Opinion
19 Cr. 481 (NRB)
11-09-2021
UNITED STATES OF AMERICA, v. MELBIN CEPEDA COLON, Defendant.
MEMORANDUM & ORDER
NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE
When Melbin Cepeda Colon (“Colon”) was arrested in the act of selling one kilogram of heroin (out of three kilograms promised) in the presence of an undercover officer, he faced a 10-year mandatory minimum sentence, detention pending trial, virtually certain conviction, and inevitable deportation. Instead, with the advice and assistance of counsel, Colon was released on bail, [XXXXX] pled guilty to a lesser included offense, and received a sentence of 18 months' imprisonment. Nevertheless, Colon now moves this Court to vacate his conviction and plea agreement under 28 U.S.C. § 2255 for ineffective assistance of counsel on the grounds that his former counsel (1) misled him into believing that he would not be deported if he entered into a plea agreement and (2) [XXXXX] without apprising him of his due process rights as a criminal defendant. As detailed herein, the record unambiguously contradicts Colon's allegations. Accordingly, Colon's motion and request for a hearing are denied.
I. BACKGROUND
In March 2019, undercover law enforcement officers caught Colon in the act of selling one kilogram of heroin, out of a total of three kilograms promised, to a confidential informant. Compl. ¶ 6. Colon was arrested and charged with participating in a conspiracy to distribute one kilogram of heroin in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, id. ¶ 2, an offense that carries a 10-year mandatory minimum prison sentence. Presentence Investigation Report at 11. On the day of Colon's arrest, Colon's family hired Patrick Brackley (“counsel”) to represent Colon. Brackley Aff. ¶ 1.
In August 2020, Colon entered into a plea agreement (“Plea Agreement”) with the Government. See Aug. 31, 2020 Hr'g Tr. (“Plea Tr.”). Pursuant to the Plea Agreement, Colon agreed to plead guilty to the lesser included offense of conspiring to distribute mixtures and substances containing a detectable amount of heroin and received a three-point reduction for acceptance of responsibility. Plea Agreement at 2. The parties stipulated to a Sentencing Guidelines Range of 57 to 71 months imprisonment. Id. at 3.
At a hearing in July 2021, the Court sentenced Colon to 18 months' imprisonment. See July 20, 2021 Hr'g Tr. (“Sent'g Tr.”). Shortly thereafter, Colon retained new counsel and requested a 60-day adjournment of his surrender date to enable his counsel to review his case. The Court granted Colon's request, adjourning his surrender date until October 18, 2021.
Five days before he was due to surrender, Colon filed a letter motion to adjourn his surrender date for a second time and vacate his conviction for ineffective assistance of counsel under 28 U.S.C. § 2255. The Court adjourned Colon's surrender date until November 12, 2021 to permit briefing and decision on the motion. The Court ordered counsel to submit an affidavit in response to Colon's allegations, noting that Colon had waived attorney-client privilege as a matter of law by filing the 2255 motion. See October 15, 2021 Order. The Government filed its opposition on November 1, 2021 and Colon filed his reply on November 2, 2021.
II. DISCUSSION
A claim of ineffective assistance of counsel may be pursued on a motion under 28 U.S.C. § 2255. See Massaro v. U.S., 538 U.S. 500, 504-06 (2003). To prevail on an ineffective assistance of counsel claim, a movant must establish that both (1) his “counsel's representation fell below an objective standard of reasonableness” under “prevailing professional norms” and (2) “any deficiencies in counsel's performance [were] prejudicial to the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). With respect to the first Strickland requirement, “there is a ‘strong presumption' that counsel's performance falls within the wide range of acceptable professional assistance.” Howell v. U.S., 441 Fed.Appx. 783, 785 (2d Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)). The second prong requires that counsel's performance be so poor that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
An evidentiary hearing on a 2255 motion is required “[u]nless the motion and the files and records of the case conclusively show that the [petitioner] is entitled to no relief.” 28 U.S.C. § 2255(b). “[A]s the petitioner's motion is required to set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact, that, if proved at a hearing, would entitle him to relief, ” a hearing is not required “where a petitioner makes only vague, conclusory, or palpably incredible allegations.” Celaj v. U.S., 516 F.Supp.3d 351, 361 (S.D.N.Y. 2021) (internal quotation marks, alteration, and citation omitted). For the reasons set forth below, Colon has not established a “plausible claim” of ineffective assistance of counsel on either prong, and thus an evidentiary hearing is not required. See Raysor v. U.S., 647 F.3d 491, 494 (2d Cir. 2011).
A. Immigration Consequences
Colon challenges his conviction on the grounds that counsel misled Colon into believing that he would not be deported as a result of his plea and conviction. The record, however, proves otherwise. Specifically, the Plea Agreement, Colon's sworn statements at his plea allocution, Colon's sentencing submission, and the Court's statements at Colon's sentencing hearing reveal that counsel and Colon discussed the immigration consequences of Colon's plea and that Colon understood those consequences.
To start, in Colon's signed Plea Agreement, Colon acknowledged that he was presumptively deportable:
“The defendant recognizes that . . . his guilty plea and conviction make it very likely that his removal from the United States is presumptively mandatory and that, at a minimum, he is at risk of being removed or suffering other adverse immigration consequences.”
Plea Agreement at 4 (emphasis added). Colon then affirmed that he and counsel discussed the issue of Colon's deportation:
“The defendant acknowledges that he has discussed the possible immigration consequences . . . of his guilty plea and conviction with defense counsel.”Id. at 4-5 (emphasis added). Fully aware of his deportability, Colon declared that he still wanted to plead guilty and waived his right to withdraw or challenge his plea or conviction based on any adverse immigration consequences:
The defendant affirms that he wants to plead guilty regardless of any immigration . . . consequences
that may result from the guilty plea and conviction, even if those consequences include . . . removal from the United States . . . . It is agreed that the defendant will have no right to withdraw his guilty plea based on any actual or perceived adverse immigration consequences . . . resulting from the guilty plea and conviction. It is further agreed that the defendant will not challenge his conviction . . . on the basis of any actual or perceived adverse immigration consequences . . . .Id. at 5 (emphasis added).
At Colon's plea hearing, where a Spanish interpreter simultaneously translated the proceeding for Colon, the Court confirmed with Colon, who had sworn to tell the truth, that the Plea Agreement he signed had been translated into Spanish for Colon's review prior to signature, that Colon had sufficient time to discuss his plea with counsel, and that Colon was satisfied with counsel's advice. Plea Tr. at 4, 5, 11. The Court then asked Colon a series of questions to ensure that he understood the immigration consequences of his plea:
THE COURT: Earlier, Mr. Colon, you told me you are a citizen of the Dominican Republic. Did you discuss with your lawyer that your guilty plea makes it presumptively mandatory that you will be removed from the United States?
THE DEFENDANT: Yeah, I understand.
THE COURT: Do you understand that as part of your plea agreement that you have agreed not to challenge your conviction or sentence . . . on the grounds of the adverse immigration consequences, including removal, which are likely to result from your guilty plea and conviction?
THE DEFENDANT: Yes, I understand.
THE COURT: Do you understand that under your plea agreement that you may not withdraw your guilty plea because of the immigration consequences of your guilty plea?
THE DEFENDANT: Yes, I understand perfectly well.Plea Tr. at 9-10 (emphasis added).
In Colon's sentencing submission, counsel relied on the fact that Colon was facing removal as a justification for leniency in sentencing. Counsel urged the Court to adopt the U.S. Probation Office's recommendation of a “variant sentence for the deportable Mr. Cepeda-Colon . . .” and argued that “[d]estined to be deported, Mr. Cepeda-Colon's consistent industry, strong family ties, and acceptance of responsibility indicate a low likelihood of future criminality . . . .” Def. Sent'g Sub. at 1, 3 (emphasis added).
At Colon's sentencing hearing, again simultaneously interpreted in Spanish for Colon, the Court once more raised the issue of the immigration consequences of Colon's conviction:
THE COURT: [A]m I correct that regardless of the sentence that I impose that Mr. Cepeda Colon's removal or deportation from the United States is essentially inevitable?
MR. BRACKLEY: . . . It appears that is the case.
THE COURT: And given the nature of the crime that the law today is essentially absolute.
MR. BRACKLEY: That's correct, Judge.
THE COURT: Does the government agree or disagree with Mr. Brackley's statement with respect to the deportability of Mr. Cepeda Colon?
MR. WIRSHBA: Your Honor, yes, of course, your Honor . . . . [I]t is my very basic understanding that Mr. Brackley is correct that perhaps, with no exceptions whatsoever, that we would expect that this defendant would be removed from the United States following a conviction of this type.Sent'g Tr. at 7. In sentencing Colon to 18 months' imprisonment in addition to 3 years' supervised release, the Court noted that as a practical matter, it is likely that “at the conclusion of his [prison] sentence, Mr. Cepeda Colon will be deported.” Id. at 11. Lastly, when explaining its sentencing decision, the Court observed that “it is truly a self-inflicted wound that Mr. Cepeda Colon has caused himself and the consequences in terms of his deportation far exceeds any sentence that I can impose or will impose on him.” Id. at 10-11.
At no time during any of the foregoing proceedings did Colon ever express any unawareness, surprise, or distress when reference was made to his deportation or removal. Nevertheless, Colon now maintains that he did not comprehend the immigration consequences of his plea and conviction because counsel failed to inform him that he was likely to be deported and in fact assured him that his life would “go back to normal” after he pled guilty. Colon Aff. ¶¶ 13, 19. In support of these allegations, Colon offers only two self-serving affidavits, one he signed and one signed by his wife, plus screenshots of text messages between his wife and counsel that show, at most, that Colon's wife did not fully comprehend Colon's sentence and likelihood of deportation. Against the unambiguous record in this case, these submissions are insufficient to substantiate Colon's claims. See U.S. v. Freeman, No. 19-2432 (RJS), 2021 WL 5114918, at *7 (2d Cir. 2021) (concluding petitioner's ™'bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea' and may be rejected summarily") (quoting U.S. v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)); Puglisi v. U.S., 586 F.3d 209, 214 (2d Cir. 2009) ("[A] district court need not assume the credibility of factual assertions . . . where the assertions are contradicted by the record in the underlying proceeding."); Mejia v. U.S., 740 F.Supp.2d 426, 429 (S.D.N.Y. 2010) ("A defendant's bare allegations in a § 2255 petition cannot overcome his contrary statements under oath during a plea allocution, which must be given presumptive force of truth.") (citing U.S. v. Hernandez, 242 F.3d 110, 112-13 (2d Cir. 2001) (per curiam)). Accordingly, Colon has failed to satisfy his burden under the first Strickland prong.
The record, which for the reasons discussed herein is sufficient on its own to defeat Colon's motion, is buttressed by counsel's sworn affidavit. Counsel states that at his initial conference with Colon and "many times thereafter," he "explicitly discussed the impact of a cony [XXXXX] Id. 1 [2] [XXXXX] [3] Moreover, and significantly, in the absence of a valid ineffective assistance of counsel claim, which Colon does not have, Colon is barred under the Plea Agreement from challenging his conviction on the basis of “any actual or perceived immigration consequences.” Plea Agreement at 5.
Even if Colon could demonstrate that counsel misled him with respect to the immigration consequences of his plea, which he cannot, Colon has failed to establish prejudice. Courts in this District have consistently held that “[a] defendant fails to satisfy the prejudice prong of Strickland where his attorney fails to inform him of the potential for deportation but the deportation consequences are otherwise addressed in the plea agreement or allocution.” Hill v. U.S., No. 11 Cr. 145 (LAP), 2014 WL 104565, at *9 (S.D.N.Y. Jan. 7, 2014) (quoting Marte v. U.S., 952 F.Supp.2d 537, 540 (S.D.N.Y. 2013) (collecting cases)). Here, the removal consequences were addressed in both the Plea Agreement and the allocution. See Plea Agreement at 4-5; Plea Tr. at 9-10.
Beyond the record, Colon has not shown that “but for counsel's unprofessional errors, there was a reasonable probability that [he] could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense.” Kovacs v. U.S., 744 F.3d 44, 52 (2d Cir. 2014) (citation omitted) (explaining the Strickland prejudice standard for 2255 motions involving allegedly incorrect immigration advice). In his reply brief, Colon argues that counsel could have negotiated an “immigration friendly” plea to the non-aggravated felony offense of traveling in interstate commerce with the intent to distribute the proceeds of unlawful narcotics activity under 18 U.S.C. § 1952(a)(1)(A). Colon Reply Br. at. 4. However, the record does not show, and Colon makes no attempt to establish, that Colon was in fact traveling in interstate commerce or had “proceeds, ” that this offense would otherwise be applicable to Colon, or that such a plea would not also result in adverse immigration consequences. In any event, there is nothing in the record that suggests the Government would have accepted a more lenient plea. See Kovacs, 744 F.3d at 52 (“Strickland prejudice focuses on the outcome of the proceeding rather than a defendant's priorities or desires . . . . To prevail on that ground, a petitioner must therefore demonstrate a reasonable probability that the prosecution would have accepted, and the court would have approved, a deal that had no adverse effect on the petitioner's immigration status.”). To the contrary, in its sentencing submission, the Government urged the Court to impose a sentence within the Guidelines range of 57 to 71 months' imprisonment even though the Probation Office recommended a sentence of 18 months' imprisonment. Gov't Sent'g Sub. at 3.
In addition, there is no merit to Colon's argument that, had he known about his deportability, he would have gone to trial rather than plead guilty. The Supreme Court has recognized that to a defendant facing the seemingly dire consequence of deportation, “even the smallest chance of success at trial may look attractive." Lee v. U.S., 137 S.Ct. 1958, 1966 (2017). However, Colon - who had been caught "red-handed," waived his Miranda rights, and confessed before ever meeting with counsel, see Brackley Aff. 51 3, 6 - points to no "contemporaneous evidence" showing that he would, in fact, have chosen to "throw [] a 'Hail Mary' at trial" rather than face near-certain deportation under his plea. Lee, 137 S.Ct. at 1967. Instead, Colon argues that [XXXXX] Colon Br. at 9. Therefore, Colon claims, had he known that deportation was presumptively mandatory under his plea, he would rather have gone to trial [XXXXX] Id. at 3, 9. This argument defies logic for at least two from the outset, [XXXXX] second, if colon had gone to trial, it is possible that the Government could have statements made [XXXXX] See U.S. v. Rosemond, 841 F.3d 95, 108-09 (2d Cir. 2016) (explaining the circumstances under which a defendant's statements made during plea discussions may be admissible at trial).
Ultimately, the record shows that Colon knew at the time of his plea that deportation was likely and when faced with the choice between going to trial on charges that carried a 10-year mandatory minimum prison term and pleading guilty to a lesser included offense with a relatively low Stipulated Guidelines Range, he chose the latter. Colon may regret that choice today, but that does not entitle him to a do-over. Accordingly, Colon has not met his burden of establishing that counsel's allegedly incorrect immigration advice was prejudicial. Having satisfied neither of the Strickland requirements, Colon's immigration-related ineffective assistance of counsel claim must fail.
B. Due Process Rights
Colon raises an additional ineffective assistance of counsel claim alleging that counsel urged Colon [XXXXX] without apprising him of his due process rights as a criminal defendant or reviewing discovery with him. Once again, the record reveals that Colon's allegations are meritless. At Colon's plea allocution, the Court engaged in an extensive colloquy with Colon to confirm that he understood what rights he was waiving by virtue of his Plea Agreement. Under oath, Colon affirmed that he understood that he was waiving the right “to plead not guilty, ” “to a jury trial, ” “to be represented by an attorney at all stages of the [trial] proceedings, ” “to confront and cross-examine witnesses against [him], ” “not to be compelled to incriminate [him]self, ” “to testify, ” and “to call other witnesses on [his] behalf.” Plea Tr. at 7-9. It is thus patently untrue that “Colon was never advised he had a right to go to trial, to testify in his own defense, or to bring witnesses.” Colon Br. at 8. Colon also confirmed that he had sufficient time to speak to counsel about the charges against him and that he was satisfied with counsel's advice. Plea Tr. at 5. Accordingly, Colon's contrary, unsubstantiated claims at this late stage simply are not credible.
Colon's allegation that counsel [XXXXX] is equally unavailing. Colon does not dispute that before he had ever even met with an attorney, he waived his Miranda rights, provided an inculpatory statement, and [XXXXX] Brackley Aff. ¶ 3. Colon's independent assessment of the best course of action was rational; Colon was caught in the act of selling heroin to a confidential informant in the presence of law enforcement officers and was observed engaging in conversations that indicated he “participated in a larger international drug organization.” Gov't Sent'g Sub. at 3. Although Colon now suggests that he could have raised a defense of coercion or duress, see Colon Br. at 11, Colon does not dispute that he never informed counsel of any facts suggesting that such a defense could be viable. Brackley Aff. ¶ 10. Counsel explains that given these circumstances, he concluded that [XXXXX] Id. ¶¶ 6-8. Evaluating this “conduct from counsel's perspective at the time” and according “deference to counsel's informed decisions, ” as the Court must, Strickland, 466 U.S. at 681, 689, counsel's strategy was manifestly reasonable.
Finally, for the same reasons discussed above, Colon has failed to establish that even if counsel erred in advising Colon about his rights as a criminal defendant or [XXXXX], such errors were not prejudicial. The Court confirmed with Colon, under oath, that he understood what rights he was waiving by virtue of his plea. See Marte, 952 F.Supp.2d at 540. And Colon has failed to establish a reasonable probability that he would have had a different outcome absent these alleged errors. See Strickland, 466 U.S. at 694. As such, Colon's second ineffective assistance of counsel claim also fails.
III. CONCLUSION
For the foregoing reasons, Colon's motion is denied. Per this Court's Order dated October 27, 2021 and Colon's Judgment, Colon shall surrender to the U.S. Marshal Service for this District at 2:00 p.m. on November 12, 2021. As Colon has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253.