United States v. Leger-Monegro

UNITED STATES OF AMERICA v. LUIS OSVALDO LEGER-MONEGRO

CRIMINAL NO. 1:10-CR-0356-1

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: May 5, 2014

(Chief Judge Conner)

MEMORANDUM

Presently before the court is a motion to set aside judgment (Doc. 61) pursuant to 28 U.S.C. § 2255 filed by Luis Osvaldo Leger-Monegro ("Leger-Monegro"). For the reasons set forth below, the court will deny the motion.

I. Background and Procedural History

Leger-Monegro is a citizen of the Dominican Republic who became a lawful permanent resident of the United States in 1996. (Doc. 61 ¶ 11). On December 15, 2010, a federal grand jury sitting in the Middle District of Pennsylvania returned a two-count indictment charging Leger-Monegro and his wife, Maribel Leger ("Maribel"), with providing false information to the United States Department of Housing and Urban Development ("HUD"), in violation of 18 U.S.C. § 1001, and stealing public money, in violation of 18 U.S.C. § 641. (Doc. 1). Leger-Monegro and his wife lived in a multi-family Section 8 project-based housing development funded by HUD. (Id.) From 2001 to 2010, they misrepresented their income to authorities, which affected the determination of their monthly rent amount. (Id.) The indictment alleges that such misrepresentations resulted in a loss to HUD of $73,458.00. (Id.) Attorney Jennifer P. Wilson ("Attorney Wilson") was appointed to represent Leger-Monegro in the criminal matter.

On August 8, 2011, Leger-Monegro pleaded guilty to providing false information to the government pursuant to the first count of the indictment. (Docs. 38, 39, 40). On January 30, 2012, the court sentenced Leger-Monegro to two years probation. (Doc. 55). The court also ordered Leger-Monegro and his wife to pay $73,458.00 in restitution to HUD. (Id.)

Following Leger-Monegro's guilty plea, the Department of Homeland Security charged Leger-Monegro with removal as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). (Doc. 78 at 5). Leger-Monegro qualifies as an aggravated felon eligible for removal pursuant to 8 U.S.C. § 1101(a)(43)(M)(i), which defines an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" as an aggravated felony. Defendant was ultimately removed to the Dominican Republic in approximately October 2012. (Doc. 72 at 15).

On February 11, 2013, Leger-Monegro filed the instant motion to set aside the judgment. (Doc. 61). He alleges that Attorney Wilson provided ineffective assistance of counsel by failing to adequately inform him of the deportation consequences of his guilty plea. (Id. ¶¶ 14-18). Namely, Leger-Monegro stated in his motion that Attorney Wilson directed him to consult with immigration counsel, who told him that as long as he was not sentenced to one year or more of incarceration, he would not be subject to removal. (Id. ¶ 16). The court conducted an evidentiary hearing on Leger-Monegro's motion on November 8, 2013. (Doc. 72).

Leger-Monegro was not able to testify at the hearing because of his removal to the Dominican Republic. However, Maribel testified that they sought legaladvice from an immigration attorney named Ahmad Rashad ("Attorney Rashad") in Harrisburg. (Id. at 8, 16). Maribel stated that the immigration attorney suggested that Leger-Monegro should seek a sentence of less than a year in jail in order to avoid deportation. (Id. at 11). Leger-Monegro's wife testified that "we would have fought it" had they known that deportation was a possibility under the plea agreement. (Id. at 12).

Attorney Wilson also testified at the hearing. She testified that Leger-Monegro's immigration status was the "most significant factor" in responding to the criminal charges and undergoing plea negotiations with the government. (Id. at 20-21). Leger-Monegro "readily agreed" with Attorney Wilson that, based on the strong evidence against him, "there would be nothing gained by taking his case to trial." (Id. at 34). Attorney Wilson repeatedly advised Leger-Monegro that one consequence of pleading guilty to the offenses could be deportation. (Id. at 20-21). She initially asked the government to consider a guilty plea to a misdemeanor offense, but the government refused. (Id. at 22). Additionally, according to Attorney Wilson, Leger-Monegro "was very keen to have a probationary sentence as opposed to an incarcerative sentence." (Id. at 23).

In June 2011, Attorney Wilson encouraged Leger-Monegro to contact an immigration law specialist for additional advice concerning the possible deportation consequences connected to a conviction. (Id. at 23-24). Several weeks later, Attorney Rashad contacted Attorney Wilson and told her that he had met with Leger-Monegro. (Id. at 24). Attorney Rashad advised Attorney Wilson that "itwould be better from an immigration perspective if the plea agreement itself did not contain a dollar amount." (Id. at 24-25). Attorney Rashad also advised Attorney Wilson that "if the sentence were a probationary sentence of 12 months less a day, then that would considerably improve Mr. Leger-Monegro's odds of not facing an immigration consequence." (Id. at 25-26). Attorney Wilson emphasized that Attorney Rashad did not advise her that receiving a probationary sentence of less than 12 months "would be a guarantee or that that was a perfect solution. It was simply expressed to me in terms of improving the situation." (Id. at 31).

Based on Attorney Rashad's advice, Attorney Wilson obtained consent from the government to remove the loss amount from the plea agreement. (Id. at 25). Leger-Monegro then met with Attorney Wilson and they reviewed the final plea agreement together. (Id. at 27). The plea agreement was non-binding, with no consensus on sentencing, so Attorney Wilson repeatedly advised her client "that there were no guarantees with respect to the sentence" or "with respect to deportation consequences." (Id. at 29-30).

Following the hearing, the court allowed for the record to remain open until December 31, 2013, to permit defense counsel to attempt to obtain Leger-Monegro's testimony. Defense counsel did not provide any additional information after the evidentiary hearing. The court closed the record on January 7, 2014 and ordered supplementary briefing. (Doc. 71). The motion is fully briefed and ripe for disposition.

II. Legal Standard

Under 28 U.S.C. § 2255, a person "in custody" may move the sentencing court to vacate, set aside, or correct the movant's sentence.¹ In general, relief under § 2255 is afforded based on one of four grounds: (1) the sentence was imposed in violation of the Constitution or other federal laws; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. R. GOVERNING &SECT 2255 CASES 1(a).

A collateral attack based on ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, a movant must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and (2) that the deficient representation was prejudicial. See id. at 687-88. Conclusory allegations are insufficient to entitle a movant to relief under § 2255. See Sepulveda v. United States, 69 F. Supp. 2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

In determining whether counsel has satisfied the objective standard of reasonableness in accordance with the first prong, courts must be highly deferential toward counsel's conduct. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 711 (citing Strickland, 466 U.S. at 689-90).

To satisfy the prejudice prong, the movant must show that, but for counsel's errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. The district court need not carry out its analysis of the two prongs in a particular order or even address both prongs of the inquiry if the defendant makes an insufficient showing in one. Id. at 697.

III. Discussion

To establish ineffective assistance of counsel, a defendant must satisfy both prongs of the Strickland test by showing that: (1) counsel's representation was objectively unreasonable; and (2) counsel's deficient performance was prejudicial. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland, 466 U.S. at 688, 694). Leger-Monegro fails to demonstrate that Attorney Wilson's advice was deficient or that any deficient performance on her behalf caused him prejudice.

1. First Prong of the Strickland Test

The court must first determine whether Attorney Wilson provided Leger-Monegro with effective assistance of counsel. The Supreme Court determined in Padilla v. Kentucky, 559 U.S. 356 (2010) that a criminal defense attorney must inform her client when a conviction of pending criminal charges may result in deportation. Moreover, in cases where the law is sufficiently "succinct and straightforward," defense attorneys are required to advise their non-citizen clients of the specific removal consequences of their guilty plea, rather than simply advising the clients of a general risk or possibility of removal. Id. at 369. Such requirements are in addition to defense attorneys' overall duty to refrain from providing any affirmative misadvice concerning deportation. Id. at 369-71; see also id. at 388 (Alito, J., concurring) ("Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim."); Gudiel-Soto v....