Lozano v. United States Of America

Filing 50

MEMORANDUM OPINION & ORDER: After conducting an evidentiary hearing and considering the arguments of the parties, the Court has made the following findings of fact and conclusions of law in response to the mandate of the Court of Appeals: 1. Sound reasons exist for Lozano's failure to seek earlier coram nobis relief and therefore he was not dilatory in bringing this petition. 2. For the reasons explained above, the evidence shows that Lozano would nonetheless have entered a guilty plea in the SDNY case had he known that he was subject to deportation as a consequence of that conviction. SO ORDERED. (Signed by Judge John G. Koeltl on 1/30/2020) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
JIMMY LOZANO,
Petitioner,

17cv357 (JGK)

- against -

MEMORANDUM OPINION &
ORDER

UNITED STATES OF AMERICA,
Respondent.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

In 2004, the petitioner pleaded guilty to one count of
Hobbs Act robbery in violation of 18 U.S.C. § 1951 before this
Court (the “SDNY case”). He was convicted and sentenced in
November 2005 principally to 33 months’ imprisonment and he was
released in February 2006. The petitioner claims that, because
the State Department issued him a passport in 2002, which was
apparently issued in error through no fault of the petitioner,
the petitioner was unaware that his guilty plea in the SDNY case
could be used to remove him from the United States. In August
2015, the petitioner pleaded guilty in the District of Vermont
to a conspiracy in violation of 21 U.S.C. § 846 to distribute a
controlled substance (the “Vermont case”). In June 2016, the
petitioner was sentenced to time served to be followed by three
years’ supervised release in the Vermont case.
In 2017, the petitioner brought a coram nobis petition in
this Court seeking to vacate his conviction and sentence in the
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SDNY case on the ground that his guilty plea was involuntary and
unknowing because he did not know that his conviction could be a
basis for removing him from the United States. 1 In its previous
decision, this Court concluded that ignorance of the immigration
consequences of his plea did not rise to the level of a Fifth
Amendment violation and therefore did not render his plea
insufficiently knowing and voluntary. See Lozano, 2017 WL
4712711, at *8. The petitioner appealed this Court’s denial of
his coram nobis petition. Pursuant to United States v. Jacobson,
15 F.3d 19 (2d Cir. 1994), the Court of Appeals for the Second
Circuit remanded the case to this Court for a determination of
two preliminary issues: (1) whether sound reasons exist for
Lozano’s failure to seek appropriate earlier relief, in view of
the fact that the presentence report (“PSR”) in the SDNY case
reported that Lozano was not a United States citizen; and (2)
whether Lozano would not have entered a guilty plea in the SDNY
case had he known that he was subject to deportation as a result
of his conviction. Lozano v. United States, 763 F. App’x 9, 1112 (2d Cir. 2019).
In order to resolve these preliminary issues, this Court
held an evidentiary hearing on September 26, 2019. The parties

1 The facts underlying the petition are recounted in full in this Court’s
earlier opinion, familiarity with which is assumed. See Lozano v. United
States, No. 17-cv-357, 2017 WL 4712711 (S.D.N.Y. Oct. 17, 2017).

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had the opportunity to present evidence, both by introducing
documents and by calling witnesses, by subpoena if necessary. At
the evidentiary hearing, only the petitioner testified at which
time he was questioned by counsel for the petitioner and the
government as well as by the Court. The parties also submitted
documentary evidence.
The Court, having conducted the evidentiary hearing,
reviewed the evidentiary submissions, and assessed the
credibility of the petitioner, now makes the following findings
of fact and conclusions of law in accordance with the mandate of
the Court of Appeals.
I.
The evidence supports the petitioner’s assertions that, at
the time of his guilty plea in the SDNY case, he and his lawyer
believed he was a citizen of the United States and that
therefore the petitioner was not concerned about the immigration
consequences of his plea. Pet. Ex. B, at 12-13; Evid. Tr. (Dkt.
No. 42) 17-18. Despite the fact that the PSR in the SDNY case
indicated he was only a lawful permanent resident, the
petitioner reasonably believed that determination was an error
because he thought he had become a citizen when his mother was
naturalized. Evid. Tr. 12-13. He had received a United States
passport in 2002 and all of the responses to the questions on
the passport application were accurate. Id. at 13; Pet. Ex. A.
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Further, the PSR itself incorrectly stated that the defendant’s
official date of entry into the United States was January 31,
1998, leading to the reasonable conclusion that the PSR
mistakenly relied on information concerning an individual other
than the petitioner. GX 3 ¶ 38; Evid. Tr. 21. ICE agents
subsequently visited the petitioner but were persuaded by the
existence of the passport that the petitioner was a citizen of
the United States. Evid. Tr. 26-27. The petitioner was
subsequently admitted into a halfway house following his
sentence, which would not have occurred had the authorities
believed he was subject to deportation by virtue of his not
being a United States citizen. Id. at 24-25. In 2013, the
petitioner applied for a renewed passport at which point he
again answered the questions accurately and again was issued a
passport. Pet. Ex. F; Evid. Tr. 29.
Based on these factual findings, the first time that the
petitioner could reasonably have concluded that he was not a
citizen and was subject to removal for a conviction was when he
received the 2015 PSR in the Vermont case. The Vermont PSR
explained why the petitioner could not rely on his prior belief
that he was a citizen:
The defendant reported that he was a naturalized
United States citizen. He explained that his mother
applied for citizenship prior to his attaining the age
of 18, so he also become a U.S. citizen when she
became a citizen. A records check with ICE indicated
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that the defendant was a naturalized U.S. citizen.
However, shortly after the records check with ICE
confirmed his citizenship, this writer was contacted
by an ICE-Enforcement and Removal Operations (ICE-ERO)
agent. The agent indicated that there are some issues
with the defendant’s citizenship claims and he may not
be a U.S. citizen after all. The agent explained that
Lozano was a Lawful Permanent Resident (a requirement
prior to obtaining citizenship), but was 19 years of
age when his mother became a citizen on July 24, 2000.
In order for the defendant to have derived citizenship
from his mother, she would have to have been sworn in
as a U.S. citizen prior to the defendant’s 18th
birthday, regardless of how old he was when the
application was first filed.
GX 7 ¶ 69. Therefore, it was only in November 2015, upon receipt
of the Vermont PSR that he was on notice that he should move to
vacate his conviction and sentence in the SDNY case that had
occurred ten years before.
It cannot be said that the 14-month delay between November
2015 and the time this petition was filed in January 2017 was so
unreasonable that the petition should be denied on that basis.
See Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996) (“A
district court considering the timeliness of a petition for a
writ of error coram nobis must decide the issue in light of the
circumstances of the individual case.”); Yong Wong Park v.
United States, 222 F. App’x 82, 83 (2d Cir. 2007) (“Although
Park filed his petition for a writ of coram nobis almost five
years after he pleaded guilty . . . Park has shown sound reasons
for failing to seek relief earlier. Only in July 2004, when Park
was charged with being deportable as an aggravated felon, did it
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become apparent that his plea had irreversible immigration
consequences[.]”); see also Guglielmetti v. United States, No.
Cr. H-90-18, 2006 WL 2361725, at *4 (D. Conn. Aug. 14, 2006)
(“[C]ourts have generally found that delays of more than several
years justify dismissal.”).
Therefore, with respect to the first question posed by the
Court of Appeals in its mandate, sound reasons exist for
Lozano’s failure to seek appropriate relief earlier than when he
did because he could not reasonably have been expected to
inquire into his citizenship status prior to November 2015.
II.
However, the petitioner has failed to establish that he
would not have pleaded guilty in the SDNY case if he had been
aware that a conviction pursuant to his guilty plea would
subject him to removal from the United States. Specifically, the
petitioner has failed to show a reasonable probability that, if
he had known of the immigration consequences of his guilty plea
“he would not have pleaded guilty and would have insisted on
going to trial.” Lozano, 763 F. App’x at 12 (quoting Ferrara v.
United States, 456 F.3d 278, 293-94 (1st Cir. 2006)).
As explained above, by the time he received the PSR in the
Vermont case, which was before he was sentenced in that case, he
was aware that the immigration authorities were contending that
he was not a citizen of the United States, and that his
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conviction in that case would subject him to removal from the
United States. Yet, the petitioner did not seek to withdraw his
guilty plea in the Vermont case. Rather, and unlike at
sentencing in the SDNY case, the petitioner affirmatively argued
to the judge in Vermont that he should be afforded leniency
because he would be removed from the United States and that he
would therefore not be able to see his daughter grow up. GX 8,
at 2; GX 11, at 11-12. Despite full knowledge of the immigration
consequences of the plea, the petitioner proceeded to sentencing
in the Vermont case and affirmatively placed the issue of his
removal before the court at sentencing.
The government argues that the failure to withdraw his
guilty plea in Vermont demonstrates that he would not have
withdrawn his guilty plea in the SDNY case in 2005 had he been
informed of the deportation consequences of that plea. But the
Government overreads the cases on which it relies. In those
cases, the courts found it significant that the defendant
learned – after a guilty plea but before sentence – of the
immigration consequences of the plea in the case itself and did
not withdraw the plea prior to sentencing. See United States v.
Richards, 667 F. App’x 336, 338 (2d Cir. 2016) (immigration
consequences); United States v. Francis, 560 F. App’x 106, 106
(2d Cir. 2014) (same); see also United States v. Vaval, 404 F.3d
144, 152 (2d Cir. 2005) (Rule 11 generally); United States v.
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Cacace, 289 F. App’x 440, 441-42 (2d Cir. 2008) (restitution
consequences).
But the circumstances of the two pleas relevant to this
petition were quite distinct. The possible sentence for a
conviction in the Vermont case was far more significant and the
guilty plea in the Vermont case occurred ten years after the
plea in the SDNY case. The cases cited by the Government do not
dictate the result under these circumstances and no direct
inference about whether the petitioner would have pleaded guilty
in the SDNY case had he known then of the immigration
consequences can be drawn from the fact that he did not withdraw
his plea in the Vermont case.
However, the guilty plea in the Vermont case is relevant to
the resolution of the second question posed by the Court of
Appeals – whether the defendant would have pleaded guilty in the
SDNY case in 2005 had he known of the immigration consequences
of that plea – because the defendant’s credibility is crucial to
answering that question and the defendant’s statements about the
Vermont case undermine the petitioner’s credibility. The
petitioner was faced with the need to explain why it was
credible that he would not have proceeded with his guilty plea
in 2005 if he had been aware of the immigration consequences of
his plea when he went forward with his sentence in Vermont after
becoming aware of the immigration consequences of that plea.
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Initially, the petitioner simply denied that he was aware of the
immigration consequences of his plea in Vermont until after he
had been sentenced in Vermont. In January 2017, he stated in a
sworn declaration in support of his current petition that he
only became aware “of any claim by the Department of State that
I was not a United States citizen” after he had been sentenced
in Vermont. GX 14 ¶ 36. But that statement was plainly false.
The petitioner was aware of his immigration status and the
immigration consequences before he was sentenced in Vermont
because the facts appeared in the Vermont PSR and the petitioner
relied on the possible immigration consequences of a conviction
to seek leniency at sentencing. GX 7, at 14, 20; GX 11, at 1012.
Then at the evidentiary hearing in this case, the
petitioner asserted that, even though he sought leniency from
the sentencing court in Vermont based on his likely removal from
the United States, he did not actually believe he would be
removed from the United States, only “subject to deportation.”
Evid. Tr. 65-66, 73-74. Eventually, he conceded in the
evidentiary hearing that he was not truthful with the judge in
Vermont. Id. at 73-74. This series of self-serving and
untruthful statements by the petitioner undercuts his
credibility when he attempts to assert that he would not have

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pleaded guilty in 2005 in the SDNY case if he were aware at that
time of the immigration consequences of his plea.
Moreover, there is no support in the record that the
petitioner would have proceeded to trial in the SDNY case given
the nature of his criminal conduct and the facts surrounding his
plea and sentencing. The petitioner made a statement admitting
to the Hobbs Act robbery in 2005 and the petitioner has never
suggested there was any defense to that crime that would have
prevailed at trial. He pleaded guilty pursuant to a plea
agreement, and the PSR recommended a reduction in the Guideline
Sentencing Range for acceptance of responsibility, to which the
sentencing Court agreed. GX 4, at 10; GX 3 ¶ 19.
Facing the strong possibility of a conviction and the
possibly of an additional period of incarceration without any
realistic advantage from proceeding to trial, the petitioner’s
testimony that he would have gone to trial if he had known of
the immigration consequences is not credible; there is no
support for that contention other than the petitioner’s selfserving and less-than-credible assertion that he would have done
so. See Chhabra v. United States, 720 F.3d 395, 410 (2d Cir.
2013) (approving the decision not to grant coram nobis relief
based in part on the district court’s findings that the
petitioner was not credible when he stated that he would have
gone to trial); Yong Wong Park, 222 F. App’x at 83 (“We conclude
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that in the context of this case, Park’s contention that he
would not have pleaded guilty if he had known the deportation
consequences that flowed from his guilty plea is not
credible.”).
Thus, the Court finds that the petitioner is not credible
when he states that he would have gone to trial in the SDNY case
had he known of the immigration consequences of a conviction.
The facts surrounding his conviction, plea, and sentence support
the finding that the petitioner would have pleaded guilty even
if he had been aware of the immigration consequences of a
conviction.
III.
The Government also asks that the Court make a finding that
Lozano’s petition would not remedy any legal consequences from
his 2005 conviction because Lozano continues to be subject to
deportation based on the Vermont conviction. ICE added the
Vermont conviction as a basis of removal and the petitioner has
conceded that the Vermont conviction is an additional basis for
removal. GX 17, at 4; Evid. Tr. 47. However, that question goes
beyond the scope of the mandate in this case, and therefore the
Court declines to make any specific findings on that issue. See
Sompo Japan Ins. Co. of Am. v. Norfolk Southern Ry. Co., 762
F.3d 165, 175 (2d Cir. 2014) (“[W]here the mandate limits the
issues open for consideration on remand, the district court
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ordinarily may not deviate from the specific dictates or spirit
of the mandate by considering additional issues on remand.”).
The “specific dictates” and “spirit” of the mandate of the Court
of Appeals directed this Court to resolve two narrow preliminary
questions. The Court of Appeals considered the petition on
appeal in its entirety and it could have, if it had thought
necessary, directed this Court also to resolve on remand the
question whether Lozano’s petition would remedy any legal
consequences. The Court of Appeals did not direct this Court to
make findings on that question, and therefore the Court declines
to make findings beyond the “specific dictates” of the mandate.
See Puricelli v. Argentina, 797 F.3d 213, 218 (2d Cir. 2015)
(“[W]here a mandate directs a district court to conduct specific
proceedings and decide certain questions, generally the district
court must conduct those proceedings and decide those
questions.”).
CONCLUSION
After conducting an evidentiary hearing and considering the
arguments of the parties, the Court has made the following
findings of fact and conclusions of law in response to the
mandate of the Court of Appeals:
1. Sound reasons exist for Lozano’s failure to seek
earlier coram nobis relief and therefore he was
not dilatory in bringing this petition.
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2. For the reasons explained above, the evidence
shows that Lozano would nonetheless have entered
a guilty plea in the SDNY case had he known that
he was subject to deportation as a consequence of
that conviction.
SO ORDERED.
Dated:

New York, New York
January 30, 2020

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/s/ John G. Koeltl
____
John G. Koeltl
United States District Judge