Cazarez-Santos v. USA

Filing 2

ORDER Denying Motion Pursuant To 28 U.S.C. § 2255. Signed by Judge Larry Alan Burns on 11/1/14.(kas)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 12cr3447-LAB-2 and
14cv2306-LAB
Plaintiff,

vs.

ORDER DENYING MOTION
PURSUANT TO 28 U.S.C. § 2255

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ARMANDO CAZAREZ-SANTOS,
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Defendant.
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Petitioner Armando Cazarez-Santos, a Mexican citizen, pursuant to a plea agreement

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pled guilty to one count of transporting illegal aliens and aiding and abetting, in violation of

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8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II), and judgment was entered against him on December

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19, 2012. He was sentenced to twelve months in custody, followed by three years of

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supervised release. He filed no appeal, and his conviction became final on December 28,

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2012.

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On June 2013, when he finished serving the custodial portion of his sentence, he was

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given a notice to appear for removal proceedings, and placed in immigration detention. The

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notice informed him that his conviction was an aggravated felony and he was removable. On

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January 21, 2014, he was removed to Mexico. On May 28, 2014, he was apprehended while

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trying to return to the United States, in violation of the conditions of supervised release. He

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was arrested for this violation, and has been charged with a violation of 8 U.S.C. § 1326.

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On September 29, 2014, Cazarez-Santos filed a petition pursuant to 28 U.S.C. § 2255

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to vacate his conviction for alien smuggling. The United States has filed a response in

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opposition to that motion, raising the issue of a time bar and also arguing the claim on the

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merits.

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The petition argues Cazarez-Santos’ trial counsel committed error under Padilla v.

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Kentucky, 559 U.S. 356 (2010) by failing to advise him adequately of the risk of deportation.

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Cazarez-Santos recognizes his petition might appear to be time-barred under § 2255(f)’s

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one-year limitations period, but argues it is not, for two reasons. First, he says his claim did

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not accrue until his removal became administratively final. Second, he argues he is entitled

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to equitable tolling because of attorney abandonment.

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Cazarez-Santos cites Johnson v. United States, 544 U.S. 295 (2005) in support of his

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argument that the limitations period on his claim did not begin to run until his removal was

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administratively final. In other words, he believes his claim did not accrue is it ordinarily

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would on the date his conviction became final. Rather, he argues, the final removal order

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amounted to a new fact, and therefore pursuant to § 2255(f)(4) the limitations period began

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to run on that later date.

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The government correctly points out Johnson is distinguishable. There, a state court’s

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decision directly affected the petitioner’s claim; he could not have filed a habeas petition until

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the state court decision was entered. Here, the removal order is not a new fact underlying

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or giving rise to his claim. As soon as he pleaded guilty, Cazarez-Santos knew the facts

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underlying his claim, i.e., that he had been given certain advice by his attorney, that he was

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not an American citizen, and that he had pled guilty to the offense of alien smuggling. The

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fact that he may not have realized the legal significance of those facts until later makes no

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difference. For example, in Chang-Cruz v. Hendricks, 2013 WL 5966420, slip op. at *3

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(D.N.J., Nov. 7, 2013), the court held that a non-citizen’s claim accrued in 2005, when he

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pleaded guilty, and not later when he realized that the plea would result in his deportation.

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Although that court was dealing with the limitations period of § 2244(d)(1), the analysis

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applies with equal force here:
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Mr. Chang–Cruz was aware that he was not an American citizen. He was
aware that he had pled guilty to the drug offenses when his conviction
became final in 2005. Mr. Chang–Cruz may not have been aware of the
precise legal consequences of his guilty plea (potential deportation), but he
was aware of the vital facts underlying his claim. Furthermore, Mr.
Chang–Cruz was specifically instructed by the state court at the plea hearing
that his guilty plea could impact his immigration status.FN4 That placed him
at least on inquiry notice, even if the precise consequences of his guilty plea
did not materialize until he was picked up by immigration officials in June
2010. These facts do not give rise to a claim of delayed accrual under Section
2244(d)(1)(D). The case law consistently draws a distinction between delayed
awareness of vital facts (which will delay accrual), and delayed awareness of
the legal significance of those facts (which will not).

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Id.
A more recent Supreme Court decision confirms this conclusion.

In Chaidez v.

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United States, 133 S.Ct. 1103 (2013), the Court addressed the issue of whether Padilla

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applied retroactively. The petitioner had pleaded guilty before Padilla was decided, and

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while she was still fighting removal, Padilla was decided. Id. at 1106. The Court announced

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that Padilla was not retroactive, and determined that she couldn't benefit from it, because

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her conviction was final before it was decided. In other words, her Padilla claim accrued

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when her conviction became final, and not later when she was finally ordered removed.

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Cazarez-Santos argues in the alternative that he is entitled to equitable tolling

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because an attorney he hired abandoned him. The petition provides only some of the

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relevant dates. The facts as pleaded, however, make clear the attorney did not abandon

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him. Rather, the attorney was hired on October 28, 2013, and ordered the plea hearing

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transcript. After it was produced on November 8, 2013, the attorney told Cazarez-Santos he

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had no ineffective assistance of counsel claim, and did not file a petition. (Petition, Docket

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no. 84, at 11:19–25.) This is not attorney abandonment; at most, it amounted to wrong legal

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advice. Even if this had amounted to malpractice—and the Court is not convinced it did1—it

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Both Padilla and United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) mention that
if the immigration consequences are clear, a defendant is entitled to be told that before
pleading guilty. But because in both cases the defendants received no advice regarding the
risk of deportation before pleading guilty, and not merely misadvice about the likelihood of
deportation, an attorney might reasonably have construed these remarks as dicta and looked
to earlier decisions such as Womack v. Del Papa, 497 F.3d 998, 1003–04 (9th Cir. 2007
(holding that a defendant need only be told of the “potential consequences of his guilty plea,”
and inaccurate predictions of the consequences of a plea do not amount to ineffective
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was not the kind of egregious misconduct that would support equitable tolling. See Hunter

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v. Galaza, 366 Fed. Appx. 766, 767 (9th Cir. 2010) (citing Frye v. Hickman, 273 F.3d 1144,

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1146 (9th Cir. 2001) and Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005)) (“mere

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negligence or professional malpractice” will not meet the threshold for equitable tolling under

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AEDPA; tolling is available only where the attorney has committed “egregious misconduct”).

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It is also clear Cazarez-Santos knew no petition had been filed, and did not file one

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himself. Even assuming the attorney’s advice was wrong, nothing prevented Cazarez-Santos

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himself from filing a § 2255 petition before the limitations period had run. Cazarez-Santos

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waited until ten months of the one-year limitations period had run before even hiring an

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attorney, and waited many months after that to file his petition in this case. In fact, he waited

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over a year after he was specifically informed that his plea to an aggravated felony rendered

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him deportable before filing anything. In other words, even if he were entitled to equitable

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tolling during the period his attorney allegedly mishandled his case, it would not be enough

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to render his petition timely.

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Because the petition is untimely, relief is unavailable to Cazarez-Santos, and the

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Court need not reach the merits. The Court does note, however, that he has not established

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establish prejudice from his attorney’s advice. See Padilla, 559 U.S. at 366 (holding that

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prejudice, i.e., the reasonable likelihood of a different outcome, is an element of an

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ineffective assistance of counsel claim).

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Cazarez-Santos argues that he would have done all he could to avoid deportation,

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including accepting the strong likelihood of a longer sentence, Yet he was told in June of

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2013 that his aggravated felony conviction had rendered him deportable, and made no

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attempt to withdraw his plea until approximately fifteen months later. The current petition,

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seeking to withdraw the earlier guilty plea, seems to have been motivated by his latest arrest

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for illegal reentry on May 28, 2014, and appears to be part of an effort to defend against that

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assistance of counsel). It was not until United States v. Ruiz, 548 Fed. Appx. 410 (9th Cir.
2013) that the Ninth Circuit treated the earlier remarks as establishing a standard of
performance. But Ruiz was issued December 6, 2013, after Cazarez-Santos’ attorney had
examined the transcript, and apparently also after he had given his advice.
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second charge. In other words, Cazarez-Santos’ primary goal appears to be avoiding

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conviction and punishment for the later charge. This undercuts his current assertions that,

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had he know of the “virtual certainty” of deportation, he would have done whatever he could

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have to avoid it or lessen his chances of being deported, even if it meant accepting a higher

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sentence.

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In addition, there appears to be no reasonable likelihood someone in Cazarez-Santos’

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position would have insisted on going to trial, or would have been in a position to negotiate

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a plea to a lesser charge. Cazarez-Santos was apprehended near the U.S.-Mexico border

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after border patrol agents saw approximately eleven aliens enter a pickup truck he was

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driving. When agents pulled the truck over and questioned him, he admitted he was a

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smuggler and was being paid $100 per alien that he smuggled. (Pet., 5:16–23.) The

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government offered him a plea deal that included a two-level decrease for acceptance of

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responsibility and a two-level departure for fast-track. In view of this evidence, going to trial

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and foregoing the plea deal would have irrational, and he would not have been in a position

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to argue for a plea deal any more favorable than the one he received. Even if the petition

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were timely, it would be denied for failure to establish prejudice.

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The petition is DENIED.

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IT IS SO ORDERED.

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DATED: November 1, 2014

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HONORABLE LARRY ALAN BURNS
United States District Judge

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