Ramiro v. USA
Filing
7
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255; ORDER DENYING CERTIFICATE OF APPEALABILITY re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/27/2014. " Ramiro's § 2255 Petition is denied, and no certificate of appealability issues. The Clerk of Court is directed to enter judgment in favor of the Government and against Ramiro pursuant to this order and to close this case.& quot; (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA
)
)
Plaintiff)
Respondent,
)
)
vs.
)
)
ROMELIUS RAMIRO,
)
)
Defendant)
Respondent.
)
_____________________________ )
CRIM. NO. 08-00294 SOM (2)
CIV. NO 09-00559 SOM/KSC
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
A SENTENCE BY A PERSON IN
FEDERAL CUSTODY UNDER 28
U.S.C. § 2255; ORDER DENYING
CERTIFICATE OF APPEALABILITY
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255;
ORDER DENYING CERTIFICATE OF APPEALABILITY
I.
INTRODUCTION.
This case is before this court on remand from the Ninth
Circuit.
The Ninth Circuit reversed this court’s denial of
Romelius Ramiro’s motion for relief under 28 U.S.C. § 2255,
directing this court to conduct proceedings into whether Ramiro
would have gone to trial instead of pleading guilty to a drug
crime had he known the immigration consequences of his plea.
Because Ramiro is not credible in his contending that,
had he been properly informed of the immigration consequences of
his guilty plea, he would not have pled guilty and would instead
have gone to trial, the court finds no factual basis for his
claims that his counsel’s alleged ineffective assistance of
counsel has prejudiced him.
under § 2255.
Ramiro is not entitled to relief
II.
FINDINGS OF FACT.
By way of background, this court states that Ramiro
pled guilty pursuant to a plea agreement to having distributed
approximately 0.067 grams of a mixture and substance containing a
detectable amount of methamphetamine, its salts, isomers, and
salts of its isomers, a Schedule II controlled substance, within
1,000 feet of the Honolulu Community College.
See ECF Nos. 132
and 168 (transcript).
On August 17, 2009, the court sentenced Ramiro to 12
months and 1 day in prison, 6 years of supervised release, and a
$100 special assessment.
See ECF Nos. 159 and 164 (transcript).
Judgment was entered on August 24, 2009.
See ECF No. 162.
Ramiro did not appeal the conviction or judgment.
On November 24, 2009, Ramiro moved to vacate and set
aside his conviction and sentence under 28 U.S.C. § 2255, arguing
that he had not understood the immigration consequences of
pleading guilty or of being convicted because his counsel had
told him only that he might be deported and would be released
after serving his sentence, when in reality his deportation was
mandatory and he would be detained pending deportation.
See ECF
No. 171.
On December 1, 2009, this court denied the § 2255
motion without holding an evidentiary hearing.
See ECF No. 175.
The Ninth Circuit reversed and remanded the matter for an inquiry
2
into whether Ramiro’s attorney had “effectively misled” Ramiro
about the immigration consequences of his guilty plea and into
whether Ramiro had been prejudiced by that misleading advice.
See ECF No. 22.
This court now makes the following findings of fact:
1.
On May 15, 2014, this court heard testimony from
Jeffrey Arakaki, the attorney who had represented Ramiro when he
pled guilty and when he was sentenced, and Edmund Calaycay, Jr.,
Ramiros’s interpreter.
See ECF Nos. 279 and 281 (transcript).
continued hearing was held on July 24, 2014.1
A
See ECF No. 284.
Ramiro submitted declarations in support of his § 2255 motion,
ECF Nos. 179-2 and 284-1, but did not testify in person.
At the
hearing on July 24, 2014, the court expressed concern about
whether Ramiro could prevail without subjecting himself to crossexamination, but the parties agreed that the court could make
determinations about Ramiro’s credibility based on the existing
record.
See ECF Nos. 279 and 281.
2.
At the hearing on May 15, 2014, Arakaki and
Calaycay submitted declarations, which they said represented
their direct testimony and which the court treated as such.
ECF Nos. 276-1 and 276-2.
Both witnesses were then cross-
examined in open court.
1
The court does not have a certified transcript of
this hearing, but has had access to a “rough,” uncertified
version of it to aid the court in preparing this order.
3
See
3.
Arakaki was credible.
During his testimony, he
recounted what he had told Ramiro about the immigration
consequences of pleading guilty.
or stretch facts.
Arakaki made no attempt to hide
He gave the court the impression that he was
being completely truthful.
4.
Calaycay’s testimony was also credible.
Although
his statements sometimes required clarification, his demeanor
indicated that he was making every effort to be truthful and
complete with respect to everything he testified about.
Ramiro’s
§ 2255 motion had not called into question any conduct or
interpretation by Calaycay, and the court discerned no stake on
Calaycay’s part in the outcome of this motion.
The court
therefore gives credence to Calaycay’s version of the facts,
which supported Arakaki’s version and contradicted Ramiro’s
version.
5.
Arakaki was appointed by the court to be Ramiro’s
attorney in this case.
6.
ECF No. 276-1, ¶ 2, PageID # 880.
Arakaki first met Ramiro at his arraignment and
plea on May 20, 2008.
Id. ¶ 2, PageID # 881.
Arakaki spoke with
Ramiro in English and without the aid of an interpreter, finding
Ramiro’s English language ability to be “quite good.”
PageID # 881.
Id. ¶ 4,
Calacay also viewed Ramiro as having had a “good
understanding of the English language.”
Decl. of Edmund Calacay,
Jr., ¶¶ 1, 5, PageID # 897-98 (also stating that he observed
4
Ramiro talking with Arakaki in English on several occasions and
that they appeared to be communicating effectively with each
other).
7.
Arakaki received pretrial discovery from the
Government in this case that indicated:
a.
On December 4, 2007, an undercover officer
purchased methamphetamine from co-Defendant Ponciano Gamueda
while Ramiro was in the “immediate vicinity.”
Ramiro’s role in
the transaction was to remove a pouch from his pocket when he
apparently heard the undercover officer ask to buy
methamphetamine.
Ramiro tossed the pouch towards co-Defendant
Adrina Barrett, who picked it up after it hit the ground.
Barrett then went to Gamueda, who handed Barrett the $30 that the
officer had given Gamueda for the drugs, then handed the officer
the methamphetamine.
b.
On January 31, 2008, the undercover officer
sought to purchase $20 of methamphetamine from co-Defendant
Emmanuel Ibara.
Ramiro, who was again standing nearby, removed a
packet of methamphetamine from his pocket and tossed it to Ibara,
who then gave it to the undercover officer.
See Arakaki Decl.,
Second ¶ 4, PageID # 882-83.
8.
Arakaki says he showed the discovery, which was
written in English, to Ramiro, who did not appear to have trouble
understanding it.
Id. ¶ 5, PageID # 883.
5
9.
Arakaki says that Ramiro told him that he knew all
of his co-Defendants and that he had been involved with them in
selling methamphetamine from late 2007 to early 2008, the period
relevant to the charges in the Indictment.
Ramiro told Arakaki
that he himself used methamphetamine and sold it to support his
drug habit.
Ramiro told Arakaki that what was alleged in the
Indictment could indeed have occurred.
10.
Id. ¶ 6, PageID # 884.
Ramiro told Arakaki that Ramiro had never himself
handed methamphetamine directly to a buyer.
Instead, he always
handed it to one of his co-Defendants who would, in turn, hand it
to the buyer.
Arakaki explained to Ramiro that this did not
insulate him from criminal liability for drug crimes because of
the concept of aiding and abetting.
seemed to understand the explanation.
Arakaki says that Ramiro
11.
Id. ¶ 7, PageID # 884.
Given Ramiro’s admission to Arakaki that Ramiro
had indeed been selling methamphetamine, Arakaki said that he
could not allow Ramiro to testify in his own defense at trial.
Instead, their trial strategy was to put the Government to its
burden, which Arakaki thought turned on whether Ramiro’s coDefendants would testify against him.
Id. ¶ 9, PageID # 885.
By
early 2009, all of the co-Defendants had agreed to cooperate with
the Government and testify against Ramiro.
# 885.
6
Id. ¶ 11, PageID
12.
Arakaki says he then met with Ramiro on several
occasions to discuss how the case would proceed.
Arakaki says
that Ramiro agreed that, with all of the co-Defendants testifying
against him, there was a high likelihood that a jury would
convict him.
13.
Id. ¶ 12, PageID # 886.
The court agrees that, with his co-Defendants
testifying against him, and absent evidence casting doubt on
their testimony, Ramiro was highly likely to have been convicted
of the crimes charged in the Indictment had he gone to trial.
Ramiro’s co-Defendants admitted the factual allegations contained
in the Indictment.
That is, Gamueda, in his plea agreement,
admitted that, on December 4, 2007, he, Barrett, and Ramiro had
sold approximately 0.067 grams of a mixture or substance
containing methamphetamine to an undercover officer for $30
within 1,000 feet of the Honolulu Community College (the charge
in Count 1 of the Indictment).
After Gamueda agreed to sell the
methamphetamine to the officer, Ramiro had tossed a packet
containing the drugs towards Barrett, who picked the packet up
off the ground and handed it to the undercover officer.
See
Memorandum of Plea Agreement of Ponciano Gamueda, ECF No. 103,
¶ 8(a), PageID # 220.
Barrett, while pleading guilty to Count 1
of the Indictment without a plea agreement, admitted her role in
the offense.
See ECF Nos. 61, 62.
In Ibara’s plea agreement, he
admitted that, on January 31, 2008, he and Ramiro had sold
7
approximately 0.069 grams of a mixture or substance containing
methamphetamine to an undercover officer within 1,000 feet of the
Honolulu Community College (the charge in Count 3 of the
Indictment).
See Memorandum of Plea Agreement of Emmanuel Ibara,
ECF No. 108, ¶ 8(a), PageID # 236.
14.
prison time.
Arakaki recalls Ramiro’s concern about minimizing
Arakaki explained to Ramiro that the best prison
sentence he could hope for was one year.
There was a pending
state-court criminal case against Ramiro, and Arakaki explained
that there was a greater chance that the state court would issue
a sentence that ran concurrently with the federal sentence than
that the federal court would run its sentence concurrently with
the state sentence.
Accordingly, Arakaki told Ramiro it made
sense for him to plead guilty in this court and be sentenced
before being sentenced by the state court.
Id. ¶¶ 12-13, PageID
# 887-88.
15.
Calaycay testified that he translated
conversations between Arakaki and Ramiro in which Ramiro
expressed concern about being deported.
PageID # 937.
Arakaki also testified that Ramiro was concerned
about deportation.
16.
See ECF No. 281 at 25,
See id. at 53, PageID # 965.
Arakaki was aware that an aggravated felony
conviction would lead to Ramiro’s removal from the country with
few to no exceptions.
Arakaki Decl. ¶ 14, PageID # 888.
8
Arakaki
says that he told Ramiro on more than one occasion that, if he
was convicted of either of the drug charges asserted in Counts
and 3 of the Indictment, both of which involved aggravated
felonies for purposes of immigration, immigration authorities
would initiate deportation proceedings and that Ramiro would
“more than likely” be deported to the Philippines.
Id. ¶ 15,
PageID # 889; ECF No. 281 at 54, 60, PageID #s 966, 972.
Calaycay testified that he heard Arakaki tell Ramiro that he
“more than likely” would be deported, and Calaycay interpreted
this for Ramiro.
See Id., PageID # 931.
Arakaki told Ramiro
that, upon completion of his prison sentence, he would also “very
likely be detained” for deportation proceedings.
See Arakaki
Decl. ¶ 17, PageID # 890.
17.
Arakaki testified before this court that, although
the removal statute for aggravated felonies used mandatory
language, he knew that deportation would not occur without a
deportation ruling by an immigration judge, and that any such
ruling could be appealed.
Id. ¶ 16, PageID # 889-90.
Arakaki
appeared to this court to be saying that, notwithstanding the
mandatory language in the statute, nothing involving an act by a
human being could be viewed as absolutely guaranteed.
Thus,
Arakaki testified that he did not know whether an immigration
judge might possibly rule that Ramiro would not be deported.
ECF No. 281 at 60, PageID # 972.
Arakaki noted that, at
9
See
immigration seminars he had attended, he had been told that “in
the end, [it’s] up to the immigration judge.”
ECF No. 281 at 68,
PageID # 980.
18.
Ramiro entered into a plea agreement with the
Government in which he agreed to plead guilty to Count 1 of the
Indictment, and the Government agreed to dismiss Count 3 of the
Indictment after sentencing.
Agreement).
See ECF No. 135 (Memorandum of Plea
In paragraph 8 of the plea agreement, Ramiro
admitted to having participated in the sale of methamphetamine on
December 4, 2007, within 1,000 feet of Honolulu Community
College.
Id., PageID # 279.
Specifically, Ramiro agreed that an
undercover officer had asked co-Defendant Gamueda for a “twenty,”
which Gamueda told him would cost $30.
Ramiro agreed that, after
the officer handed the money to Gamueda, Ramiro reached into his
pocket, removed a pouch containing methamphetamine, and tossed it
to co-Defendant Barrett.
Ramiro further agreed that Barrett then
picked the pouch up from the ground and gave it to Gamueda, who
gave it to the undercover officer.
19.
Id., PageID #s 279-80.
Arakaki says that, before Ramiro’s change of plea
hearing, he had Calaycay translate the plea agreement for Ramiro
into Ilocano.
Id. ¶ 18, PageID # 891; Calaycay Decl. ¶¶ 1, 5, 6
PageID # 897-99.
agreement.
Ramiro indicated that he understood the plea
Arakaki Decl. ¶ 18, PageID # 891.
10
20.
On April 30, 2009, Ramiro changed his plea from
not guilty to guilty before then-Magistrate Judge Leslie E.
Kobayashi.
See ECF No. 132.
The Magistrate Judge asked Ramiro
whether the facts set forth in the plea agreement were true.
Ramiro said that they were and explained that, on December 4,
2007, within 1000 feet of a school, he had sold 0.067 grams of a
substance or mixture containing a detectable amount of
methamphetamine, its salts, isomers, and salts of its isomers to
an undercover agent in Hawaii.
No. 168, PageID #s 418-19.
See Transcript of Proceeding, ECF
Calaycay says that he never heard
Ramiro profess to be innocent of the charges.
Calaycay Decl.
¶ 8, PageID # 900.
21.
At the change of plea hearing, the Magistrate
Judge told Ramiro that, because he was not a citizen, his guilty
plea might affect his right to remain in the country.
indicated that he understood this.
Ramiro
ECF No. 168, PageID # 413.
Arakaki then stated, “Your Honor, for the record, I have advised
my client that he more than likely will be deported upon
completion of a sentence of incarceration.”
22.
Id., PageID # 414.
This court adopted the Magistrate Judge’s
recommendation that Ramiro’s guilty plea be accepted.
See ECF
No. 137.
23.
According to paragraph 18 of the Presentence
Investigation Report, the original copy of which is located in
11
the court’s Probation Office, Ramiro was interviewed by the
court’s Probation Officer on May 8, 2009.
during that interview.
Calaycay was present
Ramiro told the Probation Officer that he
accepted responsibility for committing the offense charged in
Count 1 of the Indictment and expressed remorse for his actions.
24.
On August 17, 2009, the court sentenced Ramiro to
12 months and 1 day in prison, 6 years of supervised release, and
a special assessment of $100.
See ECF No. 159.
At his
sentencing hearing, this judge spoke to Ramiro in English and
Ramiro answered questions in English.
English.
He read his allocution in
See ECF No. 164, PageID #s 383, 387-88, 392-93
(transcript of sentencing proceeding).
This court’s first-hand
observation of Ramiro at the sentencing hearing led this judge to
conclude that he understood English and was capable of
communicating in English.
25.
During the sentencing proceeding, there was a
discussion of whether, for immigration purposes, Ramiro would be
better off with a sentence of one year or one year and one day.
The court explained to Ramiro that, if he was sentenced to more
than one year, he would be eligible to get out of prison earlier
based on good behavior.
See ECF No. 164, PageID # 387.
But the
court told Ramiro that he “wouldn’t actually be out because once
you finish your prison term, again immigration would step in and
an immigration decision would be made.”
12
Id.
The Probation
Officer explained that Immigrations and Custom Enforcement “has a
zero tolerance policy on drug distribution offenses.
If the
offense of conviction specifically identifies methamphetamine . .
. , then their zero tolerance policy dictates that, regardless of
the nature or length of sentence imposed, deportation cannot be
circumvented.”
Id., PageId 391.
Calaycay testified that he
translated “zero tolerance” for Ramiro.
28, PageID # 939-40.
See ECF No. 281 at 27-
Ramiro did not ask to withdraw his guilty
plea upon hearing that he would be deported after he completed
his sentence.
26.
See Arakaki Decl. ¶ 21, PageID # 894.
Unlike Arakaki and Calaycay, Ramiro did not
present himself for live testimony during proceedings on his
§ 2255 motion.
While his appeal in this § 2255 action was
pending, Ramiro had sought an order preventing his deportation.
The Ninth Circuit ruled that he could be deported, and he was
therefore removed to the Philippines, where he remains.
Apart
from the expense of traveling to Hawaii, Ramiro expressed concern
that, if he set foot in the United States, he might be detained.
The Assistant United States Attorney reported to the court that
Ramiro would be able to return to the United States for a short
period of time to participate in a court hearing such as a § 2255
hearing.
The AUSA stated that, during that time, he would be on
parole status and not in custody.
See ECF No. 268.
Nevertheless
expressing concern about the possibility that he would be
13
arrested and held, Ramiro did not appear in person for § 2255
proceedings.
The attorneys in this case informed this court of
their understanding that Philippine law prohibited Ramiro, while
in the Philippines, from testifying before this court by phone or
video.
While the court is not unsympathetic to Ramiro’s concern,
Ramiro’s ability to overcome the credible testimony by Arakaki
and Calaycay is obviously affected by his reliance solely on
written evidence.
27.
The court finds that Ramiro’s version of the facts
underlying his § 2255 motion, as set forth in his declarations,
ECF Nos. 179-2 and 284-1, is not credible.
There are numerous
inconsistencies between what Ramiro says happened and the court’s
observations and the credible evidence in this case:
a.
English.
Ramiro says that he “can hardly speak
I need a translator to communicate with a non-Ilocano.”
Decl. of Romelius Ramiro ¶ 10, PageID # 491.
Both Arakaki and
Calaycay credibly testified that Ramiro communicated with Arakaki
in English.
The court’s own observation at Ramiro’s sentencing
hearing (confirmed by his conduct during the hearing of May 15,
2014) was that Ramiro could understand and speak English, as
Ramiro communicated with this judge in English and read the court
his allocution in English.
The court therefore does not credit
Ramiro’s claim that he hardly speaks English.
14
Ramiro’s lie on
this point affects the court’s view of his credibility on other
points.
b.
Ramiro says that he “threw away a packet
which [his co-Defendants] said contained drugs because I was
afraid to get involved.”
Supp. Ramiro Decl. ¶ 8, PageID # 1028;
Ramiro Decl. ¶ 17 (same).
This statement is at odds with the
record before this court.
Ramiro provides no explanation of why,
if he was afraid to get involved, he was holding the drugs in the
first place.
Moreover, Ramiro’s claim of innocence goes against
his admission to his attorney that he was dealing drugs during
the relevant period to support his own drug habit, and that he
thought he was insulated from criminal liability by not having
given methamphetamine directly to the buyers.
It also goes
against the factual agreement in his plea agreement, which
Calaycay translated for him, and against his own words, given
under penalty of perjury to the Magistrate Judge at his change of
plea hearing, when he admitted to having sold drugs as alleged in
Count 1 of the Indictment.
It further goes against statements he
made to the Probation Officer who prepared his Presentence
Investigation Report; Ramiro accepted responsibility for his
actions and expressed remorse for his actions.
Moreover, when he
was being sentenced by this judge, far from claiming innocence,
Ramiro apologized for his actions.
The court notes that his co-
Defendants’ plea agreements also indicate that Ramiro is guilty
15
of the Indictment’s charges.
Therefore, the court views Ramiro’s
present version of his actions as contradicted by the record.
While the issue of whether Ramiro did commit the drug crime is
certainly not, on its own, dispositive of what Arakaki told
Ramiro or of whether Ramiro would have gone to trial but for
Arakaki’s statements, the court’s concerns about Ramiro’s
credibility as to the drug transaction spill over into the
court’s evaluation of Ramiro’s credibility concerning whether he
would have gone to trial.
c.
Ramiro claims that, in discussing the
likelihood that he would be deported, Arakaki did not use the
words “more than likely,” but instead told him that he “may be
deported.”
This conflicts with the credible testimony provided
by Arakaki and Calaycay.
It also conflicts with the transcript
of Ramiro’s change of plea proceeding, in which Arakaki clarified
for the record that, before the change of plea hearing, he told
Ramiro that he “more than likely” would be deported.
The
credible evidence before the court establishes that Ramiro was
told by Arakaki that, upon his conviction, he “more than likely”
would be deported.
d.
Ramiro intimates that he did not know that,
if he went to trial, the Government would have had to prove his
guilt beyond a reasonable doubt.
See Supp. Ramiro Decl. ¶ 16
(complaining that Arakaki did not tell him of the Government’s
16
burden).
But the Magistrate Judge told Ramiro at his change of
plea hearing: “At trial you would be presumed to be innocent and
the Government would have the burden of proving you guilty,
beyond a reasonable doubt.”
e.
ECF No. 168 at 15, PageID # 416.
Ramiro says, “When my sentence was completed
on November 27, 2009, I expected to be released.
However,
immigration authorities came to the Federal Detention Center and
took me away.”
Supp. Ramiro Decl. ¶ 24, PageID # 1031.
But at
his sentencing hearing, the Probation Officer told him that
Immigrations and Custom Enforcement had a “zero tolerance”
policy, which Calaycay translated as “everybody is deported.”
See ECF No. 281 at 27, 28, PageID # 939, 940.
This judge also
told him at that hearing that he “wouldn’t actually be out
because once you finish your prison term, again immigration would
step in and an immigration decision would be made.”
PageID # 387.
ECF No. 164,
Moreover, his attorney credibly testified that he
told Ramiro that, upon completion of his sentence, he would “very
likely be detained” for deportation proceedings.
See Arakaki
Decl. ¶ 17, PageID # 890.
28.
Ramiro says that, had he been correctly told by
Arakaki that removal was mandatory, he would have insisted on
going to trial instead of changing his plea.
Supp. Ramiro Decl.
¶ 14, PageID # 1029; Ramiro Decl. ¶ 15, PageID # 492.
does not find this statement credible.
17
The court
The many inconsistencies
noted in the previous paragraphs and this judge’s own
observations of Ramiro as he spoke with this judge in English
lead this court to question Ramiro’s veracity, not just as to his
ability to speak English but as to his account of what occurred.
Arakaki credibly testified that Ramiro admitted to him that he
had been dealing methamphetamine, meaning that Arakaki could not
have put Ramiro on the stand during trial to present perjured
testimony.
The reality was that Ramiro knew that all his co-
Defendants were prepared to testify against him, making it likely
he would be convicted if he went to trial.
Comparing his
declarations with the credible evidence before this court, this
court determines that Ramiro is now making statements for the
sole purpose of supporting his § 2255 motion.
Given that
determination, the court gives no credence to his claims that,
had he known that deportation was mandatory and that he would be
detained after serving his sentence, he would not have pled
guilty and would have instead insisted on going to trial.
III.
CONCLUSIONS OF LAW.
1.
A federal prisoner may move to vacate, set aside,
or correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”
18
28 U.S.C. § 2255.
2.
Ramiro seeks relief under § 2255, arguing that his
former counsel, Arakaki, was ineffective in advising him about
the immigration consequences of his guilty plea and by telling
him that, after he served his sentence, he would be released.
The court concludes that Arakaki was not ineffective.
To
establish ineffective assistance of counsel, Ramiro must show
both that (1) his counsel’s performance was deficient, and
(2) the deficient performance prejudiced his defense.
v. Washington, 466 U.S. 668, 687 (1984).
Strickland
There is “a strong
presumption” that counsel’s conduct was reasonable and that
counsel’s representation did not fall below “an objective
standard of reasonableness” under “prevailing professional
norms.”
Id. at 688.
Even if a petitioner can overcome the
presumption of effectiveness, the petitioner must still
demonstrate a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Id. at 694.
Because “[i]t is all too tempting
for a defendant to second-guess counsel’s assistance after
conviction,” judicial scrutiny of counsel’s performance is highly
deferential.
3.
Id. at 689.
In 2010, the Supreme Court of the United States
stated, “The weight of prevailing professional norms supports the
view that counsel must advise her client regarding the risk of
deportation.”
Padilla v. Kentucky, 559 U.S. 356, 367 (2010).
19
The Court further stated, “when the deportation consequence is
truly clear . . . , the duty to give correct advice is equally
clear.”
Id. at 369.
In Chaidez v. United States, 133 S. Ct.
1103 (2013), the Supreme Court clarified that its ruling in
Padilla did not have retroactive effect with respect to
defendants whose convictions became final prior to Padilla.
id. at 1105.
See
Because Ramiro’s judgment became final before
Padilla, the court looks to the law in effect at the time of his
judgment and conviction to determine whether his counsel’s
performance was deficient.
4.
At the time of his judgment and conviction, a
criminal defense attorney’s duty with respect to the immigration
consequences of a guilty plea was governed by United States v.
Kwan, 407 F.3d 1005 (9th Cir. 2005), abrogated by Padilla, 559
U.S. 356 (2010).
Kwan held that an attorney had “effectively
misled” the defendant about the immigration consequences of a
guilty plea when the attorney did not merely fail to inform him
of those consequences, but actually told him there was no serious
possibility that his conviction would cause him to be deported.
That “effectively misleading” advice satisfied the deficient
performance prong of the ineffective assistance of counsel test.
Id. at 1015-16.
5.
Arakaki’s statement that Ramiro would “more than
likely” be deported is a far cry from the “effectively
20
misleading” advice at issue in Kwan.
But even assuming Arakaki’s
legal advice was deficient, Ramiro is not entitled to § 2255
relief for ineffective assistance of counsel unless he was
prejudiced by Arakaki’s allegedly deficient performance.
Strickland, 466 U.S. at 694.
6.
See
Ramiro shows no such prejudice.
Ramiro claims that he suffered prejudice because,
had he been informed that he would be deported if he pled guilty,
he would not have pled guilty and would have instead insisted on
going to trial.
The only evidence Ramiro points to as
establishing that he would have gone to trial are his after-thefact declarations.
This court, as noted above, finds those
declarations not credible.
Whether Ramiro might have appeared
credible in live cross-examination is something the court can
only speculate about.
What is not speculation is that Ramiro’s
declarations are contradicted by the credible testimony of
Arakaki and Calaycay, as well as by the court’s own in-court
observations.
7.
The credible evidence indicates that Ramiro,
knowing that his co-Defendants would testify against him, saw
that it was highly unlikely that he would be acquitted.
focused on getting the best sentence possible.
He thus
His guilty plea
allowed him to have Count 3 dismissed and to have a lower total
offense level (minus two points for acceptance of responsibility
and minus one point for early acceptance of responsibility) than
21
he would have had if he went to trial and was convicted.
Although Ramiro was indisputably concerned with the immigration
consequences of his plea, he would have pled guilty even had he
been told that his deportation was mandatory.
This conclusion is
consistent with Ramiro’s lack of reaction to being told of
immigration authorities’ “zero tolerance” policy at his
sentencing hearing.
Having failed to show prejudice, Ramiro
cannot sustain a claim of ineffective assistance of counsel based
on having been told that he “more than likely” would be deported.
8.
To the extent Ramiro asserts an ineffective
assistance of counsel claim based on having been told that, upon
completion of his sentence, he would be released, that claim also
fails because Ramiro once again fails to show prejudice.
Ramiro
asserts, “When my sentence was completed on November 27, 2009, I
expected to be released.
However, immigration authorities came
to the Federal Detention Center and took me away.”
Decl. ¶ 24, PageID # 1031.
Supp. Ramiro
Arakaki told the Magistrate Judge at
the change of plea hearing that he had advised Ramiro that he
would “very likely be detained” for deportation proceedings upon
completion of his sentence.
# 890.
See Arakaki Decl. ¶ 17, PageID
At his sentencing hearing, the Probation Officer told
Ramiro that ICE had a “zero tolerance” policy, which Calaycay
translated as “everybody is deported.”
28, PageID # 939, 940.
See ECF No. 281 at 27,
This judge also told him at that hearing
22
that he “wouldn’t actually be out because once you finish your
prison term, again immigration would step in and an immigration
decision would be made.”
ECF No. 164, PageID # 387.
Ramiro’s
after-the-fact assertion that he expected to be released upon
completion of his sentence is therefore hard to fathom.
9.
The court concludes that, even if Ramiro could be
said to have shown that Arakaki told him he would be released
after serving his sentence, Ramiro’s after-the-fact assertion,
placed against the evidence that causes the court to find Ramiro
not credible, is insufficient to show that, had Ramiro realized
he would not be released after serving his sentence, he would not
have pled guilty and would have instead insisted on going to
trial.
IV.
THE COURT DECLINES TO ISSUE A CERTIFICATE OF
APPEALABILITY.
The court declines to grant Ramiro a certificate of
appealability.
An appeal may not be taken to the court of
appeals from a final order in a § 2255 proceeding “[u]nless a
circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(B).
The court shall issue a certificate
of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).
28 U.S.C.
When a district court denies a § 2255 petition on
the merits, a petitioner, to satisfy the requirements of section
2253(c)(2), “must demonstrate that reasonable jurists would find
23
the district court’s assessment of the constitutional claims
debatable or wrong.”
(2000).
Slack v. McDaniel, 529 U.S. 473, 484
When, however, a
district court denies a habeas petition on
procedural grounds without reaching the
prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue
when the prisoner shows . . . that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial
of a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.
Id.
This court has determined that Ramiro is not credible
in his assertions.
Because no reasonable jurist would rely on
incredible assertions, this court does not think any reasonable
jurist would find this court’s assessment of the merits of
Ramiro’s constitutional claims debatable or wrong.
Accordingly,
the court declines to issue a certificate of appealability.
24
V.
CONCLUSION.
Ramiro’s § 2255 Petition is denied, and no certificate
of appealability issues.
The Clerk of Court is directed to enter judgment in
favor of the Government and against Ramiro pursuant to this order
and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 27, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
United States of America v. Ramiro, Crim. No. 08-00294 SOM (02) and Civ. No. 09-00559
SOM/KSC; ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON
IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255; ORDER DENYING CERTIFICATE OF APPEALABILITY
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?