The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTION TO VACATE PURSUANT TO 28 U.S.C. § 2255 Docket 53
Petitioner John Emmanuel Ferron filed a Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255 at Docket 53. Following appointment of counsel, Ferron filed an Amended Petition, through counsel, at Docket 73. The Government filed its Answer at Docket 74. The Court ordered counsel for Mr. Ferron to file a brief regarding the retroactivity of Padilla v. Kentucky*fn1 and the applicable statute of limitations for the filing of his Petition.*fn2 Petitioner filed his brief at Docket 84 and the Government filed its Response at Docket 85. Neither party requested an evidentiary hearing. The matter is now ripe for decision.
For the reasons stated below, the Magistrate Judge recommends the Court DENY PETITIONER'S MOTION TO VACATE.
Mr. Ferron entered the United States illegally in December of 1972
after traveling to the United States by ship from Jamaica.*fn3
He was reported to the government for his illegal entry and
located in October of 1973. Some time after October of 1973, but
before December of 1974, Mr. Ferron illegally reentered the United
States and enlisted in the United States Navy under the name Clyde
Mr. Ferron was honorably discharged from the military and began working for the Merchant Marines.
Between 1992 and 2007, Mr. Ferron used the name Clyde Steele to, among other things, apply for and receive loans, open bank accounts, obtain credit cards, apply for a passport and apply for and receive public assistance and veterans benefits.*fn5 Throughout his life, Mr. Ferron also experienced mental health issues and intermittently used illegal drugs.*fn6
In 2007, Mr. Ferron was indicted in an 11-Count Indictment for crimes relating to Identity Theft and Social Security and Passport Fraud.*fn7 Mr. Ferron was arrested on December 19, 2007, in California, had his initial appearance in the Northern District of California on December 20, 2007, and was arraigned in Anchorage on February 15, 2008.*fn8 Following his arrest in December 2007, Immigration and Customs (ICE) placed an immigration hold on the Defendant.*fn9
Mr. Ferron entered into a plea agreement which encompassed the crimes identified in the Indictment with the exception of Count 3, Passport Fraud, which was dropped pursuant to the plea agreement.*fn10
At the Change of Plea hearing, the Court inquired as to Mr. Ferron's competency. Dr. Aron Wolf, Psychiatrist, testified that the Defendant, though he had mental health issues, he was able to understand the consequences of his plea agreement, including that he was aware of the risk of deportation.*fn11 The Court also inquired as to whether Mr. Ferron was aware that his plea agreement would likely result in his deportation.*fn12 Mr. Ferron acknowledged this fact.*fn13
Mr. Ferron was sentenced pursuant to his plea agreement on March 26, 2009 to a term of 39 months.*fn14 At the sentencing, Dr. Wolf testified again as to Mr. Ferron's mental state and his competency.*fn15 Counsel for the Defendant, Sue Ellen Tatter, gave the Defense's sentencing recommendation, specifically recognizing that the Defendant would inevitably be deported and that he is subject to ICE custody upon release following his sentence.*fn16 During his allouction, Mr. Ferron, himself, recognized he would be deported following his sentence.*fn17 And, the Court again acknowledged that the Defendant would likely be deported as a consequence of his plea.*fn18
II. Procedural History Consistent with the terms waiving his right to
appeal in his plea agreement, Mr. Ferron did not file a direct appeal
in his case. As such, his
conviction became final no later than April 15, 2009.*fn19
Following his release from the Bureau of Prisons after his
serving sentence in his federal criminal matter (including credit for
time served) on September 27 2010, Mr. Ferron was detained by ICE
pending deportation proceedings.*fn20 He filed his §
2255 petition on October 7, 2010, more than a year after his sentence
Consistent with 28 U.S.C. § 2255(f), a petitioner must file a motion to vacate within one year after his conviction is made final. There are only a few exceptions to this rule. One of the exceptions is contained in § 2255(f)(3) which states that the limitations period shall run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."
Here, Mr. Ferron argues that the Supreme Court's decision in Padilla applies to his case, that he was not properly advised as to the risk of deportation as a consequence of his plea, and that his petition is timely filed as the rights expressed in the Padilla opinion fall within the exception contained in § 2255(f)(3).*fn22 The Padilla decision was decided on March 31, 2011. Therefore, if Padilla meets the definition in § 2255(f)(3), Mr. Ferron's petition is timely.
III. Padilla and Retroactivity
In Padilla, the United States Supreme Court held that counsel must advise defendants of deportation consequences in order to comply with the definition of constitutionally competent counsel outlined in Strtickland v. Washington.*fn23 More specifically, "[b]efore deciding whether to plead guilty, a defendant is entitled to 'the effective assistance of competent counsel."*fn24 This includes advisement on the risk of deportation.*fn25
The Court in Padilla makes no specific statement regarding retroactivity of the decision. But, the Court does state that the decision "will not open the floodgates to challenges of convictions obtained through plea bargains."*fn26 This implies that the Supreme Court intended Padilla to apply retroactively. ...