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Zemene v. Clarke

Supreme Court of Virginia

February 26, 2015

MICHAEL BERHANE ZEMENE
v.
HAROLD CLARKE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS

Page 685

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Bruce D. White, Judge.

Present: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J. OPINION BY SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.

OPINION

Page 686

[289 Va. 306] LAWRENCE L. KOONTZ, JR., SENIOR JUSTICE.

In this appeal, we consider whether the Circuit Court of Fairfax County erred in dismissing Michael Berhane Zemene's petition for writ of habeas corpus. The court dismissed Zemene's petition on the ground that he failed to establish actual prejudice resulting from his counsel's failure to advise him of the collateral consequences upon his immigration status of accepting a plea agreement. See Padilla v. Kentucky, 559 U.S. 356, 367, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

STANDARD OF REVIEW

Because entitlement to habeas relief is a mixed question of law and fact, the habeas court's findings and conclusions are not binding upon this Court, but are subject to review to determine [289 Va. 307] whether the court correctly applied the law to the facts. Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d 368, 369 (1997). Where, as in this case, the habeas court dismissed the petition based upon a review of the pleadings without an evidentiary hearing, we review the decision to dismiss the petition de novo. See Dominguez v. Pruett, 287 Va. 434, 440, 756 S.E.2d 911, 914 (2014). " It is also well settled that where, as here, the well pleaded allegations of the petition are not denied they must be accepted as true." Morris v. Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961)(per curiam).

BACKGROUND

Zemene, a native of Ethiopia, lawfully immigrated to the United States on June 29, 2000 at the age of nine. Zemene's immigration status as a " derivative asylee" was based upon his father's membership in the All Amhara People's Organization, an opposition political group subject to violent repression by the government of Ethiopia. Zemene's immigration status changed to " lawful permanent resident" on October 25, 2005.[1]

On September 3, 2012, Fairfax County police responded to a dispatch advising that a security officer at a grocery store was detaining Zemene as a suspect for shoplifting. Based upon a statement taken from the security officer that Zemene was apprehended attempting to shoplift beer valued at $33, police arrested Zemene, taking him before a magistrate who issued a warrant of arrest for petit larceny in violation of Code § 18.2-96.

The original return date on the warrant charging Zemene with petit larceny was October 10, 2012. For reasons not fully explained in the record, the case was continued to December 5, 2012, and then again at the request of the arresting officer to December 19, 2012. Zemene failed to appear on that date, and a bench warrant for his arrest was issued. Zemene was arrested on the bench warrant on January 8, 2013.

Page 687

On January 15, 2013, attorney Laurence Tracy was appointed by the Fairfax County General District Court to represent Zemene [289 Va. 308] on the petit larceny and failure to appear charges. During their initial interview, Zemene informed Tracy that " I was not a U.S. Citizen, but that I did have a green card." The entire interview took less than 30 minutes. Zemene unsuccessfully made several attempts to contact Tracy during the next month by phone.

Ultimately, Zemene's trial in the general district court was set for February 19, 2013. On the morning of Zemene's trial, Tracy advised Zemene that the Commonwealth had " dropped" the failure to appear charge. Tracy further informed Zemene that in exchange for a guilty plea on the petit larceny charge, the Commonwealth had indicated that Zemene would receive a 12 month suspended sentence, which would permit Zemene to be released immediately so that he would not be incarcerated on his birthday, which was the next day. Tracy advised Zemene that " this was the best deal that he could get for me." Zemene " wanted to consult more with Mr. Tracy to see if this truly was a good deal; however, I felt very rushed and signed the plea agreement." At no time did Tracy advise Zemene of the collateral consequences of the plea and sentence upon Zemene's immigration status. The general district court accepted Zemene's plea of guilty, sentencing him in accord with the agreement to 12 months incarceration with all time suspended.[2]

On June 27, 2013, Zemene received a notice to appear from the Department of Homeland Security's Immigration and Customs Enforcement division (" ICE" ). The notice informed Zemene that he was subject to removal from the United States as a result of his conviction under " a law relating to a theft offense . . . for which a term of imprisonment [of] at least 1 year was imposed." [3] See 8 U.S.C. ยง ...


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