Chowdhry v. The People of New York
Filing
8
MEMORANDUM OPINION AND ORDER. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the petitioner's mo tion is denied. The Court declines to issue a certificate of appealability because the petitioner has failed to make a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). The Clerk is directed to enter judgment and to close this case. (Signed by Judge John G. Koeltl on 1/22/2015) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
RIAZUL HAQ CHOWDHARY,
Petitioner,
14 Cv. 6078 (JGK)
11 Cr. 859 (JGK)
- against MEMORANDUM OPINION AND
ORDER
UNITED STATES OF AMERICA,
RESPONDENT.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Riazul Haq Chowdhary, appearing pro se, moves to vacate,
alter, or amend his guilty plea, sentence, and judgment of
conviction in a petition styled alternatively as a motion for a
writ of coram nobis or for relief under 18 U.S.C. § 2255.
The
petitioner was convicted pursuant to his plea of guilty to one
count of money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i).
The petitioner was sentenced principally to
time served—which amounted to virtually no time of imprisonment—
and a term of three years’ supervised release.
Pursuant to a
plea agreement, the petitioner waived his right to appeal or
litigate under 28 U.S.C. §§ 2255 and 2241 any sentence within or
below the Stipulated Guidelines Range of eighteen to twenty-four
months’ imprisonment.
He also agreed not to challenge his
conviction or sentence on the basis of any adverse immigration
consequences (including deportation) resulting from his guilty
plea and conviction.
The petitioner primarily alleges that his
1
defense counsel did not advise him that he would be subject to
mandatory deportation as a result of his conviction, and thereby
rendered ineffective assistance under the Sixth Amendment of the
United States Constitution.
I.
On October 6, 2011, Chowdhary waived his right to be
indicted by a grand jury, and Information 11 Cr. 859 (JGK) (the
“Information”) was filed to which Chowdhary pleaded not guilty.
The Information charged Chowdhary in four counts alleging
various offenses.
Count Four charged that Chowdhary laundered
money in violation of 18 U.S.C. § 1956(a)(1)(B)(i).
On September 6, 2012, Chowdhary appeared before this Court
and pleaded guilty to Count Four pursuant to a Plea Agreement
with the Government.
Under the terms of the Plea Agreement, the
parties agreed that any open counts would be dismissed.
Significantly, the Plea Agreement addressed the possible
immigration consequences of Chowdhary’s plea:
The defendant recognizes that because he is not a citizen
of the United States, his guilty plea and conviction make
it very likely that his deportation from the United States
is presumptively mandatory and that, at a minimum, he is at
risk of being deported or suffering other adverse
immigration consequences.
Plea Agreement dated Dec. 23, 2011 (“Plea Agr.”) at 5.
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The Plea Agreement also indicated that Chowdhary had
discussed the possible immigration consequences with his
counsel:
The defendant acknowledges that he has discussed the
possible immigration consequences (including deportation)
of his guilty plea and conviction with defense counsel.
The defendant affirms that he wants to plead guilty
regardless of any immigration consequences that may result
from the guilty plea and conviction, even if those
consequences include deportation from the United States.
It is agreed that the defendant will have no right to
withdraw his guilty plea based on any actual or perceived
adverse immigration consequences (including deportation)
resulting from the guilty plea and conviction. It is
further agreed that the defendant will not challenge his
conviction or sentence on direct appeal, or through
litigation under Title 28, United States Code, Section 2255
and/or Section 2241, on the basis of any actual or
perceived adverse immigration consequences (including
deportation) resulting from his guilty plea and conviction.
Plea Agr. at 5.
The Plea Agreement also contained a separate
general waiver of any direct appeal or collateral challenge if
Chowdhary was sentenced within or below the Stipulated
Guidelines Range of 18 to 24 months’ imprisonment.
Plea Agr. at
4.
At Chowdhary’s guilty plea, this Court conducted an
allocution in conformity with Rule 11 of the Federal Rules of
Criminal Procedure.
Chowdhary was placed under oath and then
answered a series of questions establishing that he was
competent to enter a guilty plea.
Sept. 6, 2012 (“Plea Tr.”) 3-7.
Tr. of Plea Allocution on
The Court advised Chowdhary,
3
who was proceeding without an interpreter, to ask the Court to
stop if Chowdhary did not understand anything the Court was
saying, and Chowdhary agreed.
Plea Tr. 4-5.
As to his immigration status, Chowdhary stated that he was
not a citizen of the United States but was a permanent resident.
Plea Tr. 4.
Chowdhary stated that he had had a full opportunity
to discuss the case with his counsel and discuss the
consequences of entering a plea.
Plea Tr. 6-7.
Chowdhary
affirmed that he was satisfied with the work of his counsel.
Plea Tr. 7.
Chowdhary acknowledged the various rights he was
giving up by pleading guilty.
Plea Tr. 7-10.
Chowdhary
acknowledged that he consented to being charged by Information
rather than indictment.
Plea Tr. 11-12.
Chowdhary was also
advised of the nature of the charge to which he was pleading
guilty, Plea Tr. 11-13, the maximum penalties for that charge,
and the implications of any term of supervised release.
Plea
Tr. 13-15.
The Court examined Chowdhary about the immigration
consequences of Chowdhary’s plea.
Plea Tr. 15-17.
When the
Court first asked Chowdhary about whether Chowdhary understood
that his guilty plea “may be able to be used as a basis to
remove [him] from the United States, what used to be called
deportation,” Chowdhary responded, “That I need mercy.
4
I have
very small children.
I don’t have a life. My wife is sick.
That’s why I’m pleading guilty with the government.”
15-16.
Plea Tr.
Once Chowdhary responded in this way, the Court advised
him to speak with his counsel.
After Chowdhary had spoken with
his counsel about the Court’s question, the Court stated, “Now,
what I want to make sure you understand is, this guilty plea can
have consequences for your status in the United States.
The
guilty plea and the resulting conviction can be used as a basis
to remove you from the United States.”
Plea Tr. 16.
The Court
continued, "I can’t tell you that that’s what’s going to happen,
but I can tell you that it is a possible consequence of your
guilty plea and the resulting conviction. . . . Are you aware of
that possible consequence?”
that he was.
Plea Tr. 16.
Plea Tr. 16.
Chowdhary responded
The Court also asked Chowdhary if he
had discussed the immigration consequences of the guilty plea
with his lawyer, and Chowdhary replied that he had.
Plea Tr.
16-17.
As to the Plea Agreement, Chowdhary acknowledged that he
signed it, that he discussed it with his attorney before signing
it, and that he fully understood it before signing it.
19-20.
Plea Tr.
The Court discussed with Chowdhary the provision of the
Plea Agreement in which Chowdhary agreed to waive his right to
file an appeal or collateral challenge if the Court sentenced
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him within or below the Stipulated Guidelines range.
21.
Plea Tr.
Chowdhary acknowledged that he understood that provision.
Plea Tr. 21.
The Court ensured that there was an adequate
factual basis for Chowdhary’s guilty plea, and that he was aware
that his actions were illegal.
Plea Tr. 24-26.
At the conclusion of the proceeding, the Court found that
Chowdhary understood the rights that he was giving up by
pleading guilty and the consequences of his plea, and that
Chowdhary did so knowingly and voluntarily.
The Court further
found that Chowdhary acknowledged his guilt, that the plea was
entered knowingly and voluntarily, and that the plea was
supported by an independent basis in fact containing each of the
essential elements of the offense.
Plea Tr. 28.
The parties appeared before this Court for sentencing on
March 14, 2013.
Defense counsel noted that he and Chowdhary had
reviewed the Pre-Sentence Report (“PSR”), and to the extent they
did not have thirty-five days to review it, Chowdhary waived any
additional time he might have remaining out of a desire to
proceed with the sentencing.
Tr. of Sentencing Hr’g on Mar. 14,
2013 (“Sentencing Tr.”) 3-4.
Chowdhary did not have any
objections to the PSR.
Sentencing Tr. 4.
argued for a non-custodial sentence.
Defense counsel
He noted that Chowdhary
had a wife and two small children in Pakistan, that he had been
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unemployed since his arrest, and that he was “a little bit naïve
with respect to how things work here in the United States.”
Sentencing Tr. 6-7.
The Court found that Chowdhary fell within
Criminal History Category I, and with an offense level of 15,
faced a Sentencing Guidelines range of eighteen to twenty-four
months imprisonment.
Sentencing Tr. 9.
The Court varied
downwardly and sentenced Chowdhary to time served and a term of
three years’ supervised release.
Sentencing Tr. 10.
The Court
further ordered that Chowdhary pay $100,000 in forfeiture, as
well as a $100 special assessment.
Sentencing Tr. 13.
The
Court confirmed that Chowdhary had waived his right to appeal as
part of the Plea Agreement.
Sentencing Tr. 14.
The Court
nonetheless advised Chowdhary that a notice of appeal must be
filed within fourteen days after the entry of the judgment of
conviction.
Sentencing Tr. 14.
The judgment of conviction was
entered on March 21, 2013.
On June 25, 2014, Chowdhary was arrested and taken into
custody by Immigration and Customs Enforcement.
On or about
July 15, 2014, Chowdhary filed the present petition.
II.
Chowdhary styles the present petition alternatively as a
motion for a writ of coram nobis or as a motion for relief under
28 U.S.C. § 2255.
Chowdhary principally argues that although
7
his counsel advised him of the potential for deportation, he was
not advised of the mandatory nature of his deportation, which
constituted ineffective assistance of counsel in light of the
Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356
(2010).
A.
Chowdhary’s petition may only be considered under 28 U.S.C.
§ 2255, rather than in form of a writ of error coram nobis.
A
writ of error coram nobis is available under the All Writs Act
as a “remedy of last resort for petitioners who are no longer in
custody pursuant to a criminal conviction and therefore cannot
pursue direct review or collateral relief by means of a writ of
habeas corpus.”
Fleming v. United States, 146 F.3d 88, 89–90
(2d Cir. 1998).
Chowdhary is still serving his three-year term
of mandatory supervised release which is considered a form of
“custody.”
See Scanio v. United States, 37 F.3d 858, 860 (2d
Cir. 1994); see also Grant v. Keysor, No. 07cv9656, 2008 WL
5501207, at *2 (S.D.N.Y. Sept. 5, 2008) (“Actual physical
confinement is not required to satisfy the ‘in custody’
requirement.”); United States v. Simmons, No. 05cr1049, 2010 WL
4922192, at *3 (S.D.N.Y. Dec. 1, 2010).
Accordingly, the Court
will only consider Chowdhary’s petition under § 2255.
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B.
Chowdhary is not entitled to relief under 28 U.S.C. § 2255
because he waived the right to litigate under 28 U.S.C. § 2255
in the Plea Agreement.
Chowdhary waived the right to seek
habeas relief generally if the Court sentenced him within or
below the Stipulated Guidelines range, which it did.
at 4.
Plea Agr.
Chowdhary also waived his right to litigate under § 2255
on the basis of any adverse immigration consequences.
at 5.
Plea Agr.
Chowdhary acknowledged his waiver of the right to appeal
and to seek collateral relief at the guilty plea hearing and the
Court reminded Chowdhary of the waiver at the sentencing
hearing.
See Garcia-Santos v. United States, 273 F.3d 506, 508
(2d Cir. 2001) (per curiam) (affirming a waiver of appeal and
collateral attack pursuant to a plea agreement).
Chowdhary argues that the waiver is unenforceable because
he received ineffective assistance of counsel and therefore did
not knowingly, intelligently, and voluntarily waive his
constitutional rights.
While an appeal waiver does not
“become[] unenforceable simply because a defendant claims
ineffective assistance of counsel”, the appeal waiver would be
unenforceable if the record revealed that “the claim that the
waiver was the result of ineffective assistance of counsel was
meritorious.”
United States v. Monzon, 359 F.3d 110, 118-19 (2d
9
Cir. 2004) (internal citation and quotation marks omitted).
To
the extent Chowdhary raises challenges to his conviction other
than the process by which the waiver was procured—namely,
effective assistance of counsel and a knowing and voluntary
plea—these are all barred pursuant to the waiver.
See Khan v.
United States, No. 07cr711, 2014 WL 2111677, at *7 (S.D.N.Y.
Apr. 28, 2014) (dismissing arguments other the knowing and
voluntary nature of the plea as waived pursuant to a plea
agreement); Kang v. United States, No. 08cv1952, 2009 WL
4016494, at *9 (E.D.N.Y. Nov. 19, 2009) (enforcing knowing and
voluntary waiver in the absence of claims of ineffective
assistance of counsel).
As described above, the record reveals
that there was no ineffective assistance of counsel as to the
waiver because Chowdhary was fully apprised of the rights that
he was waiving.
Moreover, the record discloses that the plea
was knowing and voluntary.
Although Chowdhary now claims that he has little
understanding of English and the American legal process, he
affirmed throughout the plea hearing that he understood English,
that he understood the Plea Agreement and discussed it with his
lawyer, and that he understood the rights that he was waiving.
Plea Tr. 4-5, 19-21.
Such sworn statements in open court at a
plea hearing “carry a strong presumption of verity.”
10
United
States v. Maher, 108 F.3d 1513, 1530 (2d Cir. 1997) (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
The Court may
rely on the statements in the record, and the record of the plea
hearing and sentencing hearing show that Chowdhary’s waiver was
fully knowing and voluntary.
See, e.g., Khan, 2014 WL 2111677,
at *9 (holding that petitioner waived his right to collateral
attack and rejecting argument that the waiver was not knowing
and voluntary).
Accordingly, Chowdhary waived his right to
litigate under 22 U.S.C. § 2255 and is barred from bringing a
petition under § 2255.
C.
Chowdhary’s petition relief under 28 U.S.C. § 2255 should
also be dismissed because it is untimely.
The Anti–Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear statute of limitations on an application for a writ of
habeas corpus under Section 2255.
28 U.S.C. § 2255(f).
The
limitations period for such a claim begins to run from the date
on which the judgment of conviction becomes final.
Because
Chowdhary did not file a direct appeal, the judgment of
conviction in this case became final fourteen days after its
entry on March 21, 2013.
See Fed. R. App. P. 4(b)(1)(A).
Chowdhary filed the present petition on or about July 15, 2014,
several months after the applicable one-year limitations period
11
had ended.
See 28 U.S.C. § 2255(f).
Therefore, the present
petition is time-barred under Section 2255.
Chowdhary argues that equitable tolling can be used to
avoid the bar of the statute of limitations in this case, but
there is no merit to that argument.
Equitable tolling is only
appropriate in “rare and exceptional circumstances” where,
despite a petitioner's reasonable diligence, “extraordinary
circumstances beyond [the petitioner's] control prevented
successful filing during [the required] time.”
Baldayaque v.
United States, 338 F.3d 145, 151 (2d Cir. 2003) (quoting
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001))
(internal quotation marks omitted).
In this case, there were no exceptional or extraordinary
circumstances.
Chowdhary was aware of the immigration
consequences of his plea from the time it was made, and he
acknowledged the possible immigration consequences at the plea
hearing.
There was nothing that prevented Chowdhary from
seeking post-conviction relief, except his own agreement in the
Plea Agreement not to pursue that relief.
Similarly, Chowdhary cannot rely on Section 2255(f)(4),
which provides that the one-year limitations period shall run
from “the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
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diligence.”
28 U.S.C. § 2255(f)(4).
Any challenge to the
effectiveness of Chowdhary's defense counsel could have been
raised at any time after the plea allocution.
See Ottenwarde v.
United States, No. 12cv6537, 2013 WL 1242632, at *4-5 (S.D.N.Y.
Mar. 28, 2013) (rejecting petitioner’s § 2255 claim based on
adverse immigration consequences as untimely).
Accordingly, Chowdhary’s petition under 28 U.S.C. § 2255 is
time-barred.
III.
In any event, the petition is without merit.
Chowdhary
alleges that his defense counsel was ineffective by not advising
him of the mandatory nature of his deportation if he pleaded
guilty.
To establish a claim of ineffective assistance of
counsel, the petitioner must show both that: (1) his counsel's
performance was deficient in that it was objectively
unreasonable under professional standards prevailing at the
time, and (2) that his counsel's deficient performance was
prejudicial to his case.
See Strickland v. Washington, 466 U.S.
668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir.
1995).
The petitioner cannot meet the first prong of this test
merely by showing that his counsel employed poor strategy or
made a wrong decision. Instead, the defendant must show that
13
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed ... by the Sixth Amendment.”
Strickland, 466 U.S. at 687.
In fact, there is a “strong
presumption” that defense counsel's performance fell within the
wide range of reasonable professional assistance, and “the
defendant bears the burden of proving that counsel's
representation was unreasonable under prevailing professional
norms and that the challenged action was not sound strategy.”
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing
Strickland, 466 U.S. at 688–89).
To meet the second prong of the Strickland test, the
petitioner must show that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.
A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.”
Strickland, 466 U.S. at 694.
Where a defendant
challenges a guilty plea on the basis of alleged ineffective
assistance of counsel, “the defendant must show that ‘there is a
reasonable probability that, but for counsel's errors, [the
defendant] would not have pleaded guilty and would have insisted
on going to trial.’”
United States v. Hernandez, 242 F.3d 110,
112 (2d Cir. 2001) (per curiam) (quoting Hill v. Lockhart, 474
14
U.S. 52, 59 (1985)); see also Ottenwarde, 2013 WL 1242632, at
*5-6.
In this case, Chowdhary primarily alleges that his defense
counsel misrepresented the immigration consequences of
Chowdhary’s guilty plea and thereby rendered ineffective
assistance under Padilla v. Kentucky, 559 U.S. 356 (2010).
Chowdhary does not put forth any evidence in support of his
claim, but rather asserts that his counsel never informed him
that deportation would be mandatory, as opposed to probable.
Chowdhary also cites the Court’s statement that deportation was
a “possible consequence” of his guilty plea, and argues that the
Court should have advised Chowdhary that deportation was
mandatory.
However, Chowdhary’s argument is contradicted by
evidence in the record.
The Plea Agreement stated that it is
“very likely” that deportation would be “presumptively
mandatory” as a result of Chowdhary’s guilty plea.
5.
Plea Agr. at
Chowdhary acknowledged that he read and understood the Plea
Agreement, that he understood that his conviction could be used
to remove him from the United States, and that he had spoken
with his counsel about immigration consequences.
17, 19-20.
Plea Tr. 16-
“A defendant cannot disavow his sworn statement made
at his plea allocution by making conclusory allegations in the
course of a subsequent challenge to the conviction or sentence.”
15
Ottenwarde, 2013 WL 1242632, at *6 (citing Blackledge, 461 U.S.
at 74).
Indeed, Chowdhary does not dispute that he was advised
about the immigration consequences of his plea; rather, he
argues that he was not advised of the mandatory nature of his
deportation.
Not only is this argument belied by the record, it
is insufficient as a matter of law to show ineffective
assistance of counsel under Padilla.
See Marte v. United
States, 952 F. Supp. 2d 537, 541 n.2 (S.D.N.Y. 2013) (“[T]his
District, post Padilla, has denied ineffective assistance of
counsel claims, even for mandatory deportation, where the
petitioner affirmed his understanding of the potential for
deportation during the plea allocution.”).
Neither the Court
nor the Government in the Plea Agreement could predict the
future.
The immigration authorities could mistakenly fail to
remove Chowdhary from the United States, or legislative or
executive action could change the enforcement of immigration
laws.
The Court correctly advised Chowdhary that his conviction
“can be used to remove [him] from the United States,” although
the Court could not “tell [him] that’s what’s going to happen,”
Plea Tr. 16, and the Plea Agreement correctly advised Chowdhary
that “his guilty plea and conviction make it very likely that
his deportation from the United States is potentially mandatory
16
and that, at a minimum, he is at risk of being deported or
suffering other adverse consequences.”
Plea Agr. at 5.
Moreover, Chowdhary has failed to present any evidence
showing that he was prejudiced by any alleged advice from
defense counsel concerning the immigration consequences of his
guilty plea.
Courts in this Circuit routinely hold that a
“defendant fails to satisfy the ‘prejudice prong’ of Strickland
where his attorney fails to inform him of the potential for
deportation but the deportation consequences are otherwise
addressed in the plea agreement or allocution.”
Supp. 2d at 540 (collecting cases).
Marte, 952 F.
Chowdhary was advised of
the immigration consequences by the language of the Plea
Agreement and by the Court at his plea allocation, but never
made any request to withdraw his guilty plea.
Therefore,
Chowdhary has failed to establish a reasonable probability that
he would have insisted on going to trial if he had received any
allegedly different advice from defense counsel prior to his
guilty plea.
Chowdhary has not credibly shown that he would have
proceeded to trial while facing a longer sentence at trial due
to his admitted guilt and then deportation at the end of this
sentence.
In sum, Chowdhary has failed to establish a
reasonable probability that, but for his counsel’s alleged
17
ineffectiveness, “the result of the proceeding would have been
different.”
Strickland, 466 U.S. at 694; see also Ottenwarde,
2013 WL 1242632, at *8.
CONCLUSION
The Court has considered all of the arguments of the
parties.
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the
foregoing reasons, the petitioner’s motion is denied.
The Court
declines to issue a certificate of appealability because the
petitioner has failed to make a substantial showing of the
denial of a constitutional right pursuant to 28 U.S.C. §
2253(c)(2).
The Clerk is directed to enter judgment and to
close this case.
SO ORDERED.
Dated:
New York, New York
January 22, 2015
__________/s/________________
John G. Koeltl
United States District Judge
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