Superville v. United States

284 F.Supp.3d 364

Nekebwe SUPERVILLE, Petitioner,

v.UNITED STATES of America, Respondent.

13–CR–302

17–CV–5856

United States District Court, E.D. New York.

Signed February 27, 2018

Vinoo P. Varghese, Varghese & Associates, 65 Broadway, 7th floor, New York, NY 10006, 212–430–6469, Fax: 646–292–5169, Email: info@vargheselaw.com, for Nekebwe Superville.

Marcia M. Henry, Tiana A. Demas, U.S. Attorney's Office, Eastern District Of New York, 271 Cadman Plaza East, Brooklyn, NY 11201, 718–254–6393, Fax: 718–254–6076, Email: marcia.henry@usdoj.gov, tiana.demas@usdoj.gov, for United States of America.

MEMORANDUM AND ORDER

Jack B. Weinstein, Senior United States District JudgeContents

I. Introduction ...366

II. Facts...367

A. Background of Crime ...367

B. Immigration Advice...367

C. Concern for Deportation ...369

D. Deportation Warnings...370

III. Law ...371

A. Statute of Limitations Under 28 U.S.C. § 2255...371

B. Ineffective Assistance of Counsel...372

C. Writ of Error Coram Nobis ...373

IV. Application of Facts to Law...374

A. Statute of Limitations Under 28 U.S.C. § 2255...374

B. Ineffective Assistance of Counsel...374

C. Writ of Error Coram Nobis ...376

V. Conclusion ...376

I. Introduction

Three years after a guilty plea and sentencing, Petitioner Nekebwe Superville moves for a writ of habeas corpus or writ of error coram nobis, and to vacate his conviction, claiming that his attorney misled him about the immigration consequences of his conviction. His application is denied on substantive and procedural grounds.

Relying on recent precedent from the United States Supreme Court, Superville argues that incorrect advice from his attorney led him to believe that he would probably not be deported if he pled guilty, and that this advice induced him to plead guilty rather than stand trial. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ; Lee v. United States, ––– U.S. ––––, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). The record and contemporaneous documentation does not support this claim. Consistent with standard practice, a magistrate judge and a district judge warned Superville that he could face deportation if he were to plead guilty. The mandatory nature of his deportation appeared in the terms of his plea agreement, which the court finds was read by him.

Even if Superville's attorney advised him incorrectly, the immigration consequences of his plea were explained to him before he was sentenced on his plea of guilty. About his guilt of the crimes he was sentenced for, there is no doubt.

The court held an evidentiary hearing on this motion. See Mot. Hearing Tr. ("Hr'g Tr."), Feb. 14, 2018, Feb.16, 2018. Three witnesses testified: Howard Greenberg, Superville's former attorney, Phillis Superville, the petitioner's mother, and the petitioner, Nekebwe Superville. Superville and Greenberg gave conflicting accounts of the immigration advice that Superville received before deciding to plead guilty.

The court does not credit Superville's testimony in light of the contemporaneous record. He did not demonstrate that he would have stood trial rather than plead guilty had he been more forcefully advised of the serious risk of deportation he faced. The evidence against him was overwhelming. If he was found guilty—as he almost certainly would have been—he faced a mandatory ten-year term of imprisonment.

In reaching its conclusion, the court did not take into account the change in Department of Justice administration to increase deportation of criminals that occurred long after Superville pled guilty and the reality that this may have increased Superville's prospects of deportation after he was convicted. Both counsel agreed this was appropriate. Hr'g Tr. 147:20–148:11.

II. Facts

A. Background of Crime

On February 18, 2014, Superville pled guilty to one count of conspiring to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 and § 841 (b)(1)(A)(vii) ; and one count of conspiring to the transfer and delivery of United States currency involving the proceeds of narcotics trafficking, in violation of 18 U.S.C. § 1956(h) and § 1956(a)(1)(B)(i). See Feb. 18, 2014 Transcript ("Plea Tr."), ECF No. 117.

In 2009, Superville began working for a drug trafficking organization as a minor participant. Presentence Investigative Report ("PSR") at ¶¶ 8–9. He accepted a loan from one of the members of the organization to start a business. Id. at ¶ 12. The business failed and he was unable to repay his debts, which led him to his taking a bigger role in drug trafficking. Id.

His role in the drug conspiracy was significant. One of Superville's co-conspirators was arrested in September 2010 and Superville partially took over his role managing a FedEx account that the organization used to ship marijuana. Id. at ¶¶ 13–19. He traveled to Arizona several times in order to meet with suppliers on behalf of the organization and to facilitate its illegal activities. Id. Superville continued working with the drug trafficking organization for some years, taking a temporary absence in 2011 after a dispute with one of his co-conspirators. Id. He traveled to California in this time in search of new sources of supply. Id. at ¶ 17.

In early 2013, federal agents tracked Superville's co-conspirator during a trip to Arizona and observed him ship marijuana through FedEx. Id. at ¶¶ 20–21. Superville was arrested on May 8, 2013 at his home in Queens, New York and charged with intent to distribute 1,000 kilograms of marijuana and laundering $3,000,000 in drug proceeds. Id. at ¶¶ 28, 30.

Superville cooperated fully with the government following his arrest. See 5k.1 Letter, ECF No. 219. He testified at the trial of one of his co-conspirators, with whom he shared a close relationship. Id. at 3. The government wrote a 5k.1 letter for him, thus avoiding the ten-year minimum.

B. Immigration Advice

Superville retained a private defense attorney, Howard Greenberg, to represent him in his criminal case. Superville Aff. at ¶ 9, ECF No. 266, Ex. 7. He retained private counsel because he is not a United States citizen and feared deportation. Id. at ¶ 10.

According to an affirmation submitted prior to the hearing, Superville asked Greenberg whether a guilty plea would result in his deportation and Greenberg told him that "it would be something [they] would address if it came up later," and that Superville "should be ‘okay" if [he] ‘kept [his] head down’ and ‘stayed out of trouble.’ " Id. at ¶ 13.

At the hearing, Superville testified that the warning given by Greenberg was stronger than that stated in his affirmation. Greenberg, Superville testified, told him that he "wouldn't get deported" if he did not spend time in prison and stayed out of future trouble. Hr'g. Tr. 97:2–22. This testimony is not believed by the court. His attorney was highly experienced and did not promise non-deportation. At the least, Superville was informed that he was eligible for deportation upon conviction.

Superville testified to having issues with Greenberg's representation apart from his immigration advice. Superville thought that Greenberg was "pushing [him] to cooperate"; apparently, the first time they discussed cooperation was after a court appearance with an Assistant United States Attorney present. Id. 93:12–94:16. Because of these concerns, Superville decided to meet with another criminal defense attorney for a second opinion on his case. Id. 103:5–14. Superville asked this attorney about the immigration consequences of his case, and was counseled to seek the advice of an immigration attorney. Id. 104:5–10, 139:7–140:15.

Superville took this advice and sought the opinion of an immigration attorney. Id. He stated in his affirmation:

As being deported was my greatest fear, I went to an immigration attorney on my own and met with my mother's immigration attorney, who she had retained to help file her United States citizenship papers. He told me that if I went to trial, got convicted, and got jail, I would definitely be deported. However, he said if I took a plea, I would very likely not get deported if I didn't go to jail and then stayed out of future trouble.

Superville Aff. at ¶ 16. Superville claims he recounted this advice to Greenberg, who "just nodded" as he listened. Id. at ¶ 17. Greenberg disputes hearing about the advice from Superville's immigration attorney. Hr'g Tr. 14:10–16.

Superville's mother, Phillis Superville, in part corroborated her son's account. She testified that while speaking to Greenberg before Superville's bond hearing he told her "not to worry about" immigration consequences because he was an immigration attorney as well. Hr'g. Tr. 72:15–20. They spoke about immigration consequences at another time:

I was concerned about my son pleading guilty, and how it would affect his immigration status. And Mr. Greenberg said to me that he needs to—once my son stays out of trouble, he should be okay and told me not to worry again. And he said all he has to do is keep a low profile.

Id. 73:16–23.

Howard Greenberg, Esq. told a different story. Greenberg testified that he was retained by Superville's mother and immediately sought to get Superville bailed out of jail. Hr'g. Tr. 5:8–13. Superville was primarily concerned with getting out of jail. Id. 7:13–19. About the immigration advice he gave, Greenberg stated:

I told him that—I never told him he would be deported as a result of the plea. I told him that he could be deported as a result of the plea. And I say that because nobody can predict any such outcome. I told him that if he was removed from the country, he might not be allowed to return. And I told him if he ever were able to return, he might well be denied naturalization.

Id. 12:22–13–3. Greenberg also testified:

I told him if everything went the way we prayed and hoped, it might go that the best thing he can do is just live his life and keep his head down. And he asked me, what do you mean by keep my head down? And I said, For God's sake, don't get re-arrested for anything

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