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Man unable to show prejudice by attorney’s lack of deportation advisement

August 7, 2012

A Pakistan-born man who faces automatic deportation as a result of his guilty plea to felony theft lost his pursuit for post-conviction relief before the Indiana Court of Appeals. The judges found Naveed Gulzar was unable to show he was prejudiced by his attorney’s failure to advise him that automatic deportation is a consequence of his guilty plea.

Gulzar came to the U.S. in 2000 with his family, but he never became a naturalized citizen, only a legal permanent resident. In January 2006, he stole a credit card from a customer at a convenience store and used the credit card to make purchases on four occasions. Gulzar was arrested in March 2006 and charged with one count of theft and two counts of fraud, all Class D felonies. He agreed to plead guilty to one count of Class D felony theft and he was sentenced to 18 months in the Indiana Department of Correction, all suspended to probation. He successfully completed his probation.

The agreement advised him of his rights, including that he understood that if he isn’t a legal citizen of the U.S., he may be deported as a result of the guilty plea. Gulzar initialed that section.

Over the next five years, Gulzar sought to have his sentence modified. In November 2011, he filed a petition for post-conviction relief alleging his trial counsel was ineffective for not telling him that pleading guilty to theft would make him automatically deportable under two federal immigration laws.

At the post-conviction hearing, Gulzar’s trial attorney said he failed to tell Gulzar that the guilty plea would make him automatically deportable. Gulzar claimed if he had been told that, he would not have pleaded guilty. The post-conviction court found Gulzar failed to establish prejudice.

The Court of Appeals affirmed, rejecting Gulzar’s argument that his deportation would be a hardship on his parents and siblings. The judges cited Segura v. State, 749 N.E.2d 496 (Ind. 2001), in which the Supreme Court found no reason to require revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the same sentence. The justices also held that only in “extreme cases” does a “truly innocent defendant” plead guilty because of incorrect advice as to the consequences.

This is not one of those extreme cases, Judge Nancy Vaidik wrote, pointing to the surveillance video of Gulzar’s participating in the crimes and the discovery of the items purchased with the stolen credit card in his apartment.

“While Gulzar may have shown special circumstances related to his family, in light of the evidence establishing his guilt, he has failed to demonstrate prejudice as a result of trial counsel’s failure to advise him that his guilty plea would result in automatic deportation,” she wrote.

 

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