No. 16-1069 - State of West Virginia v. Orville M. Hutton
                                                                            FILED
                                                                        November 1, 2017
                                                                             released at 3:00 p.m.
LOUGHRY, Chief Justice, dissenting:                                      EDYTHE NASH GAISER, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA


                 In State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015) (“Hutton I”), I

concurred in the majority’s historical analysis of the common law writ of error coram nobis,

as well as its ultimate conclusion that the writ remains available only in extraordinary

circumstances in criminal proceedings in West Virginia. I also concurred in the majority’s

new syllabus point four to the extent it reflected the holding of the United States Supreme

Court in Padilla v. Kentucky, 559 U.S. 356 (2010).1 However, I strongly disagreed with the

majority’s implication that Padilla imposes a duty on lawyers to explore the immigration

status of all criminal defense clients,2 and I expressed my opinion that Padilla has no

       1
        See Hutton I, 235 W.Va. at 725, 776 S.E.2d at 623, syl. pt. 4 (“Under Padilla v.
Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Sixth Amendment
requires defense counsel to warn an immigrant client of the deportation consequences of a
guilty plea. When the deportation consequence is succinct, clear, and explicit under the
applicable law, counsel must provide correct advice to the client. When the law is not
succinct or straightforward, counsel is required only to advise the client that the criminal
charges may carry a risk of adverse immigration consequences.”).
       2
           As I explained in my separate opinion in Hutton I,

                 In footnote eighteen, the majority excuses Mr. Hutton’s admitted
                 failure to advise his counsel of his immigration status by stating
                 that the Padilla Court did not place a burden on criminal
                 defendants to advise their lawyers of their immigration status.
                 While that statement may be correct, I am concerned that the
                 inverse implication of footnote eighteen is that the burden is on
                 lawyers to explore the immigration status of every criminal
                                                                                      (continued...)

                                                 1
application under the facts and circumstances of the case at bar. In the instant appeal, Orville

Hutton3 returns to this Court, seeking relief from the circuit court’s order denying relief in

coram nobis, which was entered on remand from Hutton I. Because the majority erroneously

reverses the circuit court’s decision, I am compelled to dissent.



                 On remand, the circuit court held an evidentiary hearing to determine whether

Mr. Hutton was entitled to relief in coram nobis from his conviction based on his claim of

ineffective assistance of counsel, Thomas Dyer. In addressing that question, the circuit court

was guided by syllabus point five of Hutton I wherein this Court held that

                         [a] claim of legal error may be brought in a petition for
                 a writ of error coram nobis only in extraordinary circumstances


       2
           (...continued)
                  defense client, notwithstanding the fact that Padilla did not
                  expressly impose such a duty. Because the focus of Padilla was
                  on the importance of a lawyer giving his or her client accurate
                  advice regarding the immigration consequences of a guilty plea,
                  the Court simply never addressed precisely how immigration
                  status was to be discerned. See [State v.] Stephens, 265 P.3d
                  [574,] at 577 (“The only issue the United States Supreme Court
                  decided was whether defense counsel had a duty to inform his
                  client, known to be a resident alien, of the effect of a guilty plea
                  on the client's immigration status.”).

Hutton I, 235 W.Va. at 744-45, 776 S.E.2d at 641-42 (Loughry, J., concurring, in part, and
dissenting, in part).
       3
        “Mr. Hutton was born in Jamaica in 1962. He came to the United States in 1971, at
the age of nine. Mr. Hutton has resided in this country since that time. He is classified as
a permanent resident of this country, but he is not an American citizen.” Hutton I, 235 W.Va.
at 726, 776 S.E.2d at 623.

                                                   2
                 and if the petitioner shows that (1) a more usual remedy is not
                 available; (2) valid reasons exist for not attacking the conviction
                 earlier; (3) there exists a substantial adverse consequence from
                 the conviction; and (4) the error presents a denial of a
                 fundamental constitutional right.

235 W.Va. at 726, 776 S.E.2d at 623. This four-part test was taken from the test set forth in

United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), which this Court found “provide[d]

a good framework for limiting the use of the writ of error coram nobis to assert a

constitutional legal error.” Following its consideration of the evidence presented at the

hearing below, the circuit court entered an order on October 18, 2016, finding that Mr.

Hutton failed to meet three of the four factors set forth above.4



                 Regarding the first factor, the circuit court found that Mr. Hutton has a more

usual remedy through his federal appeal that is pending in the Third Circuit Court of

Appeals. And, because that appeal involves a split among the federal circuit courts, the

circuit court further observed that Mr. Hutton could pursue a petition for certiorari to the




       4
           Regarding the third factor, the circuit court stated in order, as follows:

                 Adverse consequences may presently exist for
                 Petitioner/Defendant as a result of his deportation (removal)
                 proceedings, regardless of being deemed either direct or
                 collateral. However, such further developed evidentiary record
                 herein . . . does not establish the threshold requirement of his
                 having been denied a fundamental constitutional right
                 established pursuant to Padilla.

                                                 3
United States Supreme Court. The majority does not address this factor and, instead, finds

that the State had “indirectly conceded the issue” when it stated that “[t]o the extent Mr.

Hutton seeks to have his conviction vacated and not merely to avoid the deportation

consequences of his conviction, his federal appeal does not provide a more usual remedy.”

The majority ignores the State’s further argument that “a remedy remains available so long

as jurisdiction would be proper in some other court even if relief is foreclosed.”5 In other

words, even if Mr. Hutton cannot collaterally attack his state conviction through his

deportation appeal pending in federal court, he is pursuing the relief that he seeks in the

instant matter–avoiding deportation–through a more usual remedy in the federal court, and

his likelihood of success in his federal case is irrelevant to whether that avenue is “an

available more usual remedy.”6


       5
        In support of its argument, the State cites United States v. Payne, 644 F.3d 1111 (l0th
Cir. 2011), wherein the court denied the defendant’s request for a writ of error coram nobis,
finding “[i]t [was] irrelevant that a § 2255 motion would have been untimely by the time he
filed his petition for a writ of coram nobis.” Id. at 1113. The State also relies upon
Matus-Leva v. United States, 287 F.3d 758 (9th Cir. 2002), in which the court found that a
writ of error coram nobis requires that other remedies be unavailable, stating that “Matus-
Leva’s argument that a § 2255 petition is not really available to him because it is time barred
under the Antiterrorism and Effective Death Penalty Act, is unavailing. A petitioner may not
resort to coram nobis merely because he has failed to meet the AEDPA’s gatekeeping
requirements.” Id. at 761 (footnote omitted).
       6
        The circuit court recounted in its order testimony given by Mr. Hutton’s immigration
expert during the evidentiary hearing below: “[G]enerally . . . the basic law suggests . . . that
if you are convicted of an aggravated felony you are, as a matter of law, deportable[,]” but
that “as with all immigration cases, the government has a great deal of discretion as to
enforcement, and usually the cases . . . of undue hardship to family, extenuating
circumstances, time in the country, time since the crime was committed, etc., etc., which the
                                                                                (continued...)

                                               4
              In addressing the second factor, the circuit court concluded that Mr. Hutton had

not demonstrated a valid reason for failing to attack his conviction earlier through a habeas

corpus petition, particularly where the evidence showed that his post-conviction counsel

advised him of the possibility of filing a habeas petition alleging ineffective assistance of

counsel, even if not on the same basis that Mr. Hutton currently asserts. While Mr. Hutton

was serving his sentence, he pursued numerous post-conviction challenges.7 Had he brought

an ineffective assistance of counsel claim in a habeas proceeding, as his post-conviction

counsel suggested, he might have achieved the relief from his conviction that he currently

seeks through a writ of error coram nobis, which is only available in extraordinary

circumstances.



              Although the majority attempts to qualify, through dicta, the second factor in

syllabus point five of Hutton I, by restricting it to whether Mr. Hutton’s Padilla claim was

timely, such was not the intent in Akinsade upon which this Court based the four-part test for

a writ of error coram nobis adopted in Hutton I. In Akinsade, the defendant pled guilty to




       6
        (...continued)
courts can take into consideration.”
       7
        In August 2010, Mr. Hutton filed a notice of appeal with the assistance of his
post-conviction counsel in which he identified two issues: (1) ineffective assistance of
counsel; and (2) any other grounds that may be discovered during the investigation of this
case. In a motion for post-conviction bond, Mr. Hutton stated that he might waive his right
to appeal and “prosecute a Writ of Habeas Corpus for ineffective assistance of counsel.”

                                              5
embezzlement after his attorney incorrectly told him that it was not a deportable offense.

Akinsade, 686 F.3d at 250. When the defendant later sought relief from his conviction

through coram nobis, the Fourth Circuit found that the defendant had no basis to challenge

his conviction prior to being detained by immigration authorities because “his attorney’s

advice, up to that point in time, appeared accurate.” Id. at 252. In the instant matter, Mr.

Hutton’s post-conviction counsel had identified a basis for Mr. Hutton to challenge his

conviction–ineffective assistance of trial counsel–but it was not pursued. Accordingly, I

agree with the circuit court’s conclusion that Mr. Hutton failed to meet the second coram

nobis factor because he “was aware of his ability to file a Petition for a Writ of Habeas

Corpus attacking his conviction for ineffective assistance of counsel during his initial period

of incarceration following his sentencing in the underlying criminal matter” and that he had

“not demonstrated the existence of any valid reason for having not attacked his underlying

conviction earlier upon claims of ineffective assistance of counsel towards Mr. Dyer.”



              Turning to the fourth coram nobis factor–whether the legal error asserted

presents a denial of a fundamental constitutional right–Mr. Hutton alleges an ineffective

assistance of counsel claim based on Padilla. In West Virginia,

              claims of ineffective assistance of counsel are to be governed by
              the two-pronged test established in Strickland v. Washington,
              466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1)
              Counsel’s performance was deficient under an objective
              standard of reasonableness; and (2) there is a reasonable



                                              6
              probability that, but for counsel’s unprofessional errors, the
              result of the proceedings would have been different.

Syl. Pt. 5, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).



              In addressing Mr. Dyer’s performance with regard to Padilla, the circuit court

found that Mr. Dyer’s testimony was credible and demonstrated that Mr. Hutton was alerted

to potential immigration issues dependent upon his actual citizenship status in the

conversations he had with Mr. Dyer. The circuit court further found that Mr. Hutton “chose

. . . to not directly disclose . . . the exact nature of [his] status” to Mr. Dyer and that his

evasive responses caused Mr. Dyer to infer that Mr. Hutton was not an immigrant.8 This

inference was reasonable and certainly not indicative of deficient performance. In fact, under

Strickland, “[t]he reasonableness of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions[,]” particularly since counsel’s

actions “are usually based, quite properly . . . on information supplied by the defendant.” 466

U.S. at 691. Further, “what investigation decisions are reasonable depends critically on such

information.” Id. Moreover, the circuit court found that Mr. Hutton’s contrary testimony was

not credible. See Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985) (finding that




       8
        The majority disagrees with the circuit court and finds, instead, that Mr. Dyer’s
testimony was vague and inconsistent. However, what is clear from Mr. Dyer’s testimony
is that he did not have any conversations with Mr. Hutton about the immigration
consequences of pleading guilty because when he asked Mr. Hutton whether this was an
issue we should be concerned with, Mr. Hutton responded, “no, don’t worry about it.”

                                              7
credibility determinations are due deference because “only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener’s understanding

of and belief in what is said.”). As the circuit court aptly observed,

                     [a]ny constitutional right infirmity alleged for
              post-conviction extraordinary relief cannot be prefaced upon
              Petitioner/Defendant’s selective memory, his voluntary failure
              to adequately apprise his legal counsel of pertinent personal
              information which may significantly impact the resulting legal
              representation and/or his subjective hindsight upon discovering
              adverse consequences to his criminal conviction and resulting
              incarceration.



              In evaluating Mr. Hutton’s ineffective assistance of counsel claim, “[j]udicial

scrutiny of counsel’s performance must be highly deferential[.]” Strickland, 466 U.S. at 689.

Although the circuit court found that Mr. Hutton had not demonstrated that his counsel was

ineffective, rather than applying deference to that conclusion, the majority “summarily”

disposes of the first prong of Strickland, finding that Mr. Dyer’s performance was deficient

because “Padilla required defense counsel to inform Mr. Hutton that, if he was an immigrant,

his guilty plea would subject him to deportation.”9 Of course, one could read this statement


       9
        The cases relied upon by the majority for this conclusion are factually
distinguishable. For example, in United States v. Swaby, 855 F.3d 233 (4th Cir. 2017),
counsel “immediately recognized that ‘immigration status would be a significant
consideration’ for Swaby, who had a green card and intended to apply for U.S. citizenship”
and that “from the beginning of the representation, Swaby ‘[wa]s concerned and ha[d] always
been concerned about his immigration status.’” Id. at 236. Similarly, in State v. Favela, 343
P.3d 178 (N.M. 2015), counsel was aware prior to the plea hearing that his client was not a
United States citizen. Unlike these cases, Mr. Dyer testified below that when he asked Mr.
                                                                                (continued...)

                                              8
as somehow imposing a broad duty upon counsel to investigate the immigration status of

criminal clients. If that is the majority’s intent, I strongly disagree.



              First, as I explained in my separate opinion in Hutton I, Padilla does not

provide Mr. Hutton the relief that he seeks. I observed that

                      [t]he sole similarity between Mr. Hutton in the instant
              matter, and the petitioner in Padilla, Jose Padilla, is that both
              were longtime, lawful permanent residents of this country, but
              not American citizens, when they became subject to deportation
              as a direct consequence of their guilty pleas to criminal charges.
              What remains are two factually significant differences that
              render Padilla inapplicable to Mr. Hutton’s situation.

Hutton I, 235 W.Va. at 743, 776 S.E.2d at 640 (Loughry, J., concurring, in part, and

dissenting, in part). In Padilla, Mr. Padilla told his counsel that he was not a United States

citizen and asked counsel whether a guilty plea would have adverse immigration

consequences. After being assured by his counsel that he “‘did not have to worry about

immigration status since he had been in the country so long[,]’” Mr. Padilla pled guilty.

Padilla, 559 U.S. at 359 (internal citation omitted). That legal advice was incorrect because

Mr. Padilla’s conviction made “deportation virtually mandatory.” Id. Contrasting those

facts with the instant matter, during Mr. Hutton’s first coram nobis hearing, he testified that

he never told his counsel of his immigration status, a fact that was confirmed by Mr. Dyer’s



       9
       (...continued)
Hutton whether this was an issue that they should be concerned about, Mr. Hutton told him,
“no, don't worry about it.”

                                               9
testimony during the evidentiary hearing held on remand. Moreover, unlike Mr. Padilla, Mr.

Hutton does not assert that his trial counsel gave him incorrect immigration advice. To the

contrary, the evidence presented during the evidentiary hearing below demonstrates that

rather than advising his counsel of his immigration status and/or expressing concern

regarding what his guilty plea would mean for him immigration-wise, Mr. Hutton was

evasive, assuring counsel that it was nothing to worry about.



              Second, it is “clear from Padilla that the Supreme Court did not expressly

impose a blanket duty upon lawyers to ask every client charged with a crime whether they

are American citizens.” Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641. Further,

              [t]he Supreme Court’s silence in this regard has been recognized
              by other courts. For example, in Clarke v. State, 974 N.E.2d
              562 (Ind. Ct. App. 2012), the court commented on the issue of
              whether criminal defense lawyers must “ascertain the citizenship
              of their clients[,]” observing that “this issue is percolating in
              other states[.]” Id. at 568. The Indiana court then cited State v.
              Stephens, 46 Kan.App.2d 853, 265 P.3d 574, 577 (2011), review
              denied, wherein the Kansas court stated that “[t]he Padilla Court
              did not . . . impose upon counsel the duty to investigate the
              citizenship or immigration status of every client in a criminal
              case.”

Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641.10 In the more recent decision of “State v.

Rodriguez, No. 108, 505, 320 P.3d 449 (Table) (Kan. App. Mar. 14, 2014) . . . the Kansas


       10
         Regarding Padilla, the Stephens court further observed that “[t]he only issue the
United States Supreme Court decided was whether defense counsel had a duty to inform his
client, known to be a resident alien, of the effect of a guilty plea on the client’s immigration
status.” Stephens, 265 P.3d at 577.

                                              10
court relied upon Stephens, again noting that ‘[t]he Padilla majority did not impose a duty

to investigate the citizenship or immigration status of every client in a criminal case.’”

Hutton I, 235 W.Va. at 744, 776 S.E.2d at 641. I agree that if a client informs his or her

lawyer that he or she is an immigrant, then Padilla imposes a duty on counsel to advise that

client of the deportation consequences arising out of a guilty plea. However, because the

United States Supreme Court has not imposed a duty on counsel to investigate the citizenship

or immigration status of every client in a criminal case, I believe that any effort by the

majority to impose such a duty is unfounded.



              Regarding the second prong of Strickland, Mr. Hutton had to demonstrate that

he was prejudiced by his counsel’s deficient performance. Not only do I agree with the

circuit court’s conclusion that Mr. Hutton failed to show that his counsel had performed

deficiently, I also agree with the court’s conclusion that he could not show prejudice. The

seriousness of the charges in the underlying criminal proceeding–one count of malicious

assault and three counts of second degree sexual assault–and the strength of the evidence

against him11 made it unreasonable for Mr. Hutton to reject the plea agreement, which


       11
         The State represents that during Mr. Hutton’s plea hearing, the State proffered that
“the victim [Mr. Hutton’s girlfriend and the mother of his child] was prepared to testify that
Hutton had hit her with his fists, choked her until she almost passed out, threw her into a
wall, and continued to beat her with his fists and hands[;]” that “nine days after the battery,
the victim needed assistance to get out of the house and could not walk on her own[;]” and
that “[h]ospital records from nine days after the battery showed multiple contusions to the
back, chest, abdomen, shoulders, and sides, and a chest wall contusion.” The State further
                                                                                (continued...)

                                              11
allowed him to plead guilty to one count of unlawful assault (a lessor included offense of

malicious assault) with a dismissal of the other charges. Indeed, Mr. Hutton was facing

overwhelming evidence, including the testimony of his victim, corroborating witnesses, and

his own admissions.



              Although the majority states that Lee v. United States, 137 S.Ct. 1958, 582 U.S.

__ (2017),12 supports its conclusion that under the facts of this case, Mr. Hutton would not

have pled guilty had his counsel advised him that he would be deported if he did so, Lee

does not help Mr. Hutton’s cause. Unlike Mr. Hutton, who was evasive with his counsel

concerning his status, Mr. Lee “informed his attorney of his noncitizen status and repeatedly

asked him whether he would face deportation as a result of the criminal proceedings.” Id.

at 1963, 582 U.S. at __. In response, Mr. Lee’s attorney incorrectly advised him that “he

would not be deported as a result of pleading guilty.” Id.



              In addressing Mr. Lee’s ineffective assistance of counsel challenge, the

Supreme Court noted that the Court of Appeals had recalled the holding in Hill v. Lockhart,


       11
        (...continued)
represents that during the hearing on the motion for a protective order arising out of the
underlying criminal matter, the victim testified that Mr. Hutton sexually assaulted her while
she was recuperating from the injuries she sustained in his physical attack upon her.
       12
         Lee had not yet issued at the time of the circuit court’s decision on remand. Mr.
Hutton’s counsel apprised this Court of the Lee opinion in his notice of additional authority
filed under Rule of Appellate Procedure 10(i).

                                             12
474 U.S. 52 (1985), stating that “when a defendant claims that his counsel’s deficient

performance deprived him of a trial by causing him to accept a plea, the defendant can show

prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.’” Lee, 137 S.Ct. at 1964,

582 U.S. __. The Supreme Court further reasoned, however, that

                common sense (not to mention our precedent) recognizes that
                there is more to consider than simply the likelihood of success
                at trial. The decision whether to plead guilty also involves
                assessing the respective consequences of a conviction after trial
                and by plea. See INS v. St. Cyr, 533 U.S. 289, 322–323, 121
                S.Ct. 2271, 150 L.Ed.2d 347 (2001). When those consequences
                are, from the defendant’s perspective, similarly dire, even the
                smallest chance of success at trial may look attractive. For
                example, a defendant with no realistic defense to a charge
                carrying a 20-year sentence may nevertheless choose trial, if the
                prosecution’s plea offer is 18 years.

Lee, 137 S.Ct. at 1966-67, 582 U.S. __. Regarding Mr. Lee’s circumstances, the Supreme

Court stated:

                        We cannot agree that it would be irrational for a
                defendant in Lee’s position to reject the plea offer in favor of
                trial. But for his attorney’s incompetence, Lee would have
                known that accepting the plea agreement would certainly lead
                to deportation. Going to trial? Almost certainly. If deportation
                were the “determinative issue” for an individual in plea
                discussions, as it was for Lee; if that individual had strong
                connections to this country and no other, as did Lee; and if the
                consequences of taking a chance at trial were not markedly
                harsher than pleading, as in this case, that “almost” could make
                all the difference. Balanced against holding on to some chance
                of avoiding deportation was a year or two more of prison time.
                . . . Not everyone in Lee’s position would make the choice to



                                               13
              reject the plea. But we cannot say it would be irrational to do
              so.

Lee, 137 S.Ct. at 1968-69, 582 U.S. at __.



              As the majority observes, similar to Mr. Lee, Mr. Hutton has lived in the

United States for the majority of his life and has family members who live here, including

his son. Critically, however, unlike Mr. Lee, the prison time to which Mr. Hutton was

exposed by pleading guilty, contrasted with his exposure had he gone to trial and been

convicted, were not “ similarly dire.” Lee, 137 S.Ct. at 1966-67, 582 U.S. __. In fact,

dissimilar to the Supreme Court’s hypothetical of going to trial on a charge that carries a

20-year sentence where the prosecution’s plea offer was 18 years,” here, if convicted on all

counts, Mr. Hutton’s potential consecutive sentence was thirty-two to eighty-five years in

prison,13 whereas his plea bargain resulted in a one to five-year prison term.14 Consequently,

for Mr. Hutton, “[b]alanced against holding on to some chance of avoiding deportation was

[] [decades] of prison time.” Id. at 1969, 582 U.S. at __. Because “the consequences of

taking a chance at trial were [] markedly harsher than pleading[,]” a rejection of the plea

bargain would have been irrational under the circumstances. Id. Accordingly, I would affirm


       13
         See W.Va. Code § 61-8B-4 (2014) (providing for penalty of ten to twenty-five years
for second degree sexual assault); W.Va. Code § 61-2-9(a) (2014) (providing for penalty of
two to ten years imprisonment for malicious assault).
       14
       Mr. Hutton’s plea bargain allowed him to plead guilty to unlawful assault. See
W.Va. Code § 61-2-9(a) (providing for penalty of one to five years imprisonment for
unlawful assault).

                                             14
the circuit court’s conclusion that Mr. Hutton failed to demonstrate ineffective assistance of

counsel and its decision to deny the writ of error coram nobis.



              For these reasons expressed above, I respectfully dissent.




                                             15
