SCoVA affirms grant of Habeas Writ when conviction leads to loss of protected status

In the recent case of Clarke v. Galdamez, a closely split Virginia Supreme Court upheld the grant of a habeas writ to Mr. Galdamez due to his attorney’s failure to correctly inform him of the adverse consequences that taking a guilty plea would have on his immigration status.

The Petitioner, Mr. Galdamez, is a native of El Salvador who was legally in the country under temporary protected status. (A status that US Customs and Immigration Service sometimes extends to nationals of a foreign country when conditions in their home country make it unable to safely return home.) In August of 2013, Mr. Galdamez was involved in a car accident as he pulled out of a parking lot onto a multi-lane road. Mr. Galdamez did not stop, but returned to the scene of the accident before the police arrived.

Mr. Galdamez was charged with felony hit and run, a Class 5 felony with a maximum sentence of 10 years imprisonment and driving while intoxicated. At trial, Mr. Galdamez told his atttorney that his priority was not to lose hisimmigration status in the United States and his attorney negotiated a plea deal. The deal reduced the hit and run from a Class 5 felony to a Class 1 misdemeanor and stipulated a maximum sentence of 180 days incarceration with 170 days suspended on the hit and run and 90 days suspended on the DWI. Mr. Galdamez took the deal.

A few months later, in December of 2013, the Department of Homeland Security notified Mr. Galdamez that his temporary protected status would be revoked as a result of his convictions since federal regulations state that a noncitizen living under temporary protected status forfeits his status if convicted of one or more felonies or two or more misdemeanors.(This was the point of contention; Mr. Galdamez claims that his attorney told him that two misdemeanors arising out of a single incident would not trigger revocation of his status.)

Mr. Galdamez then initiated habeas proceedings in which he alleged that had he been correctly informed of the effect his convictions would have had on his immigration status he would have rejected the plead agreement and taken his court to trial. The habeas court agreed, granted a writ of habeas, vacated his convictions, and remanded the case for further proceedings.

Senior Justice Lacy, sitting in for Justice McCullough, wrote for the four-justice majority that affirmed the habeas court’s actions. She began by establishing that when counsel’s performance with respect to a plea agreement is in issue, a petitioner must establish that “but for counsel’s erroneous advice, the defendant would have rejected the plea agreement and proceeded to trial and that such a choice would be rational under the circumstances.” (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985).)

The majority then rejected the Government’s argument that any decision to reject the plea agreement could not have been rational as a matter of law because the statute requires a driver who is involved in an accident to “immediately” stop at the scene and Mr. Galdamez admitted that he did not do so. It noted that the Government acknowledged that there were “a number of factual issues that could have been contested at trial.” In particular, the majority focused on the element of hit and run require that the defendant “knew or should have known” that property was damaged in the accident. As Virginia’s high court has previously explained, in order for a driver to be guilty of hit and run they “must be aware that harm has been done; in must be present in his mind that there has been an injury; and then, with that in mind, he must deliberately go away without making himself known.” Herchenbach v. Commonwealth, 38 S.E.2d 328, 329 (Va. 1946).

In his affidavit and his testimony at the evidentiary hearing for the habeas proceedings, Mr. Galdamez testified that he did not know that he was in an accident until he arrived at his destination. When he realized that he must have hit something, he returned to the scene. This was supported by the fact that the “police officer’s estimated damage amount” was low enough that  the majority to declined to find Mr. Galdamez’s testimony inherently incredible.

Applying the deferential standards of review, the majority went on to affirm the habeas grant.

Justice Kelsey, joined by Chief Justice Lemons and Justice McClanahan dissented. Justice Kelsey noted that the “wreck produced an estimated $4000 in damages to [Galdamez’s] vehicle and $2000 in damages to the victim’s vehicle.” And he emphasized that “[i]nstead of stopping to see if the victim was injured, Galdamez fled the scene of the accident and drove to a friend’s house where, by his own testimony, he consumed alcohol. About fifteen minutes later, his friend drove him back to the accident scene where he was later arrested. The arresting police officer described him as ‘obviously drunk.'”

Under these circumstances, Justice Kelsey felt that “a rational jury could not come to the conclusion” that Galdamez did not know he was in an accident because that conclusion “simply defies common sense.” He goes on to later explain that “if a defendant has no viable defense as a matter of law–thus rendering the charge essentially incontestable at trial–it would not be objectively rational to reject a plea bargain . . . .”

This is a close case, but I think the majority gets it right. It’s pretty clear that Mr. Galdamez was given incorrect information and if he’d been given the correct information then he would’ve taken his case to trial. The dissent’s argument, one that is frequently made in cases like this, comes from a point of view that improperly discounts the negative implications of deportation. In essence, it says that if it’s clear he’s going to be convicted then the rational decision is to take the plea agreement. That’s not true in immigration cases like this one.

Assuming that Galdamez truly does not care about the possibility of ten years of incarceration, then the only rational action is to reject the plea agreement regardless of how slim the chances at trial are. This is because taking the plea agreement means a 100% chance of deportation and no matter how slim the chances are at trial they’re better than that.

I think that what makes recognizing this difficult is that we, as Americans, don’t really appreciate how dangerous it is to live in a place like El Salvador. Last year, the Guardian ran a piece in which it noted that El Salvador was the world’s most homicidal place with a mind-blowing average of one murder every hourIn light of that, risking trial might seem a bit more rational.

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