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recognizing that "the only [new] rule ever specifically determined by the Supreme Court to be retroactive was [ Gideon]"
Summary of this case from Rodriguez v. U.S.Opinion
10-CV-5829 (JG) 11-CV-550 (JG)
04-28-2011
KADIR HAMAD v. UNITED STATES OF AMERICA Defendants.
ORDER
:
On June 27, 2008, petitioner Kadir Hamad entered pleas of guilty to charges of access device fraud and aggravated identity theft. On December 5, 2008, he was sentenced principally to a thirty-month term of imprisonment. Because he did not appeal his conviction, the conviction became final on December 15, 2008, when his time to appeal expired. See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). On October 10, 2010, nearly two years after his conviction became final, he filed a petition pursuant to 28 U.S.C. § 2255 to correct or set aside his sentence, alleging that he received ineffective assistance of counsel because his attorney failed to inform him before he pled guilty that a conviction would almost certainly result in his deportation. See Petition at 8. Because his petition is time-barred, it is hereby denied.
The original petition was filed with the Second Circuit, entitled "Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence." Hamad v. United States of America, No. 10-CV-5829, Docket No. 1 (Dec. 15, 2010) (the "Petition"). However, as Hamad had not at that time filed any motions under § 2255, the Second Circuit remanded the petition to me for a decision in the first instance. Id. In the interim, Hamad filed a second motion under § 2255 in the Southern District of New York which was transferred to this Court on February 4, 2011. Kadir v. United States of America, No. 11-CV-550, Docket No. 1 (Dec. 30, 2010). The two cases were consolidated, and I now decide the two petitions together. References to docket numbers are to 10-CV-5829 unless otherwise noted.
DISCUSSION
28 U.S.C. § 2255(f) imposes a one-year period of limitation commencing from the latest of
(1) the date on which the judgment of conviction became final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.Because Hamad's conviction became final within the meaning of the statute nearly two years before he filed his petition, he does not allege that he was prevented from making a motion by government action, and his petition does not allege a new factual basis for his petition but rather a new legal basis, his petition is untimely unless he can avail himself of § 2255(f)(3).
In a counseled submission submitted after oral argument, Hamad asserts that he filed his petition within a year of discovering the "fact" that he was a victim of ineffectiveness. Docket No. 8, at 10. But the "fact" alleged is the Supreme Court's decision in Padilla, discussed below, and a challenge based on newly-recognized rights implicates subsection (3) of § 2255(f), not subsection (4). The latter subsection would be unavailing in any instance, as Hamad was aware of the deportation proceedings as early as March 19, 2009, and thereby learned that the advice he received from his counsel regarding the immigration consequences of his guilty plea was erroneous well over a year before he filed his petition. See Letter in Response to Petitioner, Hamad, Docket No. 9, at 6 & Exh. C (March 31, 2011) (Notice to Appear). For this same reason, I find that there is no ground for equitable tolling of the one-year limitations period, as Hamad has not exercised diligence in pursuing his rights. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (to merit equitable tolling a petitioner must demonstrate both rare and exceptional circumstances that prevented timely filing and reasonable diligence in pursuing his rights).
In arguing that he is entitled to habeas relief, Hamad relies upon a clarification of the right to effective assistance of counsel stated in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Padilla held that defense counsel's failure to inform a non-citizen client that a guilty plea would result in his deportation amounted to ineffective assistance of counsel. Id. at 1483. Hamad, a United States permanent resident, alleges that he was not informed by his trial counsel that his guilty plea would likely result in the revocation of his permanent residency and, accordingly, in his deportation to Brazil, his country of citizenship. Id. at 1478; Petition at 8.
Unlike Padilla, Hamad does not contend that he would have gone to trial had he known of the immigration consequences of the guilty plea. Petition at 8 ("Petitioner does not wish to revisit his conviction per se, he accepts that he was culpable and wanted to plead guilty and accept full respons[i]bility for his actions."). Given the bases for the denial of the petition set forth in the text, I need not address whether that acknowledgment is fatal to the petition in that the alleged ineffectiveness of counsel did not affect the outcome of Hamad's case.
Hamad cannot take advantage of the rule announced in Padilla to extend his one-year limitations period unless that rule is both "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Even assuming Padilla newly recognizes a right and that lower courts (rather than only the Supreme Court) have the authority to determine whether the rule has retroactive effect, I would determine that it does not.
Generally, new constitutional rules of criminal procedure, such as that arguably laid out by Padilla, are not deemed retroactive to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Under Teague v. Lane, 489 U.S. 288 (1989), there is only one (relevant) exception to the general rule of nonretroactivity: where the new rule "requires the observance of . . . procedures that are implicit in the concept of ordered liberty." Id. at 311. A new rule is not deemed retroactive unless it is such a "watershed" rule that it "alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Beard v. Banks, 542 U.S. 406, 417-18 (2006) (emphasis in original). This exception is so narrow that it has not been applied to such game-changing decisions as Apprendi v. New Jersey, 530 U.S. 466 (2000), and Crawford v. Washington, 541 U.S. 36 (2004). Indeed, the only new rule ever specifically determined by the Supreme Court to be retroactive was Gideon v. Wainwright, 372 U.S. 335 (1963), which established the Sixth Amendment right to counsel. See Beard, 542 U.S. at 418. The "right" recognized by Padilla, though important, is "simply not at that level." Doan v. United States, ___ F. Supp. 2d ___, 2011 WL 116811, at *3 (E.D. Va. Jan. 4, 2011) (holding that Padilla does not apply retroactively). Hamad therefore cannot take advantage of the Padilla rule to restart the limitations period on his Section 2255 motion under Section 2255(f)(3), and his petition is time-barred.
See Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003) (Apprendi rule "new" but not "watershed").
See Whorton v. Bockting, 549 U.S. 406, 421 (2007).
See also Gacko v. United States, 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010) (same); Brown v. United States, 2010 WL 5313546, at *5 (Dec. 17, 2010) (collecting cases). But see United States v. Chaidez, 730 F. Supp. 2d 896 (N.D. Ill. 2010) (applying Padilla retroactively); United States v. Obonaga, 2010 WL 2710413, at *1 (E.D.N.Y. June 30, 2010) (noting that it is "unclear if Padilla applies retroactively," and that "reasonable jurists have disagreed about whether Padilla has retroactive effect").
Finally, the government has submitted an affirmation from one of Hamad's lawyers, who asserts that he repeatedly told Hamad that he would almost certainly be deported if he pled guilty in this case. Docket No. 5, Exh. G. Were the petition not time-barred, I would deny it on the merits for that additional reason. I recognize that Hamad's counsel has procured an unsworn "Statement in Support" of the petition from Hamad's sister that says otherwise. Docket No. 8, at 13. But not every dispute of fact warrants the significant expenditure of resources that attends an evidentiary hearing in this setting. In addition to being unsworn, the petitioner's sister's statement differs significantly not only from counsel's but from petitioner's as well. What began in the petition as an alleged failure by counsel to address the immigration consequences of Hamad's plea, Petition at 1-2, blossomed in the sister's "Statement" into repeated affirmative assurances that there would be no adverse immigration consequences and a promise that "by pleading guilty [Hamad] would be helping his immigration case." Docket No. 8 at 14 (emphasis added). One would think that if the sister's statement were true, Hamad himself would have mentioned the affirmative assurances in his petition. In these circumstances, even if the petition were timely, I would not order the government to transport Hamad to Brooklyn for an evidentiary hearing.
CONCLUSION
Hamad's petition is time-barred; therefore it is denied. No certificate of appealability shall issue.
So ordered.
JOHN GLEESON, U.S.D.J. Dated: April 28, 2011
Brooklyn, New York