from the Iowa District Court for Polk County, Lawrence P.
State appeals the district court's grant of
postconviction relief based on a finding of ineffective
assistance of counsel.
J. Miller, Attorney General, Thomas J. Ogden, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin
Hathaway, Assistant County Attorney, for appellant.
Margaret A. Hanson and Nichole Miras Mordini of Davis, Brown,
Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
case presents the question whether bad advice from an
immigration attorney to a client to try to get a driver's
license, which triggered a criminal investigation and
ultimately a conviction of the client for a previously
committed fraudulent practice, can be grounds under the Sixth
Amendment or article I, section 10 for setting aside that
conviction. As discussed herein, we conclude that no right to
counsel had attached when the client went to the driver's
license station. This was before any investigation or
criminal proceedings had begun. Accordingly, we reverse the
district court ruling that granted postconviction relief to
the client and remand for further proceedings consistent with
Facts and Proceedings.
Hernandez Ruiz is a native and citizen of Mexico. He entered
the United States without permission in November of 1999.
After entering the United States, Hernandez Ruiz obtained
vehicle titles in his name using a false social security
number that did not belong to him.
November 3, 2010, the Department of Homeland Security
initiated removal proceedings against Hernandez Ruiz based on
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act. See 8 U.S.C. § 1182(a)(6)(A)(i) (2006
& Supp. III 2009). Hernandez Ruiz hired attorney Michael Said
to represent him in the removal proceedings.
February 28, 2011, Said filed an application for cancellation
of removal with the United States Citizenship and Immigration
Service (CIS) on Hernandez Ruiz's behalf, indicating that
Hernandez Ruiz had children who were American citizens who
would suffer hardship if he were deported. See id.
§ 1229b(b)(1). CIS received the application on March 1.
As a result, Hernandez Ruiz was able to obtain an Employment
Authorization Document (EAD) and valid social security
day, Hernandez Ruiz went to the Ankeny driver's license
station of the Iowa Department of Transportation (DOT) and
attempted to use his EAD and social security number to get a
driver's license. Before doing so, Hernandez Ruiz met
with Said at Said's law office. At that time, Said
explained that the EAD and the social security number enabled
Hernandez Ruiz to obtain a driver's license and if he
wanted to drive, he had to have a license. Said did not
inquire if Hernandez Ruiz had previously registered vehicles
with a fraudulent social security number or advise of the
risk that the DOT would discover prior fraudulent titling
even though he was aware of this risk. Additionally, Said did
not inform Hernandez Ruiz that he did not need a license if
he wasn't going to be driving. In fact, Said testified he
likely instructed Hernandez Ruiz to get a
Hernandez Ruiz presented his documentation at the Ankeny
driver's license station, a clerk ran it through the
system and found that vehicles had been titled under the same
name and date of birth but with a different social security
number. Hernandez Ruiz admitted to the clerk that he had
previously titled and registered vehicles under a different
social security number. The clerk copied Hernandez Ruiz's
documents and tried to get hold of a DOT investigator but was
unable to do so at that time. She sent Hernandez Ruiz away
without a driver's license and turned over the materials
to an investigator a few minutes later.
Hernandez Ruiz spoke to Said about what had happened. Said
advised him that he had three options: (1) go back to the DOT
by himself and risk being charged with a felony; (2) have
Said contact a DOT investigator and then return to the DOT
with Said, where he would be charged with an aggravated
misdemeanor (which would be pled down to a serious
misdemeanor); or (3) consult with another attorney. Said did
not advise Hernandez Ruiz that he was not obligated to return
to the DOT or obtain a driver's license. Hernandez Ruiz
elected to have Said contact DOT Investigator Don Sharr and
set up a time for the three of them to meet. On March 2,
Hernandez Ruiz completed a fee contract with Said for this
March 9, Hernandez Ruiz and Said met with Investigator Sharr
at the DOT. During the meeting, Hernandez Ruiz signed a
voluntary statement admitting several instances of
registering cars under a false social security number.
Because of Hernandez Ruiz's candor, Sharr decided to
charge Hernandez Ruiz with one count of fraudulent practices
in the third degree in violation of Iowa Code section 714.11,
an aggravated misdemeanor. See Iowa Code §
714.11 (2011). Said represented Hernandez Ruiz in his
criminal case. On June 1, 2012, Hernandez Ruiz pled guilty to
the lesser included offense of fraudulent practices in the
fourth degree, a serious misdemeanor. See id. §
714.12. Hernandez Ruiz received a 180-day sentence, which was
suspended, and was required to perform fifty hours of
result of this conviction, on September 6, 2013, the
Department of Homeland Security filed a motion to pretermit
Hernandez Ruiz's application for cancellation of removal,
urging that fraudulent practices in the fourth degree was a
crime involving moral turpitude rendering Hernandez Ruiz
ineligible for relief. See 8 U.S.C. §
1229b(b)(1). The immigration court agreed. Consequently,
Hernandez Ruiz once again faced deportation.
Ruiz retained new counsel and filed an application for
postconviction relief on May 29, 2015, alleging he had
received ineffective assistance of counsel from Said. The
case went to trial on May 31, 2016.
August 29, the district court granted Hernandez Ruiz's
application and vacated and set aside his guilty plea and
sentence. The court found that
Said breached his essential duty to inform [Hernandez] Ruiz
that he did not need to obtain a driver's license and
explain to him that he could be charged with a crime knowing
that the DOT was investigating matters of this sort and that
the charge could have an adverse impact on his immigration
status. His failure to provide this advice placed [Hernandez]
Ruiz into a situation resulting in the initiation of criminal
court also rejected the State's argument that the right
to counsel had not attached. The State appealed, and we
retained the appeal.
Standard of Review.
review of postconviction-relief proceedings is typically for
correction of errors at law. Diaz v. State, 896
N.W.2d 723, 727 (Iowa 2017); see Iowa R. App. P.
6.907. But when we are reviewing an
ineffective-assistance-of-counsel claim, we do so de novo
because such claims are constitutional in nature.
Diaz, 896 N.W.2d at 727; Millam v. State,
745 N.W.2d 719, 721 (Iowa 2008).
State seeks reversal of the district court's ruling on
the ground that no constitutional right to counsel had
attached at the time of Said's alleged ineffective
assistance. See State v. Dudley, 766 N.W.2d 606, 617
(Iowa 2009) ("Without a right to counsel, [a defendant]
also has no commensurate right to effective assistance from
that counsel." (Alteration in original.) (quoting
White v. Schotten, 201 F.3d 743, 752 (6th Cir.
2000), overruled on other grounds by Lopez v.
Wilson, 426 F.3d 339, 341 (6th Cir. 2005) (en banc)));
see also Wainwright v. Torna, 455 U.S. 586, 587-88,
102 S.Ct. 1300, 1301 (1982) (per curiam) ("Since
respondent had no constitutional right to counsel, he could
not be deprived of the effective assistance of counsel by his
retained counsel's failure to file the application
timely."). Hernandez Ruiz does not dispute that a right
of counsel must have attached in order for his claim to
Sixth Amendment Right to Counsel.
Sixth Amendment provides, "In all criminal prosecutions,
the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const.
amend. VI. The Supreme Court has held the right "does
not attach until a prosecution is commenced."
Rothgery v. Gillespie County, 554 U.S. 191, 198, 128
S.Ct. 2578, 2583 (2008) (quoting McNeil v.
Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207
(1991)). A prosecution commences at "the initiation of
adversary judicial criminal proceedings." Id.
(quoting United States v. Gouveia, 467 U.S. 180,
188, 104 S.Ct. 2292, 2297 (1984)). This could be "by way
of formal charge, preliminary hearing, indictment,
information, or arraignment." Id. (quoting
Gouveia, 467 U.S. at 188, 104 S.Ct. at 2297).
The rule is not "mere formalism, " but a
recognition of the point at which "the government has
committed itself to prosecute, " "the adverse
positions of government and defendant have solidified, "
and the accused "finds himself faced with the
prosecutorial forces of organized society, and immersed in
the intricacies of substantive and procedural criminal
Id. (quoting Kirby v. Illinois, 406 U.S.
682, 689, 92 S.Ct. 1877, 1882 (1972) (plurality opinion)). It
is immaterial to this analysis whether the prosecutor is
aware of the initial proceeding or involved in its conduct.
Id. at 194-95, 128 S.Ct. at 2581. The Court and the
vast majority of states have determined
a criminal defendant's initial appearance before a
judicial officer, where he learns the charge against him and
his liberty is subject to restriction, marks the start of
adversary judicial proceedings that trigger attachment of the
Sixth Amendment right to counsel.
Id. at 213, 128 S.Ct. at 2592; accord id.
at 203-04 & n.14, 128 S.Ct. at 2586-87 & n.14 (citing
cases and statutes from forty-three states that "take
the first step toward appointing counsel 'before, at, or
just after initial ...