SHARON L. OVINGTON, Magistrate Judge.
This matter is before the Court on pro se Petitioner Juan F. Solano's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence (Doc. # 108); Respondent's answer and motion to dismiss (Doc. #s 115, 116); Petitioner's reply (Doc. # 118); and the record as a whole.
In his motion, Petitioner sets forth the following ground for relief:
(Doc. # 108, PageID at 396). In his Memorandum of Law, Petitioner also argues that he was the victim of entrapment and that his counsel provided constitutionally ineffective assistance for failing to raise this defense. (Doc. # 108, PageID at 409-413).
Respondent maintains that Petitioner's motion lacks merit and is time-barred.
In October 2008, a federal grand jury indicted Petitioner on one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). (Doc. # 10). On March 4, 2009, Petitioner entered a plea of guilty to this charge. (Doc. #s 52, 53). During his plea hearing, the Court reviewed the facts underlying the charge against Petitioner, and he admitted the truth of those facts as follows:
(Doc. # 121, PageID at 528-30). After further discussions with Petitioner, his attorney, and an Assistant United States Attorney, the District Court accepted Petitioner's guilty plea and found him guilty of committing of conspiracy to distribute and possess with intent to distribute heroin as charged in count one of the indictment.
Later, on July 14, 2009, the District Court sentenced Petitioner to 120 months of incarceration. (Doc. #s 80, 82). Petitioner did not file a direct appeal of his conviction or sentence.
In March 2010, nine months after Petitioner was sentenced, the Supreme Court decided Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1478 (2010), addressing whether defense "counsel had an obligation to advise [her client] that the offense to which he was pleading guilty would result in his removal from this country." Id., ___ U.S. at ___, 130 S. Ct. at 1478. The Court held and explained, "It is our responsibility under the Constitution to ensure that no criminal defendant — whether citizen or not — is left to the `mercies of incompetent counsel.' 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, 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, ___ U.S. at ___, 130 S.Ct. at 1486.
Believing that his attorney gave him wrong information about the consequences of his guilty plea — specifically, that his guilty plea would not result in deportation — Petitioner finds solace in Padilla, as seen in his contention that he suffered the same constitutional violation identified in Padilla. He therefore filed his instant §2255 motion on April 6, 2011, citing Padilla and asserting constitutionally ineffective assistance of counsel. (Doc. # 108).
A federal prisoner who claims that his sentence was imposed in violation of the Constitution or laws of the United States or "is otherwise subject to collateral attack" may move the sentencing court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must demonstrate an error of constitutional magnitude occurred that had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Under § 2255, a petitioner must establish: "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). Apart from constitutional error, the question is "whether the claimed error was a `fundamental defect which inherently results in a complete miscarriage of justice.'" Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)). Claims not raised on direct appeal are waived for collateral review except where an error amounts to something akin to a denial of due process.
The Supreme Court has held that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Id.; see also United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005) ("as a general rule, a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations") (quoting United States v. Crowe, 291 F.3d 884, 886 (6th Cir. 2002)); see United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990). Accordingly, "in most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance." Massaro v. United States, 538 U.S. 500, 504 (2003). Federal prisoners who wish to pursue claims for ineffective assistance of counsel thus usually "should do so by way of a collateral proceeding pursuant to 28 U.S.C. § 2255." Sanders, 404 F.3d at 986.
28 U.S.C. § 2255(f) provides:
Respondent argues that Petitioner's claims are time-barred and that in any event, he cannot establish ineffective assistance of counsel.
The Sixth Amendment presumes that a criminal defendant has "the right to the
To establish a claim of ineffective assistance of trial counsel, a criminal defendant must make a two-part showing:
Strickland, 466 U.S. at 687; see Frye, ___ U.S. at ___, 132 S.Ct. at 1405; see also O'Hara v. Brigano, 499 F.3d 492, 505 (6th Cir. 2007). To satisfy the prejudice prong, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Overall, the constitutional standard for adequate representation is "an objective standard of reasonableness" in line with "prevailing professional norms." Strickland, 466 U.S. at 687-88. Counsel's performance also should be evaluated in light of the totality of the circumstances. See Strickland, 466 U.S. at 690; see also Mason v. Mitchell, 320 F.3d 604, 618 (6th Cir. 2003).
In the guilty-plea context, the second Strickland prong focusing on "whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59; see Dando v. Yukins, 461 F.3d 791, 798 (6th Cir. 2006).
The Constitution requires that a defendant's plea be made knowingly, intelligently, and voluntarily. Bousley, 523 U.S. at 618; see Brady v. United States, 397 U.S. 742, 750 (1970). Ineffective assistance of counsel may prevent a defendant from entering a knowing and voluntary plea. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). Where a guilty plea is entered upon the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. at 56 (citation omitted); see Frye, ___ U.S. at ___, 132 S.Ct. at 1404-05; see also Lafler, ___ U.S. at ___, 132 S.Ct. at 1384.
During the plea colloquy, Judge Rice advised Petitioner as follows:
(Doc. # 121, PageID at 537-38).
Respondent correctly observes that even if Petitioner's counsel failed to advise him of deportation consequences the record clearly reflects that the District Court did. As such, Petitioner cannot demonstrate the prejudice prong necessary to establish ineffective assistance of counsel. Respondent's prejudice argument is significant because the Supreme Court in Padilla left open the possibility that the ineffective assistance of counsel Padilla received caused him no prejudice. This appears in the Court's statement that "[w]hether Padilla is entitled to relief will depend on whether he can demonstrate prejudice. . ., a question we do not reach. . . ." ___ U.S. at ___, 132 S.Ct. at 1487.
With prejudice thus in mind, Respondent cites to Smith v. United States, 2011 WL 837747 (S.D. Fla. 2011), where the defendant claimed that his attorney was ineffective by providing incorrect advice about the possibility of deportation following his guilty plea. The District Court held, "Smith cannot satisfy Strickland's prejudice prong. Assuming counsel misadvised him, Smith became aware of the possibility he would be deported when the Court advised of this fact during the plea colloquy. Smith stated that he understood and nevertheless entered his guilty plea. Accordingly, the Court cured any error due to counsel's misadvice and Smith's plea. . . ." Id. at *11. Analogous circumstances arose in the instant case, resulting in the same no-prejudice conclusion reached in Smith. Id. During Petitioner's plea hearing, the District Court advised him that if he was not a U.S. citizen, he would face deportation upon pleading guilty. Petitioner affirmed his understanding of this. (Doc. # 121, PageID at 537-38). Therefore, assuming the truth of Petitioner's allegation — that his attorney incorrectly told him that he would not face deportation as a result of his guilty plea — Petitioner cannot establish prejudice. See Smith, 2011 WL 837747 at *11. Additionally, the United States Court of Appeals for the Sixth Circuit has held that if the District Court conducts a guilty plea colloquy that addresses a particular consequence, any defect in defense counsel's advice regarding that consequence is cured. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999). The District Court did just that in the present case by informing Petitioner that if he was not a U.S. Citizen, he would face deportation in the event he pled guilty.
As such, Petitioner's ground for relief lacks merit.
Petitioner also claims that his counsel rendered constitutionally ineffective assistance because he failed to present the defense of entrapment. Respondent correctly contends that this claim is barred by the one year statute of limitations under § 2255. This claim has nothing to do with the Padilla issue discussed above, and as such must have been raised within one year of the finality of Petitioner's conviction. Petitioner did not do so because he filed his §2255 in April 2011, well after the one-year statute of limitations expired. And, by arguing that Padilla should be applied retroactively, Petitioner effectively acknowledges that his § 2255 motion was not timely filed.
Accordingly, for all the above reasons, Petitioner's §2255 motion should be denied.
Because reasonable jurists would not disagree with the foregoing conclusions, Solano should be denied any certificate of appealability and leave to appeal in forma pauperis.
