Ebrahim v. LeConey

• Decision Date: 11 December 2012
• Docket Number: No. 10-CV-6397(MAT),10-CV-6397(MAT)
• Parties: MURTADA S. EBRAHIM, Petitioner, v. PATRICIA LeCONEY, Respondent.
• Court: U.S. District Court — Western District of New York

MURTADA S. EBRAHIM, Petitioner,

v.PATRICIA LeCONEY, Respondent.

No. 10-CV-6397(MAT)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: December 11, 2012

DECISION AND ORDER

I. Introduction

Pro se petitioner Murtada S. Ebrahim ("Petitioner" or "Ebrahim") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ebrahim challenges the constitutionality of a judgment of conviction entered against him on September 26, 2008, in New York State County Court, Wayne County, following a negotiated guilty plea to charges stemming from Ebrahim's alleged commission of Medicaid fraud.

This conviction was found to constitute an "aggravated felony" for purposes of the Illegal Immigration Reform and Immigrant Responsibility Act, and Ebrahim, a native of Sudan, was ordered to be deported. Because United States Immigration and Customs Enforcement ("ICE") was unable to obtain the necessary travel documents from Sudan, Ebrahim was released from ICE custody under an order of supervision. He has not been deported, and ICE officials have represented to Respondent that obtaining the requisite travel documents from Sudan is "slim to none."

II. Factual Background and Procedural History

A. The Guilty Plea

In 2007, the New York State Attorney General Office's Medicaid Fraud Control Unit ("MFCU") conducted an investigation M&M Medical Transport, Inc. ("M&M"), of which Ebrahim was the owner and president. MFCU discovered evidence that M&M had been fraudulently billing the State Medicaid program since 2003 for patient transportation services provided by unqualified ambulette drivers or services that M&M actually had not provided. See Respondent's Exhibit ("Resp't Ex.") B at 1-3, 12, 36 (Dkt #12). State officials executed a search warrant at Ebrahim's offices on December 6, 2007, and Ebrahim retained counsel, Rudolph J. LePore ("Attorney LePore").

Over the course of several meetings with prosecutors in March, April, and June 2008, Attorney LePore examined the prosecution's documentary evidence. The parties ultimately negotiated a plea bargain that would resolve all potential State charges. Resp't Ex. B at 12, 57a; Transcript dated July 8, 2008 ("7/8/08 Tr.") at 5-7. Pursuant to the plea agreement, Ebrahim would (1) plead guilty to Grand Larceny in the Third Degree (i.e., wrongfully taking more than $3,000 with the requisite criminal intent, a class D felony) (New York Penal Law ("P.L.") § 155.35); (2) plead guilty to Offering a False Instrument for Filing in the First Degree (i.e, filing a false instrument with the intent to defraud the State, aclass E felony) (P.L. § 175.35); (3) repay $971,267.76 to the State Medicaid program; and (4) receive an indeterminate concurrent sentence of 2 to 6 years imprisonment on each count. Resp't Ex. B at 12-14; 7/8/08 Transcript ("Tr.") at 24-25, 28-30 (Dkt #12-7). Ebrahim consulted three other experienced attorneys for second opinions on the plea agreement. See 7/8/08 Tr. at 6-7, 27; Resp't Ex. B at 46; 9/24/08 Tr. at 19-20, 25-26 (Dkt #12-7).

On July 8, 2008, the parties appeared in Wayne County Court (Kehoe, J.). Attorney LePore informed the court that, as a result of extensive negotiations, the parties had reached a proposed plea and sentence agreement, and that defense counsel had reviewed it "very thoroughly" with Ebrahim. 7/8/08 Tr. at 6-7. Ebrahim confirmed this synopsis was "all correct," but stated that he needed "fifteen minutes to read [the written agreement]." Id. at 7. The judge granted a recess. Id. at 9, 11.

When the proceedings resumed, the prosecutor explained the terms of the plea agreement. Defense counsel stated that he and Ebrahim had reviewed all the terms of the written plea agreement, and stated that Ebrahim "understands, fully, the consequences of the Plea Agreement . . . and is prepared again to go forward." 7/8/08 Tr. at 12, 17-19. Ebrahim confirmed that he had heard the explanation of the terms of the agreement, had reviewed and discussed them with counsel, and understood them. Id. at 19, 21, 23, 36. Ebrahim verified that he understood English and understoodthe court proceedings; that he had discussed case with Attorney LePore; and had consulted with three other attorneys about the advisability of pleading guilty. Ebrahim affirmed that he was "satisfied" that he "fully" understood the proceeding and what was taking place at the hearing. 7/08/08 Tr. at 25, 27.

Special Assistant Attorney General Jerry Solomon ("SAAG Solomon") noted that Petitioner had been advised that the conviction "could subject him to deportation." 7/08/08 Tr. at 18. SAAG Solomon explained,

I would mention to the Court as I mentioned to Mr. LePore, that our Investigators have talked to people at INS and because Mr. Ebrahim is from the Sudan, because of the political situation there, it is unlikely that he would be deported. That doesn't mean they couldn't still do it but they have, at least, advised us that it's unlikely, but it would be their prerogative.

Id. at 18. The trial court explained to Ebrahim that no one besides ICE could make any promises in regard to the deportation issue, and confirmed that Ebrahim was not relying on the prosecutor's comments as legal advice. Id. at 19-20. In addition, Ebrahim executed a written plea agreement, explicitly acknowledging as follows: "I understand, and have discussed with my attorney, that my plea in this matter could lead to my deportation from the United States." Resp't Ex. B at 13. Under oath, Petitioner confirmed that he had sufficient opportunity to review and discuss all aspects of the plea agreement with Attorney LePore. 7/08/08 Tr. at 25, 36.

In response to the trial court's questioning, Ebrahim admitted that he was in fact guilty of each offense as charged, that no one had made any promises to him other than those on the record, and that he was satisfied with Attorney LePore's representation. Id. at 31-34. Ebrahim confirmed that no one had "threatened, forced or coerced [him] to plead [guilty]" and that he was doing so out "of [his] own free will." Id. at 33-34. When the trial court asked whether he had any questions before entering his guilty pleas, Ebrahim replied, "I am all set." Id. at 34-35. The trial court then found that Ebrahim was pleading guilty "knowingly, voluntarily, and intelligently." Id. at 35.

Ebrahim signed the written plea agreement, which stated in pertinent part that Ebrahim was guilty, in fact; that he understood the trial rights he was waiving; that he "ha[d] read completely" and understood the plea agreement; that his guilty plea was "given freely, voluntarily, knowingly, and without coercion of any kind"; that "[n]o threats or promises, except the sentence agreement, ha[d] been made to [him] to induce [him] to plead guilty"; and that he was satisfied with his attorney's representation. 7/8/08 Tr. at 36; Resp't Ex. B at 11, 13-14. The plea agreement also included the following acknowledgment: "I understand, and have discussed with my attorney, that my plea in this matter could lead to my deportation from the United States." Resp't Ex. B at 13.

The trial court released Ebrahim on his own recognizance pending sentencing in late September 2008. 7/8/08 Tr. at 37.

B. The Motion to Withdraw the Guilty Plea

Prior to sentencing, Ebrahim retained new counsel, John V. Elmore, Esq. ("Attorney Elmore"), who, on August 27, 2008, filed a motion to withdraw the guilty plea pursuant to New York Criminal Procedure Law ("C.P.L.") § 220.60. See Resp't Ex. B (Dkt #12-1). Ebrahim argued that his guilty plea was not knowing and voluntary because he is a native speaker of Arabic and therefore could not understand the proceedings and plea agreement without an interpreter. He also asserted that Attorney LePore had coerced him into pleading guilty.

In support of his motion, Ebrahim submitted an affidavit from a former M&M Medical Transport employee averring that he had difficulty understanding written and spoken English. Resp't Ex. B at 30a (Dkt #12-1). He also submitted an affidavit from an Arabic interpreter who reviewed the plea transcript and opined that Ebrahim had understood only 50% of the statements made. Id. at 31b. In an affidavit of his own, Ebrahim alleged that he was innocent. He claimed that Attorney LePore had coerced him at the plea hearing by telling him to "stop the bullshit and sign" or he "would immediately be indicted by a Grand Jury and sentenced to jail for fifteen (15) years." Resp't Ex. B at 29b.

In opposition, the prosecution submitted affidavits and documentary evidence demonstrating Ebrahim's fluency and comprehension of the English language: Ebrahim had been in the United States for at least seventeen years; had owned and operated at least five businesses in the United States over the past sixteen years (writing numerous letters in English; executing legal documents in English, and conducting civil litigation); had spoken fluent English in numerous conversations with public agency employees between 2002 and 2007; had passed a written driving test in English with a perfect score in 2002; had given investigators a interview in fluent English; and had spoken fluent English in a lengthy conversation with prosecutors and defense counsel on April 25, 2008. See Resp't Ex. B at 46-49 & attached exhibits (Dkt #12-1).

At oral argument on September 24, 2008, defense counsel conceded that Ebrahim "understands English well enough to communicate with people on a daily basis," but argued that Ebrahim could not understand "complicated legal terms" such as the constitutional rights he waived as part of the guilty plea. 9/24/08 Tr. at 10-11, 19 (Dkt #12-7).

Based on Ebrahim's responses, the trial court's observations during the plea colloquy, and the evidence submitted in support of the motion, the trial court reaffirmed its previous finding thatEbrahim had entered a "knowing, voluntary, and intelligent" guilty plea. Id. at 32-33.

Ebrahim's assigned counsel sought leave to appeal to the Appellate Division, Fourth...