United States v. Kayode, 12–20513.

• Decision Date: 23 December 2014
• Docket Number: No. 12–20513.,12–20513.
• Citation: 777 F.3d 719
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rasheed Babatunde KAYODE, also known as Babatunde Rasheed Kayode, also known as Rasheed Babatunde Kayode, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

777 F.3d 719

UNITED STATES of America, Plaintiff–Appellee

v.Rasheed Babatunde KAYODE, also known as Babatunde Rasheed Kayode, also known as Rasheed Babatunde Kayode, Defendant–Appellant.

No. 12–20513.

United States Court of Appeals, Fifth Circuit.

Dec. 23, 2014.

Katherine Lisa Haden, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Rasheed Babatunde Kayode, Bastrop, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.

Opinion

JENNIFER WALKER ELROD, Circuit Judge:

Rasheed Babatunde Kayode was sentenced to 210 months' imprisonment after pleading guilty to mail fraud, aggravated identity theft, and unlawful procurement of naturalization. Kayode subsequently petitioned the district court to vacate his plea agreement pursuant to 28 U.S.C. § 2255, arguing that his counsel failed to warn him of the likely deportation consequences of his guilty plea. The district court granted the government's motion for summary judgment, and denied Kayode's § 2255 motion and certificate of appealability. Because Kayode has failed to show prejudice as a result of his counsel's failure to advise him of the likely deportation consequences of his plea agreement, we AFFIRM the judgment of the district court.

I.

Kayode became a naturalized citizen on June 21, 2006. On May 14, 2008, postal inspectors searched Kayode's home and seized more than 350 credit cards, numerous credit reports, several hundred letters, about 800 pre-approved credit card applications, bank statements, credit card statements, checkbooks, other mail meant for people other than Kayode, as well as social security numbers, dates of birth, and other personal identification information belonging to a large number of individuals. In addition, the postal inspectors discovered $63,000 in U.S. currency, an undetermined amount of foreign currency, and various forms of merchandise such as flat-screen television sets and laptop computers that appeared to have been purchased with fraudulent credit cards.

Kayode was indicted on June 11, 2008, in a forty-four count indictment that included twenty counts of mail fraud, twenty counts of bank fraud, one count of possession of stolen mail, one count of fraud with access devices, one count of aggravated identity theft, and one count of unlawful procurement of naturalization. On September 23, 2008, Kayode entered pleas of guilty to mail fraud (Count 1), aggravated identity theft (Count 43), and to unlawful procurement of naturalization (Count 44) pursuant to a plea agreement. In exchange for Kayode's guilty plea, the government agreed to dismiss the remaining charges in the indictment, to request a reduction for acceptance of responsibility, and not to request an upward departure.

The plea agreement that Kayode signed stated:

On June 21, 2006, the defendant became a naturalized U.S. citizen.... On that date and on April 17, 2006, the defendant stated under oath that he had not knowingly committed any crime or offense for which he had not been arrested. This statement was materially false because the defendant knew at the time he swore under oath that he had, in fact, committed the crimes of mail fraud, bank fraud, possession of stolen mail and fraud in connection with access devices. The defendant was therefore ineligible to be admitted to citizenship because he was unable to establish good moral character.

Kayode contends that he only learned of the deportation consequences of the plea agreement during his September 23, 2008, rearraignment hearing. Before accepting his guilty plea, the district court engaged in the following colloquy with Kayode. First, the district court said, “I'm going to mention also to you that there is a possibility, if convicted or found guilty of this count, there might be a loss of citizenship that was given to you through naturalization.” When asked if he understood the “nature of the charges and the possible penalties pending against you,” Kayode answered, “Yes, Your Honor.” The district court then asked Kayode if he understood that if his citizenship was revoked that “conviction may lead to your deportation or exclusion from the country.” Kayode responded, “Yes, sir.”

Later during the same hearing the district court asked Kayode whether he intended to commit the acts described in the pre-sentencing investigation report (PSR) and Kayode responded, “No, sir.” The district court then warned Kayode that he would have to go to trial on all forty-four counts if Kayode's answer conflicted with his plea agreement, and sent Kayode to meet with his attorney. After meeting with his attorney, Kayode told the district court that he intended to commit the acts described in the PSR and knew what he was doing at the time. The PSR itself says that “due to the offense of conviction, it appears the defendant is deportable and should be stripped of his naturalization.” Kayode stated on the record at the hearing that he had read and understood the plea agreement. The district court then accepted Kayode's plea.

On April 15, 2009, Kayode moved to withdraw his guilty plea, alleging that he was “concerned” about the waiver of his right to appeal, that he had no recollection of the case or his discussions with counsel because of prescription medication he was taking for a health condition, and that he “want [ed] to take his case to trial and state his innocence.” The district court reviewed each medication Kayode took and confirmed that none of the medications hampered his mental competence. The district court denied this motion and the case proceeded to sentencing.

The district court then sentenced Kayode to 210 months on Count 1, 120 months on Count 44 to run concurrently to Count 1, and 24 months on Count 43 to run consecutively to Count 1, for a total imprisonment of 234 months. The district court also ordered Kayode to pay a total restitution of $24,865.94 to three financial institutions. In a separate appeal, we vacated Kayode's conviction and sentence for Count 43, and remanded the matter for further proceedings. The district court entered an amended final judgment on January 14, 2011, and Kayode received a 210 month sentence for the remaining two counts.

Kayode then filed a motion under 28 U.S.C. § 2255 attacking his remaining convictions on numerous grounds, including an allegation that he received ineffective assistance of counsel because his attorneys failed to advise him of the deportation consequences of his guilty plea. Kayode submitted an affidavit, asserting that he was under the impression that he had given up his right to trial by the time the district court warned him about the possible deportation consequences of his plea, because he had already signed the plea agreement. Kayode's affidavit does not state that he would have gone to trial if he had known of the possible deportation consequences of his plea. It does, however, state that “[i]f I had known my indictment would have been dismissed, I would never have pled guilty.”

The government filed a motion for summary judgment, seeking to enforce the appeal waiver in Kayode's plea agreement. The district court granted the government's motion for summary judgment and denied Kayode's § 2255 motion. The district court determined that Kayode's appeal waiver was knowing and voluntary and was therefore enforceable. The district court noted that the waiver did not bar his ineffective assistance of counsel claim, but instead dismissed that claim after determining that Kayode had not met the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In concluding that Kayode could not establish prejudice, the district court considered: (1) the district court's admonishments during the plea colloquy regarding deportation; (2) the overwhelming evidence of guilt against Kayode; and (3) the ability of the government to seek revocation of his citizenship even if Kayode insisted on proceeding to trial and was acquitted of all counts.

The district court denied Kayode's certificate of appealability (COA). We subsequently granted a COA only on the issue of whether counsel rendered ineffective assistance by failing to inform Kayode of the deportation consequences associated with his guilty plea. We denied his motion for a COA in all other respects.

II.

Our review “is limited to the issues enumerated in the COA.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006) (citing 28 U.S.C. § 2253(c)(1) ). In reviewing a district court's denial of a § 2255 motion, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir.2008).

III.

In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Supreme Court held that counsel's failure to advise a lawful permanent resident alien of likely deportation implicates the Sixth Amendment right to effective assistance of counsel, as set forth in Strickland, 466 U.S. 668, 104 S.Ct. 2052. Both parties agree that Padilla applies here because Kayode's conviction became final after Padilla was decided, as his appeal was still pending when the decision was issued.

In order to obtain relief, Kayode must show both (1) that his counsel's performance was deficient, and (2) prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

A.

To show that his attorney's performance was deficient, Kayode must show that the attorney's representation fell below an objective standard of reasonableness and that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

In Padilla , the Supreme Court determined that the defendant's counsel was deficient for failing to “advise her client regarding the risk of deportation.” 559 U.S. at 367, 369, 130 S.Ct. 1473. The decision was underscored by the Supreme Court's recognition of...