United States District Court, D. Delaware
Laraine A. Ryan, Esquire. Attorney for Movant.
Elizabeth L. Van Pelt, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.
RICHARD G. ANDREWS, District Judge.
Pending before the Court is Movant Karen Shanair Henry's ("Movant") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). (D.I. 33) The Government filed an Answer in Opposition. (D.I. 40) For the reasons that follow, Movant's § 2255 Motion is denied.
On August 28, 2012, the Federal grand jury returned a two count Indictment charging Movant with willfully and knowingly making false statements in an application for a United States Passport, in violation of 18 U.S.C. § 1542 ("Count One"), and with willfully and falsely representing herself to be a citizen of the United States, in violation of 18 U.S.C. § 911 ("Count Two"). (D.I. 15)
On April 16, 2013, Movant pled guilty to Count One of the Indictment. An executed Memorandum of Plea Agreement was filed at the plea colloquy, signed by Movant, defense counsel, and the attorney for the Government. In the Plea Agreement, Movant certified that she understood the elements of the§ 1542 offense, including that she acted "knowingly and willfully" in making a false statement in an application for a United States Passport. Relevant to the pending§ 2255 Motion, Paragraph 7 of the Plea Agreement stated that Movant understood the immigration consequences of her plea, including the potential for "automatic removal." (D.I. 23)
During the plea colloquy, the Court further confirmed Movant's understanding of the elements of the offense, the factual basis for each element, and the immigration consequences of her plea. According to Movant's assertions during the colloquy, she is twenty-nine years old, college-educated, and speaks English as her first language. (D.I. 41 at 3-4) Movant agreed that she had "fully discuss[ ed] the charges in the case in general with [her] attorney, " and that she was "fully satisfied with the advice given" in this case. (D.I. 41 at 5)
On August 20, 2013, the Court sentenced Movant to one year of probation. (D.I. 32) Movant timely filed the instant § 2255 Motion on January 8, 2014. (DI. 33) The Government filed its Answer in Opposition on March 3, 2014. (D.I. 38) The§ 2255 Motion is ready for review.
The instant§ 2255 Motion asserts the following two ineffective assistance of counsel claims: (1) defense counsel failed to adequately advise Movant about the immigration consequences of pleading guilty; and (2) defense counsel was ineffective for advising her to enter a plea rather than proceed to trial and present a defense that she did not knowingly submit a fraudulent birth certificate. (D.I. 33 at 4-6)
Movant has properly raised her ineffective assistance of counsel allegations in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). As a general rule, ineffective assistance of counsel claims are reviewed pursuant to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first ("performance") prong of the Strickland standard, Movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second ("prejudice") prong of the Strickland standard, Movant must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Id. at 694; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). Here, because Movant entered a guilty plea, she will only be able to satisfy Strickland's prejudice prong by demonstrating a reasonable probability that she would have insisted on proceeding to trial instead of pleading guilty if not for counsel's error. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). Finally, although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. Id. at 689.
A. Counsel Failed To Properly Advise Movant of Deportation Consequences
In Claim One, Movant asserts that counsel was ineffective for merely warning "her of possible immigration effects in a generalized or form-signing fashion, " instead of "specifically" discussing the issue. (D.I. 33 at 6) She relies on Padilla v. Kentucky, 559 U.S. 356 (2010), to support this argument. In Padilla, the Supreme Court held that defense counsel rendered constitutionally deficient assistance by failing to correctly advise the defendant of the deportation consequences stemming from a guilty plea because the removal consequences were "succinct, clear, and explicit" and the defendant's "deportation was presumptively mandatory." Id. at 368-69. However, the Padilla Court explained that, where the "law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369. Padilla Court also opined that a petitioner's entitlement to relief "will depend on whether he [or she] can demonstrate prejudice as a result" of constitutionally deficient counsel. Id. at 374.
To support her argument, Movant cites Rodriguez v. Gonzales, 451 F.3d 60, 61 (2nd Cir. 2006), a case in which the Second Circuit held that the defendant's violation of 18 U.S.C. § 1542 was a crime involving moral turpitude ("CIMT") rendering the defendant statutorily ineligible for cancellation of removal and also ineligible for adjustment of status. Id. at 65. Presumably, Movant cites to Rodriguez to demonstrate that her conviction under 18 U.S.C. § 1542 constitutes the type of offense for which the immigration consequences are succinct and straightforward, thereby triggering defense counsel's duty under Padilla to advise her that entering a plea would render her "ineligible for relief, assuring her deportation." (D.I. 33 at 7)
The record does not include an affidavit from defense counsel regarding the advice she did or did not provide Movant during the plea process.However, in Strickland, the Supreme Court explained that "there is no reason for a court deciding an ineffective assistance of counsel claim" to consider "both components of the [Strickland] inquiry ifthe [movant] makes an insufficient showing on one." Strickland, 466 U.S. at 697. Rather, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id .; see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006)(a court may address Strickland's prejudice prong first "and reject an ineffectiveness claim solely on the ground that the [movant] was not prejudiced."). Here, the Court will proceed directly to the prejudice inquiry, because that analysis is dispositive.
First, Paragraph Seven of the signed Memorandum of Plea Agreement clearly and explicitly identifies automatic removal as a very real consequence of pleading guilty:
[Movant] recognizes that pleading guilty may have consequences with respect to her immigration status if she is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which the defendant is pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, and defendant understands that no one, including her attorney or the district court, can predict to a certainty the effect of her conviction on her immigration status. [Movant] nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that her plea may entail, and even if the consequence is her automatic removal from the United States following any period of incarceration imposed by the District Court at sentencing.
(D.I. 23 at 3)(emphasis added). Second, during the plea colloquy, the Assistant U.S. Attorney summarized the plea agreement, noting, in relevant part, "the defendant recognizes that this guilty plea may have consequences with respect to her immigration status if she is not a U.S. citizen. And that her plea may entail - even if her plea entails removal, she would not be able to withdraw her plea on that basis, and she wants to plead guilty notwithstanding that immigration consequences." (D.I. 41 at 7-8). The Court followed up with, "Ms. Henry, does what [the Assistant U.S. Attorney] sound to you like what you believe is in this written Plea Agreement?" Movant responded, "Yes." ( Id. at 8). The ...