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Hakeem v. State

Court of Criminal Appeals of Tennessee, Nashville

May 18, 2018

NASIR HAKEEM
v.
STATE OF TENNESSEE

          Session December 12, 2017

          Appeal from the Circuit Court for Montgomery County No. 41100128 William R. Goodman, III, Judge

         The Petitioner, Nasir Hakeem, appeals the Montgomery County Circuit Court's denial of post-conviction relief, arguing that his attorneys were ineffective for failing to inform him of the deportation and other immigration consequences of a conviction at trial pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The State contends that the petition is time-barred and that the post-conviction court erred in tolling the one-year statute of limitations based on the Petitioner's ignorance of Padilla. Because the post-conviction court erred in tolling the limitations period, this court is deprived of jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Nasir Hakeem.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; John W. Carney, District Attorney General; and Robert J. Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         Following a bench trial, the Petitioner, a foreign national from Pakistan, was convicted of two counts of sexual battery, a Class E felony. State v. Nasir Hakeem, No. M2012-02150-CCA-R3-CD, 2013 WL 6706122, at *1 (Tenn. Crim. App. Dec. 18, 2013), perm. app. denied, (Tenn. May 14, 2014). On August 2, 2012, the trial court imposed concurrent, suspended sentences of eighteen months for each conviction and required the Petitioner to register as a sex offender. Id. The Petitioner's convictions were affirmed on direct appeal. Id.

         On April 21, 2016, the Petitioner filed a petition for post-conviction relief, alleging that initial counsel and successor counsel were ineffective for failing to inform him of the deportation and other immigration consequences of a conviction for sexual battery at trial. The Petitioner claimed he did not file this petition within one year of the date his conviction became final because he was not aware that his convictions would negatively impact his immigration status until November 15, 2015, when his immigration attorney informed him that his convictions made him ineligible to renew his investor visa. Affidavits from initial counsel, successor counsel, the Petitioner's immigration attorney, and the Petitioner were attached to the post-conviction petition. The Petitioner's immigration attorney stated in her affidavit that when she met with the Petitioner in mid-November 2015, she informed him that his convictions for sexual battery would "probably negate any chance [he] ha[d] of applying for cancellation of removal before the immigration court, which mean[t] he would not be eligible to obtain Legal Permanent Residence or a 'green card'" and that the Petitioner would be "precluded from filing for other relief such as Asylum or Withholding of Removal, among others[.]" This "appeared to be a complete surprise to [the Petitioner]." Initial counsel stated in his affidavit that he represented the Petitioner for a short period of time before successor counsel took control of this case. He said he did not inquire as to whether the Petitioner was a United States citizen and did not inform the Petitioner that a criminal conviction could negatively impact his immigration status. Successor counsel, in her affidavit, stated that although she knew that the Petitioner was not a United States citizen, she never considered or discussed with the Petitioner whether a criminal conviction for sexual battery would impact his immigration status. She added that in her professional opinion, the Petitioner had "a Due Process right to be told about the entire potential ramifications of a criminal trial and/or plea negotiations[, ] and the failure to tell [the Petitioner] about possible deportation issues if he was convicted of Sexual Battery amount[ed] to ineffective assistance of counsel."

         On May 6, 2016, the State filed an Answer to the Petitioner's petition for post-conviction relief, asserting that the petition was time-barred, that ignorance of the Padilla claim did not entitle the Petitioner to due process tolling of the statute of limitations, and that even if counsel were deficient, the Petitioner had failed to show that counsels' deficiencies prejudiced his defense.

         On May 16, 2016, prior to the post-conviction hearing, the Petitioner filed a brief, wherein he argued that he was entitled to due process tolling of the limitations period pursuant to Williams v. State, 44 S.W.3d 464 (Tenn. 2001), and Sands v. State, 903 S.W.2d 297 (Tenn. 1995).

         At the November 14, 2016 post-conviction hearing, successor counsel testified that she began representing the Petitioner in July 2011 and that the Petitioner's bench trial took place in February 2012. She said she was not aware of the Padilla case during her representation of the Petitioner, and the Petitioner never told her he was not a United States citizen. She did not recall talking to the Petitioner about whether a conviction would negatively affect his immigration status. Successor counsel said that she was not the Petitioner's first attorney and that "everything had been done that was going to be done; motion, practice, discovery" by the time she began representing the Petitioner. She did not believe "there was any possibility of a conviction based upon the facts in [the Petitioner's] case." She did not recall talking to the Petitioner about entering a guilty plea and said that "[t]here was never any intention but to try the case."

         Successor counsel admitted that if she had known that the Petitioner was a foreign national and that a sexual battery conviction would result in his being deported and blocked from asylum, then her strategy would have changed. Specifically, she would have had the Petitioner contact an immigration attorney in Nashville, as she does with her other clients who are not United States citizens. She acknowledged that the Padilla case was decided prior to the Petitioner's trial but asserted that she "didn't have anything that was relevant at that time to Padilla that I knew of, so it wasn't something I even looked at." She said she first discovered that the Petitioner was a foreign national when the officer who handled the sex offender registry informed her that Immigration and Customs Enforcement had taken the Petitioner into custody to deport him the day he completed his probation.

         Successor counsel stated that the Petitioner had been charged with two counts of sexual battery in this case but was also facing criminal charges in approximately three other cases that were eventually dismissed. She said that in the case at issue in this proceeding, the Petitioner "made it very clear that he would like the case dismissed." She could not remember if she called the State to say that the case needed to be dismissed, but thought it was "very likely" that she did because that was "something [she] would normally do."

         Successor counsel said that if she had known that a conviction would result in the Petitioner's deportation, she might "have tried harder to get the case dismissed." Specifically, she stated, "[H]ad I known what would happen at the end of the day because of this conviction, which is relatively minor for anyone else, I probably would have brought in every witness I could find to challenge the credibility of the witnesses in that trial." She acknowledged that she should have employed this strategy at the Petitioner's bench trial but "did not do it" because she believed that the witnesses' credibility "was so horrible" that the Petitioner would not be convicted.

         Successor counsel said that following Padilla, it became routine to ask people from another country about their immigration status. She acknowledged that she should have asked the Petitioner at the time about ...


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