Opinion
No. A3-99-158. Docket No. 9.
February 2, 2000.
Summary: Petitioner, a resident alien, sought writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his plea of guilty in state court to a controlled substance crime was not knowing and voluntary since he had not been informed that he would be deported as an aggravated felon. Court held that the petition conclusively showed petitioner was not entitled to relief since deportation is a collateral consequence of a guilty plea that does not need to be explained to ensure the voluntariness of a plea. Moreover, petitioner was actually informed that he may be deported. Petition denied.
MEMORANDUM AND ORDER
Before the court is a petition for writ of habeas corpus for persons in state custody under Title 28 U.S.C. § 2254. (doc. #1). As the motion conclusively shows that the petitioner is entitled to no relief, no response from the United States is necessary. 28 U.S.C. § 2254. Petitioner claims his conviction in state court is constitutionally invalid since his guilty plea was not made with the understanding that he would be deported.
Petitioner Farok is an Iraqi refugee who came to this country in September, 1992, and attained lawful permanent resident status in November, 1993. On April 14, 1999, petitioner pled guilty in North Dakota state court to a charge of Delivery of a Controlled Substance, in violation of Section 19-03.1-23(a) of the North Dakota Century Code. During his change of plea hearing, the court informed petitioner that he may be deported. While incarcerated petitioner received a notice to appear for removal proceedings from the Immigration and Naturalization Service (INS), charging petitioner with being a deportable alien under Section 1227(a)(2)(A)(iii) of Title 8, United States Code. Petitioner then sought to withdraw his plea of guilty; that motion was denied by the state court. Petitioner indicates that he has filed a notice of appeal with the North Dakota State Supreme Court.
Section 2254 of Title 28 of the United States Code allows a federal court to issue a writ of habeas corpus in behalf of a person in state custody pursuant to a judgment of a state court "only on the ground that he is in custody in violation of the Constitution or laws . . . of the United States." Generally, exhaustion of the remedies available in state court is required.See 28 U.S.C. § 2254(b). An application, however, may be denied on the merits, notwithstanding the failure to exhaust state remedies. Id. Putting aside the decision of whether the petition is properly before the court, frankly it appears that it is not, the court denies the petition on the merits.
Entering a plea of guilty results in the waiver of several federal constitutional rights such as the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Waivers of constitutional rights must be voluntary, knowing and intelligent, done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970). Petitioner claims that his plea of guilty was not knowing, voluntary or intelligent since he was only informed that he may be deported instead of that he would be deported.
Despite petitioner's thorough argument that as an aggravated felon his deportation was a direct consequence of his guilty plea, the court remains unconvinced. Deportation has long been viewed as a collateral consequence of a guilty plea that does not need to be explained to ensure the voluntariness of a plea. See United States v. Campbell, 778 F.2d 764, 766-67 (11th Cir. 1985). Indeed, this view has recently been upheld by the First Circuit despite challenges very similar to petitioner's. See United States v. Gonzalez, ___ F.3d ___, No. 99-1179, 2000 WL 39120 (1St Cir. Jan. 24, 2000).
In rejecting Gonzalez's ineffective assistance of counsel argument and involuntary plea argument, the court reaffirmed that immigration effects are collateral. See id. at *6. The court explained:
What renders the plea's immigration effect "collateral" is not that they arise "virtually by operation of law," but the fact that deportation is "not the sentence of the court which accept[s] the plea but of another agency over which the trial judge has no control and for which he has no responsibility. . . . However "automatically" Gonzalez's deportation — or administrative detention — might follow from his conviction, it remains beyond the control and responsibility of the district court in which that conviction was entered and it thus remains a collateral consequence thereof.Id. (citations omitted).
The court is persuaded by the logic expounded in Gonzalez. As petitioner was actually informed that he may be subject to deportation, his plea of guilty was not involuntary or unintelligent. Accordingly, the petition, (doc #1), is DISMISSED.
RODNEY S. WEBB, Chief Judge, United States District Court.