SPENCER v. UNITED STATES OF AMERICA

Filing 7

OPINION fld. Signed by Judge Dennis M. Cavanaugh on 7/9/13. (sr, )

NOT FOR PUBLiCATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

COURTNIE SPENCER,
Petitioner,
V.

Hon. Dennis Ni. Cavanaugh
:

OPINION

:

No. 12—CV—6181(DMC)

UNITED STATES OF AMERICA,
Respondent.

DENNIS M. CAVANAUGH, U,S.D.J.:
This matter comes before the Court upon Petitioner, Courtnie Spencer’s (“Petitioner”)
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
ECF No. 1),

§ 2255. (Sep. 7, 2012,

Pursuant to FED, R. Civ. P. 78, no oral argument was heard.

After careftilly

considering the submissions of the parties, and based upon the following, it is the finding of this
Court that Petitioner’s motion is denied.

I.

BACKGROUN&
Petitioner moves this Court to vacate his sentence pursuant to 28 U.S.C.

§ 2255.

Petitioner was initially charged with conspiracy to distribute cocaine on September 29, 2008.

United States v. Cortnie Spencer, et al., Ma. No. 08-4122 (CCC). In opposition to Petitioner’s

‘This section is taken from the parties pleadings. (See Pet’s Mot., Sept. 7,2012. ECF No. 1; Resp’t Br.. Jan. 7,
20 13. ECF No. 6)

Sept. 29, 2008 bail motion, the Government argued that Petitioner was a significant flight risk,

stating on the record that if convicted of the instant offense, Petitioner faced the possibility of
deportation. (See See Sept. 29, 2008 Hearing Tr. at 5:12-20,

Ex. A, ECF No. 6-1). The

Government again stated that Petitioner faced deportation if convicted at an October 2, 2008
hearing on Petitioner’s second bail application.

(

Oct. 2, 2008 Bail Hearing Tr. at 3:12-20,

Ex. B, ECF No, 6-1).
Petitioner was indicted on one count of conspiracy to import and to export cocaine in
violation of 21 U.S.C.

§ 963

and pled guilty to this charge on April 19, 2010. Petitioner entered

into a plea agreement with the Government on March 29, 2010. The plea agreement expressed
that the Petitioner waived his right to make a motion under 28 U.S.C

§ 2255

and waived any and

all challenges to his guilty plea based on the immigration consequences of his plea. During the
April 19, 2010 plea hearing, the Government explained that the plea agreement indicated that
Petitioner understood that he is bound by his plea, regardless of any immigration consequences.
The Court also asked Petitioner whether he understood that if the Court imposed a term of
imprisonment within or below the ranges within the Guideline analysis, Petitioner could not file
a section

§

2255 petition, to which the Petitioner replied that he understood. (Scc Tr. of Guilty

Plea at 5:1-8, Ex. E, ECF No. 6-1). Additionally, the Court confirmed that Petitioner was
satisfied with the representation provided his lawyer, Barry Turner.
Mr. Turner has stated in an affidavit provided to the Court that he specifically advised
Petitioner that his guilty plea could result in deportation. (See Turner Aff. ¶2, Ex. C, ECF No. 61). Mr. Turner could not recall specific dates on which he rendered this advice, but stated that he
discussed the issue with Petitioner numerous times before Petitioner entered his guilty plea.
On July 22, 2011, the United States Probation Office issued the draft Presentence

2

Investigation Report containing a standard paragraph concerning immigration consequences,
which referenced the possibility of deportation. In response to this report, Mr. Turner submitted a
September 17, 2010 memorandum to the court where he argued that the Court should render a
more lenient sentence in light of Petitioner’s status as a deportable alien. During the September
7, 2011 sentencing hearing, the Court acknowledged Mr. Turner’s argument based on
Petitioner’s status as a deportable alien, although it did not find it persuasive.
In his September 7, 2012 petition, Petitioner claims that he was detained for
deportation/removal proceedings following his sentence. Petitioner filed a motion to vacate the
sentence under

§ 2255, claiming that he is being held in violation of the Constitution and laws of

the United States because he was denied effective assistance of counsel. Petitioner claims that
neither his attorney, nor the Court, advised him that a conviction/guilty plea in this case would
result in automatic removal/deportation. In response, the Government submitted a Brief in
Opposition to Section 2255 Petition. (Jan. 5, 2013, ECF No. 6).
II.

Standard of Review

This Court has jurisdiction pursuant to 18 U.S.C.

§ 3231 providing the district courts with

original jurisdiction of all offenses of the laws of the United States. Jurisdiction is also secured

pursuant to 28 U.S.C.

§

2255 which allows this Court, having imposed a sentence upon

Petitioner, to vacate, set aside or correct a sentence upon a showing that “the sentence imposed
was in violation of the Constitution or laws of the United States, this Court lacked jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.”
IlL

Discussion

A. Waiver of Right to Make

§ 2255 Motion
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Petitioner claims, as indicated above, that he is being held in violation of the Constitution
and laws of the United States because he was denied effective assistance of counsel. He claims
that that neither his attorney, nor the Court, advised him that a conviction or guilty plea in this
case would result in automatic removal/deportation. Before considering these claims, the Court
must determine whether Petitioner may bring the instant

§ 2255 petition at all as he waived his

right to do so in his plea agreement and at his plea hearing.
Petitioner expressly waived his right to bring a
and at his plea hearing.

§ 2255 petition in both his plea agreement

($çç Plea Agreement at 4, Ex. D, ECF 6-1; Plea Hearing at

15, Ex. E,

ECF 6-1). The relevant provision of Petitioner’s plea agreement states:
Cortnie [sic] Spencer
voluntarily waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C.
§ 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by
the sentencing court if that sentence falls within or below the Guidelines range that
results from a total Guidelines offense level of 23.
...

(Plea Agreement at 8-9). The Court also asked, “do you understand if I impose a term within or
below those ranges by whatever Guideline analysis I think appropriate, you will not be able to
file an appeal, a section 2255 petition, writ, motion, or collateral attack challenging your term of
imprisonment or any other aspect of your sentence?” (Plea Hearing at 15). The Petitioner
responded that he understood. (j). Since Petitioner was sentenced to a 30 month term of
imprisonment and the offense carried a 10-year mandatory minimum sentence, the sentence fell
below the Guidelines and this the waiver was implicated. Therefore, the Court must next
consider whether the waiver is enforceable.
In United States v. Khattak, the Third Circuit held that waivers of a right to appeal are
valid and enforceable if entered into knowingly and voluntarily, unless enforcement would result
in a miscarriage ofjustice. 273 F.3d 557, 562 (3d Cir.2001). The Third Circuit also noted that ten

4

other Courts of Appeals have held that waivers of a right to appeal are permissible and
enforceable. Khattak, 273 F.3d at 560-61. The Khattak court held that, under FED. R. CRIM, P.
ii, for a waiver of appeal to be “knowing and voluntary,” the court must address the defendant
in open court and determine that the defendant understands the terms of any provision in a plea
agreement waiving the right to appeal or to collaterally attack the sentence, $ç jj at 563.
The Third Circuit has not determined whether its ruling in Khattak is equally applicable
to a criminal defendant’s waiver of the right to bring a

§

2255 motion.

Simon v. United

States, CIV.A. 05-5503 (JLL), 2006 WL 3534600, at *4 (D.N.J. Dec. 7, 2006) (citing United
States v. Wilson, 429 F.3d 455, 460 n. 6 (3d Cir. 2005); United States v. Dancy, Nos. 3:CR-03340, 3:CV-06-070, 2006 WL 2504028, at *2 (M.D.Pa. Aug. 28, 2006)). However, numerous
district courts within this Circuit have held that a waiver of the right to bring a
valid and enforceable under the Khattak standard.

$

§

2255 motion is

Simon 2006 WL 3534600, at *5 (citing

Darr v. United States, No. 06-608, 2006 WL 2645119, at *2 (D.N.J. Sept. 14, 2006); Dancy.
2006 WL 2504028, at *3; United States v. Minott, Crim. No. 04-59, Civ. No. 05-1 135, 2006 WL
2372118, at *1 (W.D.Pa. Aug. 15, 2006); United States v. Lam, No. Civ, 04-304, Crim, 05-5530,
2006 WL 1530875, at *23 (E.D. Pa. June 2, 2006); Prado v. United States, Nos. Civ. 05-0938,
Crim. 0 1-373-7, 2005 WL 1522201, at *2 (D.N.J. June 27, 2005).
The Court agrees with these courts that the Khattak standard is equally applicable to
waivers of the right to bring a

§

2255 motion. The Court agrees with the Simon court’s finding

that “to hold otherwise would render such a waiver agreement essentially meaningless and would
result in a mockery of the judicial system by affording criminal defendants the benefit of plea

agreements, while shielding them from their own promises made under such agreements.” Here,
the Court clearly complied with the knowing and voluntary requirement. The Court addressed

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the Defendant in open court, specifically laying out the terms of his plea agreement and
confirming that he understood that the agreement waived his right to appeal or collaterally attack
the sentence, Additionally, Petitioner provides no basis for the Court to conclude enforcement
would result in a miscarriage ofjustice.
Therefore, the Court holds that Petitioner waived his right to bring a

§ 2255 motion and

this waiver is enforceable. The Court will next address why Petitioner’s motion also fails on its
merits,
B. Strickland Test

Under Padilla v. Kentucky, the Supreme Court held that counsel must inform their client
whether his plea carries a risk of deportation. 559 5. Ct. 1473, 1486 (2010). The Supreme Court
further held that a failure to inform a client of this type of risk can satisfy the first prong of the
Strickland test. See id. at 1484. Under the Strickland test, a court first must determine whether
counsel’s representation “fell below an objective standard of reasonableness.” Strickland v.
Washington 466 U.S. 668, 688 (1984). Second, the court asks if “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
1. Factor One

The Court holds that Padilla v. Kentucky does not apply to this case because Petitioner
was adequately informed that his plea carried a risk of deportation. Here, both the record and
Petitioner’s attorney’s sworn testimony disprove Petitioner’s claim of ineffective counsel.
During two separate bail hearings, the Government specifically addressed how Petitioner’s status
as a deportable alien made him an increased flight risk. The Government also stated both in the
plea agreement and at the plea hearing that Petitioner was bound by the agreement “regardless of

6

the immigration consequences of the plea.” Additionally, the Presentence Investigation Report
contained a standard paragraph concerning immigration consequences referencing the possibility
of deportation. In response, Petitioner’s attorney submitted a memorandum arguing that the
Court should render a more lenient sentence in light of Petitioner’s status as a deportable alien.
The Court also acknowledged this argument based on Petitioner’s status as a deportable alien
during a sentencing hearing.
Petitioner’s attorney also swears in an affidavit that he frilly advised Petitioner of the
possible immigration consequences of his plea. Although Petitioner’s attorney cannot recall
specific instances where he discussed immigration consequences with his client, the fact that he
directly addressed Petitioner’s deportable status in a memorandum supports his statement that
conveyed this infonnation to his client,
In United States v. Orocio, the Third Circuit held that a few allusions to immigration
proceedings were not sufficient to frilly inform the attorney’s client of the risks of deportation.
645 F.3d 630, 646 (3d Cir. 2011). If the statements made in the plea agreement and

Presentencing Report were the only ones directed to Petitioner concerning possible immigration
consequences, the Orocio holding might apply here. However, the Court agrees with the
Government that these statements, when taken together with the numerous other immigration
warnings found in the record, were sufficient to adequately warn the client of the possible
immigration consequences of his plea. Petitioner provides no other evidence that his counsel’s
representation was inadequate and “a court considering a claim of ineffective assistance must
apply a strong presumption that counsel’s representation was within the wide range of reasonable
professional assistance.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011). Therefore, the
Petitioner has not satisfied the first requirement of the Strickland test.

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2. Factor Two

Petitioner also does not satisfy the second prong of the Strickland test because he has
made no showing that but-for counsel’s errors, he would not have pled guilty. To satisfy this
requirement, Petitioner, “must make more than a bare allegation that but for counsel’s error he
would have pleaded not guilty and gone to trial,” Parry v. Rosemeyer, 64 F3d 110, 118 (3d Cir,
1995). Instead, Petitioner must show by “a probability sufficient to undermine confidence in the
outcome,” that he would not have pled guilty. Strickland, 466 at 694. Petitioner has not claimed
that he would not have pled guilty but for the allegedly inadequate representation. Without
claiming or providing evidence that he would have changed his plea, Petitioner cannot satisfy the
second prong of the Strickland test.
3. “Fair and Just Reason” to Withdraw Guilty Plea

The Government also argues Petitioner cannot withdraw his plea because he failed to
demonstrate a “fair and just reason” to withdraw his guilty plea, as required under FED. R.

CRIM.

P. Rule 1 l(d)(2)(B). However, because Petitioner waived his right to make a § 2255 motion and
did not satisfy the requirements of the Strickland test, the Court does not need to address this
issue.
III.

Conclusion

For the foregoing reasons, Petitioner’s motion to vacate, set aside, or correct his sentence
is denied, An appropriate order accompanies this opinion.

is M. Cavanaugh, U
Date:

Orig:
cc:

2013
Clerks Office
All Counsel of Record
File

July

,

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