WILLIAM D. QUARLES, JR., District Judge.
Pending is Christian Castellon-Gutierrez's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Also pending is the Government's motion to dismiss. A hearing was held on October 7,
In February 2008, Castellon-Gutierrez and two other men robbed Marvin Flores at knifepoint. Pl.'s Mot. to Vacate, Ex. C at 2. When police stopped Castellon-Gutierrez, Flores's jacket was found on the ground beside him, and the knife was found on him. Id. At a show-up, Flores identified Castellon-Gutierrez as the man who held the knife during the robbery.
On July 22, 2008, Castellon-Gutierrez pled guilty to robbery with a dangerous weapon in the Circuit Court for Montgomery County. Id. at 1. He was represented by Esteban Gergely, Esquire. Id. Judge Eric M. Johnson imposed a five-year, suspended sentence, and Castellon-Gutierrez was deported. Id.
In April 2009, police found Castellon-Gutierrez in Baltimore, after he unlawfully reentered the country. ECF No. 1. On May 20, 2009, he was indicted for unlawful reentry in violation of 8 U.S.C. § 1326. ECF No. 1. On October 26, 2009 he pled guilty. ECF No. 14.
On February 25, 2010, Castellon-Gutierrez was sentenced to 46 months imprisonment. ECF No. 25. Unlawfully reentering or remaining in the United States has a base offense level 8. U.S.S.G. § 2L1.2. Castellon-Gutierrez's offense level was adjusted 16-levels upward because he had unlawfully reentered after a robbery conviction, a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A);
Before sentencing for his unlawful reentry, Castellon-Gutierrez filed a Petition for Writ of Error Coram Nobis in the Circuit Court for Montgomery County, to vacate the robbery conviction. Pl.'s Mot. to Vacate 2.
Id. at 6.
He found that this violated Miller v. State, 185 Md.App. 293, 970 A.2d 332 (Md.
The State's Attorney for Montgomery County appealed the vacatur to the Maryland Court of Special Appeals. Govt's Opp'n. Def.'s Mot. to Vacate 4. The appeal is pending.
Castellon-Gutierrez filed his motion to vacate, set aside, or correct his unlawful reentry sentence on June 16, 2010. ECF No. 36. On September 8, 2010, the Government filed its motion to dismiss. ECF No. 42. On October 7, 2010, this Court held a hearing.
The Government argues that Castellon-Gutierrez's motion to correct his sentence is not ripe for adjudication because the vacatur of his robbery conviction has been appealed. Govt's Opp'n Def.'s Mot. Vacate 1. The ripeness requirement "prevents judicial consideration of issues until [the] controversy is presented in a clear-cut and concrete form." Miller v. Brown, 462 F.3d 312, 318-19 (4th Cir.2006)(internal quotation marks omitted). In evaluating ripeness, courts balance (1) "the fitness of the issues for judicial decision,"
Castellon-Gutierrez's petition is ripe for judicial review. His claim is not "abstract;" his state robbery conviction has been vacated. See Nuvox Comm'cns, Inc. v. Sanford, 241 Fed.Appx. 126, 129 (4th Cir.2007)(ripeness prevents courts from "entangling themselves in abstract disagreements"). The Circuit Court's opinion and order vacating the robbery conviction provide this Court with a controversy in "clean-cut and concrete form." Miller, 462 F.3d at 319.
Although the pending appeal favors withholding this Court's review, that consideration is outweighed by the hardship that dismissing the claim may cause the petitioner, who withdrew his Fourth Circuit direct appeal so this Court could decide his § 2255 motion.
Castellon-Gutierrez argues that vacatur of his state robbery conviction requires reduction of his unlawful reentry sentence because he "is no longer subject to enhanced sentencing for having a prior conviction for a `crime of violence'." Pl.'s Mot. to Vacate 2. The Government contends that the vacatur should not alter Castellon-Gutierrez's unlawful reentry sentence. Govt's Mot. to Dismiss 9-13.
An alien may not reenter the United States after deportation, and any alien who reenters after a deportation "subsequent to a conviction for commission of an aggravated felony," shall be "imprisoned not more than 20 years." 8 U.S.C. §§ 1326(a) & (b). The sentencing guidelines provide a base offense level of 8 for unlawful reentry, and a 16 level enhancement "[i]f the defendant previously was deported . . . after a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A).
The Fourth Circuit has not addressed whether a defendant, like Castellon-Gutierrez—who is convicted of a violent felony, deported, and then unlawfully reenters the country—may have his sentence reduced if the violent felony conviction is vacated.
"[P]resent status of the . . . felony conviction is irrelevant" because "[i]t is impossible to alter the historical fact that the defendant was convicted, and then deported." United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.2000). Thus, vacatur of the felony conviction, after the defendant's unlawful reentry, usually is not a basis for reducing the reentry sentence. Id.
Castellon-Gutierrez argues that vacatur of his robbery conviction is a basis for reducing his reentry sentence because his conviction was vacated for constitutional error. Pl.'s Opp'n Govt's Mot. to Dismiss 9-11. The Government argues that coram nobis relief was not granted on federal constitutional grounds. Govt's Mot. to Dismiss 5.
Because entry of a guilty plea "involves a waiver of many substantial constitutional rights," Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), federal due process requires that the plea be given voluntarily, knowingly, and intelligently, "with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). When a defendant pleads guilty without sufficient awareness of the charges, the plea is invalid. See Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).
The validity of a plea is determined by the totality of the circumstances surrounding it. United States v. Moussaoui, 591 F.3d 263, 278(4th Cir.2010). "Normally the record contains either an explanation of the charge by the trial judge" or "a representation by defense counsel that the nature of the offense has been explained to the accused." Henderson, 426 U.S. at 647, 96 S.Ct. 2253. Absent that indication in the record, "it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." Id. (presumption inappropriate when defendant has low mental capacity). As the Maryland Court of Special Appeals has recognized:
Miller v. State, 185 Md.App. 293, 311-312, 970 A.2d 332 (Md.Ct.Spec.App.2009) (quoting State v. Crowe, 168 S.W.3d 731, 750-51 (Tenn.2005)).
Miller did not apply the Henderson presumption, and read Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005),
The Fourth Circuit has not addressed Bradshaw's effect on the Henderson presumption. Bradshaw does not address Henderson's holding, and other federal courts have applied the presumption without questioning its post-Bradshaw validity.
In granting Castellon-Gutierrez's coram nobis petition, Judge Craven held that Md. Rule 4-242(c) had not been satisfied because Castellon-Gutierrez was not advised by the court of the charge's elements, and his attorney had not represented that he had discussed the elements with him. Pl.'s Mot. to Vacate, Ex. C at 6.
The failure to strictly comply with Maryland Rule 4-242 does not establish a federal due process violation.
A certificate of appealability ("COA") must issue before a petitioner may appeal the court's decision in a 28 U.S.C. § 2255 case. See 28 U.S.C. § 2253(c)(1). The COA "serves as a threshold requirement ... to screen out prisoner petitions that ought to not take up additional judicial resources beyond those already consumed." Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir.2010)(citing Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004)(quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), or that "the issues presented were adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)(internal quotations omitted).
Castellon-Gutierrez withdrew his Fourth Circuit direct appeal so this Court could hear his § 2255 petition. His petition presents a question of law that the Fourth Circuit has not decided. Reasonable jurists could disagree about whether his sentence should be corrected, and the issue is worthy of further examination. A certificate of appealability will issue.
For the reasons stated above, Castellon-Gutierrez's motion to vacate, set aside, or correct his sentence will be denied. The Government's motion to dismiss will be granted.
For the reasons discussed in the accompanying Memorandum Opinion, it is, this 6th day of December, 2010, ORDERED that: