U.S. v. Yearwood
| Decision Date | 19 December 1988 |
| Docket Number | No. 88-7624,88-7624 |
| Citation | 863 F.2d 6 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kelvin YEARWOOD, Defendant-Appellant, American Immigration Lawyers Association, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Lalit Harilal Gadhia (Lalit H. Gadhia, Baltimore, Md., on brief), for defendant-appellant.
Charles Preston Scheeler, Asst. U.S. Atty., Baltimore, Md. (Breckinridge L. Willcox, U.S. Atty., Washington, D.C., on brief), for plaintiff-appellee.
Kenneth H. Stern, Stern & Elkin, on brief, for amicus curiae.
Before WIDENER, CHAPMAN, and WILKINS, Circuit Judges.
Kelvin Yearwood appeals the decision of the district court denying his motion for post conviction relief pursuant to 28 U.S.C. Sec. 2255. We affirm.
Yearwood, an alien, was indicted for narcotics violations under 21 U.S.C. Secs. 846 and 841(a)(1) and 18 U.S.C. Sec. 2. At his initial arraignment, Yearwood appeared with counsel and pleaded not guilty to the charges. Defendant subsequently entered into a plea agreement under which he would plead guilty to the first count of the indictment, conspiracy to possess cocaine with intent to distribute the same under 21 U.S.C. Sec. 846, and the government would enter nolle prosequi on the two remaining counts. The district court accepted the guilty plea and found defendant guilty on count 1. Defendant was sentenced to a term of imprisonment of three years pursuant to the government's recommendation. He is now subject to deportation under 8 U.S.C. Sec. 1251(a)(11) based on his conviction.
With new counsel, Yearwood filed a Sec. 2255 motion, alleging that his previous counsel failed to advise him of the collateral consequence of deportation mandated by his guilty plea. On appeal, defendant argues that the district court erroneously failed to hold an evidentiary hearing on the issue raised in his Sec. 2255 motion. A hearing is not required, however, on a Sec. 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief. United States v. Baysden, 326 F.2d 629, 631 (4th Cir.1964); see Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462-63, 36 L.Ed.2d 169 (1973). Although the defendant later mentioned, in a subsequent memorandum, the issue of affirmative misrepresentation by former counsel, that the conviction would not result in deportation, there is no such allegation nor support for such allegation in the initial Sec. 2255 petition. 1
Turning to the issue raised in defendant's Sec. 2255 motion, we agree with the circuits which have decided the issue and found that an attorney's failure to advise a client that deportation may result from a conviction does not constitute ineffective assistance of counsel. United States v Campbell, 778 F.2d 764, 768 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975). To hold otherwise would place the unreasonable burden on defense counsel to ascertain and advise of the collateral consequences of a guilty plea which courts have uniformly held is not ineffective assistance of counsel. See, Campbell, 778 F.2d at 768-69; United States v. Sambro, 454 F.2d 918, 922 (D.C.Cir.1971).
Defendant's trial counsel had no spontaneous duty to inform defendant that his guilty plea would lead to his being deported. Indeed, the fact alone that defendant, an alien with an immigrant visa, violated the laws of the United States should have raised some question in his own mind as to his status in this country. Along the same line, we are of opinion that defendant's argument that his guilty plea was made involuntary by the omission of advice as to deportation or that his conviction so was obtained without due process of law is also without merit. See Santelises, 509 F.2d at 704.
1 The Sec. 2255 motion was filed December 22, 1987, and along with it was filed a memorandum in support thereof prepared by Yearwood's attorney, as had been the Sec. 2255 motion. Neither in the Sec. 2255 motion nor in the memorandum was anything mentioned to the effect...
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