IN THE CIRCUIT COURT FOR WILLIAMSON COUNTY, TENNESSEE AT FRANKLIN

STATE OF TENNESSEE vs. RIGOBERTO ALVERAZ RAMIREZ

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CASE NO: II-CR054914

DEFENDANTS PETITION FOR RELIEF FROM PLEA AND SENTENCE (PCR) Pursuant to Tenn. R. Crim. P. 28, the defendant now moves to vacate his guilty plea in the above-entitled matter on the ground that such plea was obtained in violation of due process under the Sixth and Fourteenth Amendments to the United State Constitution and Article I, Section 8 and 9, of the Constitution of the State of Tennessee, and that it appears that justice may not have been done. In support, and as more fully set forth in the affidavit and memorandum filed herewith, the defendant states that: 1. On March 28, 2010, the defendant was charged with simple possession of marijuana (T.C.A. 39-17-417); possession of Schedule VI for resale (T.C.A. 39-17-417); evading arrest (T.C.A. 39-16-603(b)); possession of drug paraphernalia (T.C.A. 39-17-425); drive with revoked license (T.C.A. 55-50-504); and reckless driving (T.C.A. 55-10-205). 2. On July 13, 2010, Defendant appeared before the Circuit Court, Williamson County, Tennessee and entered a change of plea to a charge of simple possession of marijuana, Schedule VI; evading arrest; and drive with revoked license brought by the district attorney. 3. At the change of plea, defendant was offered eleven months and twenty-nine days (11 months and 29 days) of supervised probation for all three charges, pay court cost, and $250 fine to Tennessee Highway Patrol Drug Fund.
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4. The defendant was ordered by the probation officer to report to the probation on various dates determined by the probation officer. 5. Before the plea was entered into, the defendants counsel, Georgia Felner, failed to advise the defendant of the immigration consequences if he should plea to the charges presented before him. 6. The defendants counsel furthermore failed to defend him on the charges presented before him to prevent adverse immigration consequences. 7. The defendant would not have entered this plea, but would have taken the case to trial; or that he would have rejected this disposition, and sought an alternative, immigration-safe plea. 8. On July 13, 2011, the defendant was transferred to Immigration and Customs Enforcement. 9. On July 16, 2011, the defendant was detained at the Federal Detention Center (FDC) in Oakdale, Louisiana and released under an immigration bond. 10. Due to the above-referenced convictions, the defendant is not eligible for immigration waiver and has a relief from deportation under current Immigration Statutes, but for the conviction, the defendant will be denied a relief; 11. The Immigration and Naturalization Act (INA) governing defendants removal case has been in place since 1997 and holds that a guilty plea or conviction of an alien unlawfully present in the United States for the charge of simple possession of marijuana and evading arrest could result in mandatory detention and grounds of inadmissibility. 12. The defendant was denied effective assistance of counsel when his trial counsel failed to advise him of the immigration consequences that could result from his guilty plea. Padilla v. Kentucky, No. 08-651, 2010 U.S. LEXIS 2928 (March 31, 2010), citing Strickland v. Washington, 466 U.S. 668 (1984).

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13. Defendants plea was not made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-244 (1969). 14. Justice may not have been done and such conviction[s] should be vacated in the interest of justice under Tenn. R. Crim. P. 28 and Tenn. Code Ann. 40-30-201 et. seq. (2011). Based on the foregoing, the undersigned respectfully requests this Court set aside the judgment and sentence in this matter and re-schedule the case so that the defendant can be properly charged. Done this the 13th day of July, 2011. Respectfully submitted,

__________________________ Divyesh R. Gopal, #026520 Attorney for Defendant Gopal & Pedigo, PLLC 1321 Murfreesboro Pike, Ste. 320 Nashville, Tennessee 37217 Phone: (615) 497-7563 Fax: (615) 301-5811 div@gopallawgroup.com

___________________________ Caesar Cirigliano, #026242 Attorney for Defendant 736 Old Hickory Blvd. Nashville, TN 37209 Phone: (615) 545-8321 Fax: (615) 301-5811 caesarlaw@hotmail.com

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CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed by ordinary U.S. Mail, postage pre-paid, or facsimile this the 13th day of July, 2011 to: Tennessee District Attorney District Attorney General 421 Main Street P.O. Box 937 Franklin, Tennessee 37065-0937 Georgia Felner, Attorney 2550 Meridian Blvd., Ste. 200 Franklin, Tennessee 37067

_______________________ Divyesh R. Gopal Attorney at Law

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