Ellis v. U.S.
| Decision Date | 06 June 2011 |
| Docket Number | 10 Civ. 4017 (BMC) |
| Parties | ADRIAN ELLIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
This case is before me on petitioner's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The petition is DENIED and the case is dismissed.
In June 1992, Amarley Ellis, petitioner's sister, stole two Social Security checks, each valued at $5,742, from Yolanda Hosten's mail. Then, with the help of a third-party, Amarley opened two false savings accounts in Hosten's name and deposited the stolen checks. Amarley gradually withdrew the majority of the money and gave petitioner an unspecified amount.
Sometime in 1993, Hosten received a W-2 income tax statement, which indicated that she had received $11,484 in social security benefits. Hosten informed the Social Security Administration that she never received those benefits. Hosten also confronted Amarley about the checks on multiple occasions because she believed Amarley or one of the Ellis children were involved in their theft (Hosten lived in a basement apartment in the same residence as Amarley). Initially, Amarley denied any knowledge of the checks; however, she eventually told Hostenthat, although she did not personally steal them, she knew who did. Amarley assured Hosten that she would be repaid.
Amarley then decided that she had to murder Hosten and her nine-year old daughter in order to avoid being sent to jail, and she enlisted petitioner's help. In February 1993, petitioner forced entry into Hosten's apartment using an antique gun. Petitioner bound and gagged Hosten and her daughter (with Amarley's assistance). He first tried to suffocate Hosten and her daughter by wrapping their heads with Saran Wrap. Petitioner and Amarley also tried to smother Hosten's daughter by putting a pillow over her face.
Some time passed, and neither Hosten nor her daughter died. It eventually became evident that the Saran Wrap was not enough to suffocate Hosten or her daughter; Amarley therefore instructed petitioner to wrap an electrical cord around Hosten's neck and to pull one end of the cord while she pulled the other end. Petitioner and Amarley strangled Hosten to death; Hosten's daughter was nearby at the time. Petitioner then strangled Hosten's daughter to death.
After murdering Hosten and her daughter, petitioner and Amarley left the apartment. They did not return for two days. Upon returning, petitioner and Amarley wrapped Hosten's daughter's body in a sheet. They then severed her legs and transported her to an alley. They returned to the apartment, wrapped Hosten's body in a sheet, and transported her to the same alley (there is no evidence that petitioner and Amarley dismembered Hosten's body). There, petitioner set both bodies on fire.
Afterwards, petitioner and Amarley returned to Hosten's apartment to destroy evidence. Specifically, Amarley took Hosten's purse because there was a letter inside in which Amarley promised to repay Hosten the $11,484.
Petitioner was eventually charged in a four-count superseding indictment. The first three counts charged petitioner with conspiring to kill and intentionally killing Hosten and her daughter to prevent them from communicating information to law enforcement officers relating to the commission of federal crimes (i.e., Amarley's theft of Hosten's Social Security checks and Amarley's act of opening a fraudulent bank account). See 18 U.S.C. § 1512(a)(1)(C). The fourth count charged petitioner with accessory after the fact for his role in attempting to cover up the murders. See 18 U.S.C. § 3.
On April 3, 1997, pursuant to a plea agreement with the Government, petitioner pleaded guilty to count four of the superseding indictment - accessory after the fact. The plea agreement indicated that deportation was a "possible" penalty of the charge. At his plea hearing, Judge Raggi inquired about petitioner's citizenship status. Petitioner informed the Court that he was a citizen of Jamaica. Judge Raggi then stated: "Because you are not a United States citizen, I must tell you if you plead guilty to this charge that can be grounds for Immigration authorities deporting you, that is forcing you to leave this country after you serve any jail sentence." Judge Raggi asked petitioner if he understood that this was "a possible consequence of [his] guilty plea," and petitioner responded: "Yes, your Honor."
At the hearing, petitioner allocuted to the charged crime. Specifically, petitioner admitted that he assisted Amarley by driving the vehicle that contained Hosten and her daughter's bodies and by helping her dump those bodies. Petitioner admitted that he knew Amarley had participated in the murder of Hosten and her daughter. Although petitioner claimed that he did not know Amarley had murdered them specifically because of her concern that they might implicate her in federal crimes, his attorney admitted that there was "[n]o question . . . that[this was a federal homicide felony]." Petitioner also admitted that he knew he was helping Amarley avoid prosecution when he helped her dispose of Hosten and her daughter's bodies. Finally, petitioner admitted that he helped set the bodies on fire.
After pleading guilty, petitioner claims that he spoke with his attorney about withdrawing his plea because he feared being deported. Petitioner's attorney, he alleges, reassured him that he had nothing to worry about "because his conviction [for obstruction of justice was] not an 'aggravated felony.'" Moreover, petitioner further alleges that his attorney told him that his long-time residence in the United States "would factor in him not being deported."
Petitioner was sentenced, along with Amarley, on June 13, 1997. Judge Raggi stated that even though the Government allowed petitioner to plead to the lesser accessory after the fact offense, it took the position that petitioner was involved in the murders "step by step."1 She told petitioner that his participation in the actual murders, as detailed in the presentence report, "may very well prompt an upward departure" to his Sentencing Guidelines. She therefore made a point to determine whether petitioner wished to challenge any of the factual statements contained in his presentence report despite the fact that he initially declined to make any such challenges.
After conferring with his attorney, petitioner informed Judge Raggi that he challenged the presentence report to the extent that it was inconsistent with his plea allocution - i.e., he claimed that he was only involved in the murders after the fact and had no role in their commission. Accordingly, he requested a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978). Judge Raggi scheduled a date for the hearing and was prepared to adjourn sentencing. Petitioner's attorney, however, requested five minutes to speak with his client.
During their off-the-record consultation, petitioner's attorney advised him that he faced a maximum 15-year sentence if he pleaded guilty to accessory after the fact. Based on that information, petitioner withdrew his objections to the presentence report. Judge Raggi asked petitioner if he understood that this meant she would assume, for purposes of sentencing, that he played an active role in the murders; petitioner answered affirmatively. Judge Raggi then asked petitioner if he wanted a hearing on this matter; petitioner answered, "No."
Thereafter, Judge Raggi asked the Government about petitioner and Amarley's immigration status. The Government informed the Court that both were resident aliens. Judge Raggi asked if they would "be subject to deportation after they serve[d] any sentence." She immediately noted that she was specifically concerned about petitioner's status. The Government responded that it depended on whether Immigration looked beyond the conviction to the substance of the offense. If, the Government surmised, Immigration considered the substance of the offense, it would deem the offense "a violent crime" and petitioner would therefore be a priority for deportation. Judge Raggi asked if "anybody wish[ed] to be heard any further," and petitioner's attorney responded, "No."
Judge Raggi then proceeded to sentence petitioner and Amarley. She found that their actions were "perplexing" and "incomprehensible." She also noted that petitioner was "smirking" and "rolling his eyes" during the sentencing proceeding, including when Hosten's other daughter gave a victim statement about the devastating effect petitioner and Amarley's actions had on her and her family. According to Judge Raggi, "no sentence . . . [was] severe enough for the conduct [petitioner] committed." Thus, she sentenced him to 15-years' imprisonment, the maximum sentence he faced (this required an upward departure of six offense levels, which Judge Raggi considered appropriate). Finally, she gave "the strongest possiblerecommendation that [petitioner] be immediately deported from this country after [he] serve[d] [his] jail sentence."2
Petitioner appealed his sentence. New appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). The Second Circuit granted counsel's Anders motion and the Government's motion for summary affirmance. Petitioner did not seek Supreme Court review.
Petitioner has served his entire sentence. He is currently in the custody of Immigration and Customs Enforcement. Immigration held expedited proceedings to remove petitioner from the United States to Jamaica. On February 15, 2011, petitioner was ordered removed.
Petitioner's trial counsel passed away at some point prior to the filing of the instant petition, and thus there can be no evidence to contradict petitioner's version of his discussions with his...
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