Opinion
Civil Action No. 2:10-CV-191 JVB, (Arising out of 2:08-CR-192).
April 7, 2011
OPINION AND ORDER
A. Background
Following his plea agreement and guilty plea, Julio Cesar Chavarria was sentenced to twelve months and one day of imprisonment on four counts of distributing cocaine in Criminal Case No. 2:08-CR-192. On July 8, 2009, a judgment of conviction was entered against him. On May 10, 2010, Chavarria filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 He alleges, among other things, that, in response to questions regarding the chance of deportation after sentencing, his attorney informed him that he had checked with the Bureau of Immigration and Customs Enforcement and had been told that the Bureau was not interested in Chavarria.
On May 13, 2010, the Court ordered the United States Attorney to file an answer, motion, or other response to Chavarria's § 2255 motion. The Government filed a motion to dismiss on June 4, 2010, claiming that the Court lacked jurisdiction over Chavarria's motion because, even though Chavarria was in federal custody when he filed the motion, he had since been discharged. The Court denied the Government's motion on June 24, 2010.
On June 11, 2010, Chavarria requested a stay of his deportation proceedings. In its June 24 order, the Court directed the Government to answer Chavarria's § 2255 motion and respond to his request for a stay. On August 23, 2010, Chavarria filed a supplement to his § 2255 motion which consisted of a copy of the opinion in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which holds that an attorney's failure to inform a client about the risk of deportation if he pleads guilty is constitutionally deficient representation. The Government filed its answer and response on September 7, 2010. On September 10, 2010, the Court directed that counsel be appointed for Chavarria. On October 15, 2010, Chavarria's counsel replied to the Government's response by informing the Court that Chavarria had been deported on August 31, 2010. The Court then denied the stay request as moot and conducted a status conference on November 15, 2010, at which the Court directed the parties to brief the issue of whether Chavarria's § 2255 motion is viable given Chavarria's removal from the country and also to discuss how the case should move forward procedurally.
In its brief, the Government concedes that Chavarria's § 2255 motion is not moot but argues that it should be dismissed because Chavarria waived his right to contest his conviction in his plea agreement, or, alternatively, that Padilla does not apply retroactively to Chavarria. Accordingly, the Court will treat the Government's brief as a second motion to dismiss. Chavarria's response brief challenges the Government's arguments. In its reply brief, the Government argues that in addition to waiving his right to bring a § 2255 motion in his plea agreement, Chavarria has not presented any evidence that his waiver was not knowing and voluntary. The Government points out that Chavarria did not submit a sworn affidavit that his attorney misinformed him about the effect of his guilty plea on his immigration status.
B. Analysis (1) Waiver
The Government argues that Chavarria has waived his right to attack his conviction by entering into a plea agreement which includes the following language:
I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed, and that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense as set forth in this plea agreement; with this understanding and in consideration of the government's entry into this plea agreement, I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.
The Government asserts that Chavarria's claims of ineffective assistance of counsel do not relate directly to the above waiver or its negotiation. Chavarria responds that under decisions of the Court of Appeals for the Seventh Circuit, a claim of ineffective assistance of counsel in connection with a plea agreement cannot be barred by the agreement itself, so that he did not waive his claim. See Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). The Court agrees. By claiming that his attorney did not adequately inform him of the likely effect of a guilty plea on his immigration status, Chavarria is claiming that his plea agreement was not knowing and voluntary because of ineffective representation. This is a challenge to the voluntariness of the entire plea agreement, including its waiver provisions. Justice requires that a defendant have an opportunity to assert his Sixth Amendment right to effective assistance of counsel if he has accepted the waiver in reliance on delinquent representation. Id.
(2) Applicability of Padilla
The Government next contends that Chavarria cannot rely on Padilla v. Kentucky because it announced a new rule of criminal procedure that, under Teague v. Lane, 489 U.S. 288 (1989), does not apply retroactively to a motion collaterally attacking a conviction. Chavarria responds that Padilla does not announce a new constitutional rule.
In Teague, the Supreme Court stated that a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. 489 U.S. at 301. Stated differently, a case announces a new rule if "the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. The Court agrees with Chavarria that the holding in Padilla was dictated by precedent that existed when defendant Padilla's state court conviction became final. As the Supreme Court stated:
[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for the purposes of the Sixth Amendment right to effective assistance of counsel . . . It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the "mercies of incompetent counsel." [Citation omitted.] To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents [emphasis added], the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.Padilla, 130 S.Ct., at 1486. The Supreme Court further noted that for at least the fifteen years before its 2010 decision, professional norms had imposed an obligation on counsel to provide advice on the deportation consequences of a criminal defendant's plea. Id. at 1485. Because the Padilla decision did not announce a new rule of law, it is applicable to the guilty plea Chavarria entered into in 2009.
(3) Chavarria's Failure to Submit an Affidavit
According to the Government, before Chavarria is allowed to proceed to an evidentiary hearing on his claims of ineffective assistance of counsel, he must present an affidavit taken before a person having authority to administer oaths, attesting to specific facts supporting his allegations.
Chavarria's § 2255 petition includes the following allegation:
Defendant constantly questioned his attorney about the chance of deportation after being sentence [sic] on the distribution charge, especially since he did not do the Counts 1-3, nor as indicated in Count 4. Again, the attorney stated that he had checked with the Bureau of Immigration and Customs Enforcement, just like the Pre-Trial Services Officer and the Court Judge did, and they said that they were not interested in him, the Defendant, to deport or was deportable.
Moreover, above his signature on the § 2255 petition, the following language appears: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." Thus, Chavarria has presented more than a naked assertion; he has subjected himself to the penalties for perjury just as much as if he had taken an oath in the presence of a notary or other official. See Heiss v. United States, 24 Fed. Appx. 599, 601 (7th Cir. 2001). ("We find no merit to the government's assertion that an evidentiary hearing was not required because Heiss presented only unsworn statements in support of his claim. The government overlooks the fact that by signing his § 2255 motion Heiss swore to the truth of his allegations.") A liberal reading of the above allegation, to which Chavarria, as a pro se litigant when he filed the motion, is entitled, supports the inference that Chavarria's plea agreement and guilty plea resulted from his reliance on erroneous advice from his attorney about their effect on his immigration status. The Court will not dismiss his motion for want of a sworn affidavit.
C. Conclusion
For the foregoing reasons, the Government's motion to dismiss Julio Cesar Chavarria's motion to vacate his sentence, as set out in the Government's Brief Regarding Chavarria's Motion Under 28 U.S.C. § 2255 (DE 89), is DENIED. The Court's Case Management Deputy Clerk will contact the parties to arrange a date for a status conference.
SO ORDERED.