Commonwealth v. Al Kenani

100 Mass.App.Ct. 288

176 N.E.3d 1033

COMMONWEALTH

v.Murtadha AL KENANI.

No. 20-P-247

Appeals Court of Massachusetts, Worcester.

Argued June 4, 2021.

Decided September 30, 2021.

Barbara A. Munro, Northampton, for the defendant.

Abigail H. Salois, Assistant District Attorney, for the Commonwealth.

Present: Shin, Ditkoff, & Walsh, JJ.

DITKOFF, J.

The defendant, Murtadha Al Kenani, pleaded guilty to possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A (a ) ; possession of heroin with the intent to distribute, G. L. c. 94C, § 32 (a ) ; and breaking and entering with the intent to commit a misdemeanor, G. L. c. 266, § 16A. He now appeals from the order denying his motion to withdraw his guilty pleas based on plea counsel's advice regarding immigration consequences, a matter complicated by the fact that, sixteen months after his plea, the defendant was granted protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which bars his deportation to Iraq so long as he remains likely to be subject to torture there. Concluding that, without an evidentiary hearing, the motion judge could not determine what plea counsel's advice was and whether his performance was deficient and prejudicial, we vacate the order denying the defendant's motion to withdraw his guilty pleas and remand for further proceedings.

1. Background. a. The defendant's background.¹ The defendant, a Shia Muslim, was born in Baghdad, Iraq, in 1998. As a child, he lived with his parents and his grandmother, and his father worked for the United Nations as a driver and translator. The defendant, along with his mother's family, suspected that his father secretly worked for Saddam Hussein, who was then dictator of Iraq.² When Hussein was removed from power in 2003 by a coalition of nations including the United States, the United Kingdom, Australia, and Poland, the defendant's family began to receive threats from extremist groups. Following a brief relocation from their home in Baghdad, the defendant and his family returned to find bullet holes in their front door. Three of his siblings were kidnapped by extremists on separate occasions.

Although the defendant's family moved around Baghdad and lived in a safe house suggested by the United Nations, the threats continued. Following his parents’ divorce, the defendant's father was given custody of the defendant and his siblings. Because the defendant's father continued to work for the United Nations, the family continued to be targeted by extremist groups.

In 2006, the defendant and his family fled to Syria, assisted by the United Nations. His father continued working for the United Nations until later that year, when he was fired because of accusations that he was an agent of Hussein.³ As Syria proved to be dangerous for the family, the defendant, along with his father, stepmother, and five of his siblings, were admitted as refugees to the United States in September 2009.⁴ Subsequently, the family moved to Massachusetts. In June 2011, the defendant's status was adjusted to that of a lawful permanent resident.

Because the defendant did not follow certain rules set out by his father and stepmother, they brutally abused him. In 2011, the defendant was severely beaten and burned, and he and his siblings were placed in the custody of the Department of Children and Families. Eventually, the children were returned to the father's custody, and the father took the defendant and some of his siblings back to Iraq, as he feared he would lose custody of the children and serve time in jail in the United States for abusing them.

After their return to Iraq, the defendant's father fled to Lebanon because of continued threats from extremist groups, and the defendant remained with his uncle.⁵ Ultimately, at age fifteen, the defendant was forced to join the Iraqi military by his uncle. After the defendant and his cousin were captured by the so-called Islamic State of Iraq and the Levant (ISIS), the defendant escaped and returned to the United States. He reentered the United States as a permanent resident in March 2014.

b. The criminal proceedings. In October 2016, police executed a search warrant for the home the defendant shared with two other men. Officers seized numerous bags of "crack" cocaine and heroin, as well as cash and drug deal paraphernalia. The defendant was charged with possession of cocaine with the intent to distribute, possession of heroin with the intent to distribute, and conspiracy to violate the drug laws, G. L. c. 94C, § 40. Plea counsel was appointed to represent the defendant on these charges.

While those charges were pending, in December 2016, the defendant and three other men entered the home of a juvenile and took his cell phone, apparently because he owed money to one of the men. In February 2017, a complaint issued charging the defendant with breaking and entering with the intent to commit a misdemeanor, G. L. c. 266, § 16A. Plea counsel was appointed to represent the defendant on that charge as well.

On March 1, 2017, the day for arraignment on the new charge, the defendant pleaded guilty to both charges of possession with the intent to distribute and to the breaking and entering charge. The plea judge gave a proper immigration warning as required by G. L. c. 278, § 29D, as well as the now-discredited immigration warning that Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b), as appearing in 470 Mass. 1501 (2015), once required. See Commonwealth v. Petit-Homme, 482 Mass. 775, 788, 128 N.E.3d 62 (2019). The plea judge dismissed the conspiracy charge and sentenced the defendant to one year of probation on the other three charges, to run concurrently.

One year later, on March 9, 2018, the Department of Homeland Security initiated removal proceedings against the defendant. In July 2018, an immigration judge granted the defendant's application for deferral of removal under CAT, finding that the defendant "met his burden of establishing that it is more likely than not that he will be subject to torture in Iraq." The effect of this decision is that, so long as the defendant remains likely to be subject to torture in Iraq, he cannot be deported to that country.⁶

In September 2018, the defendant filed a motion to withdraw his guilty pleas. The motion judge, who was also the plea judge, decided the motion without holding an evidentiary hearing. He allowed the motion as to the breaking and entering offense, concluding that counsel had had "inadequate time to properly investigate this matter."⁷ Regarding the drug offenses, the judge determined that plea counsel had informed the defendant that "his removal or deportation was virtually certain," and thus the judge denied relief. This appeal followed.

2. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178, 9 N.E.3d 789 (2014). We review a judge's decision on a motion to withdraw a guilty plea and vacate convictions "to determine whether the judge committed an abuse of ... discretion or a significant error of law," accepting "the judge's findings of fact if supported by the evidence." Id.

3. Ineffective assistance of counsel. a. Applicable law. Where, as here, the defendant argues that plea counsel was ineffective for failing to provide him with adequate advice regarding the immigration consequences of his plea, "the defendant bears the burden of showing that his attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorney's unprofessional errors." Commonwealth v. Lavrinenko, 473 Mass. 42, 51, 38 N.E.3d 278 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45, 949 N.E.2d 892 (2011). "The weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation." Lavrinenko, supra, quoting Padilla v. Kentucky, 559 U.S. 356, 367, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

In general, "the terms of the relevant immigration statutes are succinct, clear, and explicit about the removal consequences for a noncitizen defendant convicted of possession with intent to distribute cocaine." DeJesus, 468 Mass. at 180-181, 9 N.E.3d 789. Possession of cocaine or heroin with the intent to distribute is an aggravated felony, and, "[p]ursuant to Federal statute, an alien ‘shall, upon the order of the Attorney General [of the United States], be removed’ if he or she is convicted of an aggravated felony." Id. at 181, 9 N.E.3d 789, quoting 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). Where a defendant has "virtually no avenue for relief from deportation once convicted," defense counsel must "convey that, if Federal authorities apprehended the defendant, deportation would be practically inevitable." DeJesus, supra.

The requirements of defense counsel's advice are not so indisputable, however, where the defendant does have an avenue for relief. See DeJesus, 468 Mass. at 180, 9 N.E.3d 789 (in discussion of holding in Padilla, 559 U.S. at 368, 130 S.Ct. 1473, "recognizing that there undoubtedly will be situations in which the deportation consequences of a particular plea are unclear or uncertain, and counsel's duty more limited"). "[A]lthough the discretionary avenues to avoiding deportation are extremely limited, there may still be individuals who could avail themselves of those avenues. For example, a noncitizen who is convicted of an aggravated felony and shows a likelihood of torture upon deportation may be granted ‘withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and deferral of removal under [CAT].’ " DeJesus, supra at 181 n.5, 9 N.E.3d 789, quoting Moncrieffe v. Holder, 569 U.S. 184, 187 n.1, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

"These forms of relief require the noncitizen to show a greater likelihood of

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