United States v. Perea
| Decision Date | 12 March 2012 |
| Docket Number | CIVIL ACTION No. 11-2218-KHV,CRIMINAL ACTION No. 08-20160-08-KHV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO PEREA, Defendant. |
| Court | U.S. District Court — District of Kansas |
On December 15, 2009, defendant pled guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine. On April 20, 2010, the Court sentenced defendant to 292 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #349) filed April 14, 2011. For reasons stated below, the Court sets an evidentiary hearing on defendant's claims related to counsel's failure to appeal and otherwise overrules defendant's motion.
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
Liberally construed, defendant's Section 2255 motion asserts that his attorney, Jacquelyn Rokusek, was ineffective because before he pled guilty, she did not inform him that (1) he would be deported as a result of his conviction, (2) as a deportable alien, he would not be eligible for a reduction in his sentence upon completion of the Residential Drug Abuse Program ("RDAP") and(3) his sentencing range under the Guidelines would be based on a Criminal History category II. See Motion Under 28 U.S.C. § 2255 (Doc. #349) at 4. Defendant also asserts that Ms. Rokusek incorrectly told him that the typical defendant who cooperates receives a 50 per cent reduction from the advisory guideline range. See Memorandum Of Facts And Law In Support Of Motion To Vacate, Set Aside, Or Correct Sentence (Doc. #350) at 3. Defendant argues that at sentencing, Ms. Rokusek was ineffective because she did not assert that (1) defendant lost the third level for acceptance of responsibility because his first attorney was ineffective, (2) defendant pled guilty under a mistaken belief that his criminal history category was I, and (3) defendant should receive a 50 per cent decrease in his guideline range for substantial assistance. See id. at 6. Defendant asserts that after sentencing, Ms. Rokusek was ineffective because she did not file an appeal as instructed or consult defendant about a possible appeal.1 See Doc. #349 at 4.
To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) the deficient performance was so prejudicial that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performancewas "below an objective standard of reasonableness." United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988), cert. denied, 489 U.S. 1089 (1989). As to the second element, the Court must focus on the question "whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Defendant, who is a citizen of Mexico and an illegal immigrant to the United States, argues that Ms. Rokusek was ineffective because she did not tell him that as a collateral consequence of his conviction, he would be deported. Counsel renders deficient performance if she fails to advise a noncitizen client that a plea of guilty carries a risk of deportation. See Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). In an affidavit, Ms. Rokusek states that she notified defendant that as a non-citizen, he was subject to deportation as a result of a conviction. See Affidavit of Jacquelyn E. Rokusek ¶ 1, attached to Government's Response (Doc. #373) filed September 15, 2011. In contrast, defendant states that Ms. Rokusek never informed him that deportation was a collateral consequence of his guilty plea. The Court need not resolve whether Ms. Rokusek advised defendant about deportation, however, because defendant cannot establish prejudice.
To show prejudice in the guilty plea context, defendant must show a reasonable probability that but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir. 2001). As part of his proof,defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 130 S. Ct. at 1485 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). Defendant asserts that he suffered prejudice because had he known that he would be deported as a result of his conviction, he would not have entered a plea of guilty and would have insisted on going to trial. See Memorandum (Doc. #350) at 10. Defendant's mere assertion that he would have insisted on trial but for counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. Miller, 262 F.3d at 1072; United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Instead, the Court evaluates the factual circumstances surrounding the plea to predict "whether the outcome of the district court proceedings would have been different if his counsel had not committed the alleged errors." Clingman, 288 F.3d at 1186; see Miller, 262 F.3d at 1072 (). While defendant need not show that he would have prevailed at trial, his prospects of succeeding inform the Court's view whether he in fact would have gone to trial absent the alleged errors. United States v. Triplett, 263 Fed. Appx. 688, 690 (10th Cir. 2008); see Clingman, 288 F.3d at 1186. The strength of the government's case is often the best evidence of whether defendant in fact would have changed his plea and insisted on going to trial. See Hill, 474 U.S. at 59-60.
Defendant does not state that he would have likely prevailed at trial and the record does not reflect any viable defense against the charges. As part of the plea, defendant acknowledged that he conspired with others to distribute and possess with intent to distribute more than 50 grams of methamphetamine. See Plea Agreement ¶ 2. He acknowledged that officers obtained monitored and recorded phone calls of him discussing drug trafficking business with co-conspirators. Inaddition, he recognized that his girlfriend, co-defendant Tanya Jones, had implicated him in the trafficking of methamphetamine and appeared willing to testify against him. Finally, he understood that during a search of his residence, officers recovered 20.8 net grams of pure methamphetamine, a pistol in his office and a fraudulent 194A Department of Homeland Security document. The PSIR ultimately determined that defendant was accountable for 15 kilograms or more of methamphetamine. See PSIR (Doc. #288) ¶ 59. In light of this evidence, which is not impacted in any degree by Ms. Rokusek's alleged lack of advice about deportation, defendant states that he would have proceeded to trial if he had known that he would be deported.
Defendant's conclusory claim, though supported by his sworn statement, is insufficient to show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 130 S. Ct. at 1485; see Banos v. United States, No. 10-23314, 2011 WL 835789, at *3 (S.D. Fla. Mar. 4, 2011) (); Agyepong v. United States, No. 07-cr-178-2, 2011 WL 627361, at *4 (M.D.N.C. Feb. 11, 2011) ().
Defendant does not expressly state that the fact of deportation was material to his decision to plead guilty and in any event, the record shows otherwise. During a presentence interview, defendant acknowledged that when he is released, "he plans to return to Mexico City and work as a mechanic." PSIR (Doc. #288) ¶ 97. Defendant does not explain how his deportation was material in light of the fact that he planned to return to Mexico and to never return to the United States. See Limones v. United States, No. 07-cr-356-5-TWT, 2011 WL 1157371, at *5 (N.D. Ga. Mar. 29,2011) ().
Defendant also cannot establish prejudice because he significantly delayed seeking to vacate his plea until after the Court imposed a sentence of 292 months in prison. In the context of a motion to withdraw a guilty plea before sentencing, the Court considers whether defendant delayed in filing the motion.2 Indeed, delays of three months or...
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