United States of America v. Romelius Ramiro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROMELIUS RAMIRO,
Defendant - Appellant.
No. 10-15195
D.C. Nos. 1:09-cv-00559-SOM-KSC
1:08-cr-00294-SOM
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted October 8, 2013
Honolulu, Hawaii
Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.
The district court erred by summarily dismissing Ramiro’s motion under 28
U.S.C. § 2255. Ramiro is entitled to relief if his counsel “effectively misled” him
about the immigration consequences of his guilty plea and he was prejudiced by
that misleading advice. See United States v. Kwan, 407 F.3d 1005, 1014–15 (9th
FILED
DEC 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Cir. 2005), abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010). The record, far
from “conclusively show[ing] that [Ramiro] is entitled to no relief,” 28 U.S.C.
§ 2255(b), actually supports his motion. Ramiro’s counsel apparently advised him
that the immigration judge would ultimately decide whether to deport him, and that
receiving a lower sentence might improve his chances of avoiding deportation. In
fact, however, the immigration judge had no discretion in making that decision.
Allegedly acting on his lawyer’s advice, Ramiro pleaded guilty to distribution of
methamphetamine, which is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B).
An aggravated felony conviction “prohibits the Attorney General from granting
discretionary relief from removal,” Moncrieffe v. Holder, 133 S. Ct. 1678, 1682
(2013), and Ramiro had no claim for non-discretionary relief. Thus, upon
Ramiro’s guilty plea, the law mandated his deportation. Contrary to the misleading
advice he appears to have received from his lawyer, Ramiro had no ability to
persuade the immigration judge otherwise.
Ramiro also may well have been prejudiced by his counsel’s objectively
unreasonable performance. Prejudice requires establishing that, but for counsel’s
errors, there is a reasonable probability “he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Nothing in the record refutes his assertion that he would have gone to trial had he
-2-

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been correctly advised about the immigration consequences of his plea. To the
contrary, his behavior throughout the plea proceedings demonstrates that he
“placed particular emphasis” on avoiding deportation. Id. at 60. Indeed, the record
reveals that Ramiro seriously contemplated spending an extra fifty-four days in
prison solely to improve his (non-existent) chances of staying in the United States.
Because pleading guilty only slightly reduced Ramiro’s Sentencing Guidelines
range, it is not conclusively established that he would still have pleaded guilty had
he known that his guilty plea would result in mandatory deportation.
Because Ramiro has adequately alleged that his counsel’s performance was
both objectively unreasonable and prejudicial, and because the record does not
refute but actually supports his allegations, his § 2255 motion should not have been
summarily dismissed.
VACATED and REMANDED.
Costs to Appellant.
-3-

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United States v. Ramiro, No. 10-15195
Chief Judge KOZINSKI, dissenting:
In order to survive summary dismissal, a habeas petitioner must “allege
specific facts which, if true, would entitle him to relief.” United States v. Howard,
381 F.3d 873, 877 (9th Cir. 2004). The only “specific fact[]” Ramiro alleged
before the district court, and on appeal, was that his attorney said he “may” be
deported when, in fact, he would be deported. He claims his situation is analogous
to that in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), but it’s nowhere
close.
In Kwan, we found ineffective assistance where Kwan’s attorney assured
him “that although there was technically a possibility of deportation, ‘it was not a
serious possibility’” when, in fact, Kwan’s plea to an aggravated felony would
“almost certainly” lead to deportation. Id. at 1008–09. The attorney also advised
Kwan not to worry if the judge told him “that he might suffer immigration
consequences” because it wasn’t a real threat. Id. at 1008. Ramiro’s lawyer said
nothing of the sort.
Ramiro insists that his attorney was required to tell him “you will be
deported,” but we’ve never before required an attorney to guarantee the course of
future legal events out of his control and I see no reason to start now. As the
FILED
DEC 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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page 2
district court observed, “[a]n alien convicted of an aggravated felony may be
almost certain to be deported, but it would be foolish . . . to say that deportation is
always unavoidable and will occur.” That’s why, in Kwan, we said an aggravated
felony plea created a “near-certain risk of deportation” such that Kwan would
“almost certainly” be deported. Id. at 1009, 1016 (emphasis added).
Ignoring Ramiro’s arguments, the majority comes up with its own theory as
to what bad advice Ramiro’s attorney may have dispensed: The attorney
“apparently advised [Ramiro] that the immigration judge would ultimately decide
whether to deport him, and that receiving a lower sentence might improve his
chances of avoiding deportation.” Maj. op. 2. The majority claims this
hypothetical advice is supported by the record. It’s not.
Here’s the entirety of the evidence regarding what Ramiro was told prior to
pleading: Ramiro’s own declaration says only that the attorney “told me that if I
pleaded guilty I may be deported. He did not tell me that the crime I was charged
with was an aggravated felony and that if convicted I will surely be deported.” At
Ramiro’s plea colloquy, the court told Ramiro: “Since you are not a citizen a
conviction in this case may affect your right to remain in this country.” Ramiro
was asked if he understood; he said that he did. Ramiro’s lawyer then said, “[F]or
the record, I have advised my client that he more than likely will be deported upon

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page 3
completion of a sentence of incarceration.” This is nothing like Kwan, where the
lawyer told his client that deportation “‘was not a serious possibility.’” 407 F.3d at
1008.
The majority takes statements made by Ramiro’s attorney at sentencing,
after Ramiro had pled guilty and after the attorney told him “he more than likely
will be deported” and turns them into “advice” the attorney gave Ramiro prior to
entering his plea. It does so despite Ramiro’s failure to make any such claim. But
any advice the attorney had for Ramiro after he plead guilty can have no bearing
on Ramiro’s decision whether to plead. The majority makes its case by
disregarding the timing of the lawyer’s statements.
We “apply a ‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 131
S. Ct. 770, 787 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). Such a presumption can’t be reconciled with the majority’s scouring of
the post-plea record for hints as to what the attorney might have told his client
prior to the plea agreement. We’re required to give the attorney’s conduct the
benefit of the doubt and must construe ambiguities in favor of the lawyer. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). The majority does neither.
But even if we were to consider what was said at sentencing, so what? The

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page 4
majority criticizes Ramiro’s attorney for “apparently advis[ing] him that the
immigration judge would ultimately decide whether to deport him.” Maj. op. 2.
This isn’t an “affirmative misrepresentation,” Kwan, 407 F.3d at 1015, it’s a
correct statement of the law: Ramiro couldn’t be deported without the decision of
an IJ. See 8 U.S.C. § 1229a(c)(1)(A). Where’s the beef?
Nor is it fair to label Ramiro’s attorney ineffective for arguing “that
receiving a lower sentence might improve [Ramiro’s] chances of avoiding
deportation.” Maj. op. 2. The attorney said, “it’s our understanding that this is a
deportable offense and that there is—as far as [ICE] is concerned, there’s zero
tolerance as far as these matters are concerned. . . . I’m not sure if [a lower
sentence] is going to really make any difference as far as how it affects the issue of
deportation.” He repeatedly said he didn’t know if a lesser sentence would help
Ramiro in any way, but nonetheless wanted to “err on the side of caution.” Even if
these statements had been “advice” given to Ramiro before he pled guilty—and no
one claims they were— they’re so qualified that they don’t in any way resemble
the type of “affirmative misrepresentation[s]” that constitute ineffective assistance.
Kwan, 407 F.3d at 1015.
“[I]t is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was

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page 5
unreasonable.” Strickland, 466 U.S. at 689. That’s why we don’t decide
ineffectiveness claims by nitpicking the record and asking whether we would have
done it better. Because the majority does just that in this case, I dissent.

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