Opinion
No. 02 CV 6744 (SJ).
February 24, 2005
JESUS ANTONIO CUERO-FLORES, White Deer, PA, Petitioner, Pro Se.
UNITED STATES ATTORNEYS OFFICE Brooklyn, NY, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner brings this motion for habeas relief pursuant to 28 U.S.C. § 2255, requesting that the Court vacate or set aside his sentence. For the reasons stated below, Petitioner's application is DENIED.
BACKGROUND
Petitioner pleaded guilty before this Court on June 23, 2000 to charges of illegal re-entry to the United States, under 8 U.S.C. § 1326. He was sentenced to 71 months imprisonment. His sentence was upheld by the Second Circuit on January 3, 2002, United States v. Cuero-Flores, 276 F.3d 113 (2d Cir. 2002).
Petitioner sets forth the following bases for habeas relief in his Petition and accompanying Memorandum: 1) Petitioner was denied effective assistance of counsel at his plea hearing in that counsel failed to obtain discovery from the Government and failed to inform Petitioner that he could not later challenge his deportation if he pled guilty to the illegal re-entry charge; 2) this Court violated Petitioner's Sixth Amendment right to counsel by accepting a guilty plea from Petitioner after Petitioner's counsel allegedly informed the Court that she had been unable to advise Petitioner whether or not to accept the plea due to the lack of discovery from the Government; and 3) Petitioner's plea was not knowing and voluntary because he was heavily medicated at the time of the plea, and because this Court did not advise Petitioner of his right to collaterally challenge the underlying deportation order. Petitioner further alleges that his appellate counsel was ineffective for failing to raise these issues on appeal.
DISCUSSION
I. Effective Assistance of Counsel A. Counsel's Failure to Obtain Discovery
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test to determine whether counsel's assistance was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness. . . . under prevailing professional norms." Id. at 688. Second, the defendant must show that counsel's performance prejudiced his defense. Id. at 689. To show prejudice, there must be a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. Id. at 694. When claiming that a guilty plea was involuntary or unknowing due to ineffective assistance, a petitioner must establish that but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial. United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citing Hernandez, 242 F.3d at 112).
In the present case, Petitioner chose to plead guilty under a plea agreement in which he waived the right to conduct further discovery. Additionally, Petitioner has not provided any indication that there is any evidence that could have been produced through discovery that would have induced Petitioner to go to trial rather than plead guilty. Petitioner's claim must therefore be denied, as it fails to meet the second prong ofStrickland, which requires him to demonstrate prejudice caused by counsel's alleged ineffectiveness. Strickland, 466 U.S. at 689.
B. Counsel's Failure to Inform Petitioner of Deportation Consequences
Petitioner additionally challenges the merits of his guilty plea itself on the basis that it was unknowing and involuntary due to his counsel's failure to warn him of the immigration consequences. The Second Circuit has held that there is no ineffective assistance of counsel rendering a guilty plea unknowing and involuntary even where defense counsel has failed to advise a client of deportation consequences. See United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) ("We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness.") (citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam) (noting that attorney's failure to inform a defendant that a guilty plea could result in deportation "is of no legal significance").
Although "competent defense counsel, following the advice of numerous practice guides, would have advised him" that his guilty plea would subject him to deportation, INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001), counsel's failure to do so does not fall below current prevailing professional norms, given that those standards are so low or obsolete. Accord Couto, 311 F.3d at 187-188 (implying need for "broader view of attorney responsibility"). Thus, Petitioner has not satisfied the first prong of the test set forth in Strickland and so the claim must be dismissed.
II. Sixth Amendment Right to Counsel
As discussed above, counsel's failure to obtain discovery from the Government prior to the plea did not constitute a denial of Petitioner's right to representation by effective counsel. Therefore, the Court's acceptance of a guilty plea following the disclosure regarding the inability to obtain discovery likewise cannot constitute a violation of the Sixth Amendment right to counsel, and therefore Petitioner's claim must be dismissed.
III. The Allegedly Involuntary PleaA. Petitioner's Medicated State
Petitioner asserts that because he was medicated during the plea hearing, his plea was not knowing and voluntary. According to the transcript from the plea proceedings, the Court asked Petitioner, "Do you understand what is going on right now?" and Petitioner answered, "Yes." (Plea Transcript at 4.) The Court discussed with Petitioner the fact that Petitioner was taking medication to help Petitioner sleep at night, and allowed Petitioner to speak with his attorney to ensure that Petitioner understood that the Court was inquiring as to Petitioner's comprehension of the plea proceedings. The Court then asked Petitioner whether "this medicine is affecting your ability to think clearly and attempting to do what you are attempting to do, to try to plead guilty[.]" (Id.) Petitioner stated, "I understand clearly what it is that you are telling me right now." (Id.) Petitioner stated that the medicine was not affecting his actions at that time, and that it affected him only when he took it at night. (Id. at 5.) The Court asked Petitioner a final time, "Do you have a clear mind right now?" and Petitioner answered, "Yes." (Id.) Therefore, this Court finds that there is no merit to Petitioner's contention that he was unable to understand the proceedings due to the fact that he was medicated.
B. Collateral Challenge of the Deportation Order
Petitioner asserts that his plea was not knowing and voluntary because Federal Rule of Criminal Procedure 11(c)(3) requires the Court to ensure that a defendant who is pleading guilty understands he has the right to protection against self-incrimination. Petitioner appears to assert that this rule obligated the Court to explain to him that he was effectively incriminating himself by pleading guilty without collaterally attacking the underlying deportation order, and that he had the right to avoid such self-incrimination by attacking the order. However, the purpose of Federal Rule Criminal Procedure 11(c)(3) is to assure that judges explain the rights that would accrue to a defendant if the defendant went to trial; these rights do not apply in the context of a guilty plea, which is why a judge must explain that they are being waived. See Practice Notes to Fed.R.Crim.P. 11(c)(3). In entering a guilty plea, Petitioner agreed to incriminate himself, and waived the right to challenge the charges against him. He did not have the right to both accept a guilty plea and challenge the underlying deportation order, and he chose to accept the plea rather than argue the merits of his case, and thus his claim must be dismissed.
To the extent that Petitioner means to imply that the Court had the obligation to inform Petitioner of the deportation consequences of his plea, the Second Circuit has held that a sentencing court does not bear the responsibility of providing a defendant who is pleading guilty with advice regarding the immigration consequences of the plea. Couto, 311 F.3d at 188. Therefore, Petitioner's claim must be dismissed.
CONCLUSION
For the reasons discussed herein, Petitioner's motion for relief is DENIED. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing "does not require a petitioner to demonstrate that he would prevail on the merits, but merely that `reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Santana v. U.S., 2005 WL 180932, at *7 (S.D.N.Y. Jan. 26, 2005) (quoting Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002)) (internal quotation marks and citation omitted). Petitioner has made no substantial showing of the denial of a constitutional right in this case. Accordingly, this Court denies a certificate of appealability.
SO ORDERED.