Barajas v. United States

• Decision Date: 29 February 2016
• Docket Number: CR09–4002–DEO,No. C10–4089–LTS,C10–4089–LTS
• Parties: Roberto Barajas, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — Northern District of Iowa

151 F.Supp.3d 952

Roberto Barajas, Petitioner,

v.United States of America, Respondent.

No. C10–4089–LTS

CR09–4002–DEO

United States District Court, N.D. Iowa, Western Division.

Signed February 29, 2016

Rockne Cole, Bram Tate Burch Elias, Cole & Vondra, Iowa City, IA, for Petitioner.

Forde Fairchild, Assistant U.S. Attorney, Sioux City, IA, for Respondent.

MEMORANDUM OPINION AND ORDER

LEONARD T. STRAND

, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before me is Roberto Barajas' 28 U.S.C § 2255

Petition. Doc. No. 1. The Honorable Donald E. O'Brien held several hearings in this case, but passed away before he issued a ruling. The case was subsequently reassigned to me.

II. PRIOR PROCEEDINGS

Barajas was indicted by the grand jury in the United States District Court for the Northern District of Iowa for one count related to possessing a stolen firearm. CR09–4002–DEO, Doc. No. 2. Barajas entered a guilty plea on June 11, 2009. CR09–4002–DEO, Doc. No. 15. On September 9, 2009, Judge O'Brien sentenced Barajas to four months incarceration. CR09–4002–DEO, Doc. No. 27

At the time of his indictment, Barajas was a citizen of Mexico but a legal resident of the United States. CR09–4002–DEO, Doc. No. 25. He resided in the United States since the age of four, graduated from a Sioux City, Iowa, high school and, for a time, attended a technical college in Sioux City. Id . at 8. He was nineteen years old when he was sentenced. Id . at 2. His family members continue to live in the United States. Id . at 7.

At the change of plea hearing, Judge O'Brien asked Barajas the following question:

Do you understand—and I don't know this and I'm not recommending this or anything, it's not up to me—do you understand if you enter a plea of guilty, it could affect your residency or the status of your being allowed to stay here; do you understand that?

CR09–4002–DEO, Doc. No. 30, p. 7. Barajas responded that he did understand that. Judge O'Brien told Barajas, “I'm going to assume that you may be allowed to stay in the United States. But you can't take that as any kind of assurance, because I don't have anything to do with that....” Id . at 8. At the plea hearing, Barajas' counsel, Patrick Parry, neither mentioned Barajas's immigration consequences nor commented on Judge O'Brien's statements. CR09–4002–DEO, Doc. No. 30.

As set out above, Judge O'Brien sentenced Barajas to four months in prison. CR09–4002–DEO, Doc. No. 27. During the sentencing, Mr. Parry stated that deportation, “although there is no guarantee ... is very likely....” Doc. No. 32, p. 24. At another point, Mr. Parry requested a variance because Barajas was “probably ... going to be sent somewhere that he hasn't lived since he was four years old and lose his schooling and employment and everything for something that carries a penalty of 6 to 12 months. And I think that in and of itself is pretty tough punishment, and I think that the court can consider that extra potential punishment in fashioning a reasonable sentence.” Id . at 29. Judge O'Brien went on to say,

I think the biggest thing here, of course, is a matter of being deported. Probation officers tell me that it's not a cinch that he's going to be deported; that because of the nature of the charge and non-severity, really, of the charge, I guess, that he's going to have a right to go before the administrative law judge that works with Immigration and Naturalization Service and that it is possible that he would not be deported. But chances are—I have no way of knowing, but I'm going to conclude, without having a good reason to conclude, that he has at least a 50/50 chance that he may be deported. And if he does—certainly never been to Mexico before—since he was four years old, and it doesn't show that he has any relatives down there, that he knows anybody, so it is a pretty tough situation sending him there, and the court is keeping that in mind, but is not sure what the outcome is going to be, so it can't draw any important conclusions there either way.

Id. at 31. Neither Mr. Parry, the United States Attorney nor the United States Probation Office commented further on Barajas's immigration consequences.

Barajas served his time and was then deported. A review of the relevant deportation statutes in effect at the time of his guilty plea reveals that his deportation was always a certainty. Specifically, 8 U.S.C. § 1227(a)(2)(A)(iii)

provides that “any alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1101 provides that the term “aggravated felony” includes a firearms offense under 18 U.S.C. § 922(j) —the offense for which the Barajas pled guilty. Finally, 8 U.S.C. § 1182(a)(9)(A)(ii)(II) provides that any alien who was deported due to a conviction for an aggravated felony may never be readmitted to the United States.¹

On January 22, 2010, Barajas filed the present 28 U.S.C. § 2255

petition. In short, Barajas argued that his counsel was ineffective for failing to warn that he would be deported if he pled guilty. At the time Barajas filed his claim it was unclear if such a failure to warn constituted ineffective assistance of counsel. However, shortly thereafter, the Supreme Court, in Padil

l

a, ruled that attorneys have a duty to warn their clients of possible immigration consequences of pleading guilty. The question then became whether that decision was to be applied retroactively.

On February 12, 2012, Judge O'Brien entered an order (Doc. No. 22) finding that Barajas' counsel was ineffective for failing to warn Barajas of the immigration consequences of pleading guilty. The Government appealed, arguing that Padil l a

was not retroactive. The United States Supreme Court then held, in Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013)

, that Padil

l

a is not retroactive to cases on collateral review. Id . at 1107. The Court concluded that “Padil

l

a ... announced a ‘new rule,’ ” Id . at 1111, but, “[w]hen [the United States Supreme Court] announce[s] a ‘new rule,’ a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Id . at 1107. Pursuant to that decision, the Eighth Circuit reversed and remanded Judge O'Brien's order for further consideration. Doc. No. 33.

Judge O'Brien then requested additional briefing. Doc. No. 35. Barajas argued, not surprisingly, that Cha i dez

did not apply to his case. The Government disagreed. Judge O'Brien held a merits hearing on May 15, 2014, and another on July 11, 2014.

III. STANDARD

Section 2255 of Title 28 of the United States Code

provides four general grounds for relief:

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255

; Watson v. United States, 493 F.3d 960, 963 (8th Cir.2007) (“Under 28 U.S.C. § 2255 a defendant in federal custody may seek post-conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.2003) (“To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States.”). Thus, a motion pursuant to Section 2255 “is ‘intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.’ ” United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ); accord

Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995) (quoting Wilson ).

One “well established principle” of Section 2255

law is that “ ‘[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.’ ” Theus v. United States, 611 F.3d 441, 449 (8th Cir.2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir.2001) ); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a “miscarriage of justice,” although the Eighth Circuit Court of Appeals has “recognized such an exception only when [petitioners] have produced convincing new evidence of actual innocence,” and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 (noting that “the Court has emphasized the narrowness of the exception and has expressed its desire that it remain ‘rare’ and available only in the ‘extraordinary case.’ ” (citations omitted)). Just as Section 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily “is not available to correct errors which could have been raised at trial or on direct appeal.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.1993)

(per curiam). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotations and citations omitted).

“Cause and prejudice” to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland²

test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to Section 2255 because of...