Summary
finding petitioner failed to establish deficient conduct or prejudice where "[petitioner] d[id] not deny that he was guilty of the crime to which he pleaded guilty or argue that the Government would not have been able to convict him at trial if he had not entered a plea of guilty"
Summary of this case from Gomez v. United StatesOpinion
03 CIV. 9808 (DLC), 02 CRIM. 1356 (DLC).
August 17, 2004
Clynt R. Taylor, Hudson County Correctional Facility, Kearny, New Jersey, For Pro Se Petitioner.
David N. Kelley, United States Attorney, Southern District of New York, Marc P. Berger, Assistant United States Attorney, Southern District of New York, One Saint Andrew's Plaza, New York, New York, For Respondent.
OPINION ORDER
Petitioner Clynt Taylor ("Taylor") files this timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, following a plea of guilty and a sentence to time served. Taylor is being held by the Immigration and Naturalization Service or its successor agency ("INS"), having failed to depart the country voluntarily by January 8, 2003 as INS had ordered him to do, a date which was approximately two and a half weeks following his sentence. Taylor complains (1) that his due process rights were violated because he was not advised during his plea of guilty that deportation was a possible consequence of his plea, and (2) that he received ineffective assistance of counsel because he was not advised by his attorney that his conviction for making false statements when applying for a passport would be classified as an aggravated felony. Taylor's petition must be dismissed.
Taylor pleaded guilty on November 7, 2002, pursuant to a plea agreement with the Government which provided for a stipulated guidelines range of 0 to six months in prison. In that agreement, Taylor agreed to neither appeal nor otherwise litigate any sentence that did not exceed six months. Taylor indicated at the time of his plea that he was satisfied with his representation by counsel. On December 20, Taylor was sentenced to time served and advised of his right to appeal. At the sentencing proceeding, his attorney explained that an INS detainer had been lodged against Taylor and that he had been taken into INS custody when he made bail on the criminal case. Taylor was then released from INS custody on bail and ordered to leave the county voluntarily by January 8, 2003. The Court imposed as a special condition on the terms of his supervised release that he comply with immigration laws and cooperate with the INS.
Taylor did not appeal. As significantly for this petition, Taylor did not leave the country by January 8. On February 5, 2003, Taylor appeared at an INS Detention and Removal Unit and was placed into INS custody. In July 2003, Taylor apparently filed this petition in the Eastern District of New York using a District of New Jersey caption. According to the docket sheet, it was transferred to the Southern District of New York in December 2003.
Taylor was on notice at the time of his sentence that the INS required him to leave the country. Taylor's failure to take an appeal from his conviction bars at least his due process claim.See United States v. Rosario, 164 F.3d 729, 732 (2d Cir. 1998). In any event, his claims must be dismissed on their merits.
Rule 11, Fed.R.Crim.P., lists the requirements for a plea allocation. It "is designed to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative courses of action open to the defendant." United States v. Harrison, 241 F.3d 289, 292 (2d Cir. 2001) (citation omitted). The rule does not require that a defendant be advised of the possibility of deportation as a result of a conviction, and the Second Circuit has not added additional requirements for a plea allocation to those described in Rule 11. United States v. Mercado, 349 F.3d 708, 711 (2d Cir. 2003). See also United States v. Couto, 311 F.3d 179, 188-90 (2d Cir. 2002) (discussing but not deciding whether a defendant must be advised of possible deportation).
Taylor's ineffective assistance claim must also be denied. A defendant's claim that his guilty plea is involuntary or unknowing as a result of the ineffective assistance of counsel is evaluated according to the two-part standard set forth inStrickland v. Washington, 466 U.S. 668 (1984). Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying the Strickland standard to guilty pleas); see also United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002). First, a defendant must establish that his "counsel's representation fell below an objective standard of reasonableness." Hill, 474 U.S. at 56 (citation omitted); United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (per curiam). A defendant who enters a plea on the advice of counsel must therefore demonstrate that counsel's advice was outside "the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 57; see also United States v. Monzon, 359 F.3d 110, 119 (2d Cir. 2004) (citation omitted). Second, the defendant must show prejudice, that is, "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59; see also Hernandez, 242 F.3d at 112.
Taylor has shown neither deficient conduct by his attorney nor prejudice. An attorney's failure to inform a defendant that his plea of guilty may result in deportation "does not fall below an objective standard of reasonableness." Couto, 311 F.3d at 187. Taylor, of course, was well aware of the deportation proceeding at the time of his plea — he had been INS custody and was released on bail. Taylor is in INS custody today because he failed to comply with the INS order to leave the country by January 8, 2003. Moreover, Taylor does not deny that he was guilty of the crime to which he pleaded guilty or argue that the Government would not have been able to convict him at trial if he had not entered a plea of guilty. He does not even state explicitly that he would have refused to plead guilty if advised of the possibility of deportation. He states only that he would have sought a hearing on a motion to suppress. In sum, Taylor has failed to show that he has a meritorious claim that his conviction should be vacated because of the ineffective assistance of his attorney.
Taylor's PSR states that Taylor, a citizen of Trinidad, came to the United States in 1996, overstayed his visa, and was charged by the INS. The charges were dropped on the condition that he immediately return to Trinidad. Taylor reentered the United States in 1998 with false papers. In 2002, he attempted to get a United States passport with false papers showing he was born in Puerto Rico.
At the initial conference, the Government identified post-arrest statements made by the defendant, but the defendant did not move to suppress those statements before entering his plea.
Conclusion
Clynt Taylor's petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915 (a) (3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition and close the case.
SO ORDERED.