United States v. Herrera-Pagoada

• Decision Date: 16 September 2021
• Docket Number: No. 20-6194,20-6194
• Citation: 14 F.4th 311
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Lexy Leonel HERRERA-PAGOADA, a/k/a Lexy Leonel Herrera, a/k/a Juan Villa Hermosa, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

14 F.4th 311

UNITED STATES of America, Plaintiff - Appellee,

v.Lexy Leonel HERRERA-PAGOADA, a/k/a Lexy Leonel Herrera, a/k/a Juan Villa Hermosa, Defendant – Appellant.

No. 20-6194

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2021

Decided: September 16, 2021

ARGUED: Nardine Mary Guirguis, GUIRGUIS LAW, PA, Raleigh, North Carolina, for Appellant. Dennis Duffy, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge King and Judge Floyd joined.

DIAZ, Circuit Judge:

Lexy Leonel Herrera-Pagoada, a native, and citizen of Honduras, appeals the dismissal of his 28 U.S.C. § 2255 habeas petition challenging his sentence for felony illegal reentry of an alien who has previously been removed, in violation of 8 U.S.C. § 1326(a) and (b). He claims that his trial counsel was ineffective when counsel failed to recognize that Herrera-Pagoada was innocent of illegal reentry because the underlying removal order was invalid.

But the district court found that Herrera-Pagoada couldn't collaterally attack (and thereby invalidate) that order because he hadn't satisfied 8 U.S.C. § 1326(d) ’s three requirements for doing so. We agree that, at a minimum, Herrera-Pagoada failed to satisfy the third condition: that "the entry of the removal order was fundamentally unfair." Id. at § 1326(d)(3). Accordingly, we affirm.

I.

This case turns on the application of 8 U.S.C. § 1326. Under subsections (a) and (b) of that provision, "any alien who has been denied admission, excluded, deported, or removed ... and thereafter enters, attempts to enter, or is at any time found in, the United States" is subject to various criminal penalties, unless he qualifies for certain exceptions not relevant here.

Subsection (d), however, permits an alien to collaterally attack a removal order in a criminal proceeding under § 1326 if the alien proves that: (1) he "exhausted any administrative remedies that may have been available to seek relief against the order"; (2) "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review"; and (3) "the entry of the order was fundamentally unfair." Id. at § 1326(d). "These requirements are listed in the conjunctive, so a defendant must satisfy all three in order to prevail." United States v. Wilson , 316 F.3d 506, 510 n.1 (4th Cir. 2003), overruled on other grounds by Lopez v. Gonzales , 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

A.

Herrera-Pagoada has been arrested after illegally entering the United States not once, not twice, but six times. The first time, he was arrested in North Carolina while in possession of between two hundred and four hundred grams of cocaine. He pleaded guilty to trafficking in cocaine by possession and was released on bond. But he failed to appear for sentencing and committed several misdemeanors in North Carolina before authorities sought to remove him.

At his removal hearing in 2010, Herrera-Pagoada admitted that he had illegally entered the United States. The immigration judge ("IJ") informed Herrera-Pagoada that he might be eligible for "non-[lawful permanent resident ("LPR")] cancellation," a form of discretionary relief through which certain inadmissible or deportable nonpermanent resident aliens may obtain LPR status. See 8 U.S.C. § 1229b(b)(1). The IJ offered Herrera-Pagoada a continuance, an application form, and a list of attorneys if he wished to pursue this option. Herrera-Pagoada replied, "No, I want to go back to my home country." United States v. Herrera-Pagoada , No. 7:15-CR-104-1H, No. 7:19-CV-131-H, 2020 WL 205602, at *1 (E.D.N.C. Jan. 13, 2020).¹

At that point, the IJ concluded that "removability has been established by clear and convincing unequivocal evidence, respondent ... was offered non-LPR cancellation; he has chosen against it; ... [and he] does not otherwise qualify for any other relief." Id. The IJ thus ordered Herrera-Pagoada removed and advised him that he could appeal this decision, but that if he accepted it as final, it would become final as of that day. Herrera-Pagoada replied, "That's fine." Id. He was duly deported.

B.

Undeterred, Herrera-Pagoada reentered the United States and was eventually arrested in 2012 for absconding from North Carolina. He was sentenced to 35–42 months in prison for his drug crimes. After serving his prison sentence, Herrera-Pagoada was again deported. Not long after, Herrera-Pagoada entered the United States a third time and was again deported.

The fourth time Herrera-Pagoada entered the United States, he was arrested in North Carolina and charged with felony illegal reentry of an alien who has previously been removed, in violation of 8 U.S.C. § 1326(a) and (b). James Todd represented him. Herrera-Pagoada pleaded guilty, and the court sentenced him to 11 months in prison and 3 years of supervised release with the special condition that upon completion of the term of imprisonment, he was to be deported and would be required to remain outside the United States. The judgment became final in 2016. Herrera-Pagoada didn't appeal, so after serving his sentence, he was deported yet again.

Herrera-Pagoada entered the United States for a fifth time and was arrested in California. Marcus Bourassa represented him on charges of misdemeanor improper entry, in violation of 8 U.S.C. § 1325, and felony illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). The government later dismissed the felony charge, and Herrera-Pagoada pleaded guilty to the misdemeanor. He was sentenced to time served.

C.

While the California federal charges were pending, Herrera-Pagoada's probation officer in North Carolina moved to revoke his supervised release for illegally reentering the country. Following his sentencing in California, Herrera-Pagoada was transferred to North Carolina.

It was there in 2019 that Herrera-Pagoada filed his 28 U.S.C. § 2255 petition.² He challenged his 2016 sentence for illegal reentry claiming that Todd had been ineffective, and attached an affidavit from Todd, in which Todd described how his performance fell short of Bourassa's.

In particular, Todd discussed an email that he received from Bourassa earlier that year about how Bourassa had persuaded the government to dismiss the felony illegal reentry charge in California. According to Todd, Bourassa had obtained a recording of Herrera-Pagoada's deportation hearing, which revealed that the IJ "did not adequately inform Mr. Herrera-Pagoada of the option to seek voluntary departure"³ —another form of discretionary relief—"in lieu of an order of deportation, which legally invalidates the order of deportation." J.A. 33.

Todd attested that "Mr. Bourassa successfully persuaded the Government to dismiss the illegal re-entry charge" in California "based on th[is] prejudicial deficiency" during Herrera-Pagoada's removal hearing. J.A. 34. Todd asserted that had he conducted the same investigation as Bourassa, he likewise would have obtained the dismissal of the illegal reentry charge "given the material and prejudicial omission of adequately informing Mr. Herrera-Pagoada of the voluntary departure option." Id.

Thus, Herrera-Pagoada argued that there was "an issue regarding his guilty plea" that "he was not made aware of ... until recently" and "affect[ed] his legal status" because he "was legally innocent of the underlying charge and his attorney should have known that." J.A. 24, 29. The government moved to dismiss the § 2255 petition because (1) it was untimely, (2) Herrera-Pagoada failed to raise a § 1326(d) challenge at trial or on direct appeal and thus the claim was procedurally defaulted, and (3) it failed to state a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The district court granted the government's motion to dismiss Herrera-Pagoada's habeas petition. It agreed that Herrera-Pagoada had filed his petition outside the one-year limitations period provided in 28 U.S.C. § 2255(f)(1) but pointed out that "a showing of actual innocence would lift the procedural bar." Herrera-Pagoada , 2020 WL 205602, at *3. The court then explained that although Herrera-Pagoada was trying to prove his innocence of illegal reentry by invalidating the underlying removal order, he couldn't do so under 8 U.S.C. § 1326(d).

As to the first two prongs, the court noted that Herrera-Pagoada didn't provide any relevant evidence in his § 2255 petition or in his response to the motion to dismiss. In fact, although Todd's affidavit cited to § 1326(d), Herrera-Pagoada's briefing below didn't mention that statute.⁴ The court also observed that after the IJ had informed Herrera-Pagoada of his right to appeal the removal order, he waived his appeal rights. Herrera-Pagoada thus "failed to carry his burden to satisfy the first two prongs." Herrera-Pagoada , 2020 WL 205602, at *4.

The district court next turned to the third prong. It acknowledged our precedent holding that "[t]o demonstrate fundamental unfairness, a defendant must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. El Shami , 434 F.3d 659, 664 (4th Cir. 2005) (cleaned up). The court determined that Herrera-Pagoada "ha[d] not met his burden to establish a due process violation for the IJ's failure to advise petitioner of discretionary relief." Herrera-Pagoada , 2020 WL 205602, at *4.

To that end, the district court observed that although "[t]he Fourth Circuit has not specifically addressed" whether such an omission by an IJ is a due process violation, we did decide in Smith v. Ashcroft , 295 F.3d...