   Zemene's immigration status

changed to "lawful permanent resident" on October 25, 2005. 1

     On September 3, 2012, Fairfax County police responded to

a dispatch advising that a security officer at a grocery store

was detaining Zemene as a suspect for shoplifting.   Based upon

a statement taken from the security officer that Zemene was

apprehended attempting to shoplift beer valued at $33, police


     1
       A lawful permanent resident is an immigrant who has "the
status of having been lawfully accorded the privilege of
residing permanently in the United States," but has not yet
become a naturalized citizen. 8 U.S.C. § 1101(a)(20). The
documentation provided to the immigrant showing his status as
a lawful permanent resident is commonly known as a "green
card." See, e.g., United States v. Guijon-Ortiz, 660 F.3d
757, 759 (4th Cir. 2011).

                                2
arrested Zemene, taking him before a magistrate who issued a

warrant of arrest for petit larceny in violation of Code §

18.2-96.

     The original return date on the warrant charging Zemene

with petit larceny was October 10, 2012.    For reasons not

fully explained in the record, the case was continued to

December 5, 2012, and then again at the request of the

arresting officer to December 19, 2012.    Zemene failed to

appear on that date, and a bench warrant for his arrest was

issued.    Zemene was arrested on the bench warrant on January

8, 2013.

     On January 15, 2013, attorney Laurence Tracy was

appointed by the Fairfax County General District Court to

represent Zemene on the petit larceny and failure to appear

charges.   During their initial interview, Zemene informed

Tracy that "I was not a U.S. Citizen, but that I did have a

green card."   The entire interview took less than 30 minutes.

Zemene unsuccessfully made several attempts to contact Tracy

during the next month by phone.

     Ultimately, Zemene's trial in the general district court

was set for February 19, 2013.    On the morning of Zemene's

trial, Tracy advised Zemene that the Commonwealth had

"dropped" the failure to appear charge.    Tracy further

informed Zemene that in exchange for a guilty plea on the


                                  3
petit larceny charge, the Commonwealth had indicated that

Zemene would receive a 12 month suspended sentence, which

would permit Zemene to be released immediately so that he

would not be incarcerated on his birthday, which was the next

day.       Tracy advised Zemene that "this was the best deal that

he could get for me."      Zemene "wanted to consult more with Mr.

Tracy to see if this truly was a good deal; however, I felt

very rushed and signed the plea agreement."      At no time did

Tracy advise Zemene of the collateral consequences of the plea

and sentence upon Zemene's immigration status.      The general

district court accepted Zemene's plea of guilty, sentencing

him in accord with the agreement to 12 months incarceration

with all time suspended. 2

       On June 27, 2013, Zemene received a notice to appear from

the Department of Homeland Security's Immigration and Customs

Enforcement division ("ICE").      The notice informed Zemene that

he was subject to removal from the United States as a result

of his conviction under "a law relating to a theft offense

. . . for which a term of imprisonment [of] at least 1 year




       2
       The records of the general district court reflect that
three other misdemeanor charges against Zemene, including the
charge for failing to appear on December 19, 2012, were
dismissed by nolle prosequi during the same proceeding.

                                    4
was imposed." 3   See 8 U.S.C. § 1227(a)(2)(A)(iii).     Zemene was

taken into custody and held at the federal Farmville Detention

Center.

     On November 27, 2013, Zemene filed a petition for writ of

habeas corpus in the Circuit Court of Fairfax County against

Harold Clarke, the Director of the Virginia Department of

Corrections (hereinafter, "the Commonwealth").    Code

§ 8.01-654. 4   Zemene alleged that Tracy had rendered

ineffective assistance of counsel because Tracy lacked a

proper understanding of the collateral consequences upon

Zemene's immigration status that would result from the

conviction for petit larceny and a sentence of twelve months

when Tracy negotiated the plea agreement with the

Commonwealth, and also by failing to inform Zemene of the

negative impact of the plea agreement on his immigration

status.



     3
       We are cognizant of the recent decision in Omargharib v.
Holder, ___ F.3d___, 2014 U.S. App. LEXIS 24289, at *2 (4th
Cir. Sept. 14, 2014) which concludes that Virginia's grand
larceny statute, Code § 18.2-95, does not qualify as a
removable offense under 8 U.S.C. § 1101(a)(43)(G).
Nonetheless, that case does not alter our analysis of the
present case because Code § 18.2-96 is not "divisible," and
Zemene received a one year sentence.
     4
       Although he was then detained by federal authority,
Zemene asserted the jurisdiction of the state court under Code
§ 8.01-654(B)(3), as he was still subject to the terms of his
suspended sentence.

                                 5
     Zemene alleged that he had been prejudiced by Tracy's

ineffective assistance of counsel because had Tracy been armed

with a proper understanding of the immigration consequences,

he would have likely been able to negotiate a plea agreement

which avoided the risk of removal.   Zemene further alleged

that he had been prejudiced by the failure of Tracy to advise

him of the negative impact of the plea agreement on Zemene's

immigration status, and that, if he had been made aware that

accepting the plea agreement would lead to his being subject

to removal, "he would have gone to trial if he had not been

offered another deal."   The petition was supported by

affidavits from Zemene and Tracy.    On these grounds, Zemene

requested that the circuit court vacate his conviction for

petit larceny and grant him a new trial.

     On December 5, 2013, the circuit court entered an order

directing the Commonwealth to file a response to show cause

why the writ should not issue.   The order further provided

that Zemene was required to inform the court of any change in

his status with regard to the request for habeas relief.

     On January 13, 2014, before the Commonwealth filed its

response, a federal immigration court entered an order

stripping Zemene of his lawful permanent resident status and

ordering his removal from the United States.   In that same

order, the court exercised its discretion to withhold


                                 6
proceeding with the removal on the ground that "it is more

likely than not that [Zemene] would be persecuted on account

of race, religion, nationality, membership in a particular

social group, or political opinion upon removal to" Ethiopia.

See 8 U.S.C. § 1231(b)(2).

     On January 16, 2014, Zemene filed a revised petition for

writ of habeas corpus in the circuit court including details

of the actions taken by the immigration court.    Zemene

maintained that, despite the decision to withhold further

proceedings on his removal, he had suffered actual prejudice

as the result of Tracy's ineffective assistance of counsel

because the loss of his green card meant that he was no longer

able to seek employment and also because the order of the

immigration court imposed certain travel restrictions on him.

Moreover, because the withholding order could be lifted at any

time, Zemene remained subject to removal as a result of the

February 19, 2013 conviction for petit larceny.

     On January 22, 2014, the Commonwealth filed a motion to

dismiss Zemene's petition for writ of habeas corpus.    Without

expressly conceding that Tracy's representation of Zemene had

not met an objective standard of reasonableness for effective

representation of a criminal defendant, the Commonwealth

asserted that Padilla "addressed only the performance part of

the two-part Strickland[v. Washington, 466 U.S. 668 (1984)]


                               7
test" with respect to the failure to advise a client of the

collateral immigration consequences that could result from a

conviction.   The Commonwealth maintained that the mere fact

that the client was unaware of these consequences on his

immigration status was not sufficient to prove that he had

been prejudiced by counsel's ineffective representation.

     Rather, to establish that he had been prejudiced by

Tracy's failure to advise him of the immigration consequences

of accepting the plea, the Commonwealth, quoting Padilla, 559

U.S. at 372, maintained that Zemene was also required to

"convince the court that a decision to reject the plea bargain

would have been rational under the circumstances."    The

Commonwealth maintained that Zemene had failed to allege facts

sufficient to establish prejudice under this standard because

his "self-serving statement [is] unaccompanied by any claim of

innocence or articulation of any plausible defense he could

have raised had he gone to trial."   Moreover, the Commonwealth

asserted that in accepting the plea Zemene's "focus was on

being released by his birthday; his concern was not

[removal]."

     The Commonwealth further asserted that Zemene "offered no

evidence to show that had he gone to trial, he would have been

found not guilty of the larceny or that Commonwealth's

Attorney Robert McClain would have asked for anything less


                                8
than a 12 month sentence on the larceny offense."   Continuing,

the Commonwealth also asserted that Zemene had not shown that

the general district court "would have been willing to impose

a sentence of less than 12 months had [Zemene] gone to trial."

Thus, the Commonwealth contended that Zemene had "failed to

show a substantial likelihood of a different result had he

gone to trial."

     Responding to the Commonwealth's motion to dismiss his

petition for writ of habeas corpus, Zemene contended that the

Commonwealth's position failed to address the question of

prejudice objectively.   Thus, quoting United States v.

Akinsade, 686 F.3d 248, 255 (4th Cir. 2012)(quoting Ostrander

v. Green, 46 F.3d 347, 356 (4th Cir. 1995)), Zemene maintained

that "[e]ven when 'the prosecution's evidence "proved to be

more than enough" for a guilty verdict,' prejudice may still

be present."   Given that he was unaware of the immigration

consequences of accepting the plea agreement at the time Tracy

advised him to do so, Zemene maintained that he need only show

that it was objectively reasonable that a properly advised

defendant in his circumstances would have sought a better plea

agreement or chosen to go to trial and risk incarceration in

order not to lose his status as a lawful resident and be

returned to a country where he faced certain reprisal and

possible death at the hands of the government.   These


                                9
consequences pale in comparison to his alleged desire to be

released from jail in order to celebrate his birthday and have

another minor charge dismissed.

     Zemene supported his opposition to the motion to dismiss

with an affidavit further detailing his life history, his

strong ties to his family and community in the United States,

and the likely consequences of his being subject to reprisals

if forced to return to Ethiopia.   He also asked the circuit

court to take notice of Commonwealth v. Mohamed, 71 Va. Cir.

383 (2006), an opinion of the Circuit Court of Arlington

County showing that the court under a plea agreement had

reduced a two year sentence for grand larceny to less than one

year upon a showing that the defendant had not been advised by

his attorney of the negative consequences of the plea

agreement on the defendant's immigration status.

     The circuit court entered a final order dated February 6,

2014 sustaining the Commonwealth's motion to dismiss the

petition for writ of habeas corpus.   In doing so, the court

elected to address only the issue of prejudice, see, e.g.,

Jerman v. Director, Dept. of Corrections, 267 Va. 432, 438,

593 S.E.2d 255, 258 (2004), in order to determine whether

Zemene's petition had sufficiently alleged that he was

entitled to habeas relief.




                              10
     The court, citing Padilla, acknowledged that whether

prejudice resulted from Tracy's failure to advise Zemene of

the negative consequences of accepting the plea agreement

turned on whether "a decision to reject the plea bargain would

have been rational under the circumstances" when objectively

viewed.   Nonetheless, departing from this standard the circuit

court, following the argument of the Commonwealth, began its

analysis of that question by observing that Zemene made no

"claim of actual innocence or articulation of any plausible

defense" and "show[ed] no concern for [removal]" at the time

he accepted the plea agreement.     Stating its belief that "it

is highly likely [Zemene] would have been found guilty and it

[is] highly unlikely [Zemene] could demonstrate leniency in

sentencing," the court concluded that Zemene had failed to

establish that he suffered any prejudice as a result of

Tracy's failure to make Zemene aware of the negative

consequences on his immigration status of accepting the plea

agreement.   In dismissing the petition, the court did not

address Zemene's further claim that he had been prejudiced by

Tracy's failure to address the immigration issue in

negotiating the plea agreement with the Commonwealth.

                           DISCUSSION

     We awarded Zemene an appeal from the judgment of the

circuit court on the following assignment of error:


                               11
          The circuit court erred by utilizing an
     inappropriate standard to determine whether or not
     the prejudice prong under Strickland v. Washington,
     466 U.S. 668 (1984) was met in the context of a plea
     agreement.

     Before addressing the merits of Zemene's assignment of

error, we begin by briefly addressing two procedural issues

raised by the Commonwealth.   First, the Commonwealth contends

that Zemene's assignment of error is deficient because it does

not identify a specific ruling of the circuit court that, if

reversed, would entitle Zemene to the relief he requests of a

remand to the circuit court for further proceedings including

an evidentiary hearing.   We disagree.

     As we have recently explained, "it is the duty of an

appellant's counsel to lay his finger on the error in his

assignment of error, and not to invite an appellate court to

delve into the record and winnow the chaff from the wheat."

Findlay v. Commonwealth, 287 Va. 111, 115-16, 752 S.E.2d 868,

871 (2014)(internal quotation marks, alteration, and citations

omitted).   Zemene's assignment of error "lays a finger"

precisely on the alleged error of the circuit court by stating

that the court applied the wrong standard in analyzing the

prejudice prong of the Strickland test.

     Next, the Commonwealth contends that because the

immigration court has withdrawn its order of removal against

Zemene, "his current claim is too speculative to conclude he


                               12
suffered prejudice under Strickland."    Again, we disagree.

Zemene has already lost a significant interest because his

status as a lawful permanent resident has been revoked by ICE.

Moreover, the withdrawal of the order of removal does not

eliminate the possibility of Zemene's eventual removal, but

merely leaves the issue to the continuing discretion of the

immigration court.   There is nothing speculative about the

actual and potential loss of civil liberties that Zemene faces

as a result of his conviction and sentence for petit larceny.

     We now turn to the merits of Zemene's appeal.    In

Strickland, the United States Supreme Court established a two-

pronged test to assess whether an attorney's representation

was ineffective.   466 U.S. at 687.   To prevail on an

ineffective assistance of counsel claim, the petition must

satisfy both the "performance" prong and the "prejudice" prong

of the Strickland test.   Id.   To satisfy the first prong, "the

defendant must show that counsel's representation fell below

an objective standard of reasonableness."    Id. at 688.

     As indicated above, the Commonwealth did not directly

contest that Tracy's performance fell below an objective

standard of reasonableness, and the circuit court elected not

to address the issue at all.    Nonetheless, we will address

this issue in order to determine whether the dismissal of

Zemene's petition was error.


                                13
        It is abundantly clear from Tracy's own affidavit that,

despite being made aware that Zemene was not a citizen of the

United States in their initial meeting, Tracy undertook no

effort to learn the precise nature of Zemene's immigration

status.    Nor did Tracy determine if there were potential

negative consequences to Zemene's immigration status arising

from a conviction for petit larceny and a sentence of twelve

months, and he did not broach this subject with the

Commonwealth during plea negotiations.    Finally, Tracy did not

discuss with Zemene the likelihood that accepting the plea

agreement would lead to Zemene's loss of his lawful permanent

resident status and subject him to removal proceedings.

Accordingly, we hold that the allegations of the petition for

writ of habeas corpus were sufficient to satisfy the

"performance" prong of Strickland.

        The final and dispositive issue in this appeal is whether

the circuit court erred by applying an improper standard in

reaching the conclusion that the allegations of Zemene's

petition for writ of habeas corpus failed adequately to allege

facts in support of the "prejudice" prong of the Strickland

test.    Zemene contends that the circuit court erred by

focusing its analysis on whether the outcome of the

proceedings in the general district court would have resulted

in his acquittal or in his receiving a sentence which would


                                 14
not have triggered the ICE removal proceeding.   He contends

that in doing so, the court failed to apply the standard

applicable to a petitioner seeking habeas relief in a Padilla

immigration context, which when considered objectively shows

"that a decision to reject the plea bargain would have been

rational under the circumstances."   Padilla, 559 U.S. at 372.

A finding of prejudice in this context depends on the specific

circumstances of each case.   Id.; Kovacs v. United States, 744

F.3d 44, 52 (2d Cir. 2014)("[E]ach case is a context-specific

application of Strickland directed at a particular instance of

unreasonable attorney performance.").

     In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the Supreme

Court of the United States required the petitioner to

establish prejudice by showing that there was a reasonable

probability he would have insisted on going to trial rather

than pleading guilty.   More recently the Court has clarified

that a proven desire to go to trial is not the only context in

which prejudice may occur where a defendant has accepted a

plea agreement upon improper and inadequate advice of counsel.

Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1409-10

(2012).

     Zemene contends that the circuit court erred by applying

the standard from Hill to conclude that rejection of the plea

agreement would have been rational only if Zemene was assured


                               15
of an acquittal or of receiving a more favorable sentence had

he gone to trial.   Zemene asserts that in a Padilla context,

unlike in Hill, it was only necessary for the petitioner to

show that in rejecting the plea agreement he would have had a

reasonable probability of obtaining a result that would not

affect his immigration status, even if an active jail sentence

would have been avoided by accepting the plea agreement.     Cf.

Laster v. Russell, 286 Va. 17, 24-25, 743 S.E.2d 272, 275-76

(2013).

     Zemene contends that his petition and its supporting

documents establish that had Tracy been adequately prepared

with knowledge of the immigration consequences of the plea

agreement and advised him accordingly, Zemene not only would

have rejected the plea agreement, but would have had a

reasonable probability of obtaining a new plea agreement which

would have avoided those consequences.   Failing that

circumstance, Zemene further contends that there was a

reasonable probability that, contrary to the statement by the

circuit court, he would have received a more lenient sentence

had he chosen to go to trial because Tracy could have

presented the immigration consequences to the general district

court as a factor to be considered in sentencing.

     The Commonwealth responds that other courts that have

addressed the issue have held that a habeas petitioner "cannot


                               16
make that showing merely by telling [the Court] now that [he]

would have gone to trial then if [he] had gotten . . . .

accurate advice."   Pilla v. United States, 668 F.3d 368, 373

(6th Cir. 2012).    "All courts require something more than [a]

defendant's subjective, self-serving statement that, with

competent advice, he would not have pled guilty and would have

insisted on going to trial."    Bahtiraj v. State, 840 N.W.2d

605, 611 (N.D. 2013)(internal quotation marks and citation

omitted); see also Turner v. Calderon, 281 F.3d 851, 881 (9th

Cir. 2002); United States v. LaBonte, 70 F.3d 1396, 1412-13

(1st Cir. 1995), rev'd on other grounds, 520 U.S. 751 (1997).

Accordingly, the Commonwealth maintains that it was proper for

the circuit court to first look to the weight of the evidence

against Zemene. See, e.g., Premo v. Moore, 562 U.S. 115, ___,

131 S. Ct. 733, 744 (2011).

     Thus, the Commonwealth contends that because Zemene

articulated no defenses to his crime and did not challenge the

sufficiency of the evidence to support his guilty plea, the

circuit court correctly relied upon the absence of possible

defenses and the strength of the Commonwealth's case in

determining whether it would have been rational for Zemene to

choose to go to trial. See United States v. Fugit, 703 F.3d

248, 260 (4th Cir. 2012).     But see United States v. Orocio,

645 F.3d 630, 643 (3d Cir. 2011)(holding that the Supreme


                                 17
Court "has never required an affirmative demonstration of

likely acquittal . . . as the sine qua non of prejudice").

Clearly, had Zemene gone to trial he would have faced

prosecution for at least one other offense and, contrary to

his apparent desire not to be incarcerated on his birthday,

potentially would have received an active jail sentence.

Accordingly, the Commonwealth contends that the court's

conclusion that Zemene would not have received a more lenient

sentence was supported by the evidence and, thus, established

that rejection of the plea agreement which avoided these

consequences would not have been rational.

     For purposes of this case, in advancing a claim of

prejudice due to defense counsel's failure to advise him of

the immigration consequences when entering a plea agreement,

Zemene need not demonstrate a likelihood of acquittal at

trial.   Rather, the question is "whether counsel's

constitutionally ineffective performance affected the outcome

of the plea process."   Hill, 474 U.S. at 59 (emphasis added).

As the Supreme Court observed in Padilla, an alien defendant

might rationally decide that "[p]reserving [his] right to

remain in the United States may be more important . . . than

any potential jail sentence."   559 U.S. at 368.   In such

cases, the correct inquiry is whether the defendant would have

"gone to trial in the first place" because he "might


                                18
rationally be more concerned with removal than with a term of

imprisonment."    Orocio, 645 F.3d at 643.   If this is the

defendant's sentiment, "the threat of removal provides [a]

powerful incentive to go to trial" even if the evidence

against him is strong.    Id. at 645.

     In short, when reviewed under the proper standard for a

habeas corpus proceeding alleging a violation of the

principles recognized in Padilla, the court's consideration of

the rationality of a decision whether to accept or reject a

plea agreement must include a properly advised defendant's

desire to avoid a negative impact on his immigration status.

Here, Zemene stated in his petition that had he been properly

advised by Tracy, he would have rejected the plea agreement

and either instructed Tracy to seek a new agreement that

avoided the negative immigration consequences or, failing

that, he would have gone to trial in an effort to avoid those

consequences.    Indeed, when objectively viewed, it is

difficult even to imagine that Zemene would not have done so

and especially in light of the fact that with respect to his

immigration status he faced no worse consequence by going to

trial and stood to gain a significant benefit if he obtained a

sentence of even a single day less than the maximum.      The

dismissal of the other misdemeanor charges afforded him no

benefit in regard to his immigration status because


                                19
convictions for those offenses would not have triggered

removal proceedings under 8 U.S.C. § 1227.   Accordingly, we

conclude that the petition for habeas corpus adequately

alleged that Zemene was prejudiced by Tracy's ineffective

assistance.

                             CONCLUSION

     For these reasons, we hold that the circuit court applied

an incorrect standard for determining whether prejudice

resulted from Tracy's failure to advise Zemene of the adverse

consequences on his immigration status of accepting the plea

agreement.    Accordingly, we will reverse the judgment of the

circuit court dismissing Zemene's petition for writ of habeas

corpus.   The case is remanded for an evidentiary hearing

regarding the factual allegations in Zemene's petition, and

entry of an appropriate order consistent with the views

expressed in this opinion.

                                           Reversed and remanded.




                                 20
