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                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit


                                        No. 12-20630                                 FILED
                                                                                  June 2, 2015
                                                                                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 DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. *
PER CURIAM:
      Innocent Rutahagara Batamula, a citizen of Tanzania, after entering the
United States on a student visa, marrying a United States citizen, and
applying for a change in his immigration status, pleaded guilty pursuant to a
written plea agreement to one count of making a false statement to a federal
agent, 18 U.S.C. § 1001, and one count of making a false statement in an
application for a passport, 18 U.S.C. § 1542. The court sentenced Batamula to
time served, one year of supervised release, and a $2,000 fine. Batamula did
not appeal from his conviction or sentence but filed a motion for habeas corpus


      *   District Judge of the Eastern District of Louisiana, sitting by designation.
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pursuant to 28 U.S.C. § 2255, asserting that his retained attorney provided
ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356
(2010), by failing to advise him that the offenses to which he was pleading
guilty would result in his deportation. The district court denied Batamula’s
§ 2255 motion, we granted a certificate of appealability, and Batamula now
appeals. For the reasons assigned hereinafter, we REVERSE the judgment of
the district court and REMAND the case for further proceedings consistent
with this opinion.
                                              I.
       Batamula is a Tanzanian citizen who entered the United States in 2001
on a student visa and has since resided in Houston, Texas. In 2008, Batamula
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 the name and birth date of a different Tanzanian child whom we will refer
to as Z.M.—born in Tanzania to a couple with whom Batamula was acquainted.
Approximately three years later, on May 11, 2011, Z.M.’s parents applied for a
passport for their son and discovered that a passport had already been issued
in his name but displayed a photograph of someone else’s child—Batamula’s
son, B.B. When questioned by federal agents, Batamula said that he did not
know the child pictured in the fraudulent passport.
       Batamula was initially charged with one count of false representation to
a United States agent under 18 U.S.C. § 1001. Thereafter, a superseding
information was filed that additionally charged one count of making a false
statement in an application for a United States passport in violation of 18




       1 To protect the identity of the minor children involved, we will refer to them by their
first and last initials.
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U.S.C. § 1542. On November 17, 2011, pursuant to a written plea agreement,
Batamula entered a plea of guilty to both counts.
      Batamula’s guilty plea proceeding was conducted alongside another non-
citizen defendant who was pleading guilty to an unrelated felony charge.
During the proceeding, Batamula informed the court that he spoke with his
attorney about the charges approximately ten times, that his attorney
answered all of his questions, that he was “fully satisfied with the advice and
counsel provided” by his attorney, and that his attorney had done everything
asked of him. Moments before accepting the plea, the court addressed both
Batamula and the other defendant present at the proceeding, stating: “The
offenses that you’re pleading guilty to are felonies. That means that each of
you will likely be deported after you serve your sentence.” The court then found
that Batamula’s guilty plea was knowing and voluntary and accepted his guilty
plea to both counts.
      On May 1, 2012, Batamula moved to vacate or set aside his conviction
and sentence pursuant to 28 U.S.C. § 2255, contending that his attorney failed
to provide effective assistance of counsel under Padilla by failing to advise him
that pleading guilty to both charges would result in his deportation.             He
averred in a sworn affidavit that, if his attorney had advised him that pleading
guilty to the charges would make him “mandatory [sic] deportable” 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 to his habeas petition a sworn
affidavit from his retained counsel, which stated that the attorney “advised
[Batamula] on immigration consequences solely based on the language (if any) 2


      2 The written plea agreement contains no reference whatsoever to the immigration
consequences of Batamula’s guilty plea.

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of the plea agreement provided by the office. I did not advice [sic] him that
conviction in a two count indictment in his case would make him mandatory
[sic] deportable.”      Additionally, Batamula presented the affidavit of an
immigration         attorney        who        attested       that,       pursuant        to
8   U.S.C.    §   1227(a)(2)(A)(ii), 3    Batamula’s      guilty   plea   rendered      him
“presumptively deportable” because his convictions are considered crimes of
moral turpitude. 4
       The district court granted the Government’s motion for summary
judgment and denied Batamula’s § 2255 motion without an evidentiary
hearing, finding that he had “shown no right to relief.” 5 As relevant here, the

       3  8 U.S.C. § 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, regardless of whether confined therefor and regardless
of whether the convictions were in a single trial, is deportable.” Batamula’s two crimes,
although arguably related and thus part of one criminal “scheme,” would likely be construed
as two distinct crimes for purposes of this statute, as each is a “complete, individual, and
distinct crime . . . even though . . . [they may] be part of an overall plan of criminal
misconduct.” Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993); see also Okoro v. INS,
125 F.3d 920, 926–27 (5th Cir. 1997); Iredia v. INS, 981 F.2d 847, 848–49 (5th Cir. 1993).
Neither party raised the issue of whether Batamula’s crimes constitute separate “schemes of
criminal misconduct,” and we need not address it to resolve this case.
       4 Although the Immigration and Nationality Act does not contain a definition of
“crimes of moral turpitude,” crimes involving an element of fraud are generally considered to
be such. See, e.g., Omagah v. Ashcroft, 288 F.3d 254, 259–60 (5th Cir. 2002) (finding that
conspiracy to use illegal immigration documents constitutes a crime of moral turpitude
because the crime “involves fraud as a central ingredient and requires proof of mens rea
sufficient to classify it as a crime of moral turpitude”).
       5 The district court’s order granting the Government’s summary judgment motion and
dismissing Batamula’s habeas petition concluded that the appeal waiver provision in
Batamula’s plea agreement barred him from collaterally challenging his conviction and,
alternatively, that he could not establish prejudice under Strickland v. Washington, 466 U.S.
668 (1984) and Padilla. This court granted Batamula’s application for a certificate of
appealability, authorizing an appeal regarding (1) whether the appeal waiver provision in
Batamula’s plea agreement bars his habeas petition; and (2) whether the district court
properly granted the Government’s motion for summary judgment by finding that Batamula
could not establish prejudice under Strickland. On appeal, however, the Government
expressly declined to seek enforcement of the appeal waiver and argued only that we should
affirm the summary judgment order below because Batamula is foreclosed from establishing


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district court concluded 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. . . [Batamula therefore] cannot satisfy
the [Strickland v. Washington, 466 U.S. 668 (1984)] prejudice prong[.]” Thus,
the district court held as a matter of law that if a judge, during the Federal
Rule of Criminal Procedure 11 (“Rule 11”) proceeding, informs the defendant
that deportation is a likely result of his guilty plea, any prejudice caused by
counsel’s failure to advise his client regarding that danger is thereby cured, or
the defendant’s claim based thereon is forfeited or waived, and the defendant
is therefore categorically foreclosed from subsequently demonstrating
prejudice under Padilla and Strickland.
       This is an issue of law which we review de novo. 6 See, e.g., United States
v. Ghali, 699 F.3d 845, 846 (5th Cir. 2012) (“When a district court denies a
motion under 28 U.S.C. § 2255, we review its legal conclusions de novo.”).
                                            II.
       “Defendants have a Sixth Amendment right to counsel, a right that
extends to the plea bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384
(2012) (citing Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); Padilla, 559
U.S. at 373; Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “During plea negotiations

prejudice under Strickland and Padilla. Accordingly, we do not address or consider the
enforceability of the appeal waiver.
       6 The narrow issue of law that we are presented with in this case—whether a judicial
warning or admonition of likely deportation alone forecloses the defendant’s claim that his
counsel’s deficiency under Padilla prejudiced the plea process—was expressly left open by
this court when we considered the relevance of a judicial admonishment to the Strickland
prejudice inquiry. See United States v. Kayode, 777 F.3d 719, 729 (5th Cir. 2014) (“We need
not decide today whether Kayode’s affirmative responses to the[] [judge’s] admonishments
[that his conviction may lead to deportation], standing alone, would be sufficient to defeat
the prejudice prong under Strickland.”).
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defendants are ‘entitled to the effective assistance of competent counsel.’” Id.
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The right to
effective representation during the pre-guilty-plea stage of proceedings
requires defense counsel to, inter alia, fulfill the “quintessential[] . . . duty . . . to
provide [the] client with available advice about an issue like deportation.”
Padilla, 559 U.S. at 371.
      The familiar two-pronged ineffective assistance analysis set forth in
Strickland applies to alleged violations of the right to effective assistance of
counsel during pre-guilty-plea proceedings. See Lafler, 132 S. Ct. at 1384
(citing Hill, 474 U.S. at 58); Frye, 132 S. Ct. at 1405; Padilla, 599 U.S. at 366.
Establishing prejudice under Strickland in the context of a claim that defense
counsel failed to advise the defendant that the entry of his guilty plea would
result in deportation requires the defendant to demonstrate a reasonable
probability that “but for counsel’s unprofessional errors, . . . the outcome of the
plea process would have been different.” Lafler, 132 S. Ct. at 1384 (citing
Strickland 466 U.S. at 694; Frye, 132 S. Ct. at 1410). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. Additionally, to demonstrate prejudice and “obtain relief on
this type of claim, a petitioner must convince the court that a decision to reject
the plea bargain would have been rational under the circumstances.” Padilla,
559 U.S. at 372. In conducting this prejudice inquiry “we consider the totality
of the circumstances.” United States v. Kayode, 777 F.3d 719, 725 (5th Cir.
2014).
      Recently, emphasizing that it is “counsel’s duty, not the court’s, to warn
of certain immigration consequences,” id. at 728 (quoting United States v.
Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. 2014)), we held that “[w]arnings
from a judge during a plea colloquy are not a substitute for effective assistance


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of counsel, and therefore have no bearing on the first Strickland prong,” id.
We further reasoned that, “while judicial admonishments are not a substitute
for effective assistance of counsel, they are relevant under the second
Strickland prong in determining whether a defendant was prejudiced by
counsel’s error.”     Id. at 728-29.       Accordingly, we held that a judicial
admonishment is one of many factors and circumstances that a court may
consider in the fact-based, totality of the circumstances prejudice analysis, see
id. at 725, but did not determine whether such an admonishment, alone, can
remedy or prevent prejudice caused by counsel’s failure to provide effective
advice about the immigration consequences of the guilty plea, id. at 729.
      Here, the district court, without conducting an evidentiary hearing,
denied Batamula’s § 2255 motion, apparently reasoning that a court erases
any prejudice resulting from a defense attorney’s failure to competently advise
a noncitizen defendant regarding the immigration consequences of his guilty
plea by informing the defendant during a Rule 11 colloquy that his guilty plea
will likely result in his deportation. Alternatively, the district court’s holding
may be interpreted as a conclusion that the defendant waives or forfeits his
ineffective-assistance-of-counsel claim by pleading guilty after receiving such
an admonition.      In either case, the district court’s ruling is based on its
conclusion that, as matter of law, a plea colloquy judge’s mere statement
regarding likely deportation automatically forecloses the petitioner from
demonstrating prejudice caused by counsel’s ineffective assistance under
Padilla. Neither the district court nor the Government, however, cites any
authority for this categorical rule. 7 In view of the Supreme Court’s decisions
in Lafler, Frye, and Padilla, which expanded and expounded upon a criminal



      7  Nor, for that matter, can it be reconciled with the totality-of-the-circumstances
analysis we prescribed in Kayode. Kayode, 777 F.3d at 725.
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defense counsel’s Sixth Amendment duties prior to his client’s entry of a guilty
plea, 8 we are convinced that the district court’s legal rule of decision is
inconsistent with the Supreme Court’s precedents and, therefore, was in error.
                                                A.
       The Supreme Court has made clear that “[t]he Sixth Amendment
requires effective assistance of counsel at critical stages of a criminal
proceeding.” Lafler, 132 S. Ct. at 1385. “The constitutional guarantee applies
to pretrial critical stages that are part of the whole course of a criminal
proceeding, a proceeding in which defendants cannot be presumed to make
critical decisions without counsel’s advice.” Id. Convictions by guilty plea—
which make up between ninety-four and ninety-seven percent 9 of convictions
nationwide—“have become so central to the administration of the criminal
justice system that defense counsel have responsibilities in the plea bargain
process . . . that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical stages.” Frye,
132 S. Ct. at 1407. “Indeed, this Circuit has observed that providing counsel
to assist a defendant in deciding whether to plead guilty is ‘[o]ne of the most
precious applications of the Sixth Amendment.’” United States v. Rivas–Lopez,
678 F.3d 353, 356 (5th Cir. 2012) (alteration in original) (quoting United States
v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004)). Thus, before a defendant
decides whether to plead guilty, “counsel’s function as assistant to the


       8 See, e.g., Chaidez v. United States, 133 S. Ct. 1103, 1110 (2013) (concluding that
Padilla “br[oke] new ground” by holding that the Sixth Amendment requires counsel to
advise his client about immigration consequences—a “collateral” consequence—of
conviction).
       9  “Ninety-seven percent of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas.” Frye, 132 S. Ct. at 1407 (citing, inter alia, Padilla,
559 U.S. at 372 (“Pleas account for nearly 95% of all criminal convictions.”); Bureau of Justice
Statistics, Sourcebook of Criminal Justice Statistics Online, tbl.5.22.2009,
http://www.albany.edu/sourcebook/pdf/t5222009.pdf)).
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defendant [gives rise to] the overarching duty to advocate the defendant’s
cause and the more particular duties to consult with the defendant on
important decisions” after “mak[ing] reasonable investigations.” Strickland,
466 U.S. at 688, 691.
      Counsel has “the critical obligation . . . to advise the client of ‘the
advantages and disadvantages of a plea agreement,’” Padilla, 559 U.S. at 370
(quoting Libretti v. United States, 516 U.S. 29, 50–51 (1995)), an obligation
that requires counsel to advise a “noncitizen client that he faces a risk of
deportation,” id. at 374.      Effective advice from counsel regarding the
deportation consequences of conviction is essential to provide constitutionally
adequate representation during the pre-plea proceedings because, as the
Supreme Court has repeatedly recognized, “‘[p]reserving the client’s right to
remain in the United States may be more important to the client than any
potential jail sentence.’” Id. at 368 (alteration in original) (quoting INS v. St.
Cyr, 533 U.S. 289, 322 (2001)). Given the Court’s repeated emphasis on the
paramount importance of providing effective representation and competent
advice regarding the immigration consequences of conviction before entry of
the defendant’s guilty plea, we cannot conclude that the prejudice caused by a
violation of that duty can be categorically erased by a judge’s general and
laconic statement during the plea colloquy that deportation is “likely,” after
that bargaining process is complete, and immediately prior to the court’s
acceptance of the guilty plea. See, e.g., United States v. Cronic, 466 U.S. 648,
656 (1984) (“[T]he adversarial process protected by the Sixth Amendment
requires that the accused have ‘counsel acting in the role of an advocate.’”)
(emphasis added) (quoting Anders v. California, 386 U.S. 738, 743 (1967));
Padilla, 559 U.S. at 370–71; see also Chaidez v. United States, 133 S. Ct. 1103,
1105 (2013) (“[T]his Court held [in Padilla] that the Sixth Amendment requires


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an attorney for a criminal defendant to provide advice about the risk of
deportation arising from a guilty plea.” (emphasis added)).
      Indeed, as the Supreme Court in Lafler and Frye makes clear, if a full
and fair trial or an otherwise voluntary guilty plea cannot “inoculate[]
[counsel’s] errors in the pretrial process” from collateral attack under
Strickland, see Frye, 132 S. Ct. at 1407, neither can a trial judge’s mere
statement at a plea colloquy that deportation is “likely” function to bar a
petitioner from demonstrating that he was prejudiced by counsel’s deficiencies
during the pre-guilty-plea stage of proceedings. More specifically, in Frye the
Court rejected the State’s argument that, despite counsel’s failure to inform
Frye of a formal plea offer from the prosecution, Frye was not “deprived of any
legal benefit to which he was entitled” because “the guilty plea that was
[ultimately] accepted, and the plea proceedings concerning it in court, were all
based on accurate advice and information from counsel.” Id. at 1406. The
State further contended that the “ultimate goal of the Sixth Amendment—
reliability of Mr. Frye’s conviction—was met by Mr. Frye’s knowing,
intelligent, and voluntary admission of guilt.”      Brief for Petitioner at 33,
Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444). As it did in Padilla, the
Court expressly rejected the State’s arguments that a guilty plea that was
entered after the trial court fulfilled its obligation to ensure the voluntariness
of that plea “supersedes errors by defense counsel.” Frye, 132 S. Ct. at 1406.
      Similarly, the Court in Lafler rejected the State and Solicitor General’s
argument that Strickland prejudice cannot arise from defective representation
during plea bargaining if the defendant is later convicted after a fair trial.
Lafler, 132 S. Ct. at 1385. The Court reasoned that “[t]he fact that respondent
is guilty does not mean he was not entitled by the Sixth Amendment to effective
assistance or that he suffered no prejudice from his attorney’s deficient


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performance during plea bargaining.” Lafler, 132 S. Ct. at 1388. The Court in
both Lafler and Frye therefore made clear that if the defendant establishes
ineffective assistance of counsel during the plea negotiation stage of
proceedings, a subsequent, otherwise-voluntary guilty plea or even a full and
fair trial does not necessarily “wipe[] clean any deficient performance by
defense counsel during plea bargaining.” Id. Likewise, 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 his client of the
immigration consequences of the guilty plea. See id.; see also Frye, 132 S. Ct.
at 1406-08.
      Our conclusion that the district court’s plea colloquy warning does not
bar Batamula from demonstrating prejudice caused by counsel’s failure to
advise him of the deportation consequences of his plea is further confirmed by
the Padilla Court’s own discussion of similar admonitions.          The Court
specifically recognized that defendants in many jurisdictions receive
generalized deportation warnings on plea forms or at plea colloquies. See
Padilla, 559 U.S. at 374 n.15 (noting that many states, including Kentucky,
“currently . . . provide[] notice of possible immigration consequences”). The
Court never intimated that such admonitions could prove fatal to
ineffectiveness claims, rejecting arguments from several states appearing as
amici curiae that defense counsel need not be constitutionally required to
advise their clients regarding deportation consequences of guilty pleas because
“states and judges are already addressing” the issue. See Brief for the State of
Louisiana et al. as Amici Curiae in Support of Respondent at 24-26, Padilla v.
Kentucky, 559 U.S. 356 (2010) (No. 08-651). To the contrary, the Court cited
such practices in support of its conclusion that “[t]he severity of deportation—
‘the equivalent of banishment or exile’—only underscores how critical it is for


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counsel to inform her noncitizen client that he faces a risk of deportation.”
Padilla, 559 U.S. at 373-74 (citation omitted) (emphasis added).
      Moreover, the Supreme Court has long contrasted the unique and critical
obligations of defense counsel during the plea bargaining process with the far
more limited role of a district court to ensure a minimally valid guilty plea,
further supporting our conclusion that the judicial warning of “likely”
deportation does not prevent prejudice caused by counsel’s deficient
performance in fulfilling his constitutional obligation to serve as a client’s
advocate and advisor before deciding whether to plead guilty. See Frye, 132 S.
Ct. at 1406; Lafler, 132 S. Ct. at 1390; Padilla, 559 U.S. at 364–65. The judicial
plea colloquy merely “assist[s] the district judge in making the constitutionally
required determination that a defendant’s guilty plea is truly voluntary.”
McCarthy v. United States, 394 U.S. 459, 465 (1969). Because a judge “cannot
investigate the facts . . . or participate in those necessary conferences between
counsel and accused which sometimes partake of the inviolable character of
the confessional,” a judge cannot discharge the obligations of counsel for the
accused. Powell v. Alabama, 287 U.S. 45, 61 (1932). Indeed, pursuant to a
2013 amendment, Rule 11 now requires a district court, before accepting a
guilty plea, to state to every defendant “that, if convicted, a defendant who is
not a United States citizen may be removed from the United States, denied
citizenship, and denied admission to the United States in the future.” Fed. R.
Crim. P. 11(b)(1)(O).      The Advisory Committee, in a note regarding this
provision, specified that the Rule requires only that the court provide a
“generic warning, not specific advice concerning the defendant’s individual
situation.” Fed. R. Crim. P. 11 advisory committee’s note (2013 Amendments,
Subdivision (b)(1)(O)). Thus, distinct from defense counsel’s role, Rule 11
merely requires the court to make a general statement regarding possible


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immigration consequences to ensure the defendant’s plea is entered knowingly,
“without attempting to determine the defendant’s citizenship.” Id.         Indeed,
Rule 11 mandates that “[t]he court must not participate in [plea] discussions”;
therefore, the judge is prohibited from advising or counseling the defendant
regarding the advantages and disadvantages of pleading guilty in his
particular case. Fed. R. Crim. P. 11(c)(1). These differences between the role
of the court and the duties of effective defense counsel explain the essential
distinction between the Fifth Amendment plea voluntariness analysis and the
Sixth Amendment ineffective-assistance-of-counsel analysis. See Lafler, 132
S. Ct. at 1390 (“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.”).
      Further, and perhaps most significantly, by the time the plea colloquy
occurs, the plea bargaining process is over—and with it, defense counsel’s
opportunity to negotiate and advise the client based on an adequate
understanding of deportation consequences. Counsel is obligated to effectively
investigate and advise his client regarding immigration consequences “[b]efore
[the client] decid[es] whether to plead guilty,” a decision made before the
judicial plea colloquy occurs. See Padilla, 559 U.S. at 364 (emphasis added).
If the negotiation process that preceded the plea hearing was not informed by
counsel and his client’s consideration of the immigration consequences of the
plea, a judge’s statement that warns the defendant of likely deportation,
provided after counsel’s opportunity to effectively represent and advise his
client has passed, does not alone prevent or remedy any prejudice that may
have been caused by counsel’s deficient representation nor does it foreclose the
defendant’s ability to bring a Sixth Amendment claim of ineffective assistance
of counsel.


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      Because “an intelligent assessment of the relative advantages of
pleading guilty is frequently impossible without the assistance of an attorney,”
Brady v. United States, 397 U.S. 742, 748 n.6 (1970), information regarding
deportation disclosed by the judge for the first time at the plea colloquy may
not spur a noncitizen defendant to reassess the advantages and disadvantages
of a plea that her attorney has advised her to take. See Padilla, 559 U.S. at
370-71 (stating that noncitizens are “a class of clients least able to represent
themselves”). As Batamula asserts on appeal, it defies logic to presume that a
defendant can instantaneously and properly assess the full implications of the
district court’s warning at the colloquy if his attorney has failed to advise him
of that danger and failed to advocate for his avoidance of it by, for example,
seeking a more favorable plea bargain before the plea proceeding commences.
Rather, a defendant at a plea colloquy who receives a judicial admonishment
that deportation is “likely,” but who has not received effective advice from
counsel, may reasonably “interpret[] his lawyer’s silence [in the face of the
admonition] to mean that pleading guilty would not place him in jeopardy of
deportation[.]” See United States v. Bonilla, 637 F.3d 980, 984-85 (9th Cir.
2011). As the commentary to the American Bar Association’s Standards aptly
states:
      The court’s warning comes just before the plea is taken, and may
      not afford time for mature reflection. The defendant cannot,
      without risk of making damaging admissions, discuss candidly
      with the court the questions he or she may have. Moreover, there
      are relevant considerations which will not be covered by the judge
      in his or her admonition. A defendant needs to know, for example,
      the probability of conviction in the event of trial. Because this
      requires a careful evaluation of problems of proof and of possible
      defenses, few defendants can make this appraisal without the aid
      of counsel.
ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2 cmt. at 118 (3d ed.
1999); see also id. at 126 (“[O]nly defense counsel is in a position to ensure that
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the defendant is aware of the full range of consequences that may apply in his
or her case.”). 10
       Accordingly, the mere fact that a defendant, who has already signed a
plea agreement upon counsel’s advice, is told by the trial judge that the plea
will likely result in deportation does not foreclose the defendant’s ability to
demonstrate that “counsel’s constitutionally ineffective performance affected
the outcome of the plea process.” Hill, 474 U.S. at 59. 11 Were we to hold that
the judge’s mere statement to Batamula during his plea colloquy that he would
“likely” be deported vitiated his ability to establish prejudice under Strickland
and Padilla, we would be turning a blind eye to the reality of the plea
bargaining and plea colloquy process and flouting the Supreme Court’s
mandate that a defendant has a constitutionally protected right to the effective
assistance of counsel throughout the pre-plea stage—a right that carries more
than can be supplied by a judge’s general and equivocal last-moment warning
that deportation is likely to result from the guilty plea. “[C]riminal defendants
require effective counsel during plea negotiations. Anything less . . . might
deny a defendant effective representation by counsel at the only stage when
legal aid and advice would help him.” Frye, 132 S. Ct. at 1407–08 (emphasis
added) (internal quotation marks omitted) (second alteration in original).
                                            B.
       To the extent that the district court’s ruling can be interpreted as a
holding that Batamula, by pleading guilty in compliance with Rule 11, forfeited
his right to collaterally attack his guilty plea under Padilla, the Supreme
Court’s cases are clearly to the contrary. The Court has made clear that the


       10 The Supreme Court has recognized that ABA standards “can be important guides”
in the ineffective-assistance-of-counsel analysis. See Frye, 132 S. Ct. at 1408.
       We note that this warning remains relevant to the determination of prejudice, which
       11

demands consideration of the totality of the circumstances. See Kayode, 777 F.3d at 728–29.
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right to raise an ineffective-assistance-of-counsel claim to challenge the
validity of a conviction by guilty plea is not forfeited by entry of a guilty plea
in compliance with Rule 11.
      Addressing the general question of the extent to which constitutional
claims survive the entry of a guilty plea, the Supreme Court has repeatedly
stated that a guilty plea effects a forfeiture of certain constitutional claims if
the plea is entered knowingly and voluntarily and with competent assistance
and advice by defense counsel. See, e.g., Mabry v. Johnson, 467 U.S. 504, 508
(1984) (“It is well settled that a voluntary and intelligent plea of guilty made
by an accused person, who has been advised by competent counsel, may not be
collaterally attacked.”), disapproved of on other grounds by Puckett v. United
States, 556 U.S. 129 (2009) (emphasis added). Claims of ineffective assistance
of counsel that affected the validity of the guilty plea are necessarily excluded
from this general rule that constitutional defenses are forfeited by entry of a
guilty plea. See, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a
criminal defendant has solemnly admitted in open court that he is in fact guilty
of the offense with which he is charged, . . . [h]e may only attack the voluntary
and intelligent character of the guilty plea by showing that the advice he
received from counsel was [deficient.]”); see also 5 Wayne R. LaFave et al.,
Criminal Procedure, The Adversary System and the Determination of Guilt
and Innocence § 21.6(a) (3d ed. 2014) (concluding that the general rule that
defendants forfeit certain constitutional claims upon pleading guilty “has no
application to defects which go directly to the guilty plea itself,” including
“defects concerning advice of counsel,” because such circumstances “taint the
plea”).
      The Court has therefore made it abundantly clear that although entering
a guilty plea results in the forfeiture of certain constitutional claims, it does


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not bar a post-conviction collateral attack on the conviction and sentence based
upon ineffective representation leading up to the entry of the guilty plea.
Padilla exemplifies this well-established rule that entry of a guilty plea,
despite generic warnings from the court regarding the possible consequences
of the guilty plea, does not foreclose the defendant from demonstrating that
counsel’s ineffective advice regarding the deportation consequences of
conviction prejudiced the proceedings. See Padilla, 559 U.S. at 374 & n.15.
                                       CONCLUSION
       For these reasons, we conclude that a judge’s statement at the guilty plea
proceeding that deportation is “likely” is not dispositive of whether a petitioner
whose counsel failed to advise him regarding the immigration consequences of
his plea can demonstrate prejudice as a result therefrom. Batamula thus is
not foreclosed from challenging his guilty plea under Padilla solely because the
district court notified him that deportation following the service of his sentence
is “likely,” and the district court erred in holding to the contrary. The record
is currently insufficiently developed for us to apply the fact-intensive, totality
of the circumstances prejudice analysis 12 necessary to determine whether
Batamula is entitled to relief on his Sixth Amendment claim. We therefore
REVERSE and REMAND 13 for further proceedings consistent with this
opinion. 14


       12 See, e.g., Sears v. Upton, 561 U.S. 945, 955 (2010) (“[T]he Strickland [prejudice]
inquiry requires [a] probing and fact-specific analysis . . . .”); see also Kayode, 777 F.3d at 725.
       13   All other pending motions are DENIED AS MOOT.
       14 On remand, the district court must determine what further proceedings are
necessary—an issue we need not reach today. We note that an evidentiary hearing will be
required on remand “[u]nless 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); see United States v. Reed,
719 F.3d 369, 373 (5th Cir. 2013); Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir.
1979) (per curiam); Reagor v. United States, 488 F.2d 515, 517 (5th Cir. 1976) (“Contested
fact issues in § 2255 cases must be decided on the basis of evidentiary hearings . . . .”); see
also Machibroda v. United States, 368 U.S. 487, 494 (1962).
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