IN THE COURT OF APPEALS OF IOWA
No. 20-1224 Filed November 2, 2022
MAYUAL M. ANYUON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Applicant appeals the district court’s grant of summary disposition to the
State on his application for postconviction relief. REVERSED AND REMANDED.
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy and
Stephan J. Japuntich (until withdrawal), Assistant Appellate Defenders, for
appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Vaitheswaran, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
CARR, Senior Judge.
Mayual Anyuon appeals the district court’s grant of summary disposition to
the State on his application for postconviction relief (PCR). Anyuon claims he
received ineffective assistance because defense counsel did not adequately
explain the immigration consequences of his guilty plea. We determine there is a
genuine issue of material fact on this issue and conclude summary disposition was
inappropriate. We reverse the decision of the district court and remand for further
proceedings.
I. Background Facts & Proceedings
On August 1, 2016, Anyuon was charged with possession of marijuana,
second offense, in violation of Iowa Code section 124.401(5) (2016). An order
continuing the pretrial conference states, “Defendant has Immigration Issues.
Need to Consult with Imm. Atty.” Anyuon was personally served with a copy of the
order.
On October 10, Anyuon signed a written guilty plea to possession of
marijuana, second offense. The written guilty plea states in bold, “I understand
that if I am not a citizen of the United States that a criminal conviction or deferred
judgment may result in Deportation and affect re-entry into the United States or
have other adverse immigration consequences under federal immigration laws.”
The court accepted Anyuon’s guilty plea. He was sentenced to fourteen
days in jail, with credit for ten days served. Anyuon did not appeal his conviction.
On March 13, 2019, Anyuon filed a PCR application. The application
alleged defense counsel never adequately explained the immigration
consequences of the guilty plea. He stated he was “not advis[ed] about the 3
slightest possibility of removal from the U.S.” He also asserted that if he had been
informed about possible removal, he would not have pled guilty. Anyuon signed
the application and declared the facts within his personal knowledge were true and
correct. While the PCR case was pending, Anyuon was removed from the United
States and his whereabouts became unknown.1
The State filed a motion for summary disposition. In support of the motion,
the State submitted a copy of the public defender’s intake form for Anyuon that
states Anyuon was born in South Sudan and was a permanent resident of the
United States. The State also submitted a copy of Anyuon’s arraignment, which
contains defense counsel’s handwritten notes:
1. I will mail you a copy of the Immigration consequences of crime & checklist. 2. Pay for your evaluation! You have been ordered to have it by [pretrial conference]. 3. Contact immigration counsel about consequences of this case.
A copy of a document titled “Immigration Consequences of Crimes Summary
Checklist,” and an envelope addressed to Anyuon was also submitted.
The State provided a copy of a form signed by Anyuon, which states:
I, Mayual Anyuon understand that a foreign national arrested or detained in the United States has the right to contact and access his/her local consulate official, pursuant to Article 36 of the Vienna Convention on Consular Relations. My attorney has also advised me that a criminal conviction may have adverse immigration consequences such as deportation,
1 The State filed a motion to dismiss, asserting the case could not continue without the participation of Anyuon. The court denied the motion to dismiss, finding it premature at that time. The court granted Anyuon’s counsel’s request to appoint a private investigator to attempt to locate Anyuon. On June 6, 2020, PCR counsel gave notice that she received correspondence from Anyuon stating he wanted to proceed with the PCR action. 4
and that if I want advice on this issue I should consult an immigration attorney.
This copy has handwritten notes stating Anyuon was from South Sudan. There is
an address listed in Washington, D.C. and a telephone number.2 Also, “Nikki M.
address & phone $200.”3 A different copy of the same form was signed by Anyuon.
A handwritten note on the document states, “[Defendant] advises he is NOT a US
citizen—[Defendant] is here as permanent resident [Defendant] has spoken to
immigration atty—[Defendant] wishes to enter a plea.”
Also, the State submitted an email from one member of the public
defender’s office to another member of the public defender’s office, dated
October 10, 2016, stating, “[Anyuon] thought you and he went through an
Immigration Form but I also covered i[t] with him and had him sign off as I was
doing the plea and couldn’t verify if he had actually met with you long enough to
have one in the file.” Additionally, the State submitted a copy of the written guilty
plea that contains a handwritten note, stating, “[Defendant] advises he is not a
citizen but is a permanent resident + spoke to immigration cnsl.”
The State submitted a deposition of one of Anyuon’s defense counsel. She
stated that she discussed Anyuon’s immigration status with him. She stated that
on the written guilty plea, “I have noted the defendant advised me he is not a
citizen, but he is a permanent resident. And I spoke to—and he has spoken to
immigration counsel, which is not me, obviously, but whatever immigration counsel
2 In a deposition, defense counsel speculated this could be the address and telephone number for the South Sudanese consulate. 3 Defense counsel stated this referred to Nikki Mordini, a local immigration
attorney. 5
he had at the time.” Defense counsel stated that she talked with Anyuon about the
fact that a guilty plea could have deportation consequences. She additionally
stated that she went over the form with Anyuon advising him he had the right to
consult with an immigration attorney. Defense counsel stated that she
subsequently learned another member of the public defender’s office went over
the same form with Anyuon. She stated that Anyuon was adamant about pleading
guilty.
PCR counsel resisted the motion for summary disposition. Anyuon claimed
there was a genuine issue of material fact concerning whether he was adequately
advised of the immigration consequences of a guilty plea. He stated that if he
knew he might be deported, he would not have pled guilty.
On September 15, 2020, the court entered an order granting the motion for
summary disposition. The court found Anyuon’s assertions that he was not
advised of the immigration consequences of his guilty plea were “inconsistent with
the undisputed facts contained within this summary judgment record.” The court
found that before Anyuon pled guilty, he was advised the immigration
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IN THE COURT OF APPEALS OF IOWA
No. 20-1224 Filed November 2, 2022
MAYUAL M. ANYUON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Applicant appeals the district court’s grant of summary disposition to the
State on his application for postconviction relief. REVERSED AND REMANDED.
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy and
Stephan J. Japuntich (until withdrawal), Assistant Appellate Defenders, for
appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Vaitheswaran, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
CARR, Senior Judge.
Mayual Anyuon appeals the district court’s grant of summary disposition to
the State on his application for postconviction relief (PCR). Anyuon claims he
received ineffective assistance because defense counsel did not adequately
explain the immigration consequences of his guilty plea. We determine there is a
genuine issue of material fact on this issue and conclude summary disposition was
inappropriate. We reverse the decision of the district court and remand for further
proceedings.
I. Background Facts & Proceedings
On August 1, 2016, Anyuon was charged with possession of marijuana,
second offense, in violation of Iowa Code section 124.401(5) (2016). An order
continuing the pretrial conference states, “Defendant has Immigration Issues.
Need to Consult with Imm. Atty.” Anyuon was personally served with a copy of the
order.
On October 10, Anyuon signed a written guilty plea to possession of
marijuana, second offense. The written guilty plea states in bold, “I understand
that if I am not a citizen of the United States that a criminal conviction or deferred
judgment may result in Deportation and affect re-entry into the United States or
have other adverse immigration consequences under federal immigration laws.”
The court accepted Anyuon’s guilty plea. He was sentenced to fourteen
days in jail, with credit for ten days served. Anyuon did not appeal his conviction.
On March 13, 2019, Anyuon filed a PCR application. The application
alleged defense counsel never adequately explained the immigration
consequences of the guilty plea. He stated he was “not advis[ed] about the 3
slightest possibility of removal from the U.S.” He also asserted that if he had been
informed about possible removal, he would not have pled guilty. Anyuon signed
the application and declared the facts within his personal knowledge were true and
correct. While the PCR case was pending, Anyuon was removed from the United
States and his whereabouts became unknown.1
The State filed a motion for summary disposition. In support of the motion,
the State submitted a copy of the public defender’s intake form for Anyuon that
states Anyuon was born in South Sudan and was a permanent resident of the
United States. The State also submitted a copy of Anyuon’s arraignment, which
contains defense counsel’s handwritten notes:
1. I will mail you a copy of the Immigration consequences of crime & checklist. 2. Pay for your evaluation! You have been ordered to have it by [pretrial conference]. 3. Contact immigration counsel about consequences of this case.
A copy of a document titled “Immigration Consequences of Crimes Summary
Checklist,” and an envelope addressed to Anyuon was also submitted.
The State provided a copy of a form signed by Anyuon, which states:
I, Mayual Anyuon understand that a foreign national arrested or detained in the United States has the right to contact and access his/her local consulate official, pursuant to Article 36 of the Vienna Convention on Consular Relations. My attorney has also advised me that a criminal conviction may have adverse immigration consequences such as deportation,
1 The State filed a motion to dismiss, asserting the case could not continue without the participation of Anyuon. The court denied the motion to dismiss, finding it premature at that time. The court granted Anyuon’s counsel’s request to appoint a private investigator to attempt to locate Anyuon. On June 6, 2020, PCR counsel gave notice that she received correspondence from Anyuon stating he wanted to proceed with the PCR action. 4
and that if I want advice on this issue I should consult an immigration attorney.
This copy has handwritten notes stating Anyuon was from South Sudan. There is
an address listed in Washington, D.C. and a telephone number.2 Also, “Nikki M.
address & phone $200.”3 A different copy of the same form was signed by Anyuon.
A handwritten note on the document states, “[Defendant] advises he is NOT a US
citizen—[Defendant] is here as permanent resident [Defendant] has spoken to
immigration atty—[Defendant] wishes to enter a plea.”
Also, the State submitted an email from one member of the public
defender’s office to another member of the public defender’s office, dated
October 10, 2016, stating, “[Anyuon] thought you and he went through an
Immigration Form but I also covered i[t] with him and had him sign off as I was
doing the plea and couldn’t verify if he had actually met with you long enough to
have one in the file.” Additionally, the State submitted a copy of the written guilty
plea that contains a handwritten note, stating, “[Defendant] advises he is not a
citizen but is a permanent resident + spoke to immigration cnsl.”
The State submitted a deposition of one of Anyuon’s defense counsel. She
stated that she discussed Anyuon’s immigration status with him. She stated that
on the written guilty plea, “I have noted the defendant advised me he is not a
citizen, but he is a permanent resident. And I spoke to—and he has spoken to
immigration counsel, which is not me, obviously, but whatever immigration counsel
2 In a deposition, defense counsel speculated this could be the address and telephone number for the South Sudanese consulate. 3 Defense counsel stated this referred to Nikki Mordini, a local immigration
attorney. 5
he had at the time.” Defense counsel stated that she talked with Anyuon about the
fact that a guilty plea could have deportation consequences. She additionally
stated that she went over the form with Anyuon advising him he had the right to
consult with an immigration attorney. Defense counsel stated that she
subsequently learned another member of the public defender’s office went over
the same form with Anyuon. She stated that Anyuon was adamant about pleading
guilty.
PCR counsel resisted the motion for summary disposition. Anyuon claimed
there was a genuine issue of material fact concerning whether he was adequately
advised of the immigration consequences of a guilty plea. He stated that if he
knew he might be deported, he would not have pled guilty.
On September 15, 2020, the court entered an order granting the motion for
summary disposition. The court found Anyuon’s assertions that he was not
advised of the immigration consequences of his guilty plea were “inconsistent with
the undisputed facts contained within this summary judgment record.” The court
found that before Anyuon pled guilty, he was advised the immigration
consequences could include deportation, as the written guilty plea stated, “a
criminal conviction or deferred judgment may result in Deportation.” The court
concluded Anyuon did not generate any evidence to support his claim of ineffective
assistance of counsel. Anyuon appeals the district court’s decision.
II. Standard of Review
“We apply our summary judgment standards to summary disposition of
postconviction-relief applications.” Moon v. State, 911 N.W.2d 137, 142 (Iowa
2018). Summary disposition may be granted when “there is no genuine issue as 6
to any material fact and . . . the moving party is entitled to a judgment as a matter
of law. Iowa R. Civ. P. 1.981(3). The summary disposition of a PCR application
is ordinarily reviewed for the correction of errors at law, but when a PCR claim
alleges a constitutional violation, such as a claim of ineffective assistance of
counsel, our review is de novo. Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019).
In order to establish a claim of ineffective assistance of counsel, an
applicant must show counsel failed to perform an essential duty and the failure
resulted in prejudice to the applicant. Sauser v. State, 928 N.W.2d 816, 818 (Iowa
2019). “We presume counsel performed competently, ‘and the claimant must
successfully rebut this presumption by establishing by a preponderance of the
evidence that counsel failed to perform an essential duty.’” State v. Boothby, 951
N.W.2d 859, 863 (Iowa 2020) (citation omitted). In guilty plea proceedings, for the
prejudice component, the applicant must show that but for counsel’s breach of
duty, he or she would not have pled guilty. Ennenga v. State, 812 N.W.2d 696,
708 (Iowa 2012).
III. Discussion
Anyuon claims the district court should not have granted the State’s motion
for summary disposition because there was a genuine issue of material fact as to
whether he had been advised of all of the immigration consequences of his guilty
plea. He points out that defense counsel testified Anyuon told her he consulted
with an immigration attorney but defense counsel did not confer with this attorney
prior to Anyuon’s guilty plea. Anyuon asserts he was never advised of the
difficulties he could face if he tried to re-enter the United States, or any other
immigration consequences beyond deportation. He claims he was prejudiced by 7
counsel’s performance because he would not have pled guilty if he knew the total
immigration consequences of his plea.
Iowa Rule of Civil Procedure 1.981(5) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered.
The State supported its motion for summary disposition with exhibits and
the deposition of one of the attorneys representing Anyuon when he pled guilty.
Anyuon did not present any affidavits or additional exhibits to support his claims.
The issue then is whether Anyuon’s sworn statements in the PCR application are
sufficient to create a factual dispute on the issue of whether he was informed of
the immigration consequences of his guilty plea. The district court concluded
Anyuon did not generate any evidence to support his claim of ineffective
assistance of counsel and determined summary disposition was appropriate.
The Iowa Supreme Court previously stated, “there is no requirement that a
petitioner be allowed a hearing on allegations which directly contradict the record,
unless a minimum threshold of credibility is met. Bare allegations do not overcome
the presumption that the record truly reflects the facts.” Foster v. State, 395
N.W.2d 637, 638 (Iowa 1986). The court found, however, that this principle did not
apply when allegations in a PCR proceeding “involve matters which are entirely
outside the record.” Id.; accord Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995)
(“[O]rdinarily allegations of ineffective assistance of counsel that involve facts 8
outside the record will require an evidentiary hearing.”). In these circumstances,
summary disposition was not appropriate. Foster, 395 N.W.2d at 638.
The Iowa Supreme Court has also stated:
Finally, we have recognized that when claims of ineffective assistance of counsel are properly raised in a [PCR] application, “an evidentiary hearing on the merits is ordinarily required.” “Such a hearing affords the parties an opportunity to adversarily develop all of the relevant circumstances attending counsel’s performance, including those circumstances and considerations which may be pertinent but are not a part of the criminal record.” [The applicant’s] claims, even if the district court deems them improbable, require that he be allowed to present whatever proof he may have to support those claims.
Manning v. State, 654 N.W.2d 555, 562 (Iowa 2002) (citations omitted); accord
Venteicher v. State, No. 09-0825, 2011 WL 443940, at *2 (Iowa Ct. App. Feb. 9,
2011).
In Jackson v. State, the applicant claimed summary disposition of his PCR
application was improper because there were genuine issues of material fact
concerning whether he received ineffective assistance of counsel.
No. 10-1407, 2011 WL 3688994, at *1 (Iowa Ct. App. Aug. 24, 2011). Jackson
claimed his guilty plea was not voluntary because he had been drinking alcohol
before the proceeding. Id. at *4. “In resisting summary disposition, Jackson failed
to point to any facts that support the allegations set forth in his PCR application.”
Id. Despite this, the Iowa Court of Appeals determined summary disposition was
not appropriate because Jackson’s claims arose from matters outside the record.
Id. The court reversed the summary disposition of Jackson’s application and
remanded for further proceedings. Id. 9
Anyuon’s PCR application alleged defense counsel never adequately
explained the immigration consequences of the guilty plea. He affirmatively stated
he was “not advis[ed] about the slightest possibility of removal from the U.S.”
Anyuon also asserted he would not have pled guilty if he had been informed about
possible removal. The PCR application was signed and verified by Anyuon.
Additionally, Anyuon’s assertions in this case rely in part on matters outside the
record. The record does not clearly show whether Anyuon consulted with an
immigration attorney. Furthermore, if he did consult with an immigration attorney,
it is not clear what information he received. We acknowledge the evidence placed
in the record with the State’s motion. Our task when confronted with a motion for
summary disposition, and that of the trial court below, is to determine if material
facts are in dispute, not to weigh them. Here, there are genuine issues of material
fact in dispute concerning whether Anyuon was adequately advised of the
immigration consequences of his guilty plea.4
We reverse the district court’s grant of summary disposition to the State and
remand for further proceedings.
REVERSED AND REMANDED.
4 In Diaz v. State, the Iowa Supreme Court determined defense counsel should inform a client “of all adverse immigration consequences that competent counsel would uncover.” 896 N.W.2d 723, 732 (Iowa 2017). This includes, “potential adverse consequences from the criminal proceedings, including removal, exclusion, bars to relief from removal, immigration detention, denial of citizenship, and adverse consequences to the client’s immediate family.” Id. (citation omitted). Anyuon pled guilty before Diaz was decided. Under prior law, defense counsel “ha[d] a responsibility to advise noncitizen defendants whether a conviction for the crime that is the subject of the guilty plea agreement is also a crime that renders a noncitizen deportable.” Id. at 729 (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010)).