Opinion
07 Cr. 326 16 Civ. 9790
07-21-2017
IDA SHARIFI-NELSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
APPEARANCES: Attorney for Petitioner THE LAW OFFICES OF CHRISTOPHER J. CASSAR, P.C. 13 East Carver Street Huntington, NY 11743 By: Christopher J. Cassar, Esq. Attorney for Respondent JOON H. KIM Acting United States Attorney Southern District of New York One Saint Andrew's Plaza New York, NY 10007 By: Margaret Garnett, Esq.
OPINION
APPEARANCES:
Attorney for Petitioner
THE LAW OFFICES OF CHRISTOPHER J. CASSAR, P.C.
13 East Carver Street
Huntington, NY 11743
By: Christopher J. Cassar, Esq.
Attorney for Respondent
JOON H. KIM
Acting United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
By: Margaret Garnett, Esq. Sweet, D.J.
Petitioner Ida Sharifi-Nelson ("Nelson" or the "Petitioner") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate and set aside her criminal conviction, alleging that she was provided ineffective assistance of counsel and denied due process during her plea allocution. For the reasons set forth below, Petitioner's motion is denied. Prior Proceedings
Petitioner was convicted of mail fraud by a guilty plea on January 24, 2008, before the Hon. Gabriel W. Gorenstein. On December 1, 2008, Petitioner was sentenced to one year of probation with the special condition of six months' home confinement along with forfeiture of $960,000 and restitution of $852,073.95. (See Dkt. 26.)
On June 28, 2016, Petitioner moved to expunge her criminal record, (Dkt. 30), which was denied on October 31, 2016, (Dkt. 34).
On November 25, 2016, Petitioner filed the instant motion, (Dkt. 35), which was heard and marked fully submitted on April 26, 2017. Applicable Standard
28 U.S.C. § 2255(a) provides that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Relief under this law is available only "for constitutional error, lack of jurisdiction, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (internal quotation marks and citations omitted). Petitioner's Motion is Denied
Petitioner seek to vacate her conviction on the grounds that she was denied effective assistance of counsel during her plea negotiation and denied due process by pleading guilty involuntarily. Specifically, Petitioner argues that her counsel was unconstitutionally ineffective because she was informed by counsel that there was only a "possibility" of being deported upon pleading guilty rather than it deportation being "certain," in violation of Padilla v. Kentucky, 559 U.S. 356 (2010), (see Pet'r's Mem. in Supp. at 4), and because it was unreasonable for her counsel not to negotiate a plea agreement with a non-deportable offense, in violation of Strickland v. Washington, 466 U.S. 668 (1984), (see Pet'r's Mem. in Supp. at 15, 18). Petitioner's due process claim is based on her contention that she lacked understanding of the immigration consequences of her plea agreement at the plea allocution, rendered her guilty plea not voluntary, intelligent, and knowing, in violation of Boykin v. Alabama, 395 U.S. 238 (1969), and its progeny, (see Pet'r's Mem. in Supp. at 29).
For procedural reasons and on its merits, Petitioner's habeas petition is denied.
i. Petitioner's Claim Is Time-Barred
As a threshold matter, the petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides, in relevant part, that:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--28 U.S.C. § 2255(f)(1)-(4).
(1) the date on which the judgment becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from filing by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Accordingly, the latest date hypothetically applicable to Petitioner's motion is the Supreme Court's decision in Padilla, which was decided on March 31, 2010. Petitioner's motion was filed in November 2016, over six years later and well after the one-year statute of limitations under AEDPA had expired. In the face of this hurdle, Petitioner has made no arguments that the statute of limitations should be equitably tolled for her claims. Furthermore, based on the facts presented, any such argument would likely be unavailing. See Ottenwarde v. United States, No. 12 Civ. 6537 (JGK), 2013 WL 1242632, at *5 (S.D.N.Y. Mar. 28, 2013) ("Equitable tolling is only appropriate in 'rare and exceptional circumstances' where, despite a petitioner's reasonable diligence, 'extraordinary circumstances beyond [the petitioner's] control prevented successful filing during [the required] time.'" (quoting Baldayaque v. United States, 338 F.3d 145, 151 (2d Cir. 2003) (alterations in original)).
The other potentially applicable dates under the statute are all earlier in time. First, Petitioner was sentenced on December 1, 2008 and her judgment entered on December 18, 2008; the sentence was not appealed and thus became final in early January 2009. See Fed. Rs. App. P. 4(b)(1)(A) and 26 (as effective in 2008) (providing that a criminal defendant's notice of appeal must be filed in the district court within 10 days after the entry of judgment but that intermediate Saturdays, Sundays, and legal holidays shall be excluded in computing period of times that are less than 11 days). Second, the other cases underlying Petitioner's constitutional rights violation claims predate Padilla. Lastly, Petitioner has not argued that the facts underlying her claim were unknown to her until within one year of her filing the instant petition; rather, she has demonstrated that she became aware of the deportation consequences of her plea at least upon receiving removal proceeding papers around October 20, 2009. (See Pet'r's Mem. in Supp., Ex. C.)
As the Government points out, the selection of this absolute latest date is simply illustrative. Padilla has been held not to be retroactive on collateral review. See Chaidez v. United States, 568 U.S. 342, 357 (2013). As even using this clear date clearly lands Petitioner's motion outside the acceptable statute of limitations, it is unnecessary to use any of the earlier latest applicable date described supra.
ii. Petitioner Is Not "In Custody"
Even were the petition timely, it would still be procedurally barred because Petitioner is no longer in federal custody. To file a federal habeas petition, a petitioner must be "in custody." See 28 U.S.C. § 2255(a). "A petitioner whose federal sentence has been fully discharged and who is not physically confined does not meet the 'in custody' requirement of habeas corpus jurisdiction." Guzman v. United States, No. 11 Civ. 2433 (RWS), 2011 WL 6097128, at *3 (S.D.N.Y. Dec. 7, 2011) (citing Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994)). Furthermore, any "collateral immigration consequences . . . are not sufficient to satisfy this jurisdictional requirement." Id. (collecting cases); see also Adegbuji v. United States, No. 03 Civ. 2667 (RPP), 2003 WL 21961122, at *3 (S.D.N.Y. Aug. 18, 2003) (finding petitioner's "current INS incarceration is a collateral consequence of his convictions" was insufficient to satisfy the "in custody" requirement of Section 2255).
In late 2008, Petitioner was sentenced to one year probation and six months' supervised release, which altogether concluded in 2010. Petitioner is not, and does not claim to be, incarcerated presently. Her federal sentence having been fully discharged and her collateral immigration consequences, at any point of the process, insufficient to establish custody under Section 2255, Petitioner's instant motion is procedurally barred.
iii. Petitioner's Claims Are Meritless
Even if Petitioner's Section 2255 motion were not procedurally barred for the reasons discussed above, her petition would still fail because her claims are without merit.
As discussed above, Padilla is not applied retroactively to defendants. See supra at 5 n.1. As Petitioner was sentenced prior to Padilla, that portion of Petitioner's claim fails outright and will not be discussed in this section. --------
a. Ineffective Assistance Of Counsel Claim
Petitioner first argues that it was unconstitutionally ineffective of her counsel not to seek a plea agreement for her that did not involve a deportable offense. This claim must fail.
The Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. The Sixth Amendment "right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The Supreme Court has established a two-part test for evaluating claims of ineffective assistance. Strickland, 466 U.S. at 687. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. "Second, the defendant must show that the deficient performance prejudiced the defense." Id.
While the defendant must prove both deficient performance and prejudice, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. As such, courts need not resolve the first Strickland prong if the second is more easily resolved. See Farrington v. Senkowski, 214 F.3d 237, 242 (2d Cir. 2000).
To prove prejudice, Petitioner must demonstrate "a reasonable probability that, but for counsel's errors, [Petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here, this requirement proves fatal to Petitioner's claim. She has neither asserted her innocence to the crimes to which she pled guilty nor presented proof that she could have avoided conviction at trial. See Guzman, 2011 WL 6097128, at *6 (finding that petitioner did not establish prejudice because of failing to dispute his guilt or that "he could have succeeded in avoiding conviction following a trial"); Eisa v. Immigration and Customs Enforcement, No. 08 Civ. 6204 (FM), 2008 WL 4223618, at *10 (S.D.N.Y. Sept. 11, 2008) (same). Furthermore, the crime to which she pled was serious—embezzling over one million dollars from her employer, (see Sentencing Opinion at 1-2, Dkt. 23)—and no evidence has been submitted that the Government would have offered a plea bargain that did not involve deportation. Petitioner's statements now to the contrary, Petitioner has not reasonably shown that, but for her counsel's negotiation tactics, her outcome would have been different. See Ottenwarde v. United States, No. 12 Civ. 6537 (JGK), 2013 WL 1242632, at *7-8 (S.D.N.Y. Mar. 28, 2013) (denying Section 2255 petition based on claim of ineffective assistance of counsel for "failure to negotiate a hypothetical plea bargain that would have spared [petitioner] from deportation"). In the absence of established prejudice, Petitioner's ineffective assistance of counsel claim fails.
b. Due Process Claim
Petitioner also contends that her Fifth Amendment due process rights were violated because at the time of her guilty plea, she did not understand the deportation consequences of her actions, rendering her plea involuntary. The facts presented, however cannot support that her plea was anything other than voluntary, knowing, and intelligent.
Due process requires that a defendant who pleads guilty do so "voluntary and knowing . . . . [which] cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.'" Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (citation omitted). In other words, s guilty plea cannot be considered voluntary and knowing unless a defendant receives "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Bousley v. United States, 523 U.S. 614, 618 (1998) (internal quotation marks and citation omitted). The appropriateness of the plea can be reviewed by examining the totality of the relevant circumstances. Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) (per curiam) (citing Brady v. United States, 397 U.S. 742, 749 (1970)). The petitioner bears the burden of showing "that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression." Scales v. N.Y.S Div. of Parole, 396 F. Supp. 2d 423, 434 (S.D.N.Y .2005) (citation omitted).
During Petitioner's plea allocution, the deportation consequences of the guilty plea were discussed twice, once between Judge Gorenstein and Petitioner and once between Judge Gorenstein and Petitioner's counsel, which included a discussion that Petitioner had spoken with an immigration attorney. (See Pet'r's Mem. in Supp., Ex. A at 6, 14.) At that time, Petitioner indicated that she understood that deportation might be mandatory. (Id. at 6.) That Petitioner could be deported was also discussed before this Court during Petitioner's sentencing. (See id., Ex. B at 4.) At neither time was there evidence that Petitioner did not understand this aspect of her plea agreement or that her guilty plea was not knowing, intelligent, and voluntary. Aside from Petitioner's contrary statements now submitted in conjunction with her instant motion challenging her conviction, no evidence has contracted Petitioner's statements back then or otherwise established the unintelligence of Petitioner's plea. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (a defendant's sworn statements made at his plea allocution "carry a strong presumption of verity"); United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (finding that sworn statements are conclusive absent a credible reason for departing from them). Accordingly, Petitioner's due process claim also fails. Conclusion
For the foregoing reasons, Petitioner's motion to vacate her conviction is denied.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered. New York, NY
July 21, 2017
/s/ _________
ROBERT W. SWEET
U.S.D.J.