Motions for relief from judgment; MCR 6.508(D)(3); “Good cause” & “actual prejudice”; Ineffective assistance of counsel; Hill v Lockhart; Claim that counsel misadvised defendant as to potential immigration consequences of his pleas; Padilla v Kentucky; Lafler v Cooper; Lee v United States; Distinguishing People v Brito-Custodio (Unpub); Lawful permanent resident (LPR); Immigration & Customs Enforcement (ICE); Presentence Investigation Report (PIR)

In these consolidated appeals in which defendant sought relief from judgment based on his claims that his attorneys were ineffective for misadvising him about potential immigration consequences, the court held that he did not meet his burden of showing he was entitled to relief under MCR 6.508(D). He is an Iraqi national who has lived in the U.S. as an LPR. After orders of removal were issued against him, he unsuccessfully moved for relief from judgment as to his plea-based convictions relating to 1998 and 1999 marijuana cases. The court noted that because he “could have, but did not, raise errors in a previous appeal” he had to show good cause. He did not specifically address this requirement in the trial court. He argued on appeal here “that he did not become aware that he would be actually deported until 2017, when ICE agents detained Iraqi nationals convicted of crimes.” But the record was contrary to this assertion because he “was aware in 1999 that his crimes had immigration consequences, even though he apparently believed the United States government would not enforce those consequences.” His PIR reflected “that he told his probation officer in [9/99] that he could be deported if he received a sentence exceeding 11 months in jail. At his [10/99] sentencing, the trial court asked whether [he] wished to withdraw his plea in light of the fact that his sentence would exceed 11 months in jail, and, after a discussion off the record, defense counsel indicated defendant did not wish to withdraw his plea. Although the trial court did not expressly reference deportation, the record” reflected that his trial counsel, “specifically intending to avoid deportation, challenged the OV 13 scoring to circumvent a guidelines range and sentence over 12 months.” Thus, the court held that defendant did not show good cause. It added that, even assuming he did, he also had to show actual prejudice, and he did not. In 1999, his attorneys “were not obliged to advise defendant on immigration, a collateral matter.” And he was not entitled to relief under the 2010 decision in Padilla because the court “has ruled that Padilla applies only prospectively under both federal law and Michigan law.” The court found that his argument was “not so much that counsel misadvised him, but that [he] had no reason to believe he actually would be deported years later.” But this argument did “not pertain to his counsels’ performance; it” related to his subjective belief and this did not support an ineffective assistance claim. Affirmed.