        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 18, 2012

                   SHAWN BLAIR v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Rutherford County
                        No. F-66165     David Bragg, Judge


                No. M2012-00066-CCA-R3-PC - Filed January 31, 2013


The petitioner, Shawn Blair, appeals the post-conviction court’s dismissal of his petition for
post-conviction relief from his two convictions for simple possession of marijuana and
resulting consecutive sentences of eleven-months, twenty-nine days. On appeal, the
petitioner contends that he is entitled to post-conviction relief because he was not advised
by trial counsel or the trial court about the immigration consequences of his pleas. Upon
review, we affirm the post-conviction court’s denial of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Gerald L. Melton, Murfreesboro, Tennessee, for the appellant, Shawn Blair.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and Jennifer Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       A Rutherford County Circuit Court jury convicted the petitioner of possessing three
hundred grams or more of cocaine with intent to sell or deliver, a Class A felony, and simple
possession of marijuana, a Class A misdemeanor. See State v. Shawn Blair, No.
M2006-02694-CCA-R3-CD, 2008 WL 787906, at *1 (Tenn. Crim. App. at Nashville, Mar.
26, 2008). The trial court imposed an effective eighteen-year sentence. Id. On direct appeal,
this court reversed the convictions and remanded the case for a new trial. Id. at *1.
Subsequently, on June 12, 2006, the petitioner pled guilty to two counts of simple possession,
a Class A misdemeanor, and he received a sentence of eleven months and twenty-nine days
for each conviction, to be served consecutively. One week after the entry of the guilty pleas,
the petitioner, a citizen of Guyana, was notified that his convictions made him subject to
deportation. Shawn Blair v. State, No. M2009-02458-CCA-R3-PC, 2011 WL 400511, at *1
(Tenn. Crim. App. at Nashville, Feb. 8, 2011).

       On October 27, 2009, the petitioner filed a pro se petition for post-conviction relief,
maintaining that he did not knowingly and voluntarily plead guilty and that his counsel was
ineffective by failing to inform him that his guilty pleas could result in his deportation. Id.
The post-conviction court dismissed the petition on November 5, 2009, finding that the
petition was premature because the petitioner’s direct appeal was pending. Id. In an opinion
filed on February 8, 2011, this court concluded that the petition was not premature, and we
remanded to the post-conviction court for further proceedings. Id.

        On March 31, 2010, while the appeal of the dismissal of the petition for post-
conviction relief was pending in this court, the United States Supreme Court announced in
Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that the United States Constitution required that
a defendant be fully and accurately informed about the immigration consequences of a guilty
plea. On April 19, 2011, counsel was appointed to represented the petitioner and on October
25, 2011, filed an amended petition for post-conviction relief. The amended petition
reiterated that the petitioner did not knowingly or voluntarily plead guilty and that the
petitioner’s plea counsel was ineffective. The petition specifically cited Padilla and argued
that “[c]ounsel’s failure to advise [the petitioner] of the immigration consequences of his plea
fell below the minimum standard required for effective assistance of counsel.”

        At the post-conviction hearing, the petitioner’s plea counsel testified that he
represented the petitioner on direct appeal of his convictions and during the negotiations that
resulted in the entry of the petitioner’s pleas. Counsel acknowledged that he was aware that
the petitioner was not a citizen of the United States and that the immigration consequences
of a potential plea were important to the petitioner. Counsel also said that he was aware that
the petitioner had a previous conviction for possession of marijuana. Counsel consulted with
an immigration attorney to see “what, if any, sort of plea agreement could be structured that
would not get him deported,” and he learned that any drug conviction could potentially lead
to the petitioner’s deportation.

       Counsel said he prepared for trial, engaged in plea negotiations with the State, and
relayed all of the discussions between himself and the State to the petitioner. The next to last
plea offer from the State involved a plea to felony drug possession and an accompanying
sentence of ten years. However, after one of the officers involved in arresting the petitioner

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was indicted for tampering with evidence, the State agreed to allow the petitioner to plead
guilty to two misdemeanor drug possession charges. Counsel advised the petitioner that the
misdemeanor convictions “could still lead to deportation” but that “it was still up to someone
to initiate those proceedings.” Specifically, he said, “I’m certain I never [told the petitioner]
you will be deported. I’m certain I told him that [because of] the plea agreement we were
entering he was certainly subject to deportation.” Counsel warned the petitioner that counsel
could not get the charges dismissed and that an acquittal was the only sure way to avoid
deportation. Counsel cautioned the petitioner that “despite our best efforts[,] . . . this still
may not work.” Regardless of the possibility of deportation, the petitioner decided to enter
the guilty pleas. Counsel acknowledged that he did not put on the record at the guilty plea
hearing that the petitioner understood the immigration consequences of the guilty pleas.

       Counsel said that if the petitioner were convicted of only misdemeanor possession of
marijuana, the petitioner might be subject to an exemption to deportation because he was
married to a United States citizen. However, the petitioner was charged with possession of
marijuana and cocaine. In an attempt to prevent the petitioner from being deported, counsel
convinced the State to allow the petitioner to plead guilty to misdemeanor possession of
cocaine and marijuana. Counsel also persuaded the State to refrain from identifying the
controlled substances involved on the judgments of conviction. Counsel stated that he
provided the petitioner with a copy of “section 237A of the Immigration and Nationality
Act,” which explained that a conviction relating to a controlled substance, other than a single
conviction for possession of thirty grams or less or marijuana, made the offender subject to
deportation.

       Counsel recalled that the petitioner’s trial had been scheduled for December 2008 and
that to forestall the trial, the petitioner signed a guilty plea agreement that month. The
petitioner did not indicate that he needed more time to think about the plea or to consult with
an immigration attorney. Counsel convinced the trial court to set the petitioner’s guilty plea
hearing in June 2009 so the petitioner could be released after the pleas due to “time served.”

       The forty-one-year-old petitioner testified that he had been in the United States for
twenty-two years and that he had completed a twelfth-grade education in this country. He
acknowledged that he never became a United States citizen although he could have. The
petitioner advised counsel that he had a prior conviction for marijuana possession and that
he was not a United States citizen. The petitioner was concerned about the effect a
conviction would have on his ability to stay in the country with his family “[b]ecause the
immigration law is set up if you got convicted for a controlled substance it would be a
penalty against your status.”

       The petitioner said that counsel spoke with an immigration attorney and advised the

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petitioner that the plea agreement was structured in such a way that it would not affect the
petitioner’s immigration status. The petitioner said counsel never informed him that two
convictions for marijuana possession made him subject to deportation. He asked counsel if
he could have a couple of days to speak with another immigration attorney before signing the
plea agreement, but counsel told him that it had to be done that day. Based upon counsel’s
advice, the petitioner entered guilty pleas, even though he thought that something was not
right.

        After the hearing, the post-conviction court entered an order denying the post-
conviction petition. The court accredited the testimony of counsel and found that counsel
advised the petitioner of the possible immigration consequences of entering the guilty pleas.
On appeal, the petitioner contends that the post-conviction court erred in its factual finding
that the petitioner’s attorney advised him of the effect the guilty pleas would have on the
petitioner’s immigration status. The petitioner also contends that the post-conviction court
erroneously found that counsel advised him that any plea would subject him to deportation.
The petitioner claims that counsel told him that he was only “potentially” subject to
deportation and that he might qualify for an exception to deportation because he was married
to a United States citizen.

                                         II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.



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       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        In Padilla v. Kentucky, 130 S. Ct. 1473, 1476 (2010), the Supreme Court held that a
trial counsel’s performance was deficient when counsel failed to advise a defendant, who
was a legal immigrant, that his guilty plea carried a risk of deportation. The petitioner asserts
that the holding in Padilla affords him post-conviction relief based upon the ineffectiveness
of his trial counsel.

       The post-conviction court accredited the testimony of trial counsel and found that
counsel was aware that the petitioner was a non-citizen. Counsel informed the petitioner that
any conviction for possession of a controlled substance rendered him subject to deportation
and that the only way to avoid deportation was to be acquitted at trial. After being advised
of his options, the petitioner chose to enter the guilty pleas instead of risking a trial. The
court further found that despite the petitioner’s claim that he felt “rushed” into entering the
guilty pleas, the petitioner had almost six months between the time the plea offer was
accepted until entering the pleas in court, which afforded the petitioner time to consult with
another immigration attorney. Therefore, the post-conviction court found that the petitioner
knowingly and voluntarily entered the guilty pleas after having “lengthy discussions with
[c]ounsel, who advised the [p]etitioner any plea would make him deportable.” Upon review,
we conclude that the evidence does not preponderate against the post-conviction court’s
findings. We agree with the post-conviction court that the petitioner was advised of the
immigration consequences of his pleas and nevertheless knowingly and voluntarily chose to

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plead guilty.

                                     III. Conclusion

        In sum, we conclude that the petitioner was advised of the immigration consequences
of his guilty pleas. Accordingly, we affirm the judgment of the post-conviction court.


                                                  _________________________________
                                                  NORMA McGEE OGLE, JUDGE




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