Rodriguez v. United States
| Decision Date | 04 August 2011 |
| Docket Number | CASE NO. 1:10-CV-23718-WKW [WO] |
| Parties | LAZARA RODRIGUEZ, Petitioner, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Before the court is Petitioner Lazara Rodriguez's ("Ms. Rodriguez") Motion to Vacate Judgment and Sentence Pursuant to 28 U.S.C. § 2255, or in the Alternative, [Petition] for Writ of Error Coram Nobis And/Or Audita Quarela Pursuant to 28 U.S.C. § 1651.1 (Doc. # 1.) Ms. Rodriguez seeks to challenge the constitutionality of her conviction more than twenty-five years subsequent to entering a guilty plea in the United Stated District Court for the Southern District of Florida. The Motion is due to be denied.
Taking as true Ms. Rodriguez's factual allegations, the court finds the following facts:
On December 28, 1984, Ms. Rodriguez, a citizen of Cuba and resident alien of the United States, entered a guilty plea to one count (Count II of the Indictment) of racketeering conspiracy, 18 U.S.C. §§ 1962(c) and 2. The pattern of racketeering activity was alleged to be a sizeable marijuana distribution enterprise, but Ms. Rodriguez only admitted to and was adjudged guilty of two predicate crimes of obstruction of justice (18 U.S.C. §§ 1503 and 2) and one predicate crime of bribery (18 U.S.C. §§ 201 and 2) relating to the alleged preparation of false affidavits to be submitted to the grand jury and to the bribery of a grand jury witness.2 (Indictment (Doc. # 19, Ex. 2); Plea Agreement ¶ 1 (Doc. # 19, Ex. 4); Plea Colloquy Tr. 22 (Doc. # 19, Ex. 5) ("I want the record to reflect as it does in the written plea agreement, my client is only admitting three predicate acts . . . , which relate to two obstruction[ ] of justice counts . . . and also the bribery count . . . .").) In connection with the plea agreement, the Government dismissed at sentencing all other counts against Ms. Rodriguez in the Indictment, including numerous charges for narcotics importation and possession with intent to distribute marijuana. (Plea Agreement ¶ 2.)
Ms. Rodriguez alleges in her pleading, and the record adequately reflects, that her primary concern, which she addressed to her defense attorney, Federico A. Moreno,3 was being deported back to Cuba. .)
Based on Ms. Rodriguez's professed desire to avoid deportation, she alleges that Mr. Moreno "told her that he was not going to choose the charge that would provide for the lowest sentence[;] rather he would choose the charge that was not a drug offense so that [Ms. Rodriguez] would be protected from deportation." (Pet'r.'s Br. 5) (emphasis in original). The problem was that all of the charges against Ms. Rodriguez were deportable offenses "upon order of the Attorney General," as either "crimes involving moral turpitude" or "violation[s] of . . . any law . . . relating to theillicit possession of or traffic in [or importation of] narcotic drugs or marihuana...." 8 U.S.C. § 1251(a)(4) (moral turpitude) and (a)(11) (narcotics) (1982).
Despite all of the charges being deportable offenses, the statutory scheme then in effect offered a potential exemption for those convicted of moral turpitude offenses. Section 1251(b) read: "The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply . . . (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported . . . ." 8 U.S.C. § 1251(b)(2) (1982). Such a recommendation was known as a judicial recommendation against deportation ("JRAD").4 Although nominally a "recommendation," a JRAD "had the effect of binding the Executive to prevent deportation" because the statute was "'consistently . . . interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation.'" Padilla, 130 S. Ct. at 1479 (quoting Janvier v. United States, 793 F.2d 449, 452 (2d Cir. 1986)). However, the JRAD procedure applied only to the provisions of subsection (a)(4), convictions formoral turpitude crimes. See Padilla, 130 S. Ct. at 1480 n.5. The statute explicitly stated that no like procedure was available for narcotics convictions.5 8 U.S.C. § 1251(b) (1982) ().
Because the JRAD procedure was available for crimes involving moral turpitude, Mr. Moreno negotiated a plea agreement with the Government whereby Ms. Rodriguez would plead guilty only to the racketeering offense and admit only the obstruction of justice and bribery predicate crimes. In this fashion, Mr. Moreno might have obtained a JRAD through 8 U.S.C. § 1251(b) for Ms. Rodriguez on the racketeering offense, thereby avoiding the restrictive deportation procedures for narcotics convictions.
Ms. Rodriguez was sentenced on March 27, 1985, to a prison term of 84 months. (Judgment (Doc. # 19, Ex. 6).) On the same day, Mr. Moreno filed theJRAD motion.6 Unfortunately for Ms. Rodriguez, the motion was cursorily and swiftly denied by former United States District Judge Alcee Hastings, who allegedly "comment[ed] that he was not an immigration judge." (Order Denying JRAD (Doc. # 19, Ex. 8); Pet'r.'s Br. 6.) Mr. Moreno persisted and, on May 16, 1985, filed a second Motion for Modification of Sentence and Recommendation Against Deportation. (Doc. # 19, Ex. 9.) That motion was denied on July 1, 1985. (Doc. # 19, Ex. 1.)
Ms. Rodriguez's sentence expired in 1989. The Attorney General commenced deportation proceedings soon thereafter, and, in 1992, Ms. Rodriguez was ordered deported by an oral decision of an Immigration Judge in the Executive Office for Immigration Review in Miami, Florida. (Doc. #19, Ex. 10.) Under order of supervision, Ms. Rodriguez, as a Cuban citizen, has remained in the United States since that date, but is subject to rigid travel restrictions and reporting requirements. The order of deportation remains in effect, and Ms. Rodriguez could be deported at any time.
In 2010, Ms. Rodriguez filed the instant petition. She maintains that her Sixth Amendment guarantee of effective assistance of counsel was denied when Mr.Moreno "provided inaccurate advice to [her] in regards to the absolute deportation consequences of her plea." (Pet'r.'s Br. 11.) Ms. Rodriguez argues that, had she been advised accurately of the deportation consequences, "she would not have entered into the plea bargain." (Pet'r.'s Br. 11.) She seeks an order vacating the judgment and conviction.
Under 28 U.S.C. § 2255, a prisoner in federal custody "under sentence of a [federal] court" may challenge her incarceration on four separate grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27 (1962). "In a [§] 2255 motion, a petitioner has the burden of sustaining [her] contentions by a preponderance of the evidence." Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980).7
A court may dismiss a § 2255 motion if "it plainly appears from the motion,any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b) - Section 2255 Proceedings. However, if the motion is not dismissed, the court "must review the answer, any transcripts and records of prior proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted." Rule 8(a) - Section 2255 Proceedings. The district court should hold an evidentiary hearing and rule on the merits of a petitioner's claim where she "alleges facts that, if true, would entitle [her] to relief." Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002) (internal quotation marks omitted). Stated another way, the district court must accord a § 2255 petitioner an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Anderson v. United States, 948 F.2d 704, 706 (11th Cir. 1991) (citing 28 U.S.C. § 2255) (internal quotation marks omitted).
A federal court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). "A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody . . . ." United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). "[C]oram nobis relief is availableafter [the] sentence has been served because 'the results of the conviction may persist[,] [s]ubsequent convictions may carry heavier penalties, [or] civil rights may be affected.'" Id. (quoting United States v. Morgan, 346 U.S. 503, 512-13 (1954)). However, the Eleventh Circuit recently enshrined the finality of convictions as "critically important" to our criminal justice system. Gilbert v....
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