Opinion
No. 00 Civ. 9096 (GEL)
November 1, 2001
OPINION AND ORDER
Edgar Acevedo, a New York state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction, after a plea of guilty, to two narcotics charges, and his resulting sentence to concurrent terms of imprisonment totaling fifteen years to life. The petition will be denied.
Petitioner raises five claims of violation of his constitutional rights. The state's response does not challenge the timeliness of his application for habeas corpus or petitioner's satisfaction of the procedural requirements for presenting those issues in a federal petition. Accordingly, they will be addressed on the merits.
Three of petitioner's claims (grounds one, four and five) raise issues under the Fourth Amendment. He argues, among other things, that investigators obtained orders for pen register and wiretap surveillance of his telephone without probable cause. that the wiretap application did not make the requisite showing that alternative investigative techniques would be unavailing, that he was arrested in violation of Fourth Amendment standards, and that an apartment where drugs were found was improperly searched without a warrant. None of these claims, however, are grounds for the relief petitioner seeks. Fourth Amendment claims cannot be reviewed on federal habeas corpus so long as petitioner was afforded an"opportunity for full and fair litigation of those claims in state court. Stone v. Powell, 428 U.S. 465, 480-81 (1976); Kuhlmann v. Wilson, 477 U.S. 436, 446-67 (1986). Acevedo was afforded such an opportunity and availed himself of it; it is undisputed that he made a comprehensive pre-trial suppression motion, which resulted in a thorough and well-reasoned opinion denying relief (Stettin Decl. Ex. D), and that his appeal to the Appellate Division presented his primary objection to the wiretap warrants (id. Ex. N), which was unanimously rejected by that court in a brief but cogent written opinion (id. Ex. 0). Accordingly, this claim must be denied. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977).
Petitioner's other two claims are that his lawyer provided ineffective assistance by inducing him to plead guilty through a false promise that he would be deported to his native country "within several years" (ground two), and that the prosecutor and the judge conspired with defense counsel to deceive petitioner about this issue (ground three). The record of petitioner's guilty plea allocution demonstrates that these arguments are without merit. Far from hiding from petitioner that there was no promise that he would be deported before serving his sentence, the judge, the defense attorney and the prosecutor specifically discussed the terms of Acevedo's plea agreement in open court in his presence before he entered the plea.
At that proceeding, petitioner's counsel stated the terms of the agreement: "Mr. Acevedo has authorized me to withdraw his previously entered plea of not guilty and to enter a plea of guilty to the indictment before the Court, with the understanding that: Number 1, He will receive a sentence of fifteen to life. Number 2, That the misdemeanor count of the gun will be dismissed." The Court replied, "Correct" (5/2/96 Tr. 2, Stettin Decl. Ex. E.) No reference was made to any agreement that petitioner would be deported at any particular time.
To the contrary, when petitioner's counsel made reference to the deportation issue, both the judge and the prosecutor made clear that there was no agreement on that score. The defense lawyer expressed the view that "I believe that the State, in conjunction with the Feds, are about to change the system. Mr. Acevedo will consent to deportation at the earliest possible review date, when the Feds decide to take him." The prosecutor responded immediately, "The People would categorically oppose deportation." The judge equally emphasized. "You have no say in that. . . . It doesn't mean anything either way. The laws change. They fluctuate back and forth." (Id. 3.) If petitioner was in any doubt about the significance of this exchange, after reviewing the sentence petitioner would receive under the terms of the plea agreement, the Court emphatically stated, "Let the record reflect, no other promises have been made." (Id. 5.)
On this record, the claim that the court or prosecutor misled petitioner must be dismissed as purest fantasy. Both made perfectly clear to defendant that there was no deal or promise regarding deportation, that the prosecution would actively oppose any application for early deportation, and that petitioner could not rely on any prediction about a possible change in deportation practice, since the laws on that subject were uncertain and subject to change. Indeed, petitioner relies on these very comments in order to prove that the prosecutor and the judge knew that there was no promise about deportation, as if he himself were not standing right there when this discussion was held.
Petitioner's complaint about his attorney is less frivolous. It is apparent from the transcript that defense counsel believed that some predicted change in immigration regulations would make Acevedo eligible for deportation at "the earliest possible review date." On its face this would appear to be a reference to petitioner's first parole eligibility, which would not be until 2009. But the remark is cryptic, and the Court will assume for purposes of resolving this application that counsel may have believed, and intentionally or unintentionally conveyed to petitioner, that he could be released from state custody and deported within some shorter time frame.
Nevertheless, this assumption would not entitle petitioner to relief. If counsel conveyed misinformation about the consequences of the plea, that would constitute deficient performance by counsel. However, to establish a claim of ineffective assistance of counsel, a habeas petitioner must show not only that his counsel supplied deficient representation, but also that petitioner suffered prejudice as a result.Strickland v. Washington, 466 U.S. 668 (1984). Here, there could be no prejudice, since any misinformation that counsel may have conveyed was corrected on the record. Petitioner was clearly advised by the court that his sentence would be fifteen years to life, that there was no understanding or promise about deportation, and that the immigration laws were not predictable.
The plea allocution in this case was not a model procedure. At one point, there was an off-the-record discussion among counsel and the court, permitting petitioner to speculate about conspiracies at his expense. (Pet. App. at 3, see also Stetton Decl., Ex. E at 3-4.) More significantly, although counsel and the court made the absence of any agreement about deportation abundantly clear, the court did not, as would have been preferable, address petitioner directly, advise him emphatically that there are no promises or predictions about deportation, and ensure itself from petitioner's own responses that he fully understood the situation. Such a procedure would have been a prudent way of avoiding precisely this kind of unfounded claim, but it is not constitutionally required. Indeed, while it is the practice of this Court before accepting a guilty plea to advise defendants of the possibility that, if they are not citizens, their conviction could lead to their deportation, the law of this Circuit is clear that the Constitution does not require a court to advise defendants of the immigration consequences of a guilty plea for the plea to be considered knowing and voluntary. United States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954);Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974), United States v. Olvera, 954 F.2d 788, 793-94 (2d Cir. 1992). See also Bye v. United Stares, 435 F.2d 177, 179-80 (2d Cir. 1970) (distinguishing unavailability of parole from other collateral effects, including immigration consequences).
Because recent changes in immigration laws "have eliminated virtually all discretion on the part of the INS, [so that] under the current state of the law, deportation is often a direct and inevitable result of an alien defendant's conviction," at least one court has concluded that deportation is no longer a "collateral" consequence of conviction. and that federal courts therefore "must warn alien defendants of possible deportation consequences before taking their pleas under Rule 11." United States v. El-Nobani, 145 F. Supp.2d 906, 913-14, 918 (N.D. Ohio 2001). But no court has held that a defendant in Acevedo's position is entitled, as a matter of constitutional law, to detailed advice from the Court before pleading guilty about the likelihood of future changes in immigration law that might bear on the speed with which the INS might move to deport him. Acevedo was clearly aware of the possibility of deportation, and the court made clear to him that because of the changeability of immigration laws and procedures, he could not count on being deported on any particular timetable. The Constitution requires no more.
Thus, it is manifest on the record of the allocution that petitioner was on clear notice that there was no promise or certainty that he would be deported at any point before the expiration of at least his minimum term of imprisonment. He thus could not reasonably have believed any assertion that he was guaranteed a more favorable outcome, and an inaccurate guess or prediction by his attorney about a matter that petitioner was clearly told was uncertain could not have prejudiced him and would not have made his guilty plea involuntary.
Accordingly, the petition is denied.