United States v. Herrera-Valdez

• Decision Date: 17 June 2016
• Docket Number: No. 14-3534,14-3534
• Citation: 826 F.3d 912
• Parties: United States of America, Plaintiff–Appellee, v. Jose Herrera–Valdez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

826 F.3d 912

United States of America, Plaintiff–Appellee

v.Jose Herrera–Valdez, Defendant–Appellant.

No. 14-3534

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2015

Decided June 17, 2016

Georgia N. Alexakis, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Gerardo S. Gutierrez, Attorney, Law Office of Gerardo S. Gutierrez, Chicago, IL, for Defendant–Appellant.

Before Posner, William s, and Syk es, Circuit Judges.

Williams

, Circuit Judge.

Jose Gustavo Herrera–Valdez was prosecuted for illegal reentry after being deported. Before trial, he filed a motion to disqualify Judge Der–Yeghiayan from presiding over his prosecution because the judge served as the District Counsel for the Immigration and Naturalization Service (INS) at the time Herrera–Valdez was deported. He also filed a motion to dismiss the indictment against him on various grounds, which was denied. Having pled guilty, but reserving the right to appeal these issues, he now appeals those rulings. Because we find that the district court should have granted Herrera–Valdez's motion to disqualify, we reverse his conviction.

I. BACKGROUND

Herrera–Valdez is a citizen of Mexico who became a permanent resident of the United States in April 1990. In November 1992, Herrera–Valdez was arrested and charged with various drug crimes in violation of 21 U.S.C. §§ 846

, 841(b)(2). Herrera–Valdez pled guilty to conspiracy to possess with intent to distribute cocaine, and was sentenced to seventy months in prison.

In February 1994, the Immigration and Naturalization Service (INS) served Herrera–Valdez with an order to show cause and notice of hearing contending that Herrera–Valdez was removable from the United States because he was convicted of an aggravated felony.

On December 22, 1997, after spending five years and one month in the custody of the Bureau of Prisons, INS took custody of Herrera–Valdez. Two months later, Herrera–Valdez received a Notice to Appear for a removal hearing.

At the hearing, Herrera–Valdez admitted that he was convicted of an aggravated felony. He requested a waiver under the Immigration and Naturalization Act § 212(c), which, at the time, was available for deportable offenses where the offender established lawful permanent residence over seven years and did not serve more than five years in custody for the underlying offense. However, the immigration judge denied the request and ordered Herrera–Valdez deported.

Herrera–Valdez filed his appeal of the removal order one day past the thirty-day deadline, and INS filed a responsive brief in support of the immigration judge's decision. The Chicago District Counsel of the INS at the time was Samuel Der–Yeghiayan, who later became a judge in the United States District Court for the Northern District of Illinois. His name was listed in two places on the four-page brief. First, it appeared on the title page, and identified him as District Counsel. Second, his name was printed in the signature block of the brief. An assistant district counsel's name was actually signed to the brief.

The Board of Immigration Appeals (BIA) denied Herrera–Valdez's appeal, reasoning that because the appeal was late, the BIA had no jurisdiction to decide the merits of his case. After the denial, Herrera–Valdez obtained new counsel and filed a motion to reopen based on his prior counsel's ineffective assistance with filing a timely appeal. The INS filed a brief in opposition to Herrera–Valdez's motion to reopen, arguing that Herrera–Valdez did not attach the proper affidavit or inform the BIA whether Herrera–Valdez's prior counsel was notified of the allegations. The brief again listed Samuel Der–Yeghiayan as Chicago District Counsel on both the title page and the signature block. Again, the brief was signed by someone else in the office.

In March 2000, the BIA dismissed the appeal, because Herrera–Valdez did not follow certain technical requirements. Specifically, Herrera–Valdez did not include “an affidavit detailing the agreement between [Herrera–Valdez] and prior counsel” or provide any “indication that previous counsel was informed of [Herrera–Valdez's attorney disciplinary] complaint, nor given an opportunity to respond” and, as a result, failed to perfect his ineffective assistance of counsel claim. Herrera–Valdez then re-submitted the pleading as a motion to reconsider and included the proper documentation. However, he failed to pay the proper filing fee and the BIA also denied the motion to reconsider.

Almost three years later in March 2003, Herrera–Valdez left the United States for Mexico. According to Herrera–Valdez, at the time he departed, he did not know he was subject to a deportation order and in March 2008, he re-entered the United States. In November 2009, he was arrested in Illinois for the manufacture and/or delivery of between 15 and 100 grams of cocaine, as well as being a convicted felon in possession of a firearm. Four days later, Immigration and Customs Enforcement (ICE) officers located Herrera–Valdez in custody.

Herrera–Valdez pled guilty in state court to one count of possession with intent to distribute 15–100 grams of cocaine and was sentenced to six years' imprisonment. Shortly after his conviction, ICE officers located him in state prison, and informed him his prior removal order would be reinstated.

In November 2012, Herrera–Valdez was criminally indicted for illegal reentry in violation of 8 U.S.C. § 1326(a)

. The case was assigned to Samuel Der–Yeghiayan, who had left INS in 2000 and was then serving as a judge in the Northern District of Illinois. Herrera–Valdez filed a motion to disqualify Judge Der–Yeghiayan pursuant to 28 U.S.C. § 455, which he denied. Herrera–Valdez then filed a motion to reconsider as well as a motion to dismiss the indictment. The next day, Judge Der–Yeghiayan denied the motion to reconsider, and soon after, denied the motion to dismiss. Ultimately, Herrera–Valdez pled guilty to illegal reentry under 8 U.S.C. § 1326(a), reserving his right to appeal the denials of his motion to disqualify Judge Der–Yeghiayan and to dismiss the indictment.

In November 2014, Judge Der–Yeghiayan entered judgment on Herrera–Valdez's guilty plea and sentenced Herrera–Valdez to 46 months in prison and a $100 fine. Herrera–Valdez now appeals, claiming that the district court erred in denying both his motion to disqualify and his motion to dismiss.

II. ANALYSIS

A. Recusal Order Was Reviewable

As an initial matter, we must determine if we are permitted to review Herrera–Valdez's appeal of his motion to disqualify at this stage in the proceedings. Our circuit is the only one to hold that appellate review of a judge's failure to disqualify herself under § 455(a)

requires petitioning the appellate court for a writ of mandamus prior to trial. United States v. Ruzzano , 247 F.3d 688, 694 (7th Cir. 2001) ; United States v. Boyd , 208 F.3d 638, 645 (7th Cir. 2000). We have expressed several reasons for this rule. Foremost is the goal of preventing damage to the judiciary's public image by swiftly remedying any perception of bias. Id. “Once the proceedings at issue are concluded, a post hoc motion for recusal will do little to remedy any appearance of bias that was present.” United States v. Diekemper , 604 F.3d 345, 352 (7th Cir. 2010) ; see also

United States v. Troxell , 887 F.2d 830, 833 (7th Cir. 1989). Second, is the desire to promote judicial economy. “Counsel who perceive a problem under § 455(a) must not tarry, for delay imposes heavy costs on other litigants and the judicial system.” In re Nat'l Union Fire Ins. Co ., 839 F.2d 1226, 1232 (7th Cir. 1988). We have also noted that unlike a case of actual bias under § 455(b), a party's substantial rights are not affected by the denial of a recusal motion under § 455(a), and “it is a fundamental principle of appellate review that unless an error affects the substantial rights of the appellant, it is not a basis for reversal.” Ruzzano , 247 F.3d at 693 (citing Troxell , 887 F.2d at 833 ).

However, we have considered relaxing the mandamus requirement in special circumstances. See, e.g., United States v. Ward , 211 F.3d 356, 364 (7th Cir. 2000)

(questioning application of mandamus requirement where party did not discover information upon which recusal motion was based until after trial). We have also debated the merits of denying parties the ability to appeal disqualification if they fail to do so immediately after the district court rules on their motions. See

Boyd , 208 F.3d at 650 (Ripple, J., dissenting) (observing that other circuits have found parties do have some rights under § 455(a), and direct appeals can provide a “partial cure” to any harm to public perceptions of the judiciary).

Herrera–Valdez did not petition for a writ of mandamus when his § 455(a)

motion was denied in the district court proceedings. Instead, he entered into a conditional plea agreement which preserved his right to appeal the denial of his motion. He points to our cases which allow that “[w]ith the consent of the government and approval of the court, a defendant may enter a conditional plea of guilty, reserving ... the right to have an appellate court review an adverse determination of a specified pretrial motion.” United States v. Kingcade , 562 F.3d 794, 797 (7th Cir. 2009) (internal quotation marks omitted). The government agrees that we may review Herrera–Valdez's recusal argument because of the express reservation in the conditional plea agreement that the district court approved.

We have never examined whether a party has effectively waived its right of appellate review of a disqualification motion in the context of a plea agreement that reserves certain arguments for appeal. Several factors lead us to conclude that under these circumstances, we may review Herrera–Valdez's appeal of the district court's denial of his disqualification motion.

First, the Supreme Court has reviewed appellate courts' decisions regarding ...