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                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10352
                               ________________________

        D.C. Docket Nos. 1:12-cv-01057-TWT; 1:08-cr-00189-TWT-RGV-6


RODOLFO HERNANDEZ,

                                                                        Petitioner-Appellant,
                                            versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                       (March 2, 2015)

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

∗
  Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas,
sitting by designation.
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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, 

(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.” 

, 374, 

, 1486 (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.

                                 I. BACKGROUND
      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


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marijuana, 

(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 Customs Enforcement does.”

      The district court sentenced Hernandez to 120 months of incarceration and

five years of supervised release. This Court affirmed his conviction and sentence.

United States v. Hernandez, 411 F. App’x 265 (11th Cir. 2011).

      After the Department of Homeland Security issued an immigration detainer

during his incarceration, Hernandez filed a pro se motion to vacate his sentence. 28

U.S.C. § 2255. Hernandez alleged that his “defense counsel advised [him] that

based on her past experiences, there is [a] substantial likel[i]hood that he would not

be deported from the United States to Cuba.” Hernandez also alleged that his

“defense counsel advised [him] that based on her experience, detainers are

gene[r]ally not issued for Cuban defendants.” Hernandez alleged that, “[a]bsent
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counsel’s grossly incorrect advice, [he] would not have entered a plea of guilty but

would have insisted in proceeding to trial.” And he later alleged that he has “been

in [the] United States with his family almost his entire life[,] and therefore, he

would not have agreed to plead guilty which will automatically remove him from

his family and from a Country he ha[s] called home all [of] his adult life.”

      The district court denied Hernandez’s motion to vacate without an

evidentiary hearing because Hernandez “entered his guilty plea . . . more than one

year before the Supreme Court’s . . . decision in Padilla” and “[c]ounsel’s failure

to anticipate a change in the law does not constitute ineffective assistance.” We

granted Hernandez a certificate of appealability on the issue whether the district

court abused its discretion when it denied his motion without an evidentiary

hearing.

                           II. STANDARD OF REVIEW

      We review for an abuse of discretion the denial of an evidentiary hearing in

a motion to vacate a sentence, 28 U.S.C. § 2255. Winthrop-Redin v. United States,

, 1215 (11th Cir. 2014). “A district court abuses its discretion if it

applies an incorrect legal standard, applies the law in an unreasonable or incorrect

manner, follows improper procedures in making a determination, or makes

findings of fact that are clearly erroneous.” 

marks and

citation omitted). “A petitioner is entitled to an evidentiary hearing if he ‘alleges


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facts that, if true, would entitle him to relief.’” 

(quoting Aron v. United

States, 

, 715 (11th Cir. 2002)). But “a district court need not hold a[n

evidentiary] hearing if the allegations are ‘patently frivolous,’ ‘based upon

unsupported generalizations,’ or ‘affirmatively contradicted by the record.’” 

v. United States, 

, 1553 (11th Cir. 1989)).

                                 III. DISCUSSION

      The district court abused its discretion when it denied Hernandez’s motion

without an evidentiary hearing. The district court erred when it ruled that Padilla

did not govern counsel’s performance. And Hernandez alleged facts that, if true,

would entitle him to relief. The district court must conduct an evidentiary hearing.

      To establish that he is entitled to an evidentiary hearing, Hernandez had to

allege facts that would prove both that his counsel performed deficiently and that

he was prejudiced by his counsel’s deficient performance. 

,

130 S. Ct. at 1482 (citing Strickland v. Washington, 

, 

(1984)). Counsel performed deficiently if her “representation ‘fell below an

objective standard of reasonableness.’” 

466 U.S. at 

). And prejudice occurred if “‘there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’” 

466 U.S. at 

).




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      As a threshold matter, the government concedes that it led the district court

astray when it argued that Padilla did not govern the review of Hernandez’s

motion because Padilla was decided after Hernandez entered his plea. Although

we have ruled that an attorney’s failure to anticipate a change in the law does not

constitute deficient performance, we were concerned with a circumstance where

counsel failed to make an argument in the district court or on appeal that later,

because of a change in the law, proved to be meritorious. See, e.g., Elledge v.

Dugger, 

, 1443 (11th Cir. 1987) (explaining that, because counsel

“did not have the benefit” of the decision of the Supreme Court in Michigan v.

Mosley, 

, 

(1975), counsel was not deficient for failing to

argue that his client’s rights were violated by “repeated reinterrogation in

conjunction with repeated Miranda warnings”); Thompson v. Wainwright, 

, 1459 n.8 (11th Cir. 1986) (holding that counsel’s “failure to request

psychiatric assistance with respect to mitigating circumstances was not ineffective

assistance of counsel” because the “Supreme Court’s decision in Ake [v.Oklahoma,

, 

(1985),] was a change in the law which was not

foreseeable”); Proffitt v. Wainwright, 

, 1249 n.34 (11th Cir. 1982)

(rejecting an “argument that [client’s] attorney should have requested expert

assistance to aid him in preparing the mitigation defense” because the Supreme

Court had not yet decided Lockett v. Ohio, 

, 

(1978),


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and Gardner v. Florida, 

, 

(1977)). None of these

decisions involved an application of Strickland to a counsel’s performance. Here,

the issue is not whether Hernandez’s counsel should have made an argument in the

district court; the issue is whether Hernandez’s counsel performed deficiently

when she advised him about the immigration consequences of his guilty plea. As

the government concedes, Padilla governs the review of whether counsel

performed deficiently when she advised Hernandez to plead guilty.

       Based on the rule announced in Padilla, Hernandez alleged facts that, if true,

would prove that his counsel’s advice was deficient. In Padilla, the Supreme Court

held that counsel is ineffective if she does not “inform her client whether [a guilty]

plea carries a risk of 

, 130 S. Ct. at 1486. “[W]hen the

deportation consequence is truly clear,” counsel has a “duty to give correct

advice.” 

130 S. Ct. at 1483. Hernandez alleged that his counsel advised

him that there was a “substantial likel[i]hood that he would not be deported.” But

“deportation [i]s presumptively mandatory” for convictions related to trafficking in

a controlled substance. 

130 S. Ct. at 1483; see also 8 U.S.C.

§ 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted

of a violation of . . . any law . . . relating to a controlled substance . . . is

deportable.”). The record corroborates Hernandez’s allegation because his counsel




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stated on the record that she “informed him that based on . . . [her] past experience

. . . Cuban Defendants . . . generally . . . are not deported back to Cuba.”

      Hernandez also alleged facts that, if true, would prove that he was

prejudiced by his counsel’s deficient performance. A movant must allege facts that

would prove that a decision not to plead guilty “would have been rational under the

circumstances.” 

, 130 S. Ct. at 1485. And “[p]reserving the

client’s right to remain in the United States may be more important to the client

than any potential jail sentence.” 

130 S. Ct. at 1483 (internal quotation

marks and citation omitted). Hernandez alleged that he would not have pleaded

guilty if a plea would have “automatically remove[d] him from his family and from

a Country he ha[s] called home all [of] his adult life.” This allegation is more than

an “unsupported generalization[],” 

(internal

quotation marks and citation omitted). Hernandez alleged specific facts that would

prove that he could have rationally chosen to risk longer incarceration for the

chance to avoid deportation. Because he alleged facts that, if true, would prove that

his counsel performed deficiently and that he was prejudiced by her deficient

performance, Hernandez is entitled to an evidentiary hearing. 

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                                IV. CONCLUSION

      We VACATE the order that denied Hernandez’s motion to vacate and

REMAND with instructions to conduct an evidentiary hearing to determine

whether Hernandez is entitled to relief.




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