United States District Court, Eastern District of Pennsylvania
Juan R. Sánchez, J.
Defendant Jackson Duvert has filed a pro motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney failed to advise him of the immigration consequences of his guilty plea and failed to seek a disposition with less harsh immigration consequences. The Government urges this Court to dismiss Duvert’s § 2255 motion pursuant to the appellate waiver provision of his Guilty Plea Agreement. Upon review of the audio recording of the change of plea hearing, during which Duvert specifically acknowledged he was aware his conviction on federal drug charges could be a basis for deportation, it is apparent Duvert’s ineffective assistance of counsel claim lacks merit. Duvert’s § 2255 motion will therefore be denied.
On May 25, 2010, Duvert pleaded guilty to federal drug and gun charges carrying an aggregate maximum sentence of life imprisonment pursuant to a written Guilty Plea Agreement.
As part of his plea, Duvert agreed to cooperate with the Government in the hope of obtaining a sentence below the five-year mandatory minimum on the gun charge. See Guilty Plea Agreement ¶¶ 3-4. Duvert’s Guilty Plea Agreement also included a broad appellate waiver provision, in which Duvert “voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to this prosecution, ” including the right to seek collateral review under 28 U.S.C. § 2255, subject to certain narrow exceptions. Id. ¶ 9.
During the change of plea hearing,  this Court reviewed the terms of Duvert’s Guilty Plea Agreement with him and discussed the rights Duvert was giving up by pleading guilty, including his right to file a direct appeal or, later, to attack how the case was handled by his attorney. The Court also reviewed the consequences of pleading guilty with Duvert. In connection with this discussion, the Government alerted the Court to the fact that Duvert was not a United States citizen, prompting the Court to question Duvert about his immigration status and to review with him the possible immigration consequences associated with his guilty plea. In response to the Court’s questions, Duvert confirmed he was not a citizen but a permanent resident of the United States. Duvert also stated that although he had not consulted with an immigration lawyer, he had discussed with defense counsel the consequences his guilty plea could have on his immigration status and he understood his drug conviction could be used as a basis to deport him from the United States. Duvert confirmed that notwithstanding the potential for deportation, he still wished to plead guilty. Following the Court’s questioning, Duvert’s counsel represented he had reviewed the immigration issues with Duvert, explaining the change of plea hearing had been continued specifically to permit counsel to go over the immigration consequences with Duvert, in light of the Supreme Court’s intervening decision in Padilla v. Kentucky, 559 U.S. 356 (2010). Duvert again acknowledged he was aware of the potential immigration consequences of his guilty plea. At the conclusion of the change of plea hearing, this Court accepted Duvert’s guilty plea, finding Duvert was competent and his decision to plead guilty was knowing and voluntary.
On June 29, 2011, this Court sentenced Duvert to time served on each of the drug counts and imposed a one-day consecutive sentence on the gun count. The Court also imposed a five-year term of supervised release with the first eighteen months to be served on home confinement. The sentence imposed was well below both Duvert’s effective advisory Guidelines range of 72-78 months and the five-year statutory mandatory minimum sentence on the gun charge.
In March 2012, the U.S. Probation Office petitioned this Court to modify the conditions of Duvert’s supervised release based on his continued noncompliance with the existing conditions, including his admitted marijuana use. On March 20, 2012, this Court granted the requested modification and ordered Duvert to reside in a residential re-entry center for a period of 60 days, to be credited toward his original home confinement requirement. See ECF No. 138. Although Duvert started a residential program, he did not successfully complete it, and following his discharge from the program, the Probation Officer requested a revocation hearing. The Court held a hearing on August 23, 2012, at which Duvert appeared with counsel, and thereafter revoked Duvert’s supervised release and sentenced him to four months of imprisonment to be followed by 56 months of supervised release. See ECF No. 144.
At some point, deportation proceedings were commenced against Duvert. On August 13, 2013, Duvert filed the instant § 2255 motion, raising a single claim of ineffective assistance of counsel based on his attorney’s alleged failure to advise him of the immigration consequences of his guilty plea and to seek a disposition with less harsh immigration consequences.
Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to vacate, set aside, or correct his sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law[ ] or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In evaluating a § 2255 motion, the court “must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record” and “must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.” Gov’t of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); see also 28 U.S.C. § 2255(b).
Claims of ineffective assistance of counsel, including such claims arising in the plea bargain context, are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012); Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). To establish a claim for a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must show (1) “counsel’s performance was deficient, ” and (2) “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. With regard to the deficiency element, the defendant must demonstrate “counsel’s representation fell below an objective standard of reasonableness, ” which requires “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687-88. To establish prejudice, the defendant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
In Padilla, the Supreme Court held a defendant had sufficiently alleged the deficiency element of an ineffective assistance of counsel claim based on his assertion that his counsel failed to advise him his drug distribution conviction would subject him to automatic deportation and instead told him he did not need to worry about his immigration status because he had been in the United States for so long. See 559 U.S. at 359-60, 368-69. Citing Padilla, Duvert argues his attorney was likewise ineffective for failing to advise him his guilty plea in this case would expose him to the risk of deportation. See § 2255 Mot. 13. Contrary to this assertion, however, during the change of plea hearing, Duvert acknowledged his attorney had discussed the immigration consequences of his guilty plea with him and stated he understood his conviction could be used as a basis to deport him from the United States. Duvert also confirmed that notwithstanding these risks, he wished to plead guilty to the drug and gun offenses charged in the indictment. Duvert’s admissions at the change of plea hearing “carry a strong presumption of verity, ” see Blackledge v. Allison, 431 U.S. 63, 74 (1977), and Duvert has offered no reason why the Court should disregard them. Because Duvert’s own statements refute his allegations that his attorney failed to advise him of the immigration consequences of his guilty plea, his ineffective assistance of counsel claim lacks merit.
Insofar as Duvert alludes to counsel’s failure to seek a disposition with less harsh immigration consequences, this allegation is also insufficient to support an ineffective assistance of counsel claim. Duvert does not identify any particular disposition his counsel ought to have sought and alleges no facts suggesting that had his counsel sought some unspecified alternative disposition, there is a reasonable probability the Government would have agreed to it and this Court would have accepted it. To the contrary, the Government agreed to the plea deal Duvert accepted in this case knowing there were likely to be immigration consequences to Duvert. There is thus no basis to conclude Duvert’s counsel was ineffective for failing to seek an alternative disposition or that Duvert was prejudiced by such failure. See United States v. Yahsi, 549 F. App’x 83, 85 (3d Cir. 2013) (holding a prosecutor has no obligation “to plea bargain in ...