Cox v. United States of America

Filing 5

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). The 1 Petition is DENIED. So Ordered by Judge Nicholas G. Garaufis on 10/5/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

DAMION COX,
MEMORANDUM & ORDER

Petitioner,

17-CV-2319(NGG)

-againstUNITED STATES OF AMERICA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Petitioner Damion Cox brings this petition (the "Petition")for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255. (Pet.(Dkt. 1)^) Petitioner, who,at the time of his sentencing,
was a Permanent Resident Alien ofthe United States, argues that his trial counsel was ineffective

for failing to inform him that he would likely be deported if convicted. (Id at ECF pp.4,14-17.)
For the following reasons, the Petition is DENIED as untimely.
L

BACKGROUND

On August 19, 2015,Petitioner entered a guilty plea before this court to a single-count

information, which charged him with use of a passport procured by false statements in violation

of 18 U.S.C. § 1542. (See Aug. 19, 2015, Min. Entry(Crim. Dkt. 14)^; see also Information
(Crim. Dkt. 12).) The court sentenced Petitioner to twelve months' imprisonment,followed by a

one-year term ofsupervised release. (J.(Crim. Dkt. 20).) No appeal was filed.^ Petitioner is
now in the custody of U.S. Immigration and Customs Enforcement("ICE"). (See Pet.)

' citations to "Dkt." refer to Case No. 17-CV-2319.
All
^ All citations to "Crim. Dkt." refer to Case No. 15-CR-0383.

^ Pursuant to his plea agreement, Petitioner agreed "not to file an appeal or otherwise challenge, by petition pursuant
to 28 U.S.C. § 2555 or any other provision,[his] conviction or sentence in the event that the Court impose[d] a term
ofimprisonment of 12 months or below." (Plea Agreement(Dkt. 1)at ECF p.20.)
1

On March 24,2017, Petitioner filed a petition to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255. (Pet.) Petitioner alleges that his trial counsel was constitutionally
deficient because counsel informed him that "there would be no negative immigration

consequences" ifPetitioner entered a guilty plea. fSee Pefr Aff. in Supp. ofPet.("Aff")(Dkt. 1
at ECF p.l4)H 4.) Specifically, Petitioner claims that counsel told him that if he entered a guilty

plea,"[rjemoval from the USA would not occur." (Id ^ 8.) Petitioner further avers that had he

been properly advised that his guilty plea"would have profound negative consequences on [his]
status as a Lawful Permanent Resident," he would not have entered a guilty plea. (Id 5.)

The Government responds that Petitioner's § 2255 petition should be denied because
(1)the Petition is time barred;(2)Petitioner waived his right to appeal; and(3)Petitioner's
claims fail on the merits because trial counsel "advised [Petitioner] ofthe immigration

consequences ofa plea, as did th[e] Court." (Gov't Opp'n to Pet.("Gov't Opp'n")(Dkt. 3)at
3-4.)
II.

DISCUSSION

The threshold question for this court is whether the Petition is timely. Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996,§ 2255 petitions are subject to a one-year

statute of limitations. 28 U.S.C. § 2255(f). The one-year limitations period runs 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;
(3)the date on which the right asserted was initially recognized by
Ae 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.

As Petitioner'sjudgment of conviction was entered on January 6,2016 (J.), his
conviction became final for purposes of§ 2255 on January 20,2016.

Fed. R. App.

P. 4(b)(1)(A)(providing that a criminal defendant's notice of appeal must be filed in the district
court within 14 days after the entry ofjudgment); Moshier v. United States. 402 F.3d 116,118

(2d Cir. 2005)(per curiam)("[F]or purposes of§ 2255 motions, an unappealed federal criminal
judgment becomes final when the time for filing a direct appeal expires."). Petitioner filed the
instant Petition on March 24,2017. (Pet.) Accordingly, Petitioner did not file the Petition within
a year ofthe judgement becoming final, so the Petition is untimely under § 2225(f)unless

Petitioner can demonstrate that he satisfied one ofthe conditions listed in § 2225(f)(2)-(4).'^
Petitioner avers that his Petition is timely under § 2225(f)(4), as he did not discover

counsel's "erroneous advice" until he was placed in ICE custody and his immigration attorney

explained to him that trial counsel's advice "was not correct."^ (Pet. H 18.) Under § 2255(f)(4),
the one-year time period begins to run "when a duly diligent person in petitioner's circumstances
would have discovered" the facts supporting a particular claim. Wims v. United States. 225 F.3d
186,190(2d Cir. 2000). For Petitioner, that fact is his likely deportation.

Although not raised by the Petitioner, the court finds any potential equitable tolling argument unavailing. See
Smith V. Mf:niTinis 208 F.3d 13, 17(2d Cir. 2000)(holding that a petitioner must show that "extraordinary

circumstances prevented him from filing his petition on time" and must also establish that he "acted with reasonable
diligence throughout the period he seeks to toll").
^ The Petition does not detail on which date Petitioner was placed in ICE custody, nor does it explain when
Petitioner consulted with an immigration attorney.

Petitioner's claim ofignorance is belied by the record. Petitioner should have known,for
purposes of § 2255, that he likely faced deportation as a result of his conviction well before that
conviction was final.

First, Petitioner's trial counsel maintains that after consulting with an immigration

attorney, he advised Petitioner that Petitioner would be likely to be deported if he entered a

guilty plea.^ (Aff. of Harlan Protass ("Protass Aff.")(Dkt. 3-3)

8, 9.)

Second,the court advised Petitioner ofthe immigration consequences of his conviction
before Petitioner entered his guilty plea. On August 19, 2015,Petitioner waived his right to

indictment by grand jury and entered a guilty plea to a single-count information. (Guilty Plea
Hr'g Tr,("Plea Tr.")(Dkt. 3-2)7:20-8:25,17:4-24:16.) Prior to entering his guilty plea, the
court advised Petitioner that he would be subject to certain penalties associated with pleading

guilty to the charge of passport fraud. (Plea Tr. 18:15-19:18.) The court specifically advised
Petitioner that he would be "subject to removal or deportation ofthe United States in a separate

proceeding brought by the Department of Homeland Security at the end of[his] prison
sentence." (Id. 19:4-8.) After Petitioner confirmed that he understood the penalties associated
with pleading guilty, the court reiterated its prior warning about immigration consequences:

"And,in particular, do you understand that by pleading guilty, you are subject to a proceeding
for deportation and removal from the United States at the conclusion of your sentence?" (Id.
19:9-14.) Petitioner once again stated that he understood. (Id 19:15.)
Third, Petitioner's own sentencing submission demonstrates that prior to his sentencing.
Petitioner was aware ofthe immigration consequences of entering a guilty plea to the
information. On December 30,2015,Petitioner submitted a sentencing memorandum,seeking a
®^Chang V. United States. 250 F.3d 79,86(2d Cir. 2001)(trial court did not err in crediting counsel's affidavit
over petitioner's "self-serving and improbable assertions").

non-custodial sentence. (Pet'r Sentencing Mem.(Crim. Dkt. 17).) On three separate occasions
in the memorandum,Petitioner acknowledges that an incarceratory sentence will likely result in
his removal from the United States. He states that(1)a prison sentence "likely also would result

in his deportation from the United States;"(2)he is "acutely aware ofthe impact it may have on
his family and loved ones ifthis Court imposes a term ofimprisonment(and/or if he is

deported)"; and(3)"potential deportation" would impact his children and their mothers. (Pet'r
Sentencing Mem. at 5, 6,15.)

Finally, during Petitioner's sentencing hearing on January 6,2016, Petitioner, Petitioner's

counsel, and the court all made explicit mentions ofthe high probability of deportation following
the entering of a guilty plea. (Sentencing Hr'g(Dkt. Num.Pend.) at 20,21,27,29, 30.)

Specifically, Petitioner's counsel stated that "if he is in prison, it is almost certain that he will be
deported at the time that his terms ofimprisonment ends." (Id 20:13-20:17.) Petitioner, in his
own statement before the court, stated that he was fearful ofthe emotional and financial impact

on his children "ifI [were] deported back to Jamaica." (Id 27:14-27:15.) And,at the conclusion

ofthe hearing, the court informed Petitioner that "at the end of your sentence, you will be subject
to a separate proceeding by the Department of Homeland Security for your removal." (Id 30:2030:22.)

Under these circumstances, a duly diligent person in Petitioner's position would have

discovered that he was subject to deportation well before sentencing, and certainly by the time
his conviction became final in 2016. Therefore, the Petition is untimely, and it is denied on this
basis.

m.

CONCLUSION

For the aforementioned reasons,the Petition (Dkt. 1)is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn,New York
October S", 2017

NICHOLAS G.GARAUFIS
(
United States District Judge