Ex parte Samal

Ex parte Ram Kumar Samal

No. 02-21-00065-CR

Court of Appeals of Texas, Second District, Fort Worth

September 9, 2021

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from County Criminal Court No. 6 Tarrant County, Texas Trial Court No. 1519438

Before Sudderth, C.J.; Womack and Walker, JJ.

MEMORANDUM OPINION

Dana Womack Justice

Appellant Ram Kumar Samal appeals the trial court's denial of his request for habeas corpus relief; specifically, he challenges the trial court's findings that he knowingly and voluntarily pleaded guilty in March 2018 to misdemeanor possession of a controlled substance and that he received effective assistance of counsel at the time he entered the plea. We have reviewed the record and cannot conclude the trial court abused its discretion in making its findings. We therefore affirm the trial court's order denying the request for habeas relief.

I. BACKGROUND

Samal is a Bhutanese refugee whose native language is not English. At the time of his October 2017 arrest for misdemeanor drug possession, he was a lawful permanent resident of the United States. After hiring attorney Carole Kerr to represent him he pleaded guilty in March 2018 in exchange for a "time-served" five-day sentence. At all times relevant to this habeas proceeding, Samal has been detained in the Tarrant County jail on an immigration hold as a result of his conviction and faces possible deportation.

A. Samal's Habeas Application

In August 2019, Samal applied for postconviction habeas corpus^[1] relief based on allegations that his plea was involuntary and Kerr's assistance was ineffective. In particular, Samal averred that Kerr "did not properly explain or discuss the nature of [his] plea with [him] before advising [him] to plead guilty"; that she "never bothered to ask [him] if [he] was a citizen of the United States"; and that she never discussed challenging the State's evidence, hiring expert witnesses, or conducting independent testing. He also alleged in his writ application that Kerr violated ethical rules by jointly representing Samal and his cousin, who had been arrested simultaneously with Samal and was also charged with possession, stating that she never discussed the potential impacts of a conflict of interest or sought their waiver of any such interest.

According to Samal, Kerr advised him during a courthouse meeting to plead guilty and enter into a pretrial diversion program for six months in order for the case to be dismissed. Samal further alleged that when his uncle, who was present at the meeting and assisting Samal by translating, attempted to ask more questions about the plea arrangement, Kerr became "irritated and snapped" at the uncle that Samal was the client, not the uncle.^[2] Samal averred that he then informed her that he wanted to enter the pretrial diversion program and Kerr brought plea paperwork for him to sign. He described the events as follows:

Without having the opportunity to fully understand or even consider all the rights I would be waiving, I signed the plea paperwork as Ms. Kerr directed. Ms. Kerr simply pointed out where I was supposed to sign and never bothered to review the documents with me. Since my translator was ["]shut-up["] by Ms. Kerr, he did not get a chance to explain the documents to me before signing.

When I was done, Ms. Kerr asked me to follow her into the courtroom and specifically instructed me to simply answer ["]yes["] to all of the judge's questions. I obediently did as I was told even though I did not understand what was going on and why I had been asked to respond that way.

. . . .

Although our entire discussion before the plea hearing lasted for about thirty minutes, Ms. Kerr never bothered to explain any of the constitutional rights I would be waiving. . . . . Ms. Kerr never explained that pleading guilty could result in me being deported, denied citizenship, or denied the ability to reenter this country if I ever left.

Samal alleged that if he had been properly informed of the consequences of a guilty plea and conviction, he would not have pleaded guilty.

B. Kerr's Response

In response to Samal's allegations, Kerr submitted an affidavit and testified at the writ hearing. Though she denied retaining paper files for any of her cases, she recalled that Samal retained her in November 2017 when he told her "the facts from his point of view about the circumstances that led to his arrest." She also recalled filing a letter of representation shortly after their meeting, gaining access to the District Attorney's file for the case, and reviewing the evidence. After reviewing the evidence, they met again, though Kerr did not recall the circumstances of the meeting or whether it was at or before his January 2018 court setting. Kerr attested:

But at this point with all my clients, I discuss any offer that the prosecutor may have given me, and what would be entailed in the various options. If applicable, I would discuss probation, pre-trial diversion, credit for time-served options, as well as asking if my client would instead want to take the case to trial and force the [S]tate to prove its allegations. I would have explained what is expected in the pretrial diversion program and I would have asked him what he wanted to do. He chose to take credit for time served. At the time of the plea it would have been clear that he was not in the pre-trial program and that he was going to get a conviction. I also explained that a conviction could result in his deportation, inadmissibility, and denial of citizenship. I always explain that I'm not an immigration attorney and made sure he understood what he was opting to do. He told me he wasn't a citizen and understood the possible ramifications.

She also recalled that Samal was not interested in the pretrial diversion program after she explained what was required in the program and that Samal had not wanted to go to trial because of the evidence against him, including (in her words):^[3]

when questioned by police[, ] he immediately admitted ownership of the substance in question, and he understood how a jury would likely receive that evidence. He was the driver of the vehicle and was one of three people in the car. All three were arrested and all three immediately admitted to owning and possessing different drugs.

Kerr explained that they did not enter a plea at the January 2018 hearing, and the case was reset to March, when Samal did enter his guilty plea in exchange for time served.

Pursuant to the plea paperwork, Samal was sentenced to time served (5 days) in exchange for his guilty plea. The judgment noted the trial court's findings that Samal "made the plea freely and voluntarily|] and was aware of the consequences of this plea." However, the immigration-consequences portions of the waiver-of-jury-trial form signed by Samal at the time he entered his guilty plea were not completed or initialed:

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Kerr testified that although those portions were not completed, she had known his citizenship status and explained that any time she goes over plea paperwork with a client, she "cover[s] the entire document in detail and [has] done so for the past 25 years," including the immigration-consequences warnings: "By ^ccover[, ]' I mean I explain that a conviction can result in deportation." According to her, "Had he hesitated or expressed concern over deportation, I would have obtained another continuance to allow him to consult with an immigration attorney." She denied Samal indicated any concerns about the immigration warning or about being deported. She stated, "I felt . . . and feel confident that Mr. Samal fully understood everything we discussed. We had no difficulty communicating and he never expressed any inability on his part to understand what I was explaining to him."^[4]

She also recalled that Samal had verbally answered the trial court's questions regarding his citizenship status. She conveyed that the particular judge who took the plea

is herself very diligent about ensuring a defendant understands the rights he's giving up. She always warns that a conviction could result in deportation and asks if they understand. Sometimes, if she feels any concern on this point with a particular defendant, Judge Jones requests that we take a few minutes to make sure the defendant is crystal-clear about the consequences of the plea at issue. In this case, Mr. Samal gave the judge no reason to wonder whether he understood what was happening.

Finally, addressing the conflict-of-interest allegation, Kerr asserted that there was no conflict of interest because Samal and his cousin would not need to testify against each other to aid the State's case. She recalled that both men were "happy" with the time-served offers.

C. The Trial Court's Decision, Findings, and Conclusions

After taking the application under advisement, the trial court denied Samal's request for relief in December 2020. It adopted the State's proposed findings and conclusions which overwhelmingly found Kerr's testimony to be credible, including her testimony that she felt Samal understood the plea proceedings, that he turned down a pretrial-diversion option, that he knowingly pleaded guilty in exchange for five days' time served, that they had discussed the facts (including Samal's "immediately admitt[ing] ownership of the controlled substances found in this car"), that she had inquired about his citizenship status and reviewed the immigration warnings, and that he had not appeared concerned or expressed concern about possible immigration consequences. It also found Samal had presented no evidence of a defense to the offense. It further found that the trial court had orally admonished Samal, would have appointed an interpreter if it felt a language...