In Re The Personal Restraint Petition Of Ahmed Al-bedairy

• Court: Court of Appeals of Washington
• Decided: July 12, 2022
• Docket: 55003-2
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

July 12, 2022

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Personal Restraint of: No. 55003-2-II

AHMED H. AL-BEDAIRY,

Petitioner. UNPUBLISHED OPINION

PRICE, J. — Ahmed H. Al-Bedairy filed a CrR 7.8 motion to withdraw his 1998 guilty plea

to second degree assault. Al-Bedairy argues he received ineffective assistance of counsel because

his defense attorney did not inform him of the immigration consequences of his guilty plea.

Although the superior court improperly transferred the CrR 7.8 motion to this court, we convert

the CrR 7.8 motion into a personal restraint petition (PRP) and deny Al-Bedairy’s PRP because he

has not shown that his attorney’s actions prejudiced him, and therefore, has not shown ineffective

assistance of counsel.

FACTS

Al-Bedairy is an Iraqi immigrant who moved to the United States in 1996 as a refugee.

That same year Al-Bedairy gained resident status. In 1998, Al-Bedairy was charged with, and

later pleaded guilty to, assault in the second degree.

In 1999, Al-Bedairy moved to withdraw his guilty plea, claiming he received ineffective

assistance of counsel. Al-Bedairy alleged in his motion that at the time he entered his guilty plea,

he did not receive the services of an interpreter and did not understand that he could be deported

as a result of his conviction. No. 55003-2-II

The superior court held an evidentiary hearing to determine the issues raised in Al-

Bedairy’s motion to withdraw his plea, including the issue of whether he knew the immigration

consequences of pleading guilty. Al-Bedairy testified on his own behalf and called five additional

witnesses. Al-Bedairy’s witnesses testified extensively about his level of English proficiency.

The State called Al-Bedairy’s former defense counsel to testify. The former defense

counsel expressed concern about testifying about his conversations with Al-Bedairy because Al-

Bedairy had not waived his attorney-client privilege. The superior court permitted the counsel to

testify about his meetings with Al-Bedairy, but did not allow him to testify as to statements made

by Al-Bedairy. Following those restrictions, the former defense counsel testified as follows:

Q Did you explain to [Al-Bedairy] what was contained on the plea form? A I did. Q Did he have any questions for you? A Yes. Q Did you -- did you answer his questions? A Yes. Q Did you -- on the plea form, is there not a space on there that explains that this can result in him being deported? A Yes. Q Did you explain that to him? A Yes. Q Did he ask you any questions as a result of that? A I recall the general nature of the discussion. I can’t recall about deportation. I couldn’t recall the exact questions. Q Okay. All right. A There was a discussion about the issue with Mr. Al-Bedairy.

Verbatim Report of Proceedings (VRP) at 91-92.

2 No. 55003-2-II

At the conclusion of the hearing, the superior court determined that Al-Bedairy entered his

guilty plea knowingly, intelligently, and voluntarily, and also made the specific written finding

that Al-Bedairy “knew of the immigration and naturalization consequences of his plea.” PRP at

56 (App. 38). Al-Bedairy appealed the denial of his motion to withdraw the guilty plea, and this

court affirmed the superior court’s decision. State v. Al-Bedairy, noted at 105 Wn. App. 1019

(2001).

In 2020, Al-Bedairy filed another motion with the superior court to withdraw his guilty

plea under CrR 7.8, asserting he received ineffective assistance of counsel. Al-Bedairy argued

that his defense attorney did not, consistent with recent case law, sufficiently inform him of the

immigration consequences of entering a guilty plea. The State moved to transfer the motion to

this court, arguing that the motion was untimely under RCW 10.73.090. The superior court agreed

with the State and transferred the motion to this court for consideration as a PRP.

ANALYSIS

I. TIMELINESS

Al-Bedairy argues that his motion was timely filed because there has been a significant

change in the law regarding the obligation of defense counsel to inform clients about immigration

consequences that exempts his CrR 7.8 motion from being time-barred.

Petitions for a collateral attack may be timely filed within one year of the judgment

becoming final. RCW 10.73.090(1). However, the one year time bar does not apply to motions

that are based solely on:

a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly

3 No. 55003-2-II

provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

RCW 10.73.100(6). A CrR 7.8 motion for relief is transferred to the Court of Appeals for

consideration as a PRP when it appears to the superior court to be time-barred. CrR 7.8(c)(2).

Here, Al-Bedairy argues that his motion is timely because of a significant change in the

law with respect to defense counsel’s duties to inform clients about immigration consequences. In

Padilla, the United States Supreme Court established that defense attorneys must fully advise

noncitizen clients of the risk of deportation when they enter a guilty plea. Padilla v. Kentucky,

559 U.S. 356, 374, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Later, our Supreme Court held that

Padilla was a significant change to the law that applies retroactively for the purposes of RCW

10.73.100(6). In re Pers. Restraint of Tsai, 183 Wn.2d 91, 106-07, 351 P.3d 138 (2015). The

State concedes that these authorities constitute a significant change to the law that applies

retroactively. We accept the State’s concession and, accordingly, hold that the superior court erred

in transferring Al-Bedairy’s CrR 7.8 motion to this court as a PRP because the motion was timely.

While this error would typically result in our transferring the matter back to the superior

court, we have the authority to convert an improperly transferred motion to a PRP. See State v.

Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008). Here, although Al-Bedairy argues that the

superior court improperly transferred the motion, he explicitly asks us “to decide the case on the

merits as expeditiously as possible” rather than to transfer the case back to the superior court if

remand would cause further delay. Reply Br. at 6. Accordingly, we choose to convert Al-

Bedairy’s motion to a PRP to decide the merits of his claim.

4 No. 55003-2-II

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Al-Bedairy asserts that he is entitled to relief from judgment because he received

ineffective assistance of counsel under Padilla. We disagree and deny Al-Bedairy’s PRP.

When reviewing a PRP, we have three options: to deny, grant, or remand for a full hearing

on the merits. In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113, 357 P.3d 668 (2015).

To be entitled to relief in a PRP, the petitioner must show either a constitutional error that resulted

in actual and substantial prejudice or a nonconstitutional error that constituted a fundamental defect

that inherently results in a complete miscarriage of justice. In re Pers. Restraint of Woods, 154

Wn.2d 400, 409, 114 P.3d 607 (2005), abrogated on other grounds by Carey v. Musladin, 549

U.S. 70, 127 S. Ct. 649, 116 L. Ed. 2d 482 (2006).

To show that they received ineffective assistance of counsel, a petitioner must show that

their attorney performed deficiently and that the deficiency prejudiced the petitioner. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Yates, 177 Wn.2d at

35. Failure to establish either prong is fatal to the claim. Strickland, 466 U.S. at 700. Courts need

not address the two elements of ineffective assistance of counsel in order, and may deny a claim

for ineffective assistance for failure to show prejudice alone. Strickland, 466 U.S. at 697 (“In

particular, a court need not determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”).

For a claim of ineffective assistance of counsel, if a petitioner establishes prejudice under

the Strickland test, they have necessarily met their burden to show actual and substantial prejudice

in the context of a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102

(2012).

5 No. 55003-2-II

In the context of a guilty plea, to show that they were prejudiced by their counsel’s actions,

the petitioner must show that there is a reasonable probability that the petitioner would not have

pled guilty and would have instead insisted on proceeding to trial. State v. Sandoval, 171 Wn.2d

163, 174-75, 249 P.3d 1015 (2011). “A ‘reasonable probability’ exists if the defendant

‘convince[s] the court that a decision to reject the plea bargain would have been rational under the

circumstances.’ ” Id. at 175 (alteration in original) (quoting Padilla, 559 U.S. at 372). The

reasonable probability standard is “somewhat lower” than a preponderance of the evidence

standard. Id. at 175.

In this case, Al-Bedairy asserts that he was prejudiced by his defense counsel’s actions

because he did not know that entering a guilty plea would lead to deportation and he would not

have entered the guilty plea if he had known. The State responds that the issue of whether Al-

Bedairy knew about the immigration consequences of pleading guilty was resolved during the

1999 evidentiary hearing on Al-Bedairy’s previous motion to withdraw his plea and he is barred

by collateral estoppel from relitigating the issue. If Al-Bedairy knew those immigration

consequences, then it follows, according to the State, that Al-Bedairy cannot show prejudice

sufficient to maintain an ineffective assistance of counsel claim. We agree with the State.

The doctrine of collateral estoppel bars parties from relitigating an issue when the party

asserting collateral estoppel shows:

“(1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied.”

6 No. 55003-2-II

Weaver v. City of Everett, 194 Wn.2d 464, 474, 450 P.3d 177 (2019) (quoting Christensen v. Grant

County Hosp. Dist. No. 1, 152 Wn.2d 299, 307, 96 P.3d 957 (2004)). Al-Bedairy argues that

collateral estoppel does not apply because the first, second, and fourth elements are not met.1

As for the first element of identical issues, the central argument of Al-Bedairy’s PRP is he

did not know about the deportation consequences prior to pleading guilty and that if he had been

advised by his counsel, as required by Padilla, he would not have entered that plea. However,

even though the context is slightly different—Al-Bedairy’s 1999 motion addressed whether his

plea was knowing, intelligent, and voluntary, and the current motion involves a claim of ineffective

assistance of counsel—whether or not Al-Bedairy knew about the immigration consequences is

the identical issue that was formerly presented in 1999. Al-Bedairy argues that the issue he raises

now as a result of Padilla is not identical because, essentially, the issue of immigration

consequences was not taken as seriously as Padilla would require and the focus of the hearing in

1999 was on the interpreter issue, not immigration. We find that argument unpersuasive. What

Al-Bedairy may have known about the immigration consequences was factually prominent in his

1999 motion. And while defense counsel was prevented by the superior court from testifying

about the specific details of his discussions with Al-Bedairy, the motion resulted in an

unambiguous written finding from the superior court that Al-Bedairy “knew of the immigration

and naturalization consequences of his plea.” PRP at 56 (App. 38). We determine that the first

element of collateral estoppel is met because Al-Bedairy’s PRP hinges on prejudice assertions for

the same issue that was already litigated in 1999.

1 Because Al-Bedairy is the same individual in both hearings, the third element requiring privity of the parties is clearly met.

7 No. 55003-2-II

For the second element, the 1999 decision about Al-Bedairy’s knowledge of the

immigration consequences must be considered a judgment on the merits. The State argues that the

issue was decided in a final judgment on the merits because it was decided in a full and fair hearing.

Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600 (2001) (To determine the first and second

elements of collateral estoppel, Washington courts look to “whether the parties to the earlier

proceeding had a full and fair hearing on the issue.”). We agree that the issue was decided in a

full and fair hearing; Al-Bedairy testified himself and called five witnessed in his defense.

Following this testimony and that of Al-Bedairy’s former defense counsel, the superior court still

determined that Al-Bedairy was aware of the immigration consequences. Because the issue was

decided in a full and fair hearing, the issue meets the second element for collateral estoppel as a

final judgment on the merits.

For the fourth collateral estoppel element related to avoiding an injustice, Al-Bedairy

asserts that barring relitigation of the issue of his knowledge of immigration consequences would

be an injustice because he is at risk for deportation with potentially serious consequences and the

issue was not adequately litigated in 1999 in light of these consequences. We acknowledge the

potential danger resulting from deportation; however, deportation was a general risk in 1999, and

the issue of Al-Bedairy’s knowledge of the immigration consequences of a guilty plea was, in fact,

litigated. We find that applying collateral estoppel here would not cause an injustice because,

while political changes both domestically and internationally may affect the degree of risk, the

general consequence of a possible deportation from pleading guilty to a crime of second degree

assault was the same in 1999 as it is now.

8 No. 55003-2-II

Because all four elements of collateral estoppel are met, Al-Bedairy is barred from

relitigating the issue of whether he knew that he could be deported as a result of entering a guilty

plea. Because Al-Bedairy knew about the deportation risk at the time of his plea, and still entered

the plea voluntarily, he cannot show prejudice from any alleged deficient representation from his

counsel on this issue.

We deny Al-Bedairy’s personal restraint petition because he has failed to show by a

reasonable probability that he was prejudiced by his defense attorney’s actions and, therefore, has

failed to prove that he received ineffective assistance of counsel.

CONCLUSION

We convert Al-Bedairy’s CrR 7.8 motion into a personal restraint petition and deny Al-

Bedairy’s PRP.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

PRICE, J. We concur:

MAXA, P.J.

LEE, J.