Chery v. United States of America
Filing
10
ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge Roy B. Dalton, Jr. on 8/16/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HUSSEIN SMITH CHERY,
Petitioner,
v.
Case No: 6:16-cv-1342-Orl-37TBS
(6:13-cr-120-Orl-37TBS)
UNITED STATES OF AMERICA,
Respondent.
/
ORDER
This case involves a motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. ' 2255 (Doc. 1) filed by Hussein Smith Chery. The Government filed a response in
opposition to the section 2255 motion (Doc. 8). Petitioner was provided an opportunity
to file a reply to the response but did not do so.
Petitioner alleges one ground for relief, counsel rendered ineffective assistance by
failing to explain the deportation consequences of pleading guilty. 1 For the following
reasons, the Court concludes that the motion is untimely and must be dismissed.
I.
PROCEDURAL HISTORY
Petitioner was charged by indictment with mail fraud (Counts One through Ten),
infra, the Court notes that Petitioner
was advised at the plea hearing, “If you are not a United States citizen and you plead
guilty, then you should assume at the completion of your sentence that you will be
deported by the federal government.” (Criminal Case No. 6:13-cr-120-Orl-37TBS, Doc.
61 at 8).
1Although the motion is untimely as discussed
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presenting false and fraudulent claims to the United States Department of the Treasury
(Counts Eleven through Sixteen), theft of government property (Count Seventeen), and
access device fraud (Count Eighteen). (Criminal Case No. 6:13-cr-120-Orl-37TBS, Doc.
15). 2 Pursuant to a plea agreement, Petitioner entered a plea of guilty to Counts Seven,
Eight, and Eighteen. (Id. at Doc. 32). Magistrate Judge Thomas B. Smith filed a Report
and Recommendation, recommending that the plea be accepted and that Petitioner be
adjudicated guilty of Counts Seven, Eight, and Eighteen. (Id. at Doc. 36). The Court
accepted the plea and adjudicated Petitioner guilty of Counts Seven, Eight, and Eighteen.
(Id. at Doc. 39).
On September 12, 2013, this Court entered Judgment, sentencing
Petitioner to concurrent 24-month terms of imprisonment to be followed by a three-year
term of supervised release. (Id. at Doc. 47). The Government dismissed the remaining
counts. (Id.). Petitioner did not appeal.
II.
ANALYSIS
Pursuant to 28 U.S.C. ' 2255, the time for filing a motion to vacate, set aside, or
correct a sentence is restricted, as follows:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of -(1)
the date on which the judgment of conviction becomes final;
(2)
the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
2Criminal
Case No. 6:13-cr-120-Orl-37TBS will be referred to as ACriminal Case.@
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(3)
the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4)
the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. ' 2255(f).
Under the time limitation set forth in ' 2255(f)(1), Petitioner had one year from the
date his conviction became final to file a ' 2255 motion. Petitioner’s Judgment was
entered on September 12, 2013, and he did not file a direct appeal. Therefore, his
conviction became final on September 26, 2013, when the time for filing an appeal
expired. See Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000) (a conviction
which is not appealed becomes final when the time allowed for filing an appeal expires);
see also Fed. R. App. P. 4(b); Fed. R. App. P. 26(a). Thus, Petitioner had through September
27, 2014, to timely file his ' 2255 motion under § 2255(f)(1). However, the instant
proceeding was not filed until July 15, 2016, under the mailbox rule. Adams v. United
States, 173 F.3d 1339, 1341 (11th Cir. 1999) (pro se prisoner’s ' 2255 motion is deemed filed
the date that it is delivered to prison authorities for mailing). Thus, the ' 2255 motion
was untimely filed under § 2255(f)(1).
Petitioner argues that § 2255(f)(4) applies because he did not discover the factual
predicate of his claim until January 26, 2016, the date of an immigration hearing regarding
his removal. (Doc. 1-1 at 2-4). As explained by the Eleventh Circuit,
under § 2255(f)(4), the statute of limitations “is triggered by a date that is
not necessarily related to a petitioner’s actual efforts or actual discovery of
the relevant facts.” 291 F.3d 708, 711 (11th Cir. 2002). In conducting the
inquiry under § 2255(f)(4), the district court should first consider whether
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the petitioner exercised due diligence. Id. If the court finds that he did so,
then the one-year limitations period begins to run on the date he actually
discovered the relevant facts because the dates of actual and possible
discovery would be identical. Id. But:
[I]f the court finds that the petitioner did not exercise due
diligence, the statute does not preclude the possibility that the
petitioner’s motion could still be timely under § 2255[f](4). For
example, if the court concludes that, with the exercise of due
diligence, the relevant facts could have been discovered two
months earlier than the petitioner (who it finds did not
exercise due diligence) actually discovered them, then the
motion would still be timely if filed within ten months of the
date of actual discovery.
Id. (emphasis in original). Accordingly, if the district court finds that the
petitioner did not exercise due diligence, it is required to speculate about
the date on which the facts could have been discovered with the exercise of
due diligence. Id. at 711 n. 1.
Due diligence “does not require a prisoner to undertake repeated
exercises in futility or to exhaust every imaginable option, but rather to
make reasonable efforts.” Id. at 712. The due diligence inquiry is an
individualized inquiry that “must take into account the conditions of
confinement and the reality of the prison system.” Id. (citation omitted).
Dauphin v. United States, 604 F. App’x 814, 817-18 (11th Cir. 2015) (quoting Aron v. United
States, 291 F.3d 708, 711 (11th Cir. 2002)).
Petitioner has not demonstrated that he exercised due diligence in discovering the
facts supporting his claim or in pursuing his rights. Petitioner was advised when he
entered his plea on June 19, 2013, that he should assume he would be deported if he pled
guilty and was not a citizen of the United States. (Criminal Case Doc. 61 at 8). Petitioner
affirmed he understood this. (Id.). Therefore, assuming counsel failed to discuss the
potential immigration consequences of pleading guilty, Petitioner was on notice of them
prior to being sentenced. Petitioner offers no explanation why he waited more than two
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years after he was sentenced to investigate the immigration consequences of his plea.
A reasonable individual would have determined the immigration consequences
of entering the plea by no later than the date of sentencing. Moreover, if the individual
did not understand the immigration consequences of entering the plea, a reasonable
person would have notified the Court when informed of such by the Court. Therefore,
Petitioner could have known the facts underlying his claim with the exercise of due
diligence by September 9, 2013, the date he was sentenced. Thus, the § 2255 motion filed
on July 15, 2016, was untimely under § 2255(f)(4).
Any of Petitioner’s allegations that attempt to excuse his failure to file the instant
motion within the one-year period of limitations and that are not specifically addressed
herein have likewise been found to be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
The motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255 (Doc. 1) filed by Hussein Smith Chery is DENIED, and this case is DISMISSED
with prejudice.
2.
The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
3.
The Clerk of the Court is directed to file a copy of this Order in criminal
case number 6:13-cr-120-Orl-37TBS and to terminate the motion (Criminal Case Doc. 58)
pending in that case.
4.
This Court should grant an application for certificate of appealability only
if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case.
DONE and ORDERED in Orlando, Florida on August 16th, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Party
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