IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA : : : : : : : : : : PETITION FOR WRIT OF HABEAS CORPUS

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1 IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA ULISES MENDOZA, v. STATE OF GEORGIA, Petitioner, Respondent. Case No. PETITION FOR WRIT OF HABEAS CORPUS COMES NOW, Petitioner, by and through undersigned counsel, and files this Petition for Writ of Habeas Corpus. In support of his Petitioner, Petitioner shows this Honorable Court the following 1. Respondent is the State of Georgia and is subject to the jurisdiction of this Court. 2. Petitioner is Ulises Mendoza. 3. Petitioner pled guilty to the felony offense of Obstruction of Officer in the above-styled case. Petitioner was not treated as a first offender, because of a prior DUI conviction in The date of the rendition of the final judgment complained of was October 18, 1994, which is the date that the sentence was imposed upon Petitioner after such conviction by Honorable Judge Michael E. Hancock. 5.

2 Said sentence was two (2) years to serve 30 days, 150 hours community service. 6. Petitioner successfully completed the terms and conditions of the sentence in the above styled case. The case discharged as a conviction on July 28, The said plea and sentencing resulted from a proceeding, in which there was a substantial denial of Petitioner s rights to counsel and to due process, in that Petitioner was incorrectly advised by his attorney at the time of his plea, of the true consequences of his plea. Petitioner relied on counsel s advice to enter his plea and he would have never pled guilty to said charge freely and voluntarily had he been properly advised. 8. In support of this petition, enclosed is a copy of the sentence sheet imposed upon the Petitioner s person (hereby attached as Exhibit A). WHEREFORE, Petitioner prays for the following That this Honorable Court grant Petitioner s Writ of Habeas Corpus, thus, vacating Petitioner s plea and declaring Petitioner s plea, conviction and sentence for the offense of Obstruction of Officer to be null and void ab initio, and thus, avoid a miscarriage of justice.

3 Respectfully submitted, Ronald E. Smith, Esq. Attorney for Petitioner Georgia Bar Ronald Ehlbert Smith, Attorney at Law P.O. Box 8586 Atlanta, Georgia (678)

4 IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA ULISES MENDOZA, v. STATE OF GEORGIA, Petitioner, Respondent. Case No. BRIEF IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS COMES NOW, Petitioner, Ulises Mendoza, by and through undersigned counsel, and files this brief in support of his Petition for Writ of Habeas Corpus and shows this Honorable Court the following PROCEDURAL HISTORY AND STATEMENT OF FACTS Petitioner was arrested and charged with the offense of Obstruction of Officer. Mr. Mendoza entered a guilty plea to the charge on October 18, He has been incarcerated by ICE authorities since July 12, 2012 at the Stewart Detention Center, Lumpkin, Georgia as a direct result of recorded conviction of that charge. Mr. Mendoza was born and raised in El Salvador until he was about 12 years of age. He moved to this country with his parents thereafter. He never learned to read or write Spanish or English. His primary spoken language is Spanish and his ability to understand and to speak English is very limited. Mr. Mendoza is ignorant as to all matters of law. He has always been gainfully employed and has always been a hard working and respectable member of society. He and his wife, Yolanda Mendoza, are legal permanent residents with four United States citizen children ages 10, 12, 18 and 19, all of who depend on his financial support and care.

5 Mr. Mendoza was represented by counsel at the time of the plea, where he was given misadvice by his attorney regarding the true consequences of his plea. Mr. Mendoza relied to his detriment on his lawyer s misadvice to the extent that he would not have entered a guilty to the charge but rather gone to trial had he been properly advised. As a direct result of not being so properly advised, Mr. Mendoza s guilty plea was not entered freely and voluntarily in violation of both State and Federal Constitutional standards of due process of law. ARGUMENT AND CITATION OF AUTHORITY 1. Counsel for Petitioner was ineffective in advising and counseling Petitioner and due to such incorrect advice, Petitioner s Sixth Amendment right to counsel was violated in view of Petitioner s detrimental reliance on said misadvice, resulting in her plea not being entered freely and voluntarily. The right to counsel, secured by the Sixth and Fourteenth Amendments to the United States Constitution and the Georgia Constitution, includes the guarantee that the defendant will receive effective representation. Powell v. Alabama, 287 U.S. 45, 71 (1932). Courts use a twopart test to determine whether a defendant received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A criminal defendant is deprived of effective assistance of counsel when the defense attorney fails to act in the manner expected of a reasonably competent attorney acting as a diligent advocate. Id. A criminal defendant is deprived of effective assistance of counsel when the defense attorney fails to act in the manner expected of a reasonably competent attorney acting as a diligent advocate, and it is reasonably probable that a determination more favorable to the defendant would have resulted in the absence of counsel s failure. McMann v. Richardson, 397 U.S. 759, 771 (1970). When trial counsel affirmatively advises a defendant of the collateral consequences of a guilty plea prior to the entering of the plea, the claim of ineffective assistance of counsel claim of ineffective

6 assistance of counsel claim is to be evaluated under the two-part Strickland test. Rollins v. State, 277 Ga. 488, 591 S.E.2d 796 (2004). When the misadvice of the lawyer is so gross as to amount to a denial of the constitutional right to the effective assistance of counsel, leading the defendant to enter an improvident plea, striking the sentence and permitting a withdrawal of the plea seems only a necessary consequence of the deprivation of the right to counsel. Holmes v. United States, 876 F.2d 1545 (11 th Cir. 1989). Counsel s responsibilities include a duty to defend against the immigration consequences of a conviction-counsel must investigate, research and accurately advise their clients about the actual (not merely potential) immigration consequences of the conviction. Rollins v. State, 277 Ga. 488, 591 S.E.2d 796 (2004). These duties are derived from the general duty to conduct a reasonable investigation of the case enabling counsel to make informed decisions about how best to represent the client. Strickland supra, 466 U.S. at 691, 194 S.Ct. at Counsel s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. Strickland at 688, 104 S.Ct. at From counsel s function as assistant to the defendant derive the overarching duty to advocate the defendant s cause and the more particular duties to consult with the defendant on important decisions. Ibid. Especially on point is Rollins v. State, where the Georgia Supreme Court found that the defendant s plea was the result of ineffective assistance of counsel because the counsel s affirmative misrepresentation of the collateral consequences of the defendant s plea me the twopart Strickland test, 277 Ga. 488, 591 S.E.2d 796 (2004). In Rollins the Defendant, resident alien from Barbados entered a plea of guilty to a charge of possession of cocaine under the First Offender Act because her counsel affirmatively told her that by pleading under the First Offender Act that there would be no negative consequences regarding her immigration status or her desire

7 to become a lawyer in the future. The court found that basic research on the part of the trial counsel could have learned that an alien of the defendant s status was subject to deportation if found to have violated any laws of the United States regarding controlled substances, and Rollins, 277 Ga. At 491. Further, the court noted that it is standard practice for any State Bar in considering whether an applicant is fit to practice law to request information regarding whether the applicant has been charged with a crime and to explain the resolution of the case, which trial counsel also should have known or been able to find out easily. Id. at 491. However, without this research or knowledge, the trial counsel made an affirmative misrepresentation of the collateral consequences of a guilty plea, in fact that the plea would have no effect on the defendant s immigration status or ability to practice law in the future. Id. The court found that but for counsel s error, the defendant would not have pled guilty. Id. at 492. Therefore, the court found that the defendant s plea was the result of ineffective assistance of counsel and that the defendant was allowed to withdraw her guilty plea. Id. at 492. Recently, the U.S. Supreme Court decided the case of Padilla v. Kentucky 130 S.Ct (2010). The Petitioner, a native of Hondurus and a legal permanent resident of the United States, entered a guilty plea to a marijuana charge. His attorney not only failed to advise him of his deportation consequences prior to entering the guilty plea, but also affirmatively advised him that he did not have to worry about his immigration status. Id. The Court held that counsel must inform a client whether his plea carries a risk of deportation, and the failure to do so is ineffective representation of counsel and a violation of the Sixth Amendment. Id. In discussing the importance of defense counsel s obligation to advise a client of the immigration consequences of a guilty plea, the Court states These changes to our immigration law have dramatically raised the stakes of a noncitizen s criminal conviction. The importance of accurate legal advice for

8 noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. This application of the well-settled rule of Strickland v. Washington, as outlined in Padilla, must be applied retroactively to cases on collateral review. O.C.G.A (c)(3) provides that a habeas corpus petition shall be filed within one year in the case of misdemeanors, or within four years in the case of feloniew, from the date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia. This same rule is recognized by Federal Courts in 28 U.S.C. Sec.2244(d)(1) (a one-year period of limitation shall apply to an application for a writ of habeas corpus from the date on which the constitutional right asserted was initially recognized by the Supreme Court). Additionally, if the Supreme Court did not intend for Padilla to be applied retroactively, that would render meaningless the majority s discussion regarding the concerns in opening the floodgates of challenges to guilty pleas. See Padilla, 130 S.Ct. at If it were not for Mr. Mendoza s attorney s affirmative misstatement regarding the true consequences of Defendant s plea, Mr. Mendoza would not have entered a guilty plea to the charge against him. Instead, counsel affirmatively counseled Mr. Mendoza with incorrect advice as to the true consequences of the plea. Thus, counsel s incorrect advice denied Mr. Mendoza the opportunity to consider the true and actual effects of the plea when making his decision whether to go to trial or plead to the charge. Deficient performance of counsel has therefore been shown. Prejudice is also apparent, i.e. that the client would not have entered this plea if he had been properly advised. In the context of setting aside a plea, prejudice is shown if the petitioner

9 establishes a reasonable possibility, less than 50% but great enough to undermine confidence in the outcome, that he or she would not have entered the plea if correctly advised. The question is not whether there would have been a different outcome after a trial, but whether the petitioner, if correctly advised, would have entered the plea or other waiver. The United States Supreme Court has made this clear [T]he 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, 59, 106 S.Ct. 366, 370 (1985); O Tuel v. Osborne, 706 F.2d 498, 501 (4 th Cir. 1983); Strader v. Garrison, 611 F.2d 61 (4 th Cir. 1979). Mr. Mendoza s case falls within the zone of cases in which the outcome might very well have been different if the client had been informed of the actual consequences of the plea. It is practically certain that, had Mr. Mendoza known the true consequences, he would have contested his guilt at trial. In the case at bar, Mr. Mendoza was given misadvice by his attorney about the true consequences of his plea. Therefore, Mr. Mendoza s plea was not entered with a full understanding and knowledge of the consequences of his plea; thus, such plea was not knowingly, freely and voluntarily entered. O.C.G.A (c) which went into effect on July 2000, now requires the courts to conduct an inquiry of a criminal defendant s immigration status and to advise him of the potential immigration consequences of his plea. Also, specifically on point with the case at bar, is State v. Colack, 273 Ga. 361, 541 S.E.2d 374 (2001), where the Georgia Supreme Court affirmed the Gwinnett County Superior Court s ruling granting petitioner Habeas Corpus relief, on the basis that petitioner was not expressly advised that deportation was a possible

10 consequence of her entering a guilty plea. In that case, petitioner was a resident alien who sought Habeas Corpus relief, because prior to pleading guilty to a charge of theft by shoplifting in 1994, he was not expressly advised that deportation was a possible consequence of her plea. WHEREFORE, in view of the above, Mr. Mendoza respectfully requests that this Honorable Court conclude that the errors were prejudicial, that his Petition for Writ of Habeas Corpus be granted, that his guilty plea be declared null and void and that his conviction for the charge of Obstruction of Officer be vacated ab initio. Respectfully submitted, Ronald E. Smith, Esq. Attorney for Petitioner Georgia Bar Ronald Ehlbert Smith, Attorney at Law P.O. Box 8586 Atlanta, Georgia (678)

11 CERTIFICATE OF SERVICE This is to certify that I have this day served opposing counsel, The District Attorney of the Stone Mountain Judicial Circuit, a copy of the foregoing pleading by causing a true a correct copy to be delivered via first class mail with sufficient postage affixed thereon or by hand delivery to DeKalb County District Attorney s Office 556 North McDonough Street 700 DeKalb County Courthouse Decatur, Georgia This day of September, 2012 Ronald E. Smith, Esq. Attorney for Petitioner Georgia Bar Ronald Ehlbert Smith, Attorney at Law P.O. Box 8586 Atlanta, Georgia (678)

12 IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA ULISES MENDOZA, v. STATE OF GEORGIA, Petitioner, Respondent. Case No. 12CV10948 ORDER PETITIONER, having been before this Honorable Court on his Petition for Writ of Habeas Corpus, the State having consented and this Court having found that there is sufficient reason to grant such Petition; IT IS HEREBY ORDERED, that on the Petition for Writ of Habeas Corpus the judgment, plea and sentence imposed in this matter October 18, 1994, for the offense of obstruction of officer in the case of State of Georgia vs. Ulises Mendoza, Case No CR be and it is hereby granted, and the plea, judgment and sentence are hereby vacated as void ab initio on the grounds that the guilty plea was not entered in a knowing and voluntary fashion. This 5th of October, Honorable Judge Asha F. Jackson Superior Court of DeKalb County Prepared by Consented to by Ronald E. Smith, Attorney for Petitioner DeKalb County District Attorney s Office