Chukwurah v. US

• Decision Date: 05 January 1993
• Docket Number: CV-92-5853 (CPS).,No. CV-92-5276 (CPS),CV-92-5276 (CPS)
• Parties: Robert CHUKWURAH, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

813 F. Supp. 161

Robert CHUKWURAH, Petitioner, v. UNITED STATES of America, Respondent.

Nos. CV-92-5276 (CPS), CV-92-5853 (CPS).

United States District Court, E.D. New York.

January 5, 1993.

COPYRIGHT MATERIAL OMITTED

Robert Chukwurah, pro se.

Seth Lee Marvin, U.S. Attorney's Office, Criminal Div., Brooklyn, Scott Dunn, U.S. Atty., for U.S.

MEMORANDUM AND ORDER

SIFTON, District Judge.

Petitioner, Robert Chukwurah, appearing pro se, moves pursuant to 28 U.S.C. § 2255 to set aside his conviction for heroin importation. Additionally, petitioner, who is a resident alien currently being detained by the Immigration and Naturalization Service ("INS"), requests this Court to stay the deportation proceeding against him pending the resolution of his section 2255 petition and seeks an order directing the district director of the INS to release petitioner on special parole. For the following reasons, the section 2255 petition is denied, the application for a preliminary stay of the deportation proceeding is denied, and the remaining habeas corpus claim is transferred pursuant to 28 U.S.C. § 1406(a).

Chukwurah bases his section 2255 petition on three grounds. He argues first that his plea of guilty was involuntary because, at the time of the plea, he was unaware of the possibility that his conviction may lead to deportation. Second, he argues that he was denied effective assistance of counsel. Third, he argues that his conviction violates the principles of double jeopardy embodied in the Fifth Amendment to the Constitution principally because he faces the possibility of being imprisoned for as long as five years by the Nigerian Government as a result of his conviction in the United States. Petitioner also challenges his sentence on the ground that the government withheld evidence favorable to petitioner.

Chukwurah was born in and is a citizen of Nigeria. He traveled to the United States in November 1980 as a non-immigrant business visitor, and on August 28, 1982, he was accorded lawful permanent residence status.

On September 16, 1989, Chukwurah was arrested after arriving at John F. Kennedy International Airport on a Nigeria Airways flight. A search revealed that Chukwurah had concealed 96 packages of heroin in his abdominal area. On October 26, 1989, petitioner pled guilty before this Court to the offense of importation of heroin in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3) and 18 U.S.C. § 3551 and was sentenced on May 14, 1990, to 41 months imprisonment.

Upon completion of the term of imprisonment, the INS commenced deportation proceedings against Chukwurah on October 23, 1992. Chukwurah is charged with being deportable as an alien convicted of a narcotics-related offense and as an alien convicted of an aggravated felony. See 8 U.S.C. § 1251(a)(2)(B)(i), (A)(iii).

The INS is currently detaining petitioner pursuant to 8 U.S.C. § 1252(a). An immigration judge has set bond at $10,000. Chukwurah has applied for a waiver of deportation pursuant to 8 U.S.C. § 1182(c), which allows the waiver of deportation charges against a lawful permanent resident who has maintained a lawful unrelinquished domicile in the United States for seven years. A deportation hearing on this application is scheduled to occur on January 6, 1993.

DISCUSSION

Although Chukwurah's term of imprisonment expired when he was released from prison, he is currently serving a three-year term of supervised release, unless and until he is deported. Thus, Chukwurah is still "in custody" within the meaning of 28 U.S.C. § 2255 and may therefore collaterally attack the validity of his conviction. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); United States ex rel. B. v. Shelly, 430 F.2d 215, 219 n. 3 (2d Cir.1970) (person on probation is in custody for purposes of habeas petition); see, e.g., Donat v. United States, 1991 WL 81946 (E.D.N.Y.1991) (Glasser, J.) (reaching merits of 2255 claim when petitioner was serving term of supervised release).

Petitioner did not raise the arguments he currently raises at any time during the criminal proceeding, nor did he appeal his sentence. Generally, a petitioner must show cause for failing to raise the alleged error in the criminal case and show the actual prejudice that resulted from the error. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); Campino v. United States, 968 F.2d 187, 190-91 (2d Cir.1992) (applying the cause and prejudice standard in a section 2255 action for constitutional error).

Chukwurah has not explicitly addressed this procedural issue. Most of Chukwurah's claims revolve around the possible deportation consequences of his conviction, and it may be that the cause of his failure to raise these claims during the criminal proceeding was his alleged lack of awareness of the possible deportation. However, since, as discussed below, Chukwurah cannot show actual prejudice, this Court does not reach the issue of whether Chukwurah has adequately shown cause.

Chukwurah's argument that his plea was involuntary and is constitutionally infirm is contradicted by the record of his criminal proceeding. Chukwurah argues that he was compelled to sign the plea agreement because of the threat of a twenty-year sentence and because he was unaware of the possible deportation consequence of the conviction. Chukwurah claims that he would not have plead guilty if he had known that he could be deported as a result of the conviction.

However, during the plea allocution, Chukwurah acknowledged that he understood the consequences of pleading guilty:

Q. ... First of all, do you understand what you're accused of having done?

A. Yes, Your Honor.

Q. Have you been told what the maximum penalty is for doing this?

A. Yes, Your Honor.

Q. And what do you understand the maximum penalty to be?

A. It's zero to 20 years.

* * * * * *

Q. Has anyone, in your own mind, threatened or forced you to do this, that is, to plead guilty?

A. No, Your Honor.

* * * * * *

Q. Has anyone—in your own mind, has anyone promised you that I will impose a particular sentence?

A. No, Your Honor.

Oct. Tr. 9-12 Gov't Exh. 5.

Also, prior to accepting his plea, the Court specifically informed Chukwurah that "If you plead guilty, this may lead to your being deported from the country." Oct. Tr. 9. Furthermore, during the plea allocution, defense counsel raised the deportation issue also, observing that it was very likely that Chukwurah would be deported:

MR. WASSERSTEIN: ... I feel its my obligation to make a motion addressed to the immigration consequences, even though in a drug offense it is—largely a fait accompli.

Oct. Tr. 12.

Petitioner's statements during the plea allocution carry a "strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); United States v. Gonzalez, 970 F.2d 1095, 1100-01 (2d Cir.1992). Chukwurah has not indicated any factual circumstance which casts doubt on this presumption. Moreover, even if Chukwurah was unaware of the possible deportation consequences of his guilty plea, this is not sufficient to render the plea involuntary. United States v. Santelises, 509 F.2d 703, 703-04 (2d Cir.1975).

Chukwurah's claims of ineffective assistance of counsel are likewise unavailing. Ineffective assistance claims require a showing: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, petitioner would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). In assessing an ineffective assistance claim, this Court must start from a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.1990), and must assess counsel's alleged short-comings in light of the circumstances of the case. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65. Further, the resolution of the "prejudice inquiry," i.e., the second prong of the dual showing, is closely related to the objective prediction of whether the defense could succeed if the case went to trial. Hill, 474 U.S. at 59-60, 106 S.Ct. at 370-71; see United States v. Del Rosario, 902 F.2d 55, 58 (D.C.Cir.), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990).

Chukwurah alleges that his counsel's representation was constitutionally deficient in that counsel (1) failed to inform petitioner of the deportation consequences of pleading guilty, (2) failed to include a provision in the plea agreement barring the deportation of petitioner, (3) failed to challenge vigorously the weight of the narcotic substance seized from petitioner, (4) misleadingly guaranteed a sentence less than 41 months.

In the circumstances of this case, defense counsel's alleged failure to inform Chukwurah of possible immigration consequences of his plea is not a sufficient basis for an ineffective assistance claim. See Santelises, 509 F.2d at 704. Some courts have found that in certain narrowly delimited circumstances an affirmative misrepresentation as to deportation consequences may support a claim of ineffective assistance. See, e.g., Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir.1985). However, in this case, Chukwurah does not claim that his attorney affirmatively provided him with erroneous advice about the possibility of deportation. Deportation is a collateral consequence of the criminal proceeding, and therefore, in the absence of an affirmative misrepresentation, counsel's failure to inform a defendant of the immigration consequences of the...