Ortiz-Mondragon v. Symdon
Filing
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DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Ortiz-Mondragon's 1 petition for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall issue. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED; IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel)(blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FERNANDO ORTIZ-MONDRAGON,
Petitioner,
v.
Case No. 15-CV-1412
DENISE SYMDON,
Respondent.
DECISION AND ORDER
Fernando Ortiz-Mondragon seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Ortiz-Mondragon pled no contest to substantial battery, criminal damage to property,
and disorderly conduct, all with a domestic abuse enhancer. (Habeas Pet., Docket # 1 at 2.)
Ortiz-Mondragon alleges that his conviction and sentence were unconstitutional. For the
reasons stated below, the petition for writ of habeas corpus will be denied. However, I will
grant a certificate of appealability.
BACKGROUND
Ortiz-Mondragon came to the United States from Mexico in 1997, and moved to
Wisconsin in 2002. (Answer, Ex. 9, State v. Ortiz-Mondragon, 2015 WI 73, No. 2013AP2435
(Wis. July 9, 2015), Docket # 7-9 at 6.) He has four children, all of whom are United States
citizens and Wisconsin residents. (Id.)
According to the criminal complaint, in September 2012, Ortiz-Mondragon violently
attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of
his children. (Id. at 7.) Ortiz-Mondragon became enraged because J.S. was talking to a male
neighbor on the phone. (Id.) Ortiz-Mondragon jumped on top of J.S. while she was talking
on the phone in bed. (Id.) Ortiz-Mondragon put his hands around J.S.’s neck and began
squeezing. (Id.) J.S. had trouble breathing and thought that Ortiz-Mondragon was going to
kill her. (Id.) When J.S. managed to get off the bed and tried to leave the room, OrtizMondragon punched her in the face and mouth and hit her in the back of the head. (Id.) J.S.’s
head bled profusely. (Id.) Ortiz-Mondragon also broke J.S.’s phone in half. (Id.) When J.S.
later sought treatment for her injuries, a wound on her face required five staples. (Id.) Their
two young children were in the room at the time of the incident. (Id.)
On September 14, 2012, Ortiz-Mondragon was charged with substantial battery, false
imprisonment, felony intimidation of a victim, criminal damage to property, and disorderly
conduct, all with a domestic abuse enhancer under Wis. Stat. § 968.075. (Id. at 6.) The State
made a plea offer to Ortiz-Mondragon, that if he would plead guilty or no contest to
substantial battery, criminal damage to property, and disorderly conduct, all with a domestic
abuse enhancer, the State would dismiss and read-in the other charges. (Id. at 7.) The State
would recommend three years of probation and four months in jail as a condition of
probation. (Id.)
At the circuit court plea and sentencing hearing on November 27, 2012, OrtizMondragon’s attorney informed the court that he had presented the State’s plea offer to OrtizMondragon, “given him paperwork to use to study it, given him information to use in
counseling, and [Ortiz-Mondragon] has just now confirmed that now he’s made his final
decision. He would like to take the offer.” (Id. at 8.) Counsel then handed the plea
questionnaire and waiver of rights form, along with some other papers, to the court. (Id.)
Ortiz-Mondragon had signed the plea questionnaire and waiver of rights form, which stated,
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inter alia: “I understand that if I am not a citizen of the United States, my plea could result in
deportation, the exclusion of admission to this country, or the denial of naturalization under
federal law.” (Id.) Counsel had signed the plea questionnaire and waiver of rights form
immediately below the following affirmation: “I am the attorney for the defendant. I have
discussed this document and any attachments with the defendant. I believe the defendant
understands it and the plea agreement. The defendant is making this plea freely, voluntarily,
and intelligently.” (Id.)
Ortiz-Mondragon stated that he wished to plead no contest to three counts pursuant
to the plea agreement. (Id.) The circuit court then informed him of the possible immigration
consequences of his pleas:
THE COURT: All right. The law requires I address you now and advise you
of the following: If you’re not a citizen of the United States, the plea you offer
me could result in your deportation, the exclusion of admission, or the denial
of naturalization under federal law. . . .
These are collateral consequences to [sic] on top of whatever I sentence you to.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Do you still wish to offer me these pleas then?
THE DEFENDANT: Yes.
(Id. at 9.) The circuit court then confirmed that Ortiz-Mondragon and his attorney had
discussed the plea questionnaire and waiver of rights form, which contained a warning about
possible immigration consequences of a conviction:
THE COURT: All right. In my right hand I have a plea-questionnaire-andwaiver-of-rights form. I have the standard jury instruction for the charge of
substantial battery with intent to cause bodily harm as well as the elements of
criminal damage and disorderly conduct. Do you see all these documents?
THE DEFENDANT: Yes.
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THE COURT: Did you sign the plea questionnaire?
THE DEFENDANT: Yes.
THE COURT: Before you signed it, did you read it over carefully?
THE DEFENDANT: Yes.
THE COURT: And while you were going over all these documents, did you
have an opportunity to fully discuss it with your attorney [. . .]?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied with his representation thus far?
THE DEFENDANT: Yes.
(Id. at 9–10.) The court concluded: “I’m going to find the defendant’s pleas today to be freely,
voluntarily, and intelligently entered on the record I have made. I’ll incorporate in support of
that the plea-questionnaire-and-waiver-of-rights form.” (Id. at 10.) The court then determined
that the facts supported Ortiz-Mondragon’s pleas and judged him guilty of substantial battery
and criminal damage to property and disorderly conduct. (Id.)
The State explained its joint recommendation for three years of probation and four
months in jail, noting that it had consulted with the victim, this was a “fairly violent offense,”
and Ortiz-Mondragon had no prior criminal record. (Id.) The State also noted that OrtizMondragon “was on an immigration hold at the . . . initial appearance,” but was not on any
other type of hold. (Id.)
J.S., the victim of Ortiz-Mondragon’s domestic abuse, then spoke to the court. (Id.)
She stated that she would like the felony battery charge reduced to a misdemeanor, noting
that Ortiz-Mondragon had four children that they were trying to keep in the United States,
but “if he ends up with a felony charge, that’s not going to happen.” (Id.) The court informed
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J.S. that Ortiz-Mondragon had just been found guilty of a felony. (Id. at 10–11.) After
discussing sentencing credit, which the court granted, the court then asked counsel whether
Ortiz-Mondragon had an Immigration and Customs Enforcement hold. (Id. at 11.) Counsel
stated, “I think there is, but the information I get is secondhand.” (Id.) Ortiz-Mondragon then
apologized for his behavior and stated that he “never had a problem like this before.” (Id.)
After discussing its reasoning, the court adopted the joint recommendation to place
Ortiz-Mondragon on probation for three years, and sentenced him to four months in the
county jail as a condition of probation. (Id. at 12.) J.S. asked if Ortiz-Mondragon would “be
let go” after his jail sentence. (Id.) The court stated that he would be let go “if the immigration
doesn’t put a hold on him. If the immigration people put a hold on him, that’s a federal issue.
Our officers have nothing to do with that.” (Id.)
A letter from Immigration and Customs Enforcement (“ICE”) filed with the circuit
court on December 12, 2012 requested that the court forward to ICE certified copies of the
complaint, information, judgment, and commitment order in Ortiz-Mondragon’s case. (Id.
n.8.) The letter stated that these documents would help ICE “in its efforts to expeditiously
remove alien criminals from the United States.” (Id.) Under “charge(s),” the letter stated,
“940.19(2) Substantial Battery—Intend Bodily Harm.” (Id.)
After Ortiz-Mondragon completed his jail sentence, apparently in early or midJanuary 2013, Immigration and Customs Enforcement took him into custody and
commenced removal proceedings against him. (Id. at 12 and n.7.) He agreed to a voluntary
departure to avoid a deportation on his record. (Id.) It is unclear when he departed for Mexico,
but it is undisputed that he did so at some point before November 25, 2015. (Resp. Br., Docket
# 14 at 6–11; Pet. Reply Br., Docket # 18 at 1–3.)
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In September 2013, Ortiz-Mondragon filed a postconviction motion to withdraw his
no-contest plea to substantial battery on grounds of ineffective assistance of counsel. (Docket
# 7-9 at 12.) In the motion, Ortiz-Mondragon argued that his substantial battery as an act of
domestic abuse was a “crime involving moral turpitude” under federal immigration law,
thereby rendering him subject to mandatory deportation and permanent exclusion from the
United States. (Id. at 12–13.) He argued that these consequences of his substantial battery
conviction were clear and that under Padilla v. Kentucky, 559 U.S. 356 (2010), his attorney
performed deficiently in failing to inform him of these consequences. (Id.) Ortiz-Mondragon
further argued that this deficiency prejudiced him. (Id.) He contended that, had he known the
immigration consequences of this conviction, he would have sought a different plea
agreement or would have insisted on going to trial in order to preserve the possibility of
remaining in or returning to the United States to be with his family. (Id.)
On October 9, 2013, the circuit court denied Ortiz-Mondragon’s motion to withdraw
his plea. (Docket # 1-2.) On October 7, 2014, the court of appeals affirmed the circuit court’s
order. (Habeas Pet., Ex. 3, State v. Ortiz-Mondragon, Appeal No. 2013AP2435-CR (Wis. Ct.
App. Oct. 7, 2014), Docket # 1-3.) On July 9, 2015, the Supreme Court of Wisconsin
affirmed. (Answer, Ex. 9, State v. Ortiz-Mondragon, 2015 WI 73, No. 2013AP2435 (Wis. July
9, 2015), Docket # 7-9.) On November 25, 2015, Ortiz-Mondragon filed a petition for a writ
of habeas corpus in this court. (Habeas Pet., Docket # 1.) On November 27, 2015, the
Wisconsin Department of Corrections finally discharged Ortiz-Mondragon from his term of
probation. (Answer, Docket # 7 at 2.)
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JURISDICTION
As an initial matter, the respondent argues that this court has no jurisdiction because
Ortiz-Mondragon was in Mexico at the time he filed his petition, either rendering the case
moot or rendering Ortiz-Mondragon no longer “in custody” as required by 28 U.S.C. §
2254(a). (Answer, Docket # 7 at 2; Resp’t Br., Docket # 14 at 6–11.)
Although the respondent raises the issue of mootness in both its answer and its brief,
the respondent concedes that “a conviction that will bar an alien from reentering the United
States will prevent a habeas petition from being mooted.” (Docket # 14 at 7–8.) Thus,
respondent concedes, “the question here is not whether his case became moot but whether he
was ‘in custody’ at the time he filed his petition.” (Id. at 11.)
It is well established, and the respondent concedes, that a petitioner who has been
released on probation, parole, or supervised release is considered to be “in custody” for
purposes of habeas relief. (Docket # 14 at 7 (citing Jones v. Cunningham, 371 U.S. 236, 242
(1963), Carafas v. LaVallee, 291 U.S. 234, 240 (1968).) See also Maleng v. Cook, 490 U.S. 488,
491 (1989) (prisoner on parole was still “in custody” under his unexpired sentence because of
the conditional nature of release); Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004); Valona
v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (“Parole is a form of ‘custody.’”). Cf. Wis.
Stats. § 973.10(1) (“Imposition of probation shall have the effect of placing the defendant in
the custody of the department and shall subject the defendant to the control of the
department.”) Had Ortiz-Mondragon been in the United States when he filed his petition, this
court would unquestionably have jurisdiction. The wrinkle here is whether OrtizMondragon’s absence from the country changes that outcome.
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The respondent does not cite, and I have not found, any federal case holding that mere
absence from the United States at the time of filing defeats a habeas petition for a petitioner
whose probation is ongoing. The cases cited by the respondent to support this position are
distinguishable from this one in relevant ways. In Samirah v. O’Connell, 335 F.3d 545 (7th Cir.
2003), the petitioner had obtained permission from Immigration and Naturalization Services
(“INS”) to travel abroad for two weeks. While Samirah was abroad, INS revoked that
permission. As a consequence, Samirah was unable to return to the United States. Samirah
filed a petition for a writ of habeas corpus, arguing that this exclusion from the United States
amounted to being “in custody.” The Court of Appeals for the Seventh Circuit held otherwise:
“Although the word ‘custody’ is elastic, all definitions of it incorporate some concept of
ongoing control, restraint, or responsibility by the custodian.” Samirah, 335 F.3d 545, 549.
“Samirah is, in some sense, restrained insofar as he cannot enter the United States. But that
restraint, such as it is, only puts him on par with the billions of other non-U.S. citizens around
the globe who may not come to the United States without the proper documentation.” Id. at
549–50.
Thus, Samirah stands for the proposition that mere exclusion from the United States
does not amount to being “in custody” for habeas purposes. Later cases confirm this rule. In
Rivas-Melendrez v. Napolitano, 689 F.3d 732 (7th Cir. 2012), a lawful permanent resident who
had been removed to Mexico based on a criminal conviction challenged his removal in a
petition for a writ of habeas corpus. Like Samirah, Rivas-Melendrez based his statutory
jurisdictional claim on his exclusion from the country, not on the fact that he was on probation
for a criminal sentence. Other than his exclusion from the United States, there were no
constraints at all upon Rivas-Melendrez’s liberty by virtue of his removal. Thus, the Seventh
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Circuit held that he was not “in custody.” Id. at 738–39. See also Nino v. Johnson, No. 16-CV2876, 2016 WL 6995563, *6 (N.D. Ill. Nov. 30, 2016).
The respondent also cites to the Tenth Circuit case of United States v. Vera-Flores, 496
F.3d 1177 (10th Cir. 2007), in which that court found that a criminal defendant’s appeal of
his sentence was moot following removal from the United States to Mexico. (Docket # 14 at
10.) There are several reasons I decline to analyze this case in light of Vera-Flores. First, it
involved mootness under Article III’s case-or-controversy requirement, not the “in custody”
requirement of the habeas statute, and the respondent has conceded that Ortiz-Mondragon’s
case is not moot. Second, it was not decided by the Seventh Circuit, and at least one other
circuit court of appeals has declined to follow it. U.S. v. Heredia-Holguin, 823 F.3d 337, 342
(5th Cir. 2007).
Ortiz-Mondragon’s case differs from Samirah and Rivas-Melendrez in that OrtizMondragon does not base his jurisdictional claim on the fact that he was excluded from the
United States. Rather, his claim to have been “in custody” is based on the fact that he was on
probation with the Wisconsin Department of Corrections. While I have found no habeas case
with facts precisely similar to this one, there are a number of cases that provide some
guidance. In United States v. Campos-Serrano, 404 U.S. 293, 294 n.2 (1971), the Supreme Court
held that although a respondent was in Mexico, he was “still under the sentence of the District
Court and on probation subject to conditions imposed by the District Court. Should he violate
those conditions, he will be subject to imprisonment under his continuing criminal sentence.”
While the facts of Campos-Serrano are distinguishable, that case supports a conclusion that
absence from the United States does not alone prevent the terms of a probation from
continuing to apply. See also Heredia-Holguin, 823 F.3d at 341–42. Similarly, several cases have
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held that a person detained abroad may nevertheless be “in custody” of the United States for
purposes of the habeas statute. See e.g. Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.C. Cir. 2004)
(citizen detained abroad purportedly at the behest of the United States could be “in custody,”
rejecting “the unreviewable power to separate an American citizen from the most
fundamental of his constitutional rights merely by choosing where he will be detained or who
will detain him.”); Portillo v. Bharara, 527 Fed. Appx. 48, 50 (2nd Cir. 2013) (“Portillo’s alien
status and detention outside the United States do not necessarily preclude a finding of
constructive custody.”). Although these cases are factually distinguishable, they support a
conclusion that mere absence from the country at the time of filing does not preclude habeas
jurisdiction.
As noted, Ortiz-Mondragon is not basing his claim to be “in custody” on his exclusion
from the United States; rather, his claim to be “in custody” is based on the fact that his period
of probation was ongoing at the time he filed his petition. Because there is clear precedent
that a petitioner on probation is “in custody” for purposes of the habeas statute, that the terms
of a conditional release may still apply to one who has been deported, and that absence from
the country at the time of filing does not alone defeat a habeas petition, I conclude that this
court has jurisdiction to hear Ortiz-Mondragon’s petition for a writ of habeas corpus.
STANDARD OF REVIEW
Ortiz-Mondragon’s petition is governed by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). Under the AEDPA, a writ of habeas corpus may be granted if the
state court decision on the merits of the petitioner’s claim (1) was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable
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determination of the facts in light of the evidence presented in the State court proceeding,” 28
U.S.C. § 2254(d)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as established
by the United States Supreme Court” if it is “substantially different from relevant [Supreme
Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams
v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow
application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas
corpus . . . where the state court applied a rule that contradicts the governing law as
expounded in Supreme Court cases or where the state court confronts facts materially
indistinguishable from a Supreme Court case and nevertheless arrives at a different
result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the
state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s
case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997).
In Morgan v. Krenke, the court explained:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application” clause, “a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.”
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232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied,
532 U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it
must determine that the state court decision was both incorrect and unreasonable.
Washington, 219 F.3d at 627.
ANALYSIS
Citing to Padilla v. Kentucky, 559 U.S. 356 (2010), Ortiz-Mondragon argues that his
attorney’s failure to provide him with specific advice about the adverse immigration
consequences of his plea to substantial battery, domestic abuse, amounted to ineffective
assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. (Docket
# 1 at 14–16.)
1. Legal Standard
The clearly established Supreme Court precedent for ineffective assistance of counsel
claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance of counsel, Ortiz-Mondragon must show both “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Id. at 687. “Once a
plea of guilty has been entered, non-jurisdictional challenges to the constitutionality of the
conviction are waived and only the knowing and voluntary nature of the plea may be
attacked.” United States v. Brown, 870 F.2d 1354, 1358 (7th Cir. 1989). Thus, a guilty plea
generally closes the door to claims of constitutional error. There is an exception, however, for
instances where one’s plea is rendered involuntary due to the ineffective assistance of counsel.
Avila v. Richardson, 751 F.3d 534, 536 (7th Cir. 2014). A habeas petitioner “cannot just assert
that a constitutional violation preceded his decision to plead guilty or that his trial counsel
was ineffective for failing to raise the constitutional claim”; rather, he “must allege that he
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entered the plea agreement based on advice of counsel that fell below constitutional
standards.” Hurlow v. United States, 726 F.3d 958, 966 (7th Cir. 2013).
In the context of a guilty plea, Strickland’s “prejudice” requirement “focuses on
whether counsel’s constitutionally ineffective performance affected the outcome of the plea
process. In other words, to satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).
A court deciding an ineffective assistance claim need not approach the inquiry “in the
same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed. Courts
should strive to ensure that ineffectiveness claims not become so burdensome to defense
counsel that the entire criminal justice system suffers as a result.” Id.
Specifically, as to defense counsel’s obligations to advise non-citizen clients of adverse
immigration consequences, the Supreme Court in Padilla held that counsel must advise a noncitizen defendant regarding the risk of deportation. 559 U.S. at 367–69. However, the extent
of that duty depends upon whether “the terms of the relevant immigration statute are succinct,
clear, and explicit in defining the removal consequence for [the] conviction.” Id. at 368. The
Court continued:
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Padilla’s counsel could have easily determined that his plea would make him
eligible for deportation simply from reading the text of the statute, which
addresses not some broad classification of crimes but specifically commands
removal for all controlled substances convictions except for the most trivial of
marijuana possession offenses. Instead, Padilla’s counsel provided him false
assurance that his conviction would not result in his removal from this country.
This is not a hard case in which to find deficiency: The consequences of
Padilla’s plea could easily be determined from reading the removal statute, his
deportation was presumptively mandatory, and his counsel’s advice was
incorrect.
Id. at 368–69. The Court distinguished cases such as Padilla’s from those in which the
consequences of the plea were not evident from the immigration statute alone:
Immigration law can be complex, and it is a legal specialty of its own. . . .
There will . . . undoubtedly be numerous situations in which the
deportation consequences of a particular plea are unclear or uncertain. The
duty of the private practitioner in such cases is more limited. When the law
is not succinct and straightforward . . ., a criminal defense attorney need
do no more than advise a noncitizen client that pending criminal charges
may carry a risk of adverse immigration consequences.
Id. at 369.
In sum, the Supreme Court delineated two categories of cases, each invoking different
obligations to advise non-citizens of the immigration consequences of their criminal charges.
Where the law is “clear, succinct, and explicit,” a criminal defense attorney’s duty to advise
about deportation consequences is heightened. However, where the law is not succinct and
straightforward, the attorney’s duty is limited to simply advising the non-citizen client that
pending criminal charges may carry a risk of adverse immigration consequences. I will refer
to these two different duties as the “specific duty” and the “general duty.”
2. Application to This Case
In addressing Ortiz-Mondragon’s claim, the Wisconsin Supreme Court properly cited
to Strickland. (Docket # 7-9 at 17–18.) Moreover, the Wisconsin Supreme Court analyzed
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whether trial counsel’s performance was deficient under Strickland in light of Padilla. (Id. at
17–18.) Ortiz-Mondragon has not shown that the Wisconsin Supreme Court incorrectly
identified the controlling legal standard; thus, the question before me is whether the court
unreasonably applied Padilla to the facts of this case.
In applying Padilla to this case, the Wisconsin Supreme Court correctly recognized the
two categories of counsel’s duty to advise non-citizen criminal defendants of adverse
immigration consequences. In discerning whether Ortiz-Mondragon’s counsel’s duty was
specific or general, the court began by examining whether immigration law is succinct, clear,
and explicit that Ortiz-Mondragon would be deported and excluded because his substantial
battery was a crime involving moral turpitude. (Docket # 7-9 at 19–32.) First, the court noted
that the term “crimes involving moral turpitude” is not defined in the statute or the federal
regulations implementing it. (Docket # 7-9 at 20–21.) The court noted that the case law that
analyzes whether a crime qualifies as a crime involving moral turpitude for purposes of
deportation often uses terms of generality rather than specifics, making a definition elusive.
(Id. at 21–23.) Further, in addition to the lack of a precise definition, the court cited to a split
in the federal courts’ approaches in analyzing crimes involving moral turpitude, observing
that it is problematic to ascertain whether any particular crime qualifies as a crime involving
moral turpitude. (Id. at 23.)
Finally, the court noted that in In re Silva-Trevino, 24 I. & N. Dec. 687, 2008 WL
4946455 (A.G. 2008), vacated by Matter of Silva-Trevino, 6 I. & N. Dec. 550, 2015 WL 1754705
(A.G. 2015), the U.S. Attorney General had added to the complexity of determining whether
a crime qualifies as a crime involving moral turpitude, leaving this question in a “state of
flux.” (Id. at 24–25.) In that opinion, the Attorney General acknowledged the lack of guidance
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in the text itself, noting that the statute was silent as to a definition of that term and also how
to determine whether a crime fit that category, and acknowledged that “to the extent it
suggests a method, the text actually cuts in different directions.” Id. at **6. The Attorney
General noted judicial confusion and a circuit split regarding how to apply the statute, and
that in any event, “administrative agencies are not bound by prior judicial interpretations of
ambiguous statutory provisions.” Id. at **6–9. The Attorney General attempted to untangle
the knot by prescribing a three-step test: First, the Bureau of Immigration Appeals (“BIA”)
would look to the statute of conviction and determine whether there is a “realistic probability”
that the statute would be applied to reach conduct that does not involve moral turpitude.
Second, if such a categorical inquiry does not resolve the question, the BIA would engage in
a “modified categorical inquiry” and examine the record of conviction, including documents
such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and
the plea transcript. Finally, if the record of conviction was inconclusive, the BIA would
consider any additional evidence deemed necessary or appropriate to resolve accurately the
moral turpitude question. Id. at **9–18.
After surveying the landscape as discussed above, the Wisconsin Supreme Court
concluded:
[F]ederal immigration law does not succinctly, clearly, and explicitly provide
that Ortiz-Mondragon’s substantial battery was a crime involving moral
turpitude such that his counsel’s advice should have been different. The
methodology for determining whether a crime qualifies as a crime involving
moral turpitude varies by jurisdiction and is in a “state of flux.” The cases that
Ortiz-Mondragon cites fail to provide a succinct, clear, and explicit answer as
to whether Ortiz-Mondragon’s substantial battery qualified as a crime
involving moral turpitude. Accordingly, his trial counsel “need[ed] [to] do no
more than advise [him] that pending criminal charges may carry a risk of
adverse immigration consequences.”
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(Id. at 31–32 (internal citations omitted)).
This is a reasonable application of Padilla to the facts of this case. In Padilla, the Court
noted that counsel “could have easily determined that his plea would make him eligible for
deportation simply from reading the text of the statute,” contrasting this statute with those
addressing “some broad classification of crimes.” Padilla, 559 U.S. at 368. The Court again
emphasized that “[t]he consequences of Padilla’s plea could easily be determined from
reading the removal statute.” Id. at 369. In clear contrast, the Court held that “[w]hen the law
is not succinct and straightforward, a criminal defense attorney need do no more than advise
a noncitizen client that pending criminal charges may carry a risk of adverse immigration
consequences.” Id.
Moreover, of particular importance here, Padilla itself recognized the problems posed
by defining “crime involving moral turpitude.” In the relevant portion of his concurring
opinion, referenced favorably by the majority, id. at 369, Justice Alito pointed to the difficulty
of imposing a duty to provide advice about deportation when statutory terms are ambiguous
or may be confusing to attorneys who do not specialize in immigration law:
Most crimes affecting immigration status are not specifically mentioned [in the
immigration statutes], but instead fall under a broad category of crimes, such
as crimes involving moral turpitude or aggravated felonies. As has been widely
acknowledged, determining whether a particular crime is an “aggravated
felony” or a “crime involving moral turpitude . . . ” is not an easy task.
Id. at 377–78. It was therefore reasonable for the Wisconsin Supreme Court to conclude that
“crimes involving moral turpitude” is the sort of broad classification of crimes that invokes
only a general duty to advise on deportation consequences.
Ortiz-Mondragon argues that, under Padilla, the Wisconsin Supreme Court erred in
analyzing whether the term “crime involving moral turpitude” itself was clear, rather than
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whether the immigration consequence of Ortiz-Mondragon’s conviction was clear. (Pet. Br.,
Docket # 11 at 15.) Ortiz-Mondragon’s argument has some appeal. Before the Wisconsin
Supreme Court, two justices were persuaded by this argument and dissented. (Docket # 7-9
at 45–63.) In my view, Ortiz-Mondragon’s argument would be persuasive if the question
before the Wisconsin Supreme Court had been whether counsel had been deficient for failing
to inform Ortiz-Mondragon that his conviction for substantial battery with domestic abuse
enhancer carried a risk of deportation. As the dissenting justices pointed out, aside from the
subsection on “crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(E)(i) renders a noncitizen deportable for a conviction of domestic violence. (Docket # 7-9 at 46–63.) This was a
clear and succinct immigration law that clearly encompassed Ortiz-Mondragon’s conviction
for substantial battery with a domestic violence enhancer, and thus it triggered the specific
duty to advise. Unfortunately, because ineffective assistance of counsel for failing to advise
about deportability under the domestic violence provision had not been raised, briefed, or
argued by the parties, the Wisconsin Supreme Court did not address it. (Id. at 3 n.4.) Neither
did the court have before it the broad question of whether there was any immigration law that
triggered the specific duty to advise in Ortiz-Mondragon’s case. Rather, the court had before
it only the narrow question presented by Ortiz-Mondragon’s briefing: whether there was clear
and straightforward immigration law that the conviction qualified as a “crime involving moral
turpitude.”
As discussed above, on the narrow question presented to it, the Wisconsin Supreme
Court’s approach fits squarely within Padilla. The task presented to the court was to determine
whether immigration law was succinct and clear that Ortiz-Mondragon’s substantial battery
qualified as a “crime involving moral turpitude” such that it triggered the specific duty to
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advise. The Wisconsin Supreme Court analyzed the elusive definition of “crime involving
moral turpitude,” then discussed the difficulty of determining whether a particular crime
qualified as such a crime. The court then analyzed and distinguished the cases that OrtizMondragon cited in support of his position that his substantial battery conviction qualified as
a crime involving moral turpitude. Having found that the law was not succinct, clear, and
explicit regarding the immigration consequences of Ortiz-Mondragon’s plea, the Wisconsin
Supreme Court concluded that counsel had only a general duty to advise about deportation
consequences. (Docket # 7-9 at 31–32.)
Additionally, the court concluded that counsel had met this general duty by conveying
to Ortiz-Mondragon the information contained in the plea questionnaire and waiver of rights
form—specifically, that Ortiz-Mondragon’s plea could result in deportation, the exclusion of
admission to this country, or the denial of naturalization under federal law—and discussing
it with him. (Id. at 32–44.) Padilla does not prescribe how counsel should execute the general
duty to advise; thus, I cannot say it was contrary to, or an unreasonable application of, Padilla
for the Wisconsin Supreme Court to conclude that counsel had performed adequately by
providing the plea questionnaire.
For the reasons above, I conclude that the Wisconsin Supreme Court’s determination
that Ortiz-Mondragon’s trial counsel was not ineffective was neither contrary to nor an
unreasonable application of Strickland and Padilla.
CONCLUSION
To obtain habeas relief, Ortiz-Mondragon must show that the Wisconsin Supreme
Court’s ineffective assistance of counsel analysis was contrary to or an unreasonable
application of Strickland and Padilla. While I am sympathetic to Ortiz-Mondragon’s plight, I
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must conclude that the Wisconsin Supreme Court’s decision on the narrow issue presented
to it was neither contrary to nor an unreasonable application of Strickland and Padilla.
Accordingly, Ortiz-Mondragon’s claim does not present a basis to grant relief under 28 U.S.C.
§ 2254. The petition will therefore be denied and this case dismissed.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or
deny a certificate of appealability “when it enters a final order adverse to the applicant.” A
certificate of appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing
of the denial of a constitutional right, the petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893, and n.4). Here, I find that the issues presented by Ortiz-Mondragon’s
petition deserve encouragement to proceed further. Accordingly, I will grant a certificate of
appealability to encourage development of these issues.
ORDER
NOW, THEREFORE, IT IS ORDERED that Ortiz-Mondragon’s petition for a writ
of habeas corpus (Docket # 1) is DENIED;
IT IS FURTHER ORDERED that a certificate of appealability shall issue.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED;
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
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Dated at Milwaukee, Wisconsin this 25th day of January, 2019.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge
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