Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket Nos. 1:12-cv-01057-TWT; 1:08-cr-00189-TWT-RGV-6.
For Rodolfo Hernandez, Petitioner - Appellant: Kenneth Duncan Crowder, Crowder Stewart LLP, Augusta, GA; Rodolfo Hernandez, Fort Worth, TX.
For United States of America, Respondent - Appellee: Christopher Conrad Bly, Michael F. Smith, Dahil Dueno Goss, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, Atlanta, GA.
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and ROSENTHAL,[*] District Judge.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether the district court abused its discretion when it refused to conduct an evidentiary hearing to determine whether Rodolfo Hernandez's counsel provided effective assistance when she incorrectly advised him about the immigration consequences of his guilty plea. Hernandez pleaded guilty to one count of conspiring to possess with intent to distribute at least 1,000 kilograms of a substance containing marijuana, 21 U.S.C. § § 841(a)(1), (b)(1)(A)(vii), 846, and three counts of possession with intent to distribute at least 100 kilograms of a substance containing marijuana, id. § § 841(a)(1), (b)(1)(B)(vii); 18 U.S.C. § 2. After Hernandez entered his plea but before his conviction became final, the Supreme Court decided Padilla v. Kentucky, which held that " counsel must inform her client whether his plea carries a risk of deportation." 559 U.S. 356, 374, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). Hernandez later moved to vacate his sentence based on ineffective assistance of counsel. 28 U.S.C. § 2255. The district court ruled that counsel did not render deficient performance and denied Hernandez's motion without an evidentiary hearing. Because Hernandez alleged facts that, if true, would entitle him to relief, we vacate and remand with instructions to conduct an evidentiary hearing.
A federal grand jury indicted Hernandez for one count of conspiring to possess with intent to distribute at least 1,000 kilograms of a substance containing marijuana, 21 U.S.C. § § 841(a)(1), (b)(1)(A)(vii), 846, and three counts of possession with intent to distribute at least 100 kilograms of a substance containing marijuana, id. § § 841(a)(1), (b)(1)(B)(vii); 18 U.S.C. § 2. Hernandez pleaded guilty to all four counts.
During Hernandez's sentencing hearing, his counsel asked the district court to explain the possibility of an immigration detainer:
[T]here has been some discussion that I've had with Mr. Hernandez regarding his Cuban citizenship and the possibility of an immigration detainer. I have informed him that based on the information that I know in my past experience with Cuban Defendants that generally
immigration detainers are not issued for Cuban Defendants and generally they are not deported back to Cuba. But if I could have either [the probation officer] or [the court] explain to Mr. Hernandez just so there's some clarity as far as what he could expect . . . .
The district court refused to answer the question because the court " ha[d] absolutely no control over what Immigration and ...