Richardson v. U.S.

• Decision Date: 04 March 2009
• Docket Number: No. 07-4409.,07-4409.
• Citation: 558 F.3d 216
• Parties: Darvin E. RICHARDSON, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

558 F.3d 216

Darvin E. RICHARDSON, Appellant v. UNITED STATES of America.

No. 07-4409.

United States Court of Appeals, Third Circuit.

Argued December 8, 2008.

Filed: March 4, 2009.

Thurston T. McKelvin, Jesse A. Gessin (Argued), Federal Public Defender's Office, Charlotte Amalie, St. Thomas, for Appellant.

Anthony J. Jenkins, Ishmael A. Meyers, Jr. (Argued), United States Attorney's Office, Charlotte Amalie, St. Thomas, for Appellee.

Before: FISHER, JORDAN, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Darvin E. Richardson appeals from a judgment of conviction on one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Richardson contends that the District Court wrongly decided that he could not collaterally challenge his prior deportation. For the reasons that follow, we will affirm.

I. Background

Richardson was arrested on November 30, 1989, in St. Thomas, after attempting to smuggle marijuana onto the island aboard a commercial flight. He subsequently pled guilty to one count of Importation of a Controlled Substance, in violation of 21 U.S.C. § 952, and one count of Possession of a Controlled Substance Aboard an Aircraft Arriving in the United States, in violation of 21 U.S.C. § 955. He was sentenced to four months imprisonment on each count, the terms to run concurrently, and three years of probation. At the time of judgment, Richardson had been lawfully admitted for permanent residency in the United States for almost ten years and he claimed to have children who were U.S. citizens.

Upon entry of the criminal judgment in March of 1990, Richardson was released for time served. Two months later, in May of 1990, the government initiated deportation proceedings, serving Richardson with an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien.

On May 21, Richardson, then unrepresented by counsel, signed a waiver (the "May Waiver") in which he stipulated to the charges against him, accepted deportability, requested immediate departure to St. Kitts, and waived his right to appeal the deportation order. That stipulation was voided, however, when Hans Burgos, an attorney for the United States Immigration and Naturalization Service ("INS") in Puerto Rico, crossed out and initialed key paragraphs in it. After speaking with Richardson, Burgos had become convinced that Richardson "was not aware, nor was he well informed, of the consequences of signing the stipulation." (App. at 23.)

The next day, May 22, David Iverson entered his appearance as counsel for Richardson and, soon thereafter, on June 19, Richardson again signed a waiver (the "June Waiver"). It was identical in content to the May Waiver. Richardson says that he does not recall either Iverson or an immigration judge explaining to him the effect of the waiver. A Mr. R. Ortiz, an INS attorney, signed the June Waiver on behalf of the United States.¹ The document does not contain a signature line for Richardson's counsel and Iverson did not sign it.

The United States Department of Justice sent Richardson a letter, which is dated June 22, 1990, (the "Deportation Letter") and contains the following paragraph:

Should you wish to return to the United States you must write this office or the American Consular Office nearest your residence abroad as to how to obtain permission to return after deportation. By law ... any deported person who within five years returns without permission is guilty of a felony. If convicted he may be punished by imprisonment of not more than two years and/or a fine of not more than $1,000.00.

(App. at 27.) On or about the same day, Richardson was deported to St. Kitts.

Some seventeen years later, Richardson tried to return to St. Thomas. On March 6, 2007, he flew to the island but was detained at the airport when he showed his valid British passport and his name triggered an alert that he had previously been convicted of a controlled substances violation and had been deported. According to Richardson, the mother of his children had wrongly informed him that he could legally enter the Virgin Islands without having obtained the Attorney General's consent. On April 4, he was indicted on one count of unlawful entry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Richardson filed a motion to dismiss the indictment. In particular, he collaterally attacked his deportation; he claimed that the United States Sentencing Guidelines pertaining to § 1326(b)(2) are unconstitutional; and he argued that the government should be collaterally estopped from charging him under § 1326(a) because of representations that it had made in the Deportation Letter. The District Court held a series of hearings on the motion. Neither Iverson nor any INS attorneys who worked on the matter testified as to what had transpired during Richardson's deportation proceedings. On June 22, 2007, the District Court denied Richardson's motion to dismiss,² concluding that he could not collaterally attack his deportation and that his challenge to the Sentencing Guidelines and his collateral estoppel argument had to await later proceedings. Richardson appeals only the conclusion that he cannot press a collateral attack of his deportation.

II. Discussion³

At the heart of Richardson's appeal is his claim that the June Waiver is not valid because it was not intelligently executed. Not only does Richardson contest the validity of the June Waiver, he also claims that, by presuming it to be valid, the District Court improperly shifted the burden of proof as to waiver from the government to him. Richardson contends that he is permitted to collaterally challenge his deportation because, first, he is exempted from any requirement regarding exhaustion of administrative remedies, second, the District Court's determination that he waived his right to judicial review is erroneous, and, third, his deportation proceeding was fundamentally unfair. Because Richardson's collateral attack on his deportation is premised on the invalidity of the June Waiver, we address at the outset the threshold issues of whether the District Court improperly placed the burden of proving invalidity on Richardson and whether the June Waiver is valid. Then we turn to the merits of Richardson's collateral attack.

A. The June Waiver Was Intelligently Executed and is Valid

We have not before addressed whether the government has the burden of proving the validity of a written waiver in an immigration proceeding or whether the burden falls on the alien to prove that the waiver is invalid. We do so now and conclude that the burden is properly placed on the alien.

An alien validly waives his rights associated with a deportation proceeding only if he does so voluntarily and intelligently. See United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ("Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding."); United States v. Sosa, 387 F.3d 131, 136 (2d Cir.2004) (waiver of right to administrative review of deportation will bar collateral review under 8 U.S.C. § 1326(d) only when it is voluntary and intelligent); c.f. United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir.2001) (Section 1326(d)'s exhaustion requirement "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process."). However, such appellate rights and administrative remedies can be waived, and one way to signify a knowing and intelligent waiver is a written document to that effect. Other circuit courts, as well as the District Court here, have exercised the presumption that, when there is a written waiver, the waiver is valid, thereby implicitly placing the burden on the alien of proving any claim that the waiver was invalid. C.f. United States v. Martinez-Rocha, 337 F.3d 566 (6th Cir. 2003) (considering appellant's evidence that his waiver was unintelligent); United States v. Rangel de Aguilar, 308 F.3d 1134, 1137 (10th Cir.2002) ("[Appellant] presented no evidence to demonstrate ... that the waiver she gave was not knowing and voluntary.").⁴

Contrary to Richardson's suggestion, we do not regard the result reached here by the District Court as in conflict with the decision of the Ninth Circuit Court of Appeals in United States v. Lopez-Vasquez, 1 F.3d 751, 753-54 (9th Cir.1993). In any event, we find ourselves unpersuaded by the rationale of that case. The Lopez-Vasquez Court held that "the government bears the burden of proving the waiver," id., and that evidence of a mass, silent waiver was insufficient alone to carry that burden. The waiver at issue in Lopez-Vasquez was neither written nor individual. There, the immigration judge asked, "Gentlemen, if any of you do not understand about appeal, or if you have any questions about appeal, please stand now so that I can talk to you." Id. at 753. After no one in the assembled group rose, the judge continued, "If any of you want to appeal your case to the higher court, ... please stand so that I can talk with you about that." Id. Again, no one rose. In rejecting the government's argument that the waiver was knowing and intelligent, the Court focused upon the particular risks created by such mass silent waivers:

The immigration judge made no effort to determine whether Lopez-Vasquez individually wished to waive his right to appeal, and the mass waiver by silence made it impossible to determine whether he made a voluntary and intelligent decision to do so. Mass silent waiver creates a risk that individual detainees will feel coerced by the silence of their fellows. The immigration judge's directive that to preserve the right to appeal a detainee must stand up "so that I can talk to you about that" did nothing to lessen this risk. Indeed, it tended to stigmatize...