U.S. v. Del Rosario

• Decision Date: 24 April 1990
• Docket Number: No. 88-3175,88-3175
• Citation: 902 F.2d 55,284 U.S.App.D.C. 90
• Parties: UNITED STATES of America v. Sabino DEL ROSARIO, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 55

902 F.2d 55

284 U.S.App.D.C. 90

UNITED STATES of America v. Sabino DEL ROSARIO, Appellant.

No. 88-3175.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 11, 1989.

Decided April 24, 1990.

Peter H. Meyers, appointed by this Court, for appellant.

Steven W. Pelak, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Thomas J. Tourish, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before MIKVA, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge MIKVA.

SENTELLE, Circuit Judge:

Sabino Del Rosario, a citizen of the Dominican Republic, appeals from the denial of his motion under Fed.R.Crim.P. 32(d) and 28 U.S.C. Sec. 2255 to withdraw his plea of guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Del Rosario advances two arguments for the proposition that he should be allowed to withdraw his plea. First, he claims that he received ineffective assistance of counsel because his attorney did not advise him that a guilty plea would likely result in his deportation. Second, he asserts that during the plea hearing the court committed violations of Fed.R.Crim.P. 11 by failing to inform him of the elements of the crime to which he pleaded guilty and by failing to inform him of the special parole term applicable to this offense.

We find that the failure of Del Rosario's lawyer to inform him of the likelihood of deportation, as a collateral consequence to a guilty plea, does not constitute representation below an objective standard of reasonableness and that the other alleged errors do not amount to a "complete miscarriage of justice." Consequently, we affirm the District Court's denial of Del Rosario's motion.

I. BACKGROUND

On September 26, 1986, the Metropolitan Police executed a search warrant for the apartment occupied by Del Rosario and at least one other person. Inside the apartment they found large amounts of cocaine and cash and the tools of distribution.

On February 26, 1987, Del Rosario pleaded guilty to one count of possession of cocaine with the intent to distribute. 21 U.S.C. Sec. 841(a)(1). At the plea hearing the District Judge inquired of Del Rosario to determine whether he made the plea voluntarily. The Judge read the indictment, the prosecutor stated the facts she intended to present, and Del Rosario indicated that he did not disagree with anything he had heard. On March 12, 1987, the District Court held a sentencing hearing and entered judgment imposing a prison term of four to twelve months followed by a three-year sentence of special parole. At neither hearing did the Court advise Del Rosario that deportation would be a consequence of the conviction or that the sentence would or could include a term of special parole. At the sentencing hearing the prosecutor and Del Rosario's attorney engaged in some inconclusive discussion concerning deportation, but neither purported to know definitively the deportation-related consequences of the plea.

Del Rosario in fact served a ten-month prison term. Thereafter, the Immigration and Naturalization Service moved to deport him under 8 U.S.C. Sec. 1251(a)(11). Del Rosario pro se filed a "Motion for Court-Appointed Counsel, to Withdraw Guilty Plea, and to Vacate Sentence." After reviewing the pro se filing, the District Court appointed counsel for Del Rosario, who filed on his behalf a motion to withdraw the plea and vacate the sentence under Fed.R.Crim.P. 32(d) and 28 U.S.C. Sec. 2255. After an evidentiary hearing, the District Court concluded that Del Rosario's court-appointed attorney at the time of the plea and sentencing had not provided effective assistance of counsel, but that Del Rosario had demonstrated no prejudice resulting from his trial counsel's failure. Therefore, the District Court afforded no relief.

II. ANALYSIS

A. The Ineffective Assistance of Counsel Claim

Reviewing this case in the light of controlling authorities, we conclude that the District Court not only did not err in finding that Del Rosario had demonstrated no prejudice, but also that Del Rosario was not deprived of effective assistance of counsel at all. The proper analysis of a Sixth Amendment claim for ineffective assistance of counsel begins with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that case, the Supreme Court established that, in order to show sufficiently defective performance by counsel to constitute a denial of the Sixth Amendment guarantee, a convicted defendant must establish two components: (1) "that counsel's performance was deficient," involving "errors so serious that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment," id. at 687, 104 S.Ct. at 2064; and (2) "that the deficient performance prejudiced the defendant," established by a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court established the applicability of the Strickland test to the guilty plea situation. First, the Court noted the existing case law that the voluntariness of the plea of a defendant represented by counsel during the plea process "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' " Id. at 56, 106 S.Ct. at 369 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). The Court then held that the two-pronged Strickland test previously applied in trial and trial-type situations was equally applicable to an attack on the voluntariness of a guilty plea, and further instructed that the second, or "prejudice" prong required the defendant to "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370.

While Hill did not involve a failure to inform the defendant of deportation consequences of his plea, it is not only controlling as to the generally applicable rule of law, but also determinative of the application of that rule to the present facts. In Hill, the allegation was that counsel had offered erroneous advice as to a collateral consequence of the plea, far less remote than the collateral consequence of deportation. There, the petitioner alleged that his counsel incorrectly advised him as to his parole eligibility date, but failed to allege that but for that advice "he would have pleaded not guilty and insisted on going to trial." Id. at 60, 106 S.Ct. at 371. The Court held that the habeas petitioner could not show prejudice without proving that the incorrect advice had such an effect on his plea decision, and noted the absence of any special circumstances that would have supported placing a "particular emphasis" on the parole eligibility date in the making of the plea decision. Id. In the present case, not only is there no evidence supporting a conclusion that Del Rosario would have placed any particular emphasis on the danger of deportation at the time of the plea decision, but such evidence as the transcript of the criminal proceedings does contain is to the contrary.

The sentencing transcript discloses that a colloquy occurred in defendant's presence among the trial judge, the prosecutor, and Del Rosario's court-appointed counsel concerning the possible deportation consequences of the plea. That colloquy was inconclusive as to the exact nature of those consequences but clearly revealed that deportation was a distinct possibility though none of the three purported to know the exact likelihood of its imposition. Del Rosario did not make, nor does he now claim he was prevented from making, any assertion that this affected his decision, though he was offered and exercised his right of allocution. The statement on allocution occupies a single paragraph in the transcript and consists solely of his acknowledgement that he had "made a mistake" and an expression of his intent to do better in the future. It contains no reference to the deportation possibility whatsoever.

In light of this clear record that the deportation possibility carried no particular emphasis, we certainly cannot conclude that the District Court's conclusion in the present proceeding that the prejudice prong of the Strickland/Hill test was not met constituted error.

In further support of this conclusion, we note, as did the District Court, that the Supreme Court in Hill described "the resolution of the 'prejudice' inquiry" as closely related to the objective prediction of whether the defense could succeed if the case went to trial. See Hill, 474 U.S. at 59-60, 106 S.Ct. at 370-71. ¹ As the District Court also noted, "even prior to Hill, this Circuit required a colorable claim of innocence to justify vacating a plea on ineffective assistance of counsel grounds." United States v. Del Rosario, Crim. No. 86-356-01, slip op. at 10-11 (D.D.C. Nov. 28, 1988) (citing United States v. Barker, 514 F.2d 208, 211 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975)). While the defendant in the present case now asserts his innocence, we note that the evidence against him was strong, that in allocution the defendant admitted that he had "made a mistake," and that the claim of innocence did not surface until more than seventeen months after his hearing and some months after he had been served notice of the deportation action against him. As we have previously stated:

A swift change of heart is itself strong indication that the plea was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government's legitimate interests. By contrast, if the defendant has long delayed his withdrawal...