Carranza v. United States
| Decision Date | 20 September 2019 |
| Docket Number | 1:16CV274,1:13CR419-1 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | WILFREDO ANTONIO ROMERO CARRANZA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This matter is before the court on Petitioner's motion to vacate, set aside, or correct sentence made pursuant to 28 U.S.C. § 2255. (Mot. to Vacate, Set Aside, or Correct Sentence ("2255 Pet.") (Doc. 38).) The Government has filed a response, (Doc. 42), and Petitioner filed a reply, (Doc. 45). The issues are ripe for ruling. For the reasons that follow, this court will dismiss Petitioner's motion.
Petitioner was charged in a one-count Indictment with a violation of 8 U.S.C. §§ 1326(a) and (b)(1). (Doc. 1.) On December 18, 2013, Petitioner proceeded to trial upon his plea of not guilty. (Minute Entry 12/18/2013.) Defendant was found guilty on December 19, 2013. (Doc. 14.) On July 23, 2014, Petitioner was sentenced to 84 months imprisonment, (Doc. 20), a sentence that was ordered to run concurrently with the sentence imposed in case number 1:13CR230-2, (id. at 2).
Petitioner filed a notice of appeal. (Doc. 17.) The Fourth Circuit Court of Appeals issued an opinion and judgment affirming the conviction and sentence on March 11, 2016. (Docs. 36, 37.) A petition for rehearing en banc was denied on April 19, 2016. (Doc. 40.)
In this 2255 petition, Petitioner raises a number of challenges to his conviction and sentence, but the challenges are confusingly pled and there is some inconsistency. However, it appears the petition raises the following challenges to the conviction and sentence:
(2255 Pet. (Doc. 38) at 4-5.)1
Additional facts will be addressed as necessary in this opinion.
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b).
Ground One alleges ineffective assistance of counsel during his 2013 federal trial. Relatedly, Petitioner also alleges that the same counsel failed to collaterally attack both his previous deportation order and the underlying Virginia state convictions that led to the order (Grounds Five and Six, respectively). Petitioner urges this court to review and overturn those proceedings. (2255 Pet. (Doc. 38) at 10-13, 28-34.)
For the reasons detailed below, the court finds that all three grounds lack merit and should be dismissed. Petitioner can show no actual prejudice from his counsel's performance during his 2013 trial. As to any collateral attacks on the removal order or its underlying convictions, this court finds there are no viable theories under which the removal order can be challenged. For this reason, it can also be said that Petitioner's counsel was not ineffective in choosing not to attack the removal order.
In Ground One, Petitioner alleges that his attorney during his 2013 federal criminal trial rendered ineffective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must establish: (1) that his attorney's performance fell below a reasonable standard for defense attorneys, and (2)that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). With respect to the first prong, a petitioner bears the burden of affirmatively showing that his counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688-89; Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). A court reviews defense counsel's performance only with a "highly deferential" eye. Strickland, 466 U.S. at 689.
With respect to the second prong, a petitioner must show that prejudice resulted from counsel's deficient performance. Strickland, 466 U.S. at 694. Prejudice exists when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is one "sufficient to undermine confidence in the outcome." Spencer, 18 F.3d at 233 (citing Strickland, 466 U.S. at 694). The petitioner "bears the burden of affirmatively proving prejudice." Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). A reviewing court may start by reviewing the prejudice prong and, if the petitioner fails to meet this burden, a "reviewing court need not even consider the performance prong." See United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d310 (4th Cir. 2000). In meeting this burden and to obtain a hearing or any form of relief, petitioners must come forward with some evidence, not "conclusory allegations," that the claim might have merit. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrog'n on other grounds recog'd, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999).
In the case at bar, Petitioner makes a number of conclusory allegations as to trial counsel's deficient performance, including a failure to meet with Petitioner and failure to prepare for trial. (See 2255 Pet. (Doc. 38) at 10-11.) However, Petitioner fails to articulate any specific prejudice as a result of those alleged deficiencies except as to one issue. Petitioner states that counsel failed to "get the re entry case dismiss [sic] as a matter of law and more important, deportation order vacated," (id. at 11), and trial counsel "ignored defendant's petitions of collateral attack the under lying [sic] deportation order," (id. at 12). Since Petitioner's only conceivable claim for prejudice rests on counsel's alleged failure to collaterally attack Petitioner's previous deportation order, his ineffective assistance of counsel claim (Ground One) is inexorably bound with his claims in Grounds Five and Six. Those grounds also lack merit.
Petitioner describes his basis for collaterally attacking the deportation order in Grounds Five and Six of his motion. In Ground Five, Petitioner alleges generally that trial counsel ignored the possibility of a successful collateral attack on the underlying deportation order on authority of 8 U.S.C. § 1326(d). (2255 Pet. (Doc. 38) at 28.) In Ground Six, Petitioner provides an alternate basis for challenging the deportation order by alleging that his prior convictions resulting in deportation (a 1998 felony conviction from Fairfax, Virginia, and a 2006 misdemeanor conviction from Manassas, Virginia) were unconstitutional. (Id. at 32.) Because Petitioner fails to demonstrate any basis upon which to successfully attack the underlying deportation order, Grounds One, Five, and Six should be dismissed.
Petitioner's own pleadings demonstrate that Petitioner was deported in 2007 pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), deportation as a result of conviction of two crimes involving moral turpitude. (2255 Pet. (Doc. 38) at 30, 32, 41-42.) That statute states:
Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, notarising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
8 U.S.C. § 1227(a)(2)(A)(ii).
Petitioner does not contest the fact that in 1998 he was convicted of Felony Grand Larceny-Auto in Fairfax County, Virginia, and, in 2004, of Misdemeanor Petit Larceny in Prince William County, Virginia. The order Petitioner has provided, (2255 Pet. (Doc. 38) at 41-42), reflects that the conviction for petit larceny arose under "Virginia Statutes § 18.2-96," which makes it a misdemeanor to "commit[] larceny from the person of another" or to "commit[] simple larceny not from the person of another," (id.).2 Thus, both of his convictions were for larceny offenses under Virginia law. In Virginia, "[t]he term larceny is defined as 'the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently." Foster v. Commonwealth, 44 Va. App. 574, 577, 606 S.E.2d 518, 519 (Va. Ct. App. 2004) (quoting Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).
The BIA [Board of Immigration Appeals] has long concluded that theft offenses qualify as [crimes involving moral turpitude] if the defendant committed the offense with the intent to permanently deprive theowner of the...
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