JOHN G. KOELTL, United States District Judge:
On October 19, 2017, the petitioner, Anik Roy, pleaded guilty pursuant to a plea agreement to Counts I and II of an indictment. Count I charged the petitioner with conspiracy in violation of 18 U.S.C. § 371 to violate 18 U.S.C. § 641; Count II charged the petitioner with the substantive offense of theft of Government funds, in violation of 18 U.S.C. §§ 641 and 2. By pleading guilty pursuant to the plea agreement, the petitioner avoided pleading guilty to Count III of the indictment, which charged him with aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1), 1029(b)(2), and 2, a charge that was dismissed at sentencing.
On February 26, 2018, this Court sentenced the petitioner primarily to a term of six months' imprisonment and a three-year term of supervised release with a condition of six months' home confinement on Count I and II, to run concurrently. As a result of his conviction and sentence, the petitioner, a noncitizen, is subject to mandatory removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for committing aggravated felonies.
The petitioner timely filed a habeas petition under 28 U.S.C. § 2255, seeking to set aside his conviction and sentence on grounds of alleged ineffective assistance of counsel. For the reasons explained below, the petition is
The petitioner entered the United States from Bangladesh sometime in late 2007 or 2008 with a diversity visa. Pet. Ex. E at ¶¶ 50, 52. In December 2016, the petitioner was charged in the three-count indictment described above. Pet. Ex. B. The charges related to a scheme carried out from September 2011 to March 2015 whereby the petitioner and a co-defendant filed false tax returns and obtained refund checks to which they were not entitled. Pet. at 1.
The petitioner was represented by experienced defense counsel throughout his criminal proceeding. Ultimately, the petitioner agreed to plead guilty to Counts I and II and stipulated that the Government's loss was at least $95,000. Pet. at 5. The petitioner was sentenced principally to a term of six months' imprisonment to be followed by three years of supervised release with a condition of six months' home confinement on each count, with the sentences on each count to run concurrently. The petitioner was also ordered to pay restitution in the amount of $114,669.45 to
Represented by new counsel, the petitioner filed this 28 U.S.C. § 2255 petition, arguing that trial counsel rendered ineffective assistance by failing to: (1) explain adequately the immigration consequences of his conviction, resulting in the petitioner unknowingly and involuntarily entering his plea of guilty; (2) seek a plea to a nonaggravated felony; (3) advise the Court, for sentencing purposes, of the petitioner's presumptively mandatory removal; and (4) ask for a sentence of one day less than a year so that the petitioner's offenses of conviction would not be classified as aggravated felonies. This Court held an evidentiary hearing on September 20, 2018, at which trial counsel, an immigration lawyer who was consulted by trial counsel, and the petitioner all testified. Having reviewed the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law.
Trial counsel, assisted by an associate and an intern in his office, researched the immigration consequences facing the petitioner. Hearing Tr. at 33-34. He also consulted a member of the Immigrant Defense Project and immigration counsel.
Trial counsel testified credibly that he explained to the petitioner the immigration consequences of pleading guilty to these counts. Hearing Tr. at 66-67. But the petitioner was uninterested in going to trial after trial counsel told the petitioner that the Government had a strong case against him.
The plea agreement signed by the petitioner stated that the petitioner recognized that his plea and conviction made it "very likely that his deportation from the United States is presumptively mandatory and that, at a minimum, he is at risk of being deported or suffering other adverse immigration consequences." Pet. Ex. C at 5. The plea agreement also acknowledged that the petitioner discussed the possible immigration consequences of his plea with counsel and that the petitioner wished to plead guilty nonetheless.
Pet. Ex. D at 19.
Trial Counsel wrote a sentencing memorandum to the Court requesting that the petitioner receive only probation. Pet. Ex. F at 2. The memorandum did not mention the petitioner's removability because trial
The petitioner contends that, despite the numerous occasions where immigration consequences were acknowledged, he was unaware throughout his criminal proceeding of the immigration consequences he faced. He testified that he believed that he "might get into [a] little trouble with immigration" but that he would not face presumptively mandatory deportation.
Additionally, the petitioner testified that he fears removal to Bangladesh, a Muslim country, because he believes he will be persecuted as a Hindu.
Criminal defendants have a Sixth Amendment right to the effective assistance of counsel during all critical stages of a criminal proceeding, including sentencing.
To meet the first prong of the
In
To meet the second prong of the
The petitioner raises a series of claims of ineffective assistance of counsel concerning his trial counsel's representation of him in connection with his plea and in connection with his sentencing.
The petitioner first argues that trial counsel was ineffective in explaining the immigration consequences of pleading guilty to Counts I and II. Due to this alleged deficiency, the petitioner claims that he was unaware that his plea would subject him to mandatory removal. Had the petitioner known the immigration consequences, he argues, he would not have pleaded guilty to Counts I and II. Thus, the petitioner contends that trial counsel's ineffectiveness caused him to enter into his plea agreement unknowingly and involuntarily.
Contrary to the petitioner's assertions, the record shows that the petitioner was aware of the immigration consequences of his guilty plea; the petitioner's testimony to the contrary is not credible. Trial counsel credibly testified that he researched extensively the immigration consequences of the petitioner's case, determined that the petitioner was alleged to have committed aggravated felonies, and then explained to the petitioner that he likely faced deportation. Moreover, the plea agreement stated that, by pleading guilty, the petitioner would likely face presumptively mandatory deportation. Pet. Ex. C at 5. The petitioner read the agreement, Hearing Tr. at 96, and trial counsel credibly testified that he told the petitioner that signing the plea agreement would subject the petitioner to removal,
In short, the evidence does not reasonably support the petitioner's claim that he was unaware of the immigration consequences of his plea. Trial counsel was effective in relaying the immigration consequences, and the petitioner's alleged lack of knowledge is not credible. The petitioner has failed to demonstrate that he was afforded ineffective assistance of counsel in connection with his guilty plea.
Moreover, the petitioner has failed to show prejudice from any advice he received from his trial counsel because he has failed to show that there is any additional advice he should have been given that would have caused him to reject the plea offer by the Government and take his chances at a trial on all three counts of the indictment, including the charge of aggravated identity theft that would have subjected him to a two-year mandatory minimum term of imprisonment. Trial counsel informed the petitioner that the Government had a strong case against him, and the petitioner said that he did not wish to go to trial. A trial could have led to the petitioner's being convicted on all Counts and sentenced to at least two years of imprisonment. Thus, forgoing a plea in favor of trial would have been contrary to the petitioner's primary goal of avoiding prison time. Because the petitioner would not have, but for the alleged ineffective assistance, insisted on going to trial, he did not suffer prejudice under
The petitioner next contends that trial counsel rendered ineffective assistance by securing a plea that subjected him to mandatory removal. The petitioner claims that if he had pleaded guilty to Count III — which involved conduct occurring in March 2015, Pet. Ex. C at 3-4 — and paid restitution, he would not be mandatorily removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated felony, nor removable under 8 U.S.C. § 1227(a)(2)(A)(i) for having committed a crime of moral turpitude within five years of entering the United States. Thus, the petitioner contends that trial counsel should have secured a plea to Count III rather than to Counts I and II.
However, Count III carried a two-year mandatory minimum sentence. The petitioner stressed throughout his criminal proceeding that he wanted his case to be resolved in a way that minimized the chance or amount of incarceration. Given the petitioner's desire to avoid prison, trial counsel did not seek a plea agreement to Count III, which would have guaranteed the petitioner at least two years of imprisonment; trial counsel instead sought a disposition that would minimize the petitioner's time of imprisonment. Indeed, after the petitioner pleaded guilty to Counts I and II, trial counsel requested in a sentencing memorandum — and three times at sentencing — that the petitioner be sentenced only to probation. As a result of his guilty plea, the petitioner received a sentence principally of six months' imprisonment and three years of supervised release that included six months of home confinement, as opposed to the two-year minimum sentence attached to Count III.
Third, the petitioner contends that trial counsel was ineffective in failing to mention in his sentencing memorandum that the petitioner faced mandatory removal from the United States. Trial counsel had included that fact in a draft of the sentencing memorandum but removed it based upon his belief that the Court could not consider that consequence for sentencing purposes. Trial Counsel Decl. at ¶ 8. However, the petitioner points out that in
However, this Court was certainly aware of the petitioner's noncitizen status and of the potential immigration consequences he faced. Indeed, they were stated in his plea agreement and acknowledged at his plea hearing. See Pet. Ex. C at 5, Ex. D at 19. Moreover, trial counsel stated at sentencing that the petitioner's offenses were aggravated felonies that could subject him to removal. Pet. Ex. G at 13. Therefore, the petitioner has failed to establish the second prong for a violation of
Finally, the petitioner argues that trial counsel rendered ineffective assistance by not advising the Court of the immigration consequences attached to a sentence of six months' imprisonment and six months' home confinement as part of a term of supervised release and by failing to ask the Court to remove one day from the petitioner's term of home confinement. Had trial counsel done so, the petitioner contends, the petitioner's crimes would not have been classified as aggravated felonies and he would not be subject to mandatory removal. This argument depends on a reading of the immigration statutes that has not yet been resolved in this Circuit.
Committing an aggravated felony, defined in 8 U.S.C. § 1101(a)(43), subjects a noncitizen to mandatory deportation under 8 U.S.C. § 1227(a)(2)(A)(iii). A noncitizen who commits an aggravated felony is also precluded from seeking certain forms of discretionary relief from removal, including asylum, application or reapplication for a visa or for an adjustment of status, and cancellation of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i); 1182(h)(2); 1229b(a)(3), (b)(1)(C);
The petitioner pleaded guilty to conspiring in violation of 18 U.S.C. § 371 to commit theft of Government funds in violation of 18 U.S.C. § 641, and the substantive offense of theft of Government funds in violation of 18 U.S.C. § 641. Trial counsel believed that these offenses were aggravated
The Government responds that, if the petitioner's offenses were theft offenses, a sentence of one less day would not affect the immigration consequences facing the petitioner. The crimes to which the petitioner pleaded guilty were "crimes of moral turpitude" occurring within five years of the petitioner's entry into the United States, subjecting him to removal under 8 U.S.C. § 1227(a)(2)(A)(i)-(ii).
The first issue is whether trial counsel's failure to ask the Court to reduce the petitioner's sentence by one day constitutes deficient performance under the first prong of the
The classification of the petitioner's offenses for immigration purposes is unclear. Neither the Board of Immigration Appeals ("BIA") nor the Second Circuit Court of Appeals has resolved whether — or under what circumstances — a violation of 18 U.S.C. § 641 is a fraud offense under 8
While trial counsel believed that the offenses of conviction were fraud offenses,
In
However, under 8 U.S.C. § 1101(a)(43)(P), immigration document fraud is an aggravated felony only if it results in a sentence of one year or more. Thus, whether the
Here, the significance of a sentence below one year is not as clear as in
Nonetheless, the possibility that the petitioner's offenses were theft offenses and not fraud offenses was sufficiently clear. The circumstances in this case are not so distinguishable from those in
With respect to
The petitioner has established sufficient prejudice. If the Court were apprised of the effects that a one-day shorter sentence might have on the immigration consequences facing the petitioner, it would have granted a request for a one-day reduction in the petitioner's sentence. Any reduction in time incarcerated is significant for purposes of
The petitioner is also prejudiced by the potential unavailability of the forms of discretionary relief noted above. It is not certain that the petitioner will be granted any of these remedies; although, the prospect of faith-based persecution in the petitioner's home country indicates that he could potentially apply for such relief in good faith. Reducing the petitioner's sentence by one day enhances the probability of the petitioner's remaining in the United States with his family and significant other, rather than being removed to Bangladesh where he believes he will be persecuted. This is plainly consequential. "Deportation is an integral part ... of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."
In sum, the petitioner has established that trial counsel rendered ineffective assistance under
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the petitioner's motion pursuant to 28 U.S.C. § 2255 to set aside, vacate, or correct his judgment of conviction and sentence is
The Clerk of Court is directed to enter judgment accordingly in the petitioner's civil action, 18-cv-3105, and to close that case. The Clerk is directed to reopen the petitioner's criminal case, 16-cr-847. Unless the Court is advised otherwise, Labe M. Richman will serve as the petitioner's counsel for resentencing. The parties are directed to confer and submit a proposed date for resentencing and a schedule for any supplemental sentencing submissions.