Downs-Morgan v. U.S.

Citation765 F.2d 1534
Decision Date23 July 1985
Docket NumberP,DOWNS-MORGA,No. 84-5549,84-5549
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
PartiesDerricketitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Amanda Maxwell, Miami, Fla., for defendant-appellant.

Jeffrey A. Bernstein, Miami, Fla., for amicus curiae American Immigration Lawyers Assn.

Stanley Marcus, U.S. Atty., Richard H. Kamp, Jon May, Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and HENDERSON, Circuit Judges, and NICHOLS *, Senior Circuit Judge.

Albert J. HENDERSON, Circuit Judge:

Derrick Downs-Morgan appeals from an order of the United States District Court for the Southern District of Florida denying his petition to vacate his sentence pursuant to 28 U.S.C. Sec. 2255 without first conducting an evidentiary hearing. Because the facts alleged in the petition warrant collateral relief, we reverse and remand for an evidentiary hearing.

Morgan, a resident of Nicaragua, was indicted in the district court for conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952(a), 963 (Count I) and possession with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846 (Count II). According to the allegations of his petition, he originally pled not guilty to both charges, but later changed his plea to guilty on Count I after the government agreed to dismiss Count II and his attorney represented that the conviction would not subject him to deportation to Nicaragua.

On November 23, 1983, over twenty months into his three year sentence, Downs-Morgan applied for political asylum in the United States, alleging that his anticommunist views would subject him to harsh punishment or death upon his return to Nicaragua. While the request was pending, he was released on parole to the custody of the Immigration and Naturalization Service. 1

He then learned for the first time that his drug conviction made him subject to deportation under 8 U.S.C. Sec. 1251(a)(11), and excludable from the United States under 8 U.S.C. Sec. 1182(a)(23). On May 29, 1984, he filed a "Petition for Writ of Coram Nobis, Motion for Leave to Withdraw Plea of Guilty and Motion to Vacate Judgment and Sentence" in the district court requesting an evidentiary hearing and alleging that his guilty plea was not entered intelligently and that he was denied effective assistance of counsel. The district court correctly treated the petition as a motion made pursuant to 28 U.S.C. Sec. 2255, 2 see, e.g., Wright v. United States, 624 F.2d 557, 558 (5th Cir.1980) (section 2255 motion used to collaterally attack constitutionality of guilty plea), 3 and summarily denied it on June 14, 1984 without holding a hearing. 4

On appeal, Downs-Morgan contends that he was deprived of due process of law because the trial court failed to apprise him of the immigration consequences of his guilty plea and because he based his plea on the erroneous representation by his attorney that he would not be subject to deportation and thus, would not be returned to Nicaragua. In addition, he urges that his attorney's advice constituted ineffective assistance of counsel. 5

The case must be remanded to the district court for an evidentiary hearing unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255; see Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169, 172 (1973) (per curiam). We must determine, therefore, whether the undisputed facts in the record and the allegations of Downs-Morgan's petition warrant collateral relief under section 2255.

I. Fed.R.Crim.P. 11

Federal Rule of Criminal Procedure 11 requires the trial court to personally inform the defendant of certain specified rights and possible consequences before accepting a guilty plea. See Fed.R.Crim.P. 11(c), (d), (f). 6 Collateral relief is available for violations of Rule 11 only when the infraction is a "fundamental defect which inherently results in a complete miscarriage of justice" or an "omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634, 638 (1979); see also Wright, 624 F.2d at 558-59; United States v. Crook, 607 F.2d 670, 672 (5th Cir.1979) (per curiam).

The trial judge is obligated under the rule to personally disclose only those consequences of a guilty plea specifically set forth in the rule. United States v. Dayton, 604 F.2d 931, 937 (5th Cir.1979) (en banc) (consequences listed are "inclusive and exclusive"), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). The effect of immigration status is not mentioned in the rule. Although the rule requires the court to divulge the "mandatory minimum penalty" and the "maximum possible penalty," Fed.R.Crim.P. 11(c)(1), we do not read these phrases as encompassing possible deportation or exclusion. The Advisory Committee Notes to the rule state that the "objective is to insure that a defendant knows what minimum sentence the judge must impose and what maximum sentence the judge may impose." Notes of the Advisory Committee on Rule 11, 1974 Amendment (emphasis added); see also Michel v. United States, 507 F.2d 461, 466 (2d Cir.1974) (the judge must assure "only that the punishment that he is meting out is understood") (emphasis in original). Furthermore, neither deportation under 8 U.S.C. Sec. 1251(a)(11) nor exclusion under 8 U.S.C. Sec. 1182(a)(23) is "mandatory," both matters being left to the discretion of the attorney general. See, e.g., Johns v. Department of Justice, 653 F.2d 884, 889 (5th Cir.1981).

All the courts considering the various versions of Rule 11 agree that it does not require the trial judge to apprise the defendant of the possible immigration consequences of his guilty plea. See United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982); Garcia-Trigo v. United States, 671 F.2d 147, 150 (5th Cir.1982); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.1976); Michel v. United States, 507 F.2d 461, 464-65 (2d Cir.1974); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972) (construing similar rule using federal precedent), 7 cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973).

We conclude that the undisputed facts in the record and Downs-Morgan's allegations do not establish a violation of Rule 11. As a result, we need not consider whether his contentions warrant collateral relief for that reason.

II. Ineffective Assistance of Counsel

Downs-Morgan next contends that he was denied effective assistance of counsel in deciding to plead guilty. In his petition and accompanying sworn affidavit he alleges that, in response to a specific inquiry, his attorney misinformed him that his guilty plea would not result in his deportation. This misrepresentation, according to Downs-Morgan, greatly affected his decision whether to plead guilty because he will "certainly" be imprisoned "for many years" and "possibly" be executed upon his return to Nicaragua. 8 The issue is one of first impression.

"An accused who has not received reasonably effective assistance from counsel in deciding to plead guilty cannot be bound by his plea" because a plea of guilty is "valid only if made intelligently and voluntarily." 9 Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984) (per curiam); see also Ford v. Ford, 749 F.2d 681, 683 (11th Cir.1985); see generally Strickland v. Washington, --- U.S. ----, ----, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693 (1984); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). 10 However, the fact that "a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing." McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763, 773 (1970). "Counsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice...." Wofford, 748 F.2d at 1508.

To be entitled to collateral relief, the accused must "prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act." Id., 397 U.S. at 774, 90 S.Ct. at 1450, 25 L.Ed.2d at 775; see, e.g., Johnson v. Wainwright, 456 F.2d 1200 (5th Cir.1972) (per curiam) (patently incorrect advice that maximum sentence was fifteen years rather than twenty years did not render guilty plea involuntary or uninformed). When "counsel has induced his client to plead guilty based on patently erroneous advice, ... the plea [may be] ... involuntary and unknowing." United States v. Rumery, 698 F.2d 764, 766 (5th Cir.1983). 11

Both parties rely on cases involving counsel's failure to inform the accused of the immigration consequences of his guilty plea. The courts considering whether such an omission constitutes ineffective assistance of counsel are divided on the issue. Compare Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223, 224-25 (1982) (ineffective assistance found) and Edwards v. State, 393 So.2d 597, 599 (3d DCA Fla.) (ineffective assistance found under state constitution), review denied, 402 So.2d 613 (1981), with United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (no ineffective assistance) and United States v. Santelises, 476 F.2d 787, 789-90 (2d Cir.1973) (same) and Tafoya v. State, 500 P.2d 247, 251-52 (Alaska 1972) (same), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973). The former Fifth Circuit has expressly deferred the question. See Zinnanti v. Immigration and Naturalization Service, 651 F.2d 420,...

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