Opinion
No. 01 CV 0119 (SJ).
February 14, 2005
JEFFREY ADEBAYO, c/o Brenda Adebayo, Brooklyn, NY, Petitioner Pro Se.
ROSLYNN MAUSKOPF, OFFICE OF THE U.S. ATTORNEY, Thomas J. Siegel, Brooklyn, NY, Attorney for Respondent.
MEMORANDUM AND ORDER
Currently before this Court are Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2241 and motion for expedited disposition of his claims. Petitioner pled guilty to unauthorized use of access devices in violation of 18 U.S.C. §§ 1029(b)(2) and 1029(c)(1)(A)(i), and was sentenced by this Court on January 19, 2000. Petitioner asserts that: (1) his trial counsel was ineffective for failing to file an appeal (pet. at 1-2); (2) his trial counsel was ineffective for failing to warn him that his guilty plea would subject Petitioner to mandatory deportation (see id. at 4; Pet'r Aff. Supp. § 2255 Pet.); and (3) his conviction must be vacated since this Court did not advise him of the mandatory immigration consequences attaching to his guilty plea. (Pet. at 4.) With regard to Petitioner's latter two claims, he argues that the alleged failures to warn rendered his guilty plea unknowing and involuntary. (Id. at 5.)
DISCUSSION
I. Petitioner's Claim of Ineffective Assistance of Counsel
A. Counsel's Failure to File an Appeal
Petitioner claims that he "was denied constitutionally effective assistance of counsel when after sentencing, Petitioner specifically request[ed] his counsel[,] Mr. Bernard Udell, to file [his] direct appeal, but counsel ignored [his] request."Id. at 1-2. However, nowhere in his submissions does Petitioner specify what the basis of the appeal would have been. This Court presumes that Petitioner intended to challenge his sentence on appeal.
Petitioner pled guilty pursuant to a written plea agreement which included the following waiver, "The defendant will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below [6-12 months imprisonment]. This waiver is binding on the defendant . . ." (Plea Agreement at ¶ 4; see id. at ¶ 2.) Petitioner was sentenced to ten months imprisonment, within the range set forth in the plea agreement. The Second Circuit has held that waivers of the right to appeal or collaterally attack a sentence are enforceable as long as the waiver was made knowingly and voluntarily. See, e.g., United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) ("a knowing and voluntary waiver of the right to appeal is generally enforceable"); United States v. Morgan, 386 F.3d 376 (2d Cir. 2004); United States v. Salcido-Contreras, 990 F.2d 51, 51-52 (2d Cir. 1993) (per curiam); United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992).
At the plea hearing on September 2, 1999, this Court advised Petitioner of the sentencing guideline range for his offenses and stated, "In paragraph 4 of [the Plea Agreement] you agree not to file [an] appeal or otherwise challenge your conviction or sentence in the event that the court imposes a sentence within or below the guideline range; do you understand that?" (Plea Hearing at 5.) Petitioner responded, "Yes." (Id.) In addition, Petitioner answered this Court's questions about whether Petitioner was satisfied with his counsel's representation and whether Petitioner discussed the plea agreement with his counsel in the affirmative. (See id. at 3-4.) The plea colloquy concluded with this Court's finding that "the defendant is fully competent and capable of entering an informed plea, the defendant is aware of the nature of the charge, and consequence of his plea, the plea of guilty is knowing and voluntary . . ." (Id. at 9.)
Thus, it is clear from the record that Petitioner understood that one consequence of his guilty plea was a waiver of any appeal with respect his sentence and that he waived that right knowingly and voluntarily. Therefore, any appeal challenging his sentence would have been barred. See, e.g., United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999) (per curiam); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995). Consequently, counsel cannot be said to be constitutionally ineffective for failing to file an appeal that would have been procedurally barred and therefore Petitioner's claim is dismissed without merit.
B. Counsel's Alleged Failure to Warn Petitioner of the Mandatory Immigration Consequences of His Guilty Plea
Petitioner now 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. (See Pet. at 4 ("Had he been advised that deportation under the new Act was automatic and mandatory, the Petitioner would not have plead guilty, or made admissions, as he did."); Pet'r Aff. Supp. § 2255 Pet. at ¶ 11 ("Had I known the true effect of my pleas or admissions, I would not have chosen to plea as I did. Instead, I would not have pleaded guilty."); Pet'r Reply to Resp't Opp'n at 2 ("Had the defendant had that information, he would not have entered a plea of guilty to the stated offenses, or would not have made sufficient admissions, but would have wither [sic] chosen a jury trial or he would have bargained to [sic] a different sentence . . .").)
For the first time, in his reply to the Government's opposition, Petitioner claims that his trial counsel affirmatively advised Petitioner that no deportation or other immigration consequences would result from Petitioner's guilty plea. (Pet'r Reply to Resp't Opp'n at 3.) ("Petitioner specifically asked his counsel on two [occasions] before as well as after plea[,] [`][W]ill I be deported?['] His attorney on both [occasions] told the petitioner[,] [`]No, you [wouldn't] because I have a good deal for you.[']) This claim is belied by the omission in his petition and supporting affidavit of any reference to affirmative misrepresentations by counsel. Indeed, the petition and supporting affidavit emphasize counsel's failure to warn him of the mandatory deportation consequences as opposed to counsel's misleading him regarding potential immigration consequences. (See, e.g., Pet. at 4 ("The Petitioner was never advised of the mandatory immigration consequences by his attorney or the Court."); Pet'r Aff. Supp. § 2255 Pet. at ¶ 9 ("Before the pleas and sentencing, my attorney gave me no warning about any possible deportation consequences.") Therefore, this Court finds Petitioner's claim of affirmative misrepresentation by counsel to be lacking in credibility. In any event, even if counsel can be found ineffective underStrickland's first prong for the alleged affirmative misrepresentations, see Couto, 311 F.3d at 188, Petitioner's claim of ineffective assistance would still fail because, as explained below, he cannot satisfy Strickland's second prong requiring him to show prejudice.
This Court evaluates Petitioner's claim that his guilty plea was involuntary and unknowing due to ineffective assistance of counsel under the framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). "A defendant must first establish that `counsel's representation fell below an objective standard of reasonableness.' Second, `the defendant must show that there is a reasonable probability that, but for counsel's errors, [the defendant] 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)
The Second Circuit has held that there is no ineffective assistance of counsel rendering a guilty plea unknowing and involuntary where defense counsel has failed to advise a client of deportation consequences. See Couto, 311 F.3d at 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" INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001) that his guilty plea would subject him to deportation, 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 (suggesting need for "broader view of attorney responsibility"). Thus, Petitioner has not satisfied the first prong of the test set forth inStrickland.
Nevertheless, even if counsel's failure to warn did fall below objective standards of reasonableness, Petitioner's claim does not satisfy Strickland's second prong which requires a petitioner to demonstrate prejudice as a result of counsel's ineffectiveness. Petitioner's plea agreement explicitly stated that his guilty plea "carrie[d] the following statutory penalties:. . . . Other penalties: removal." (Plea Agreement at ¶ 1.) In addition, at the plea hearing this Court advised Petitioner that he could be deported as a consequence of his guilty plea. (Plea Hearing at 5.) (The Court: "There is a possibility you might be deported; do you understand that?" The Defendant: "Yes.")
Given the facts that his plea agreement specifically included removal from the United States as an additional penalty arising from Petitioner's guilty plea and that this Court's plea colloquy included references to the possibility of Petitioner's deportation, Petitioner cannot show that his counsel's alleged failure to warn him of the immigration consequences rendered his guilty plea involuntary or unknowing. Accordingly, Petitioner's claim of ineffective assistance based on counsel's alleged failure to warn him of the immigration consequences of his guilty plea is dismissed without merit.
II. This Court's Alleged Due Process Violation Regarding Its Failure to Warn Petitioner of the Mandatory Immigration Consequences of His Guilty Plea
As explained above, this Court did advise Petitioner at his plea hearing that Petitioner's guilty plea might subject him to deportation. (Id.) However, Petitioner claims this Court violated his right to due process in failing to advise him that deportation was mandatory or automatic as opposed to merely possible. (Pet. at 4; Pet'r Reply to Resp't Opp'n at 2.) This claim must fail since courts are not even required to advise defendants of the possibility of deportation based on a guilty plea. See, e.g., Couto, 311 F.3d at 189 ("Years ago, we concluded that the possibility of deportation based on a conviction was a `collateral consequence' of a guilty plea and that the court was not required to inform the defendant of such a possible consequence.") (citing United States v. Parino, 212 F.2d 919, 921 (2d Cir. 1954); United States v. Santelises I, 476 F.2d 787, 789 (2d Cir. 1973) ("The mere failure of a district judge to warn a defendant of the possibility of deportation as a consequence of his plea does not, without more, amount to a violation of constitutional due process, thereby rendering the plea invalid.")); Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) ("Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea.") (emphasis added). Therefore, Petitioner's due process claim is dismissed.
CONCLUSION
For the reasons stated herein, Petitioner's § 2255 claims for alleged ineffective assistance of counsel and violation of due process are dismissed in their entirety. Petitioner's motion for expedited disposition is denied as moot given Petitioner's release from federal custody on October 7, 2002 and subsequent removal from the United States.
Respondent is directed to attempt to obtain a current mailing address for Petitioner and to serve this Order upon Petitioner.
SO ORDERED.