Opinion
02 Cr. 0558 (RWS).
December 6, 2006
HONORABLE MICHAEL J. GARCIA, United States Attorney for the, Southern District of New York, Attorney for the United States of America, New York, NY, By: BENJAMIN M. LAWSKY, ESQ., Assistant US Attorney Of Counsel.
STOROBIN ASSOCIATES, Attorneys for Defendant, New York, NY, By: DAVID STOROBIN, ESQ., Of Counsel.
OPINION
Defendant Paul Vernon ("Vernon") has filed a motion styled as a motion to vacate conviction of judgment pursuant to New York Criminal Procedure Law § 440.10 and Rule 11 of the Federal Rules of Civil Procedure on the ground that he did not receive effective assistance of counsel during and prior to entering a guilty plea. Vernon has contended that he was not sufficiently advised as to the effect of his plea on his immigration status. For the reasons set forth below, the motion is denied.
Prior Proceedings
Indictment 02 Cr. 558 (the "Indictment") charged in two counts that Vernon had possessed a firearm and ammunition after having previously been convicted of a felony, in violation of Title 18, U.S.C. § 922(g). These charges arose from Vernon's possession of a firearm, several rounds of ammunition, and a spent shell casing on March 12, 2002.
On October 9, 2002, Vernon pled guilty before Magistrate Judge Andrew J. Peck to Counts One and Two of the Indictment. Vernon's plea was entered pursuant to a plea agreement with the Government dated October 4, 2002, and signed by Vernon on October 9, 2002 (the "Plea Agreement").
In the Plea Agreement, the parties stipulated that because Vernon had used and possessed the firearm and ammunition in connection with an attempted murder, the applicable base offense level was 22, pursuant to U.S.S.G. § 2A2.1, the attempted murder guideline. The parties further stipulated in the Plea Agreement that Vernon's adjusted offense level was 19, which took into account a three-level reduction for acceptance of responsibility under Sections 3E1.1(a) and (b) of the Guidelines. The Plea Agreement also indicated that Vernon's criminal history category was I, and therefore, that Vernon's stipulated Guidelines range was 30 to 37 months' imprisonment. Vernon agreed in the Plea Agreement, inter alia, that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guidelines Range" of 30 to 37 months.
Vernon was represented by counsel Benjamin Heinrich, Esq. at the plea hearing before Judge Peck. Judge Peck conducted a proceeding that complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure. In addition to reviewing all of the rights that Vernon would be waiving as a result of his guilty plea, Judge Peck also reviewed the Plea Agreement with Vernon. In that regard, Judge Peck drew Vernon's attention to the fact that he agreed in the Plea Agreement not to appeal or litigate under 28 U.S.C. § 2255 any sentence within or below the stipulated range of 30 to 37 months.
On or about October 16, 2002, this Court reviewed the transcript of Vernon's plea allocution, and accepted the plea after determining that there was a factual basis for the plea and that the plea was entered knowingly and voluntarily.
On April 29, 2003, the Court sentenced Vernon to a term of 34 months' imprisonment, within the parties' stipulated sentencing guidelines range. In a sentencing opinion issued on April 17, 2003, the Court stated that it would employ the attempted murder Guideline, pursuant to U.S.S.G. § 2K2.1(c)(1), as stipulated by the parties and recommended in the Presentence Report. At sentencing, the Court advised Vernon of his right to appeal and to be represented free of charge on that appeal if he could not afford a lawyer. Vernon indicated that he understood his appeal rights. Vernon did not appeal his conviction or sentence.
On October 6, 2003, Vernon filed a habeas petition with this Court claiming that he had received ineffective assistance of counsel because his attorney had failed to challenge information in the Presentence Report and because his attorney had failed to file an appeal on Vernon's behalf.
In an opinion dated June 17, 2004, this Court denied Vernon's habeas petition. United States v. Vernon, 2004 WL 1354115 (S.D.N.Y. June 17, 2004). The Court held that Vernon had waived his right to appeal and to file a habeas petition challenging his sentence. Id. at *2-*3. The Court also found that, in any event, Vernon's claims of ineffective assistance of counsel were meritless. Id. at *3-*4. This Court also determined that a certificate of appealability would not issue because Vernon had not made a substantial showing of the denial of a constitutional right. Id. at 4.
This motion was filed on July 18, 2006 and marked submitted September 14, 2006.
The Facts
Counsel to Vernon has alleged that Vernon is a naturalized citizen, a veteran, who has lived in the United States since he immigrated from Jamaica in 1975. He has two children who are United States citizens. He has had stable employment as a restaurant manager in Mt. Vernon, New York.
Vernon is currently held in custody in the York County Prison, York, Pennsylvania, pending his removal to Jamaica. He is in immediate danger of deportation.
It is alleged that Vernon did not receive adequate assistance of counsel in that his lawyer failed to advise him of the immigration consequence of his plea and failed to seek a judicial recommendation against deportation or to negotiate the consequence of his plea with the prosecutor.
The Court Lacks Jurisdiction
Vernon has moved that this Court has jurisdiction to hear what is in reality a successive motion to vacate his conviction based on ineffective assistance of counsel pursuant to New York Criminal Procedure Law § 410. However, that law of New York State provides no jurisdiction for a federal court to hear Vernon's claim. Vernon also states that his motion is brought pursuant to Rule 11 of the Federal Rules of Criminal Procedure. That Rule provides the procedures for guilty pleas in federal cases, but in no way authorizes a post-conviction collateral proceeding claiming ineffective assistance of counsel.
Vernon's ineffective assistance claims are claims that should be made pursuant to the habeas corpus provision of 28 U.S.C. § 2255. However, Vernon has already litigated the effectiveness of his counsel in a prior habeas proceeding which this Court has denied. Thus, Vernon's claims, if properly brought under 28 U.S.C. § 2255, would constitute a successive habeas petition. Under the gatekeeping provisions of 28 U.S.C. § 2255, "a second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals" to contain newly discovered evidence of innocence or a retroactive new rule of constitutional law that was previously unavailable. Because Vernon has not applied to the Second Circuit for an order authorizing this Court to consider a successive habeas petition, this Court does not have jurisdiction to hear Vernon's claim, even had it been properly brought as a habeas petition.
The motion to stay his removal by immigration authorities is also improper and must be dismissed for lack of jurisdiction. The REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (codified at 8 U.S.C. § 1252) strips the district courts of their habeas corpus jurisdiction over orders of removal. Section 106(a)(1) of the Act mandates that the courts of appeals shall be the sole and exclusive means for judicial review of orders of removal. Section 106 took effect on May 11, 2005, the date of the enactment of the REAL ID Act, and applies to all cases in which a final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment. Id. § 106(b). In addition to requiring petitions filed after May 11, 2005 to be filed in the courts of appeals, the Act also requires district courts to transfer any case or part of any case challenging an order of removal, deportation or exclusion pending on the date of the Act's enactment to the Court of Appeals for the Circuit in which a petition for review could have been filed. Id. at 106(c).
In any event, such a challenge is properly brought as a civil case challenging the actions of the immigration authorities and is not properly adjudicated as part of a defendant's criminal case.
Conclusion
For the reasons set forth above, the motion to vacate the judgment and to stay removal is denied.
It is so ordered.