United States District Court, M.D. Pennsylvania
September 22, 2005.
UNITED STATES OF AMERICA, Plaintiff,
SAMEH HADIMA, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
The Defendant, Sameh A. Hadima, filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. The motion raises two
claims of ineffective assistance of counsel.
On December 3, 2004, the Defendant pled guilty to one count of
making a false statement with respect to a material fact in an
application, affidavit, or other document required by immigration
laws and regulations in violation of 18 U.S.C. § 1546(a). Hadima
was sentenced to three months imprisonment and an assessment of
$100. The Defendant was to surrender to the custody of the
Attorney General on June 6, 2005, and we subsequently extended
his surrender date to June 27, 2005. Hadima filed a notice of appeal on May 23, 2005. The Third
Circuit appointed the Federal Public Defender's Office to
represent him on appeal. The Third Circuit extended the
Defendant's surrender date to August 1, 2005, and directed us to
consider Hadima's motion for bail pending appeal, which we
ultimately denied. Hadima surrendered to the Attorney General's
custody on August 1, 2005. At present, the Defendant's appeal is
still pending before the Third Circuit.
On September 8, 2005, the Defendant filed a counseled motion
pursuant to § 2255. In his motion, Hadima argues that his trial
counsel was ineffective for erroneously advising him that the
United States Attorney would be recommending a probationary
sentence in exchange for his guilty plea and that his trial
counsel was ineffective for advising him to plead guilty to a
crime he did not commit. When a defendant files a § 2255 motion
during the pendency of his direct appeal, we normally dismiss the
motion without prejudice as premature. See United States v.
Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (collecting cases);
see generally Kapral v. United States, 166 F.3d 565, 570 (3d
Cir. 1999) ("a collateral attack is generally inappropriate if
the possibility of further direct review remains open") (citing
Feldman v. Henman, 815 F.2d 1318 (9th Cir. 1987)). However,
since the short length of Hadima's sentence might render any §
2255 motion moot after his appeal is decided (assuming that the Third Circuit denies the appeal), we
will consider his current motion. See United States v.
Robinson, 8 F.3d 398, 405 (7th Cir. 1993) (in deciding whether
to consider a 2255 motion while an appeal is pending, the
district court must balance the need for speedy relief against
the need to conserve judicial resources).
The Defendant's claims of ineffective assistance of counsel are
governed by the standard set forth in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Strickland held that an ineffective assistance of counsel claim
requires the petitioner to show: (1) that his counsel's
performance fell below an objective standard of reasonableness;
and (2) that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. The
reasonableness of counsel's conduct must be judged in light of
the facts of the particular case at the time of the event.
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. In analyzing
that performance, the court must make every effort "to eliminate
the distorting effects of hindsight," and determine whether "in
light of all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance." Id.
Once it is found that counsel's performance was deficient, the
court must determine if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different." Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
The Defendant's first argument is that his trial counsel was
ineffective for advising him that the United States Attorney
would be recommending a sentence of probation when, in fact, he
recommended a period of incarceration. Hadima contends that he
would not have pled guilty if he had known that the Government
would not be recommending probation. In support of his argument,
he submits an affidavit made by his trial counsel which states:
(1) that trial counsel interpreted the plea agreement, which
stated that the Government would recommend a sentence at the low
end of the guideline range, to mean that the Government would
recommend probation and advised the Defendant is accordance with
that belief; (2) that trial counsel interpreted the Government's
statement at the guilty plea hearing to mean that the United
States Attorney would be recommending probation and that he
advised Hadima that the sentencing recommendation would be probation; and (3) that trial
counsel noted his belief as to the Government's sentencing
recommendation in his objections to the pre-sentence report.
(Doc. 111, § 2255 motion, Ex. 1).
We find that even if trial counsel's performance can be
considered deficient, the Defendant cannot satisfy the prejudice
prong of the Strickland standard. "To succeed in showing
prejudice, [Hadima] must show that it is reasonably probable
that, but for the erroneous advice of his trial counsel, he would
have pled not guilty and gone to trial." Meyers v. Gillis,
142 F.3d 664, 668 (3d Cir. 1998). In the instant case, the Defendant
contends that had trial counsel not advised him that the
Government would be recommending a term of probation, he would
not have pled guilty. However, the United States Attorney clearly
stated that the Government intended to recommend "that the Court
impose the minimum term of imprisonment under the applicable
guideline range." (Doc. 80, Guilty Plea Tr., p. 3) (emphasis
added). Hadima subsequently pled guilty to violating
18 U.S.C. § 1546(a). (Id., at p. 14). The Defendant did not raise any
concerns about the Government's sentencing recommendation during
the hearing on his guilty plea. As such, we find that, regardless
of the representations Defendant's counsel may have made as to a
sentence of probation, Hadima was aware at the time of his plea
that the Government wanted him to be incarcerated. Thus, the Defendant cannot
demonstrate that he was prejudiced by trial counsel's
Hadima's second argument is that his trial counsel was
ineffective for advising him to plead guilty to a crime he did
not commit. Specifically, he contends that the factual basis of
his plea, as stated by the United States Attorney, does not
contain any facts to establish that he made a false statement. In
support of his argument, the Defendant directs our attention to
the Government's assertion at the guilty plea hearing that the
immigration form submitted by the Defendant contained a
certification that the form was "signed by the persons whose
names appeared on the form." (Id., at 11). Hadima asserts that
the form does not contain this certification and, as a result,
there is no factual support for his guilty plea. He also argues
that he had his wife's permission to sign her name.
The Defendant pled guilty to knowingly making a false statement
under oath or penalty of perjury regarding a material fact on a
document required by immigration laws in violation of
18 U.S.C. § 1546(a). The false statement he admitted to making at his guilty
plea hearing was signing his wife's name to an immigration
document and then submitting that document as if she had
personally signed it. (Id., at 12). In his motion, the
Defendant does not contest this. Instead he argues that because the form does not contain a certification that his wife was the
person who signed the form, contrary to the facts presented by
the United States Attorney during the plea hearing, there is no
factual basis for his conviction. In signing the form, however,
the Defendant certified "under penalty of perjury under the laws
of the United States of America, that this petition and the
evidence submitted with it is all true and correct." (Doc. 111, §
2255 motion, Ex. 2). When he signed the petition, Hadima was
certifying that all of the information on the form was "true and
correct." The Defendant has admitted that the signature on the
"spouse" line of the form is not his wife's and that he submitted
the form as though it contained her actual signature. As such,
her "signature" is not "true and correct." Therefore, we cannot
find that Hadima did not certify, or have to certify, the
authenticity of his wife's signature.*fn1 We also note that
having his wife's permission to sign the form does not change the
fact that he has admitted to submitting the form to immigration officials as if his wife had personally signed it.
Since there is a factual basis to support the plea, trial counsel
was not ineffective for counseling the Defendant enter a plea of
Based on the foregoing discussion, we will issue an order
denying Defendant's claims. The order will also deny a
certificate of appealability, based on the analysis in this
memorandum. However, the Defendant is advised that he has the
right for sixty (60) days to appeal our order denying his section
2255 motion, see 28 U.S.C. § 2253(a), and that our denial of a
certificate of appealability does not prevent him from doing so,
as long as he also seeks a certificate of appealability from the
court of appeals. See Federal Rule of Appellate Procedure 22.
We will enter an appropriate order. ORDER
AND NOW, this 22nd day of September, 2005, it is Ordered that:
1. Defendant's 2255 motion (Docs.111) is denied.
2. Based on the accompanying memorandum, a
certificate of appealability is denied.
3. The Clerk of Court shall close this file.
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