Alam v. U.S.
|630 F.Supp.2d 647
|23 June 2009
|No. 1:07cr119.,No. 1:09cv114.,1:09cv114.,1:07cr119.
|U.S. District Court — Western District of North Carolina
|Imran ALAM, Petitioner, v. UNITED STATES of America, Respondent.
Petitioner is a Pakistani citizen with permanent legal resident status who pled guilty to, and was sentenced for, operating an illegal gambling business, in violation of 18 U.S.C. § 1955. He now seeks to have his conviction and sentence vacated pursuant to 28 U.S.C. § 22551 on the ground that he received constitutionally ineffective assistance of counsel in connection with both the decision to plead guilty to the charge and the decision not to seek to withdraw the plea prior to sentencing. As it happens, the government agrees.
For the reasons that follow, it is clear, as the parties agree, that petitioner received constitutionally ineffective assistance of counsel, absent which there is a reasonable probability that petitioner would not have pled guilty. Accordingly, the petition must be granted and petitioner's conviction and sentence must be vacated.
Petitioner Imran Alam is one of forty-one defendants charged in a series of public corruption cases involving approximately five indictments and nine criminal informations. A total of thirty-five defendants, including petitioner, pled guilty to various charges. In addition, following a three-week jury trial in which petitioner testified, two defendants—including former Buncombe County, North Carolina, Sheriff Bobby Medford—were found guilty of all ten counts charged against them, which included honest services wire fraud, obstruction of state and local law enforcement, and conspiracies to commit extortion, wire fraud, money laundering, and operation of an illegal gambling business. The charges against three other defendants were dismissed, and one defendant is now deceased. All of the thirty-seven defendants who either pled guilty or were found guilty have been sentenced, and many of those defendants, including petitioner, received sentence reductions pursuant to Rule 35(b), Fed.R.Crim.P., for providing substantial assistance to the government. Only those facts pertinent to the petition are set forth here.2
On July 31, 2007, as part of the ongoing public corruption investigation, petitioner was arrested pursuant to a sealed complaint charging him with conspiracy to operate an illegal gambling business in violation of § 1955. Two days later, a Western District of North Carolina grand jury returned an indictment against approximately twenty-two individual s, including petitioner, charging petitioner with (i) conspiracy to violate § 1955; (ii) a substantive § 1955 violation; and (iii) conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a) and 1957. The record reflects that Mr. Jack W. Stewart (hereinafter referred to as "Counsel"), who has been licensed to practice in federal court since approximately 1981, served as petitioner's counsel of record from petitioner's August 1, 2007, initial appearance until May 2008.3
Petitioner, a Pakistani citizen and permanent legal U.S. resident,4 was concerned from the outset about the effect of a criminal conviction on his immigration status. Indeed, the record reflects that he asked Counsel repeatedly about this issue, Thus, in or about November 2007, after the government proposed that petitioner accept a
plea agreement to plead guilty to operating an illegal gambling business, in violation of § 1955, Counsel contacted more than one immigration lawyer5 to inquire whether a § 1955 conviction would lead to petitioner's removal from the United States. None of those immigration attorneys were formally retained or paid by petitioner. According to Counsel, the immigration lawyers he contacted advised that because a § 1955 conviction is not an "aggravated felony" (as defined by 8 U.S.C. § 1101(a)(43)), petitioner would not be removed. Although Counsel represented at a May 2009 teleconference hearing in this matter that he also personally researched the issue, he indicated (i) that he relied primarily upon the advice of the immigration attorneys and (ii) that his research did not reveal any authority to the contrary. Both petitioner and Counsel agree that in late November 2007, shortly before petitioner's plea, Counsel advised petitioner (i) that a § 1955 conviction was not an "aggravated felony" and (ii) that acceptance of the government's proposed plea agreement would thus not result in petitioner's removal or deportation. On receiving this advice, petitioner decided to accept the plea agreement, a decision petitioner avers he would not have made but for Counsel's assurance that petitioner would not be removed or deported. Shortly thereafter, on December 7, 2007, petitioner appeared before United States Magistrate Judge Dennis L. Howell and pled guilty to a one-count criminal information charging him with a § 1955 violation.6 The record reflects that immigration consequences were not addressed during the course of the December 7, 2007, proceeding by Magistrate Judge Howell, the government, or Counsel.
Thereafter, in early April 2008, a few weeks prior to petitioner's scheduled sentencing hearing, Counsel received a letter from one of the immigration attorneys he had previously contacted alerting him (i) that a § 1955 conviction was, in fact, an "aggravated felony" that would trigger petitioner's immediate removal upon conviction; and (ii) that Counsel should move for an immediate withdrawal of petitioner's plea. Following receipt of this letter, Counsel met with petitioner and advised petitioner that the previous advice Counsel had given petitioner was wrong; a § 1955 conviction is an "aggravated felony" under § 1101(a)(43)(J) that would result in petitioner's removal from the United States. Moreover, Counsel also advised petitioner not to withdraw his plea prior to, or at his sentencing hearing. According to Counsel, this advice was the result of his "strategic decision" that seeking to withdraw the plea might well have impacted petitioner's usefulness to the government at former Sheriff Medford's trial, which was set to begin on or about the same date as petitioner's sentencing. Stewart Supplemental Aff. (No. 1:07cr119, Docket No. 57, Ex. 4), at ¶ 4. Counsel's affidavit further avers that "[h]aving made this decision and believing that there was no real alternative, [he] did not offer a choice or set forth
any alternatives to [petitioner]." Id. at ¶ 6, Rather, the record reflects that Counsel advised petitioner that because the government attorneys prosecuting petitioner had no interest in seeking to remove him,7 Counsel could take up petitioner's immigration problem after petitioner's sentencing and the completion of petitioner's cooperation, including his testimony at former Sheriff Medford's trial.
On April 30, 2008, petitioner was sentenced to twenty-one months imprisonment, to be followed by three years of supervised release. Forfeiture was also ordered as a part of the sentence,8 and in this regard petitioner consented to forfeiture of three pieces of real property and approximately $1.6 million in cash or substitute assets. Although Counsel referred to petitioner's immigration status at sentencing and said it was "greatly in jeopardy," no effort was made to withdraw petitioner's plea. Sentencing Tr. (No. 1:07cr119, Docket No. 45), at 18.
Following sentencing, petitioner was permitted to remain on pretrial release pending a reporting date from the Bureau of Prisons, in part because of his ongoing cooperation with respect to the broader public corruption investigation. Petitioner subsequently appeared as a government witness at former Sheriff Medford's trial, admitting that he operated an illegal gambling business and testifying further that he had met with Medford and paid the then-sheriff bribes to avoid law enforcement interference with petitioner's illegal gambling operation. After receiving two extensions of his reporting date, petitioner reported for his term of incarceration on September 18, 2008.
Approximately three weeks later, on October 8, 2008, the government's motion to reduce sentence pursuant to Rule 35(b), Fed.R.Crim.P., was granted, and petitioner's term of imprisonment was reduced to time served (approximately twenty-five days) with a special condition of supervised release that petitioner serve five months of community confinement. In the course of the Rule 35 hearing, an inquiry was conducted with respect to petitioner's immigration status, as any potential Immigration and Customs Enforcement (ICE) detainer would have affected the practicability of the community confinement special condition. Mr. Anthony G. Scheer, who began representing petitioner in May 2008, responded that although petitioner was a permanent legal resident and no ICE detainer had been filed, Mr. Scheer believed that "there will be a detainer placed on [petitioner] probably in the next week or ten days, at the very outside." Rule 35 Hearing Tr. (No. 1:07cr119, Docket No. 52), at 5. Yet, Mr. Scheer also represented that "it is not a foregone conclusion that the detainer will be placed on him[.]" Id., at 7. Accordingly, at petitioner's request, the reduced sentence was imposed on the assumption that no detainer would be filed, but with leave for petitioner to seek elimination of the community confinement condition in the event petitioner was incarcerated on an ICE detainer.9 The next day, an ICE detainer was
tiled,10 and petitioner has since remained in ICE custody awaiting deportation proceedings.11
On March 18, 2009, petitioner filed the instant motion pursuant to § 2255, alleging (i) that Counsel's advice with respect to the immigration...
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