Tapia-Garcia v. U.S.

• Decision Date: 24 May 1999
• Docket Number: No. 98 CIV.3465(HB)(AJP).,98 CIV.3465(HB)(AJP).
• Citation: 53 F.Supp.2d 370
• Parties: Juan TAPIA-GARCIA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

53 F.Supp.2d 370

Juan TAPIA-GARCIA, Petitioner, v. UNITED STATES of America, Respondent.

No. 98 CIV.3465(HB)(AJP).

United States District Court, S.D. New York.

May 24, 1999.

COPYRIGHT MATERIAL OMITTED

Juan Tapia-Garcia, Leavenworth, KS, pro se.

Meir Feder, Asst. U.S. Attorney, New York City, for Respondent.

MEMORANDUM AND ORDER

BAER, District Judge.¹

Juan Tapia-Garcia (the "petitioner") moves pursuant to 28 U.S.C. Section 2255, to set aside his guilty plea to the crime of re-entry after deportation following an aggravated felony in violation of 8 U.S.C. Section 1326(b)(2). I referred this matter to Magistrate Judge Peck, who issued a Report and Recommendation (the "Report") on November 3, 1998 and recommended that the petitioner's motion to vacate his conviction be denied. The petitioner filed timely objections. For the reasons stated below, I agree with Judge Peck.

I. BACKGROUND

The procedural history of this case is recited in the Report and Recommendation. To summarize, in August 1995, the petitioner agreed to plead guilty pursuant to a plea agreement between the U.S. Attorney and the defendant in the Southern District of New York to a two-count information charging him "(i) with illegal reentry into the United States after having been deported after conviction for an aggravated felony, in violation of 8 U.S.C. Section 1326(a); and (ii) with escape from custody, in violation of 18 U.S.C. Section 751(a)." Report at 3 (quoting United States v. Tapia-Garcia, No. 96-1773, 141 F.3d 1152, 1998 WL 88035, at *1 (2d Cir. Feb.25, 1998)). The petitioner pled guilty in accordance with that agreement on January 4, 1996. On November 21, 1996, the petitioner was sentenced by this Court to 105 months of incarceration, followed by three years of supervised release, and a $100 special assessment. See id. Tapia-Garcia was represented by attorney Steven Goldenberg at both his guilty plea allocution and sentencing.

On appeal to the Second Circuit, the petitioner was represented by new counsel, and the issues raised dealt with sentencing guideline calculations. See id. The Second Circuit in February of 1998 affirmed the petitioner's sentence. See id. at 4.

In March 1998, the petitioner filed his present pro se section 2255 petition. See id.

II. DISCUSSION

A. Standard of Review

A district court reviews de novo the determination of those parts of a Magistrate Judge's Report and Recommendation to which any party objects. It may accept, reject, or modify, in whole or in part, the Report and Recommendation. See 28 U.S.C. Section 636(b)(1)(B) & (C) (1988). However, the court need not conduct a de novo hearing. See Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989) (citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). The court may adopt without review those parts to which the petitioner does not object and with which the court finds no clear error. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991).

B. Petitioner's Objections

The petitioner objects to the Report and Recommendation on two grounds: (1) that his appellate counsel was ineffective for failing to raise the issue that the information should have been vacated on the ground that attempted murder was not an "aggravated felony" at the time of his attempted murder conviction; and (2) that he is entitled to be deported before he completes his prison term, or alternatively, that he is entitled to a downward departure from his current sentence because he will be deported thereafter.

First, as to the petitioner's deportation and downward departure argument, "[i]t is well-established...that the failure to raise a claim on direct appeal is itself a default of normal appellate procedure which a defendant can overcome only by showing cause and prejudice." Andre Rodriguez v. United States, 878 F.Supp. 20, 23 (S.D.N.Y.1995) (internal quotations and citations omitted). Cause must be something external to the petitioner, something that cannot be fairly attributed to him. See Salvador Rodriguez v. United States, 866 F.Supp. 783, 785 (S.D.N.Y. 1994). In the main, the petitioner asserts that his failure to raise his deportation and downward departure claim arose from his failure to understand the legal system, or the "complex web of procedural rules," (Petitioner's Motion Objecting to Magistrate's Report and Recommendation at 10). This is so despite the fact that he was represented by counsel both during trial and on appeal. Regardless, ignorance of the law is not sufficient to sustain the petitioner's burden in a habeas case. See Salvador Rodriguez, 866 F.Supp. at 785. Therefore, the petitioner's deportation and downward departure objection is procedurally barred.

Next, the petitioner objects to the Report and Recommendation based on a new claim of ineffective assistance of appellate counsel and utilizes the same reasoning from his claim of ineffective assistance of trial counsel which is now procedurally barred.² Tapia-Garcia again argues that he was denied effective representation because his appellate attorney failed to raise the argument that attempted murder was not an "aggravated felony" under 8 U.S.C. § 1326(b)(2) at the time of his conviction. To establish a claim for ineffective assistance of counsel, the petitioner must show (i) that his attorney's performance "fell below an objective standard of reasonableness," and (ii) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); see also, Bethea v. Artuz, 126 F.3d 124, 126 (2d Cir.1997). "The same standard applies to a review of the effectiveness of appellate counsel." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999). Furthermore, the Supreme Court has held that in deciding an ineffective assistance claim the court need not address both elements of the inquiry, in other words, if the petitioner is unable to demonstrate one component, the court need not explore the other. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

"In evaluating the prejudice component of Strickland, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different." McKee, 167 F.3d at 106. Here, Tapia-Garcia has failed to demonstrate any prejudice in connection with his claim for ineffective assistance of appellate counsel. After a review of the relevant statutes and the chronology of events in this case, I agree with the thorough analysis articulated in Magistrate Judge Peck's Report and Recommendation which concludes the "aggravated felony" provision of 8 U.S.C. § 1326(b) applies to Tapia-Garcia's attempted murder conviction. See Report at 11-22. Although Magistrate Judge Peck tracked the history of the statute vis a vis the petitioner's ineffective assistance of trial counsel, the analysis is the same.

Tapia-Garcia was convicted of attempted murder in 1985, deported in March 1993 and then illegally re-entered the United States two months later in May 1993. Since the petitioner's conviction predated the enactment of the statute authorizing an enhanced sentence for reentry after deportation and conviction of an aggravated felony, the Court must make two inquiries in order to determine whether Tapia-Garcia's attempted murder conviction falls under the statute: (1) whether attempted murder is an "aggravated felony" under 8 U.S.C. § 1101(a)(43), and (2) whether 8 U.S.C. § 1326(b)(2) applies to defendants with pre-1988 aggravated felonies. I conclude that both questions must be answered in the affirmative.

As to the first inquiry, under 8 U.S.C. § 1101(a)(43), from the enactment of the sentencing enhancement provision in 1988 through its current amendments, the definition of "aggravated felony" applied to 8 U.S.C. § 1326(b) has included murder and attempted murder. Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (1988); see also, United States v. Westcott, 159 F.3d 107, 111 (2d Cir.1998) ("§ 1101(a)(43)'s definition of `aggravated felony' was limited to murder, certain drug and firearm trafficking crimes, and attempts and conspiracies to commit these crimes" prior to the passage of the Immigration Act of 1990). Thus, there is no doubt that Tapia-Garcia's attempted murder conviction is an "aggravated felony."

Next, although the Second Circuit has not explicitly decided this issue, all the Courts of Appeals to consider the statute have concluded that 8 U.S.C. § 1326(b)(2) applies to defendants with pre-1988 aggravated felonies, and authorizes an enhanced sentence for reentry after deportation. See, e.g., United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir.1998); United States v. Baca-Valenzuela, 118 F.3d 1223, 1228-29 (8th Cir.1997); United States v. Campbell, 94 F.3d 125, 126-28 (4th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847 137 L.Ed.2d 1050 (1997); Scheidemann v. INS, 83 F.3d 1517, 1523-25 (3d Cir.1996); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Saenz-Forero, 27 F.3d 1016, 1020-21 (5th Cir.1994); United States v. Troncoso, 23 F.3d 612, 613-14 (1st Cir.1994), cert. denied, 513 U.S. 1116, 115 S.Ct. 912, 130 L.Ed.2d 793 (1995); United States v. Arzate-Nunez, 18 F.3d 730, 734-35 (9th Cir.1994).

Therefore, I conclude that Tapia-Garcia cannot show the degree of prejudice necessary to satisfy this prong of the Strickland standard. Put another way, his appellate counsel would not have succeeded had he chosen to challenge whether the petitioner's attempted murder conviction qualified as an "aggravated felony." In short, there is no reasonable probability that the result of the appeal would have been different absent the appellate counsel's alleged deficient...