United States v. Nataniel

UNITED STATES OF AMERICA, v. JUAN ARIAS NATANIEL, Defendant-Petitioner.

15-CR-588 (MKB)

17-CV-7605 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 13, 2019

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

On November 23, 2016, Defendant-Petitioner Juan Arias Nataniel pleaded guilty to one count of importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3). (Minute Entry dated Nov. 23, 2016, Docket Entry No. 19.) On May 24, 2017, the Court sentenced Petitioner to time served and three years of supervised release. (Minute Entry dated May 24, 2017.) Currently before the Court is Petitioner's motion to vacate his conviction pursuant to 28 U.S.C. § 2255. (Pet'r Mot. to Vacate ("Pet."), Docket Entry No. 28.) The Government opposes the motion. (Gov't Opp'n to Pet. ("Gov't Opp'n"), Docket Entry No. 35.) For the reasons discussed below, the Court denies the petition.

I. Background

On October 19, 2015, Petitioner arrived at John F. Kennedy International Airport on a flight from Santo Domingo, Dominican Republic, in possession of two checked pieces of luggage and one carry-on bag. (Presentence Investigation Report ("PSR") ¶¶ 3-4, Docket Entry No. 21.) As part of a routine border enforcement inspection, Customs and Border Protection ("CBP") officers conducted an x-ray examination of Petitioner's luggage and observed an anomaly inside of what appeared to be food items in his bags. (Id. ¶ 4.) CBP officers asked Petitioner whether the bags were his, and he replied that they were. (Id.)

The CBP officers escorted Petitioner with his luggage to a private search room. (Id. ¶ 5.) The CBP officer conducting the search identified packaged sweets in one of Petitioner's bags. (Id.) A search of the sweets revealed a white powdery substance that field tested positive for the presence of cocaine. (Id.) According to a Drug Enforcement Administration laboratory report, a total of 3956.7 grams of cocaine were recovered from Petitioner's luggage. (Id. ¶ 6.)

a. Petitioner's plea

On November 23, 2016, Petitioner pleaded guilty before Magistrate Judge Peggy Kuo to count one of the Indictment charging him with importation of a controlled substance containing cocaine in violation of 21 U.S.C. § 952(a).¹ (Minute Entry dated Nov. 23, 2016; Plea Hr'g Tr. 24:10-31:23, annexed to Pet. as Ex. E.) Paragraph four of Petitioner's plea agreement provides in pertinent part:

The defendant understands that he may be subject to removal as set forth in paragraph [six] below. Nevertheless, the defendant affirms that he wants to plead guilty and to waive his right to appeal as set forth at the beginning of this paragraph, even if the consequence is the defendant's automatic removal from the United States.

(Plea Agreement ¶ 4, annexed to Gov't Opp'n as Ex. A.) The plea agreement also states in paragraph six:

The defendant recognizes that pleading guilty may have consequences with respect to the defendant's immigration status if the defendant is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which the defendant is pleading guilty. Indeed, because the defendant is pleading guilty to a violation of 21 U.S.C. § 952(a), removal is presumptively mandatory. Removal and other immigration consequences are the subject of a separate proceeding, however, and the defendant understands that no one, including the defendant's attorney or the District Court, can predict with certaintythe effect of the defendant's conviction on the defendant's immigration status. The defendant nevertheless affirms that the defendant wants to plead guilty regardless of any immigration consequences that the defendant's plea may entail, even if the consequence is the defendant's automatic removal from the United States.

(Id. ¶ 6.) During the plea hearing, Judge Kuo asked Petitioner, inter alia, whether he was of sound mind, (Plea Hr'g Tr. 4:20-22), whether he was entering the plea voluntarily, (Plea Hr'g Tr. 24:14-16), whether he had any issues communicating with his attorney, (Plea Hr'g Tr. 3:20-22), whether he was satisfied with the representation he had received, (Plea Hr'g Tr. 7:7-9), and whether his attorney explained the contents of his plea agreement to him, (Plea Hr'g Tr. 11:18-20). Judge Kuo also discussed with Petitioner the possibility that his guilty plea could result in his removal from the United States:

THE COURT: All right. So, Mr. Arias, since you are not a citizen, I need to tell you about some potential consequences of your guilty plea. As stated in paragraph [six] of the plea agreement, by pleading guilty another consequence may be that you are deported from this country and will be forbidden from reentering the United States without permission of the Attorney General or some other authority. Removal and other immigration consequences will be the subject of a separate proceeding. Do you understand that there may be immigration consequences to your guilty plea today?

THE DEFENDANT: Yes, I understand.

THE COURT: Do you understand that no one including your attorney or the Court can predict with certainty the effect of your conviction in this case on your immigration status[?]

THE DEFENDANT: Yes.

THE COURT: Do you still wish to plead guilty regardless of any immigration consequences that may result from your plea, even if those consequences include your automatic removal from the United States?

THE DEFENDANT: It's sad but I acknowledge it.

THE COURT: All right. So you understand.

THE DEFENDANT: Yes, I understand.

(Plea Hr'g Tr. 15:8-16:7.)

b. Petitioner's sentencing

The Court sentenced Petitioner on May 24, 2017. (Minute Entry dated May 24, 2017.) At the Court's request, Petitioner allocuted to additional facts supporting his guilty plea. (Sentencing Hr'g Tr. 2:14-7:3, annexed to Gov't Opp'n as Ex. B.) The Court thereafter accepted Petitioner's plea and sentenced Petitioner to time served with three years of supervised release. (Sentencing Hr'g Tr. 7:4-11; 18:9-20; Judgment, Docket Entry No. 26.) Petitioner did not pursue a direct appeal of his conviction or sentence.

c. Petitioner's motion to vacate

Petitioner, proceeding pro se,² filed the instant motion on November 27, 2017, seeking to vacate his conviction pursuant to section 2255.³ Petitioner asserts that he was denied effective assistance of counsel, arguing that his attorney should have "repeated to him . . . his [i]mmigration consequences," (id. at 5, ¶ 12), and "failed to negotiate an [i]mmigration-safer plea," (id. at 8, ¶ 2). Petitioner further argues that had he known his attorney could have negotiated such a plea, he would not have pleaded guilty to 21 U.S.C. § 952(a), and would instead have gone to trial on the charges against him. (Id. at 1-2, ¶ 1.)

II. Discussion

a. Standard of review

Under 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner in custody pursuant to a sentence imposed by a federal court "may move the court which imposed the sentence to vacate, set aside or correct the sentence" if the "sentence was imposed in violation of the Constitution or laws of the United States . . . or was in excess of the maximum authorized by law or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Gonzalez v. United States, 792 F.3d 232, 238 (2d Cir. 2015) ("[A]ll challenges to a [federal] conviction and sentence can [] be brought in a [] [section] 2255 motion . . . ."); Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004) ("[Section] 2255 is the appropriate vehicle for a federal prisoner to challenge the imposition of his sentence." (citing Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997))). While section 2255(a) refers to a petitioner's motion to "vacate, set aside or correct" a criminal sentence, this provision is understood to permit challenges to both a petitioner's sentence and conviction. See Johnson v. United States, 623 F.3d 41, 45 (2d Cir. 2010) ("As a practical matter, courts routinely allow federal prisoners to challenge their conviction, in addition to their sentence, under [section] 2255(a). For that purpose, the word 'sentence' in [section] 2255(a) is understood to encompass both the conviction and the sentence.").

In order to prevail on a section 2255 petition, a petitioner must demonstrate "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). "A motion under [section] 2255 is not a substitute for an appeal." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (quoting United States v. Munoz, 143 F.3d632, 637 (2d Cir. 1998)). Accordingly, "[w]here a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a [section] 2255 motion only if the defendant can demonstrate either: (1) 'cause for failing to raise the issue, and prejudice resulting therefrom,'; or (2) 'actual innocence.'" Id. (internal citation omitted) (first quoting Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); and then quoting Bousley v. United States, 523 U.S. 614, 622 (1998)); see also Tucker v. United States, No. 11-CV-6469, 2012 WL 4354806, at *5 (S.D.N.Y. Sept. 24, 2012). However, this rule is inapplicable to Sixth Amendment claims for ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504 (2003) (holding that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under [section] 2255, whether or not the petitioner could have raised the claim on direct appeal").

"In ruling on a motion under [section] 2255, the district court is required to hold a hearing '[u]nless the motion and the files and records of the case...