Government of Virgin Islands v. Pamphile, Crim. No. 82/133.

• Decision Date: 18 March 1985
• Docket Number: Crim. No. 82/133.
• Citation: 604 F. Supp. 753
• Court: U.S. District Court — Virgin Islands
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Anthony PAMPHILE, Defendant. Anthony PAMPHILE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

604 F. Supp. 753

GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Anthony PAMPHILE, Defendant.

Anthony PAMPHILE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Crim. No. 82/133.

District Court, Virgin Islands, D. St. Croix.

March 18, 1985.

Andrew J. Reich, Asst. U.S. Atty., St. Croix, V.I., for plaintiff and respondent.

Brian L. Masony, St. Croix, V.I., for Anthony Pamphile.

MEMORANDUM AND ORDER

DAVID V. O'BRIEN, District Judge.

This case is before the Court on defendant Anthony Pamphile's ("Pamphile") motion to withdraw his guilty plea. Pamphile argues that his guilty plea should be set aside on the basis that his counsel, at the time he pled guilty, was ineffective in failing to advise him that his guilty plea could render him subject to deportation.

We find deportation is a "collateral" consequence of pleading guilty. The failure of a defense attorney to inform a defendant of possible or mandatory deportation, prior to entry of a valid guilty plea, does not render such plea subject to attack under Fed.R.Crim.P. 32(d) or 28 U.S.C. § 2255. We deny the defendant's motion to withdraw his guilty plea.

I. FACTS

On September 23, 1982, Pamphile was charged with assault in the first degree and possession of a sawed-off shotgun during the commission of a crime of violence. After plea negotiations, Pamphile pled guilty to assault in the third degree and to possession of a sawed-off shotgun. He was never told that if he pled guilty to the charge of possession of a sawed-off shotgun he could be deported. 8 U.S.C. § 1251(a)(14).

In December 1982 Pamphile was sentenced to four (4) years on the assault third degree count and two (2) years on the possession of a sawed-off shotgun count, the sentences to run concurrently.

In September, 1983, the Immigration and Naturalization Service secured a deportation order against Pamphile under 8 U.S.C. § 1251(a)(14). The Virgin Islands Parole Board then granted Pamphile an early release which made him subject to deportation on January 22, 1985.

The Court held an emergency hearing on January 21, 1985 at which time the issue of ineffective assistance of counsel was raised. We ordered a stay in the immigration proceedings pending the outcome of a second hearing held on February 13, 1985.

II. DISCUSSION

A) Rule 11 Hearing

It is clear that a District Court is not required to inform a defendant that one of the consequences of his decision to plead guilty could be deportation.¹ United States v. Russell, 686 F.2d 35, 39 (D.C.Cir. 1982); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Cordero v. United States, 533 F.2d 723, 726 (1st Cir.1976); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974); United States v. Santelises, 476 F.2d 787, 789 (2d Cir.1973).

A defendant must be informed of the direct consequences, not the collateral consequences, of a guilty plea in order to voluntarily and intelligently plead guilty. Russell, supra, at 38; United States v. King, 618 F.2d 550, 552 (9th Cir.1980); Johnson v. Dees, 581 F.2d 1166, 1166 (5th Cir.1978); Fruchtman, supra, at 948-49; Cordero, supra, at 726; Michel, supra, at 465. Deportation is a collateral consequence and therefore need not be included in the Rule 11 litany of direct consequences of a plea of guilty. Russell, supra, at 39; Fruchtman, supra, at 949; Cordero, supra, at 726; Michel, supra, at 465.

B) Ineffective Assistance of Counsel

1) Standard for Collateral Review

A more troublesome issue concerns the argument first raised at the emergency hearing—that Pamphile's plea should be withdrawn because his counsel failed to inform him of the possibility of deportation should he plead guilty. This issue, though not novel, is one of first impression in a number of jurisdictions including the Virgin Islands.

We note that the defendant has not only moved to withdraw his guilty plea under Fed.R.Crim.P. 32(d) but has also filed a motion to vacate his sentence under 28 U.S.C. § 2255. Fed.R.Crim.P. 32(d) was amended in 1983 and now states:

If a motion for withdrawal of a plea of guilty or nolo contendre is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. § 4250(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.²

Pamphile has proceeded too late to obtain the more generous "fair and just reason" standard for presentence relief under Rule 32(d) and therefore must seek relief via § 2255. Relief may be had under § 2255 when there has been "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).³

2) Standard for Ineffective Assistance of Counsel

Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). This right to counsel has long been recognized as a right to the effective assistance of counsel. See Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464-465, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 47, 53 S.Ct. 55, 56, 77 L.Ed. 158 (1932). The standard for determining the adequacy of legal services is whether the attorney has exercised the customary skill and knowledge which normally prevails at that time and place. United States v. Williams, 615 F.2d 585, 593-94 (3d Cir.1980).

Pamphile has the burden of proving that his counsel was ineffective, Williams, supra, at 594 (citing United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976)); United States v. Tiler, 602 F.2d 30, 35 (2d Cir.1979) and must demonstrate that the advice of his counsel was "not within the range of competence demanded of attorneys in criminal cases" in order to be entitled to collateral relief. Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973); (criminal defendant who pleads guilty on the advice of counsel is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected). (citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)); VIA v. Superintendent, Powhatan Correctional CTR, 643 F.2d 167, 171 (4th Cir. 1981).

3) Effective Assistance of Counsel for Defendants who Plead Guilty

An ineffective assistance of counsel argument is immaterial in an attempt to impeach a plea of guilty except to the extent that it bears on the issues of voluntariness and understanding. Lee v. Hopper, 499 F.2d 456, 462 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 633, 42 L.Ed.2d 650 (1974) (citing Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709-710, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958)).

This Court has been unable to discover any cases where a federal court has granted collateral relief to a prisoner, based on an involuntary plea, because counsel failed to inform the defendant that deportation could occur should he plead guilty.⁴ Although a few state jurisdictions do allow such relief,⁵ we believe the better rule is to deny collateral relief in such circumstances.

We believe that the attorney's failure to inform Pamphile of the possibility of deportation does not cause Pamphile's guilty plea to be involuntary. A variety of cases support our holding.

In United States v. Parrino, 212 F.2d 919 (2d Cir.) cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954) the defendant moved under Rule 32(d) to withdraw his guilty plea after he had served most of his two (2) year sentence. Prior to changing his plea the defendant's attorney told him that a guilty plea would not subject him to deportation. The Second Circuit held that surprise which results from erroneous information received from the defendant's own attorney, without a clear showing of unprofessional conduct, is not enough to set aside a conviction. The Court stated:

Moreover, here the subject matter of the claimed surprise was not the severity of the sentence directly flowing from the judgment but a collateral consequence thereof, namely deportability.... We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences.

Parrino, supra at 921-22.⁶

If erroneous information concerning deportability is not sufficient to allow a defendant to withdraw his guilty plea, then the failure to inform a defendant about deportability should not be sufficient to allow Pamphile the collateral relief he seeks.

In United States v. Sambro, 454 F.2d 918 (D.C.Cir.1971), the defendant's attorney erroneously informed him about the legal effect of his guilty plea on his chances of being deported. Once deportation proceedings began, the defendant sought to withdraw his guilty plea. The D.C. Circuit held that the District Court Judge had not abused her discretion by refusing to allow the defendant to withdraw his guilty plea. The Court emphasized that the original plea was properly taken and that the defendant never repudiated the prior plea. The Court stated "a plea of guilty is a confession in open court as to the facts alleged: in the instant case appellant Sambro has made such a...