Adnan Mohamed Ali, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0050

Adnan Mohamed Ali, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 17, 2018
Reversed and remanded
Kalitowski, Judge*

Hennepin County District Court
File No. 27-CR-15-24120

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Kalitowski, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Appellant Adnan Mohamed Ali challenges the postconviction court’s denial of his
petition for postconviction relief, arguing that the postconviction court erred in summarily
dismissing his petition without an evidentiary hearing. We reverse and remand.
D E C I S I O N
The state charged appellant with one count of first -degree aggravated robbery to
which appellant pleaded guilty. Over a year later, the United States Department of
Homeland Security issued appellant a notice to appear for removal proceedings. The notice
stated that appellant is subject to removal from the United States because he was “convicted
of an aggravated felony as defined in” sections 101(a)(43)(F), (G), and (U) of the
Immigration and Nationality Act (INA) and that he was “convicted of a crime involving
moral turpitude committed within five years” of being admitted to the United States. The
notice specified the aggravated felony as “a theft offense . . . or burglary offen se” and “a
crime of violence.”
Appellant petitioned for postconvi ction relief, arguing that he received ineffective
assistance of counsel because his attorney failed to correctly inform him of the immigration
consequences that he would face for pleading guilty. The postconviction court denied that
petition without an evidentiary hearing after concluding that, because aggravated robbery
is not specifically enumerated as an aggravated felony under the INA, appellant’s attorney
“was not required to provide more than a general warning of immigration consequences.”

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On appeal, appellant argues that the postconviction court abused its discretion in summarily
denying his postconviction petition without an evidentiary hearing. We agree.
A postconviction court must hold an evidentiary hearing on a petition “[u]nless the
petition and the files and records of the proceeding conclusively show that the petitioner is
entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2016).
To determine whether petitioner is entitled to an evidentiary
hearing, the postconviction court must dete rmine whether the
competent evidence presented by petitioner considered in the
light most favorable to the petition, together with the
arguments presented by the parties, conclusively show that the
petitioner is not entitled to relief. If so, the court may deny the
request for an evidentiary hearing. If the court concludes that
material facts are in dispute and that the allegations in the
petition, if true, would entitle the petitioner to relief, then the
court must schedule an evidentiary hearing.

Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013) (citations omitted). “Any doubts about
whether to conduct an evidentiary hearing should be resolved in favor of the defendant
seeking relief.” State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013).
To receive an evidentiary hearing on an ineffective-assistance-of-counsel claim, the
petitioner “is required to allege facts that, if proven by a fair preponderance of the evidence,
would satisfy the two-prong test announced in Strickland v. Washington.” Bobo v. State,
820 N.W.2d 511, 516 (Minn. 2012). The Strickland test requires the petitioner to show
(1) that “counsel’s representation ‘fell below an objective standard of reasonableness’; and
(2) ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Nissalke v. State , 861 N.W.2d 88, 94

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(Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064
(1984)).
“Because claims of ineffective assistance of counsel are mixed questions of law and
fact, we review the postconviction court’s legal conclusions on such questions de novo.”
Nicks, 831 N.W.2d at 503. We “consider the court’s factual findings that are supported in
the record, conduct a de novo review of th e legal implications of those facts on the
ineffective assistance claim, and [will] either affirm the court’s decision or conclude that
the district court abused its discretion because postconviction relief is warranted.” Id. at
504.
The United States Supreme Court has held that “[w]hen the law is not succinct and
straightforward . . . a criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
consequences.” Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483 (2010).
“But when the deportation consequence is truly clear . . . the duty to give correct advice is
equally clear.” Id. The Minnesota Supreme Court has recognized that Padilla requires
criminal defense attorneys to do the following when a noncitizen client is contemplating a
plea deal:
First, at a minimum, an attorney must review the relevant
immigration statutes to determine whether a conviction will
subject the defendant to a risk of removal from th e United
States. Second, if conviction of the charged offense clearly
subjects the defendant to removal from the United States, the
attorney has a constitutional obligation to advise the defendant
of this fact before he or she enters a guilty plea. If it does not,
then a general advisory warning about the possible
immigration consequences of a guilty plea is sufficient.

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Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017). The threshold inquiry is whether the
immigration consequences of a conviction are “truly clear.” Padilla, 559 U.S. at 369, 130
S. Ct. at 1483; Sanchez, 890 N.W.2d at 721.
Under federal law, “[a]ny alien who is convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). Aggravated felonies
include “a crime of violence . . . for which the term of imprisonment [is] at least one year”
and “a theft offense . . . or burglary offense for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(F) -(G) (2012). Crimes of violence are offenses that
have “as an element, the use, attempted use, or threatened use of physical force against the
person or property of another” or a felony offense “that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in the course
of committing the offense.” 18 U.S.C. § 16 (201 2). The relevant federal statutes do not
define “theft offense” or “burglary offense.”
Appellant was charged with, and pleaded guilty to, first-degree aggravated robbery.
In relevant part, first-degree aggravated robbery, as charged here, requires the offender to
inflict “bodily harm upon another” during a robbery. Minn. Stat. § 609.245, subd. 1 (2014).
A person commits a robbery when that person “takes personal pr operty from the
person . . . of another and uses or threatens the imminent use of force against any person to
overcome the person’s resistance” to assist in taking the property. Minn. Stat. § 609.24
(2014). Robbery, under Minnesota law, requires as an el ement the use or threatened use
of force against a person to facilitate a taking. Minn. Stat. § 609.24. See also 10 Minnesota
Practice, CRIMJIG 14.02 (2015). Simple robbery is a lesser -included offense of

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aggravated robbery. State v. Oksanen , 149 N.W.2 d 27, 29 ( Minn. 1967). Accordingly,
aggravated robbery also requires as an element the use or threatened use of force against a
person to facilitate a taking. See 10 Minnesota Practice, CRIMJIG 14.04 (2015).
Under federal law, offenses that have, “as an element, the use, attempted use, or
threatened use of physical force against the person or property of another” are crimes of
violence. 18 U.S.C. § 16. Because Minnesota’s aggravated robbery crime requires the use
or threatened use of force as an element , it is clear that this offense is considered a crime
of violence for federal purposes. Additionally, a felony offense “that, by its nature,
involves a substantial risk that physical force against the person or property of another may
be used in the cours e of committing the offense” is also considered a crime of violence
under federal law. 18 U.S.C. § 16. Minnesota’s first -degree aggravated robbery crime,
and specifically the provision under which appellant was charged, also requires the
infliction of bodily harm on another. Minn. Stat. § 609.245, subd. 1. An offense requiring
the infliction of bodily harm necessarily involve s “a substantial risk [of] physical force
against the person . . . of another.” 18 U.S.C. § 16. Therefore, it is “truly clear” that first-
degree aggravated robbery is a crime of violence and an aggravated felony rendering the
offender deportable under 8 U.S.C. § 1101(a)(43)(F) and 8 U.S.C. § 1227(a)(2)(A)(iii).
The Minnesota Supreme Court has also acknowledged that theft, under Min n. Stat.
§ 609.52, subd. 2(1), is a lesser included offense of aggravated robbery. State v. Coleman,
373 N.W.2d 777, 781 (Minn. 1985) (citing State v. Nunn , 351 N.W.2d 16, 19
(Minn. App. 1984)). If a person commits aggravated robbery, he necessarily also commits
theft. And because theft is a “theft offense” it is an aggravated felony for federal purposes.

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8 U.S.C. § 1101(a)(43)(G). Accordingly, it is truly clear that a person convicted of
aggravated robbery in Minnesota is deportable under 8 U.S.C. § 1227(a)(2)(A)(iii).
The Minnesota Supreme Court’s decision in Campos v. State , 816 N.W.2d 480
(Minn. 2012), supports our conclusion that it is truly clear that aggravated robbery is
considered an aggravated felony under the INA. There, the defendant pleade d guilty to
simple robbery. Id. at 483. He “was not questioned or informed about any immigration
consequences of his plea. Nor was he asked whether he understood the immigration
consequences of his guilty plea.” Id. United States Immigration and Customs Enforcement
detained and deported the defendant because simple robbery was considered an aggravated
felony under the INA. Id. at 484. The defendant then moved to withdraw his guilty plea.
Id. The supreme court ultimately held that Padilla is not retroactive and did not cover the
Campos defendant’s claim. Id. at 487. But the supreme court also stated that if Padilla
did apply retroactively, the defendant’s attorney was ineffective for failing to advise the
defendant of the immigration consequences of pleading guilty. Id.
The state argues that Campos merely states that the defendant’s attorney was
ineffective only be cause he failed to inform the defendant of any immigration
consequences. But the supreme court noted that the Campos defendant would have “met
the first prong of Strickland, because the deportation consequences of his guilty plea were
likely sufficiently clear under even a cursory reading of the INA to invoke counsel’s duty
to give correct advice.” 816 N.W.2d at 487 n.5 (quotation omitted) . Additionally, the
supreme court stated without extensive discussion that simple robbery “constitutes an
aggravated felony under at least two provisions of the INA” ; it is a “crime of violence”

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under 8 U.S.C. § 1101(a)(43)(F) and a “theft offense” under 8 U.S.C. § 1101(a)(43)(G).
Id. at 484 n.3. These are the same INA provisio ns at issue here. And, because simple
robbery is a lesser included offense of aggravated robbery , Oksanen, 149 N.W.2d at 29 ,
aggravated robbery is likewise an aggravated felony under the INA.
Because it is “truly clear” from the INA that aggravated robbery constitutes an
aggravated felony as both a crime of violence and a theft offense, it is equally clear that a
conviction for aggravated robbery would render the offender deportable, triggering the
defense attorney’s duty to give correct advice concerning the immigration consequences
of a guilty plea. Padilla, 559 U.S. at 369, 130 S. Ct. at 1483.
Appellant signed and dated a plea petition containing a paragraph stating , “My
attorney has told me and I understand that if I am not a citizen of the United States, this
plea of guilty may result in de portation, exclusion from admission to t he United States of
America or denial of citizenship.” At the plea and sentencing hearing, the district court
noted for the record that appellant spoke with a public defender that day “to consult with
her regarding immigration consequences.” Appellant’s attorney stated that the day of the
hearing “was not the first time [appellant] had consulted with” that public defender about
immigration; “[h]e also consulted with her earlier in the proceedings.” Appellant’s
attorney also asked appellant, “[D]o you understand that by your plea here today you will
also may (sic) face collateral, other consequences, particularly in the world of immigration.

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Do you understand that?” Appellant responded, “Yes.” The district cour t then asked
appellant if he had any questions about his rights. Appellant said, “No.”
At most, the record shows that appellant was told that he “may” face deportation or
other immigration consequences. While the record also reflects that appellant spoke to a
second public defender about the immigration consequences of entering a guilty plea at
various points throughout the proceedings, there is no indication of whether appellant was
given correct information that entering a guilty plea would render him d eportable.
Appellant’s affidavit accompanying his petition f or postconviction relief states that he
received no such advice. Appellant has sufficiently alleged facts that, if true, would entitle
him to relief . We reverse and remand the matter to the pos tconviction court for an
evidentiary hearing on appellant’s claim.
Reversed and remanded.