JAN E. DuBOIS, District Judge.
On October 3, 2011, defendant plead guilty to conspiracy to utter approximately $10,700 in counterfeit $100 obligations, in violation of 18 U.S.C. § 371, and uttering counterfeit obligations, in violation of 18 U.S.C. § 472. Presently before the Court is defendant's pro se Motion to Set Aside, Vacate or Correct Sentence by a Person in Federal custody pursuant to 28 U.S.C. § 2255, in which he argues that his attorney, Carina Laguzzi, was ineffective for failing to inform him of the immigration consequences of his guilty plea. For the following reasons, defendant's Motion is denied.
On July 12, 2010, defendant, Evens Claude, was indicted in the Southern District of Texas for conspiracy to utter approximately $10,700 in counterfeit $100 obligations, in violation of 18 U.S.C. § 371, and uttering counterfeit obligations, in violation of 18 U.S.C. § 472. Gov't Resp. to Def.'s Pet. at 1-2. Pursuant to Federal Rule of Criminal Procedure 20, the U.S. Attorney for the Southern District of Texas approved the transfer of the case for guilty plea and sentencing to the Eastern District of Pennsylvania on February 1, 2011. Consent to Transfer, Feb. 16, 2011. The Court appointed Carina Laguzzi, Esq., to represent defendant on April 5, 2011. Appointment of Counsel Hr'g, Apr. 5, 2011.
At a change-of-plea hearing on October 3, 2011, the Court accepted defendant's open guilty plea after a colloquy pursuant to Federal Rule of Criminal Procedure 11(b). Because defendant is a Haitian national, the Court questioned defendant about the potential risk to his immigration status as follows:
Tr. 10/3/11 at 23:16-27:5.
On January 31, 2012, the Court sentenced defendant to eighteen-months imprisonment, and on February 13, 2012, Ms. Laguzzi filed a timely appeal, arguing that the Court erred in not granting defendant a two-level reduction in his offense level for acceptance of responsibility under section 3E1.1 of the U.S. Sentencing Guidelines. United States v. Claude, 503 F. App'x 166, 167 (3d Cir. 2012). The U.S. Court of Appeals for the Third Circuit affirmed the sentence on November 1, 2012, id. at 168, and defendant's conviction became final on January 30, 2013.
On March 18, 2014, defendant filed the pending pro se Motion to Set Aside, Vacate, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255, arguing that his counsel was ineffective for failing to inform him about the risk of deportation and that he "would have chosen to go to trial" had she done so. Pet. to Vacate Conviction at 5. For the reasons that follow, the Motion is denied.
To establish ineffective assistance of counsel, a defendant must demonstrate (1) that his counsel's performance "fell below an objective standard of reasonableness" under "prevailing professional norms" and (2) that counsel's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88, 92 (1984). "[S]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
When assessing the reasonableness of counsel's performance, courts should "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. "[I]n cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, to establish prejudice, a defendant [must] show `a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012) (quoting Hill v. Lockhard, 474 U.S. 52, 59 (1985)). A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome.'" Strickland, 466 U.S. at 694.
Defendant's § 2255 Motion is without merit because, even assuming defendant could show that Ms. Laguzzi's failure to apprise him of potential immigration consequences fell below an objective standard of reasonableness, he cannot prove that he was prejudiced by that failure. The record is unclear as to scope and content of Ms. Laguzzi advice regarding the immigration consequences of defendant's plea.
A defendant cannot show prejudice when he acknowledges during a Rule 11 colloquy that he understands the consequences of his plea. See, e.g., United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (holding that counsel was not ineffective for allegedly promising a defendant a certain sentence because the defendant was advised during a colloquy that he might be sentenced to more time than he was promised); Watson v. United States, No. 04-cr-392, 2009 WL 2393450, at *4 (E.D. Pa. Aug. 4, 2009) ("[A]ny Sixth Amendment claim of ineffective counsel is overcome by the extensive colloquy of the Court during Petitioner's plea hearing in which it is ensured that Petitioner was aware [of the consequences] that could result from the charge against him."); Sanchez-Rios v. United States, No. 07-cv-3048, 2008 WL 527038, at *5 (D.N.J. Dec. 17, 2008) ("Petitioner's [ineffective-assistance-of-counsel claim] fails for lack of prejudice because this Court's colloquy . . . clearly explained the possibility of a different outcome . . ."); see also United States v. Hernandez-Monreal, 404 Fed. App'x 714, 715 (4th Cir. 2010) (holding that a petitioner failed to show prejudice where the record established he had affirmatively acknowledged that his guilty plea carried a risk of deportation); Mendoza v. United States, 774 F.Supp.2d 791, 799 (E.D. Va. 2011) ("[P]etitioner's sworn acknowledgement [that he understood the immigration consequences of his plea] is, by itself, dispositive of the prejudice analysis.").
In this case, the Court engaged in an extensive colloquy in which defendant stated three times that he understood there was a potential for deportation if he entered a guilty plea. Specifically, during the colloquy, the Court informed defendant multiple times that the Court's acceptance of his guilty plea "might subject him to removal or deportation." Further, defendant affirmatively acknowledged this risk and stated that he had no questions:
Tr. 10/3/11 at 25:19-26:8.
Subsequent to this exchange, the Court again reiterated the potential immigration consequences of a guilty plea, and defendant again explicitly stated that he understood the consequences and wished to proceed with the guilty plea:
Tr. 10/3/11 at 26:23-27:5.
Moreover, a defendant cannot complain about a failure to consult with counsel about the consequences of a plea where he "declined an opportunity to ask additional questions or speak with his lawyer before entering a plea." United States v. Felder, 563 F.Supp.2d 160, 166 (D.D.C. 2008); see also Ross v. Miller, No. 1:10-cv-01185, 2011 WL 2292146, at *10 (N.D. Ohio May 10, 2011) (finding no prejudice where "[defendant] was afforded the opportunity to consult his attorney about [the consequences of waiving his jury right] and declined to do so."). In this case, after defendant stated during the colloquy that he had not discussed immigration consequences with his attorney, the Court asked defendant whether he "want[ed] to take some time, a few minutes or longer, to discuss this issue now?" Tr. 10/3/11 at 26:9-14. Defendant declined the Court's offer because he "understood the situation." Id. Defendant was thoroughly informed of the potential consequences of his plea and decided to proceed without asking questions, and thus cannot meet his burden of proving that he would have insisted on going to trial had he discussed deportation with Ms. Laguzzi prior to the hearing.
Additionally, defendant cannot claim prejudice as a result of entering a guilty plea because he was already subject to deportation before he was indicted in this case. See, e.g., Gutierrez v. United States, No. 1:10-cv-2748-JECRGV, No. 1:07-cr-0051-JEC-RGV-1, 2013 WL 593796, at *4 (N.D.Ga. Feb. 15, 2013) ("[I]f the defendant already knew prior to his plea that he would probably be deported after completing his prison sentence, his attorney's failure to reiterate that point could not have prejudiced him."); see also United States v. Sinclair, 406 Fed. App'x. 674, 675 (4th Cir. 2011).
Prior to entering his guilty plea on October 3, 2011, defendant had already been convicted of two deportable offenses in Massachusetts.
For all of the aforementioned reasons, defendant has not shown prejudice. Thus, defendant's Motion under 28 U.S.C. § 2255 is denied on the merits.
For the foregoing reasons, the Court denies defendant's Motion to Set Aside, Vacate, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. An evidentiary hearing is not required because the record "conclusively show[s] that [defendant] is entitled to no relief." 28 U.S.C. § 2255(b). Furthermore, a certificate of appealability will not issue because reasonable jurists would not debate this Court's decision that defendant's Motion does not state a valid claim of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). An appropriate order follows.
These contested facts undermine his assertion that he was prejudiced. A defendant cannot show prejudice when the record contradicts the assertions set forth in his or her § 2255 Motion. See Donna v. United States, No. 10-1607, 2011 WL 322636, at *6 (D.N.J. Jan. 31, 2011) (holding that petitioner could not demonstrate prejudice through conclusory assertions that were contradicted by the record); see also Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985) ("If the record . . . conclusively negates the factual predicates asserted by [the defendant] in support of his motion for post-conviction relief . . . the district court did not abuse its discretion in electing not to conduct an evidentiary hearing.").
