UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
January 26, 2012
UNITED STATES OF AMERICA,
JOHN EMMANUEL FERRON,
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.
I. Factual History
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. Unfortunately, to date, there is no ruling by the Supreme Court on the issue of retroactivity.
Courts apply Teague v. Lang in order to determine whether a case announces a "new rule . . . not dictated by precedent existing at the time the defendant's conviction became final."*fn27 Teague established two categories of cases: new rules and old rules. A new rule applies retroactively for cases on collateral review if one of two exceptions apply:
(1) the new rule places certain kinds of criminal conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new rule is a "watershed rule[ ] of criminal procedure" that "alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. "*fn28
Further, a rule is " new 'within the meaning of Teague if it 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.'"*fn29
Old rules apply both on direct and collateral review.*fn30
A rule is old "if a 'court considering the defendant's claim
at the time his conviction became final would have felt compelled by
existing precedent to conclude that the rule he seeks
was required by the Constitution.'"*fn31
When the Supreme Court overrules a previous decision, it is far easier to determine that a new rule has been created.*fn32 But, this evaluation is more difficult when the Court "extends the reasoning of [its] prior cases."*fn33
In United States v. Bonilla, the Ninth Circuit discussed the retroactive application of Padilla.*fn34 The court reviewed, on direct appeal, defendant's presentence motion to withdraw his plea after learning of the deportation consequences it carried.*fn35 Though Bonilla was in a different procedural posture than the current Petition, the Circuit Court held that the lower court should have allowed the defendant to withdraw his plea as he was not properly informed of the likelihood of deportation prior to entering into the plea.*fn36 Other Circuit Courts that have issued opinions on retroactivity are split on the issue.*fn37 District courts in the Ninth Circuit, even after Bonilla, are similarly split.*fn38 Assuming arguendo that Padilla applies retroactively, Mr. Ferron still fails to satisfy the test for ineffective assistance of counsel as established by Strickland.
IV. Ineffective Assistance of Counsel Standard and Padilla Mr. Ferron filed his Motion to Vacate pursuant to 28 U.S.C. § 2255 as a means to challenge his conviction. The relevant portion of the statute outlines the burden the Defendant must establish:
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that  the sentence was imposed in violation of the Constitution or laws of the United States, or  that the court was without jurisdiction to impose such sentence, or  that the sentence was in excess of the maximum authorized by law, or  is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The Defendant argues that his sentence is subject to collateral attack because he was denied his Sixth Amendment rights to effective assistance of counsel when determining whether to accept a plea because he was not properly advised of the risk of deportation.
A. Ineffective Assistance of Counsel
The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense."*fn39 The Sixth Amendment guarantee has two components, namely the right to counsel's undivided loyalty and the right to reasonably competent counsel.*fn40
The standard for ineffective assistance of counsel claims comes from Strickland v. Washington.*fn41 Strickland established a two-prong test where a defendant must show not only that his attorney's representation was deficient but also that the attorney's representation prejudiced his cause.*fn42 The defendant bears the burden of establishing that his attorney's performance was "so deficient that it fell below an objective standard of reasonableness."*fn43
With respect to judicial scrutiny of an attorney's performance, the court must be "highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."*fn44 This means that a defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."*fn45
In order for a defendant to establish prejudice, he must demonstrate
that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have been
different."*fn46 A reasonable probability is one
"sufficient to undermine confidence in the outcome."*fn47
Elaborating on the
threshold, Strickland states:
It is not enough for [a defendant] to show that the errors had some conceivable effect on the outcome of the proceedings. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceedings.*fn48
A court may first examine whether a defendant shows sufficient prejudice prior to engaging in an evaluation of whether counsel's performance was deficient.*fn49
The Supreme Court has held that the Strickland two-prong test is also applicable in challenges to sentences pursuant to plea agreements, i.e. allegations of erroneous plea advice.*fn50
In the context of the Strickland standard, Padilla states that in a § 2255 petition, in order to obtain relief, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances."*fn51
V. Mr. Ferron's Petition is Not Supported by the Record The record from the Change of Plea Hearing and the Imposition of Sentence Hearing is clear. Mr. Ferron would likely face deportation as a result of his plea. His attorney, Ms. Tatter, Dr. Aron Wolf and the Court all stated this fact. And, Mr. Ferron acknowledged the likelihood as well.
A. Evidence in the Record
Mr. Ferron has not provided any affidavits to support his allegations in his petition. Nonetheless, the record has ample evidence to persuade the court that he was properly advised of the risk of deportation.
During his testimony regarding Mr. Ferron's competence, Dr. Aron Wolf testified that Mr. Ferron is willing to serve the time for the charges, but the thing that's most focused on him -- for him is his immigration status. And he understood that the one charge that was dropped would have mandated that he be deported, and he wished to have at least some leeway to address whether he will be deported in the future.*fn52
Mr. Ferron was very concerned about the prospect of being deported. But, it is clear that he understood that potential. The Court stated, after explaining to the Defendant that he had the right to go to trial, and in conjunction with explaining the consequences of his plea, that "[b]ecause of your immigration status, there's also a possibility that as a consequence of pleading guilty, you would be deported."*fn53 The Court asked whether Mr. Ferron understood the risk of deportation. He replied "[y]es, Your Honor."*fn54
At the Imposition of Sentence Hearing, Ms. Tatter explained in her Sentencing Recommendations that the court should impose a short jail term as the defendant would be deported, thus ensuring the safety of the community. Specifically, she stated:
The Court should also think of the practical situation here about rehabilitation, deterrence and public safety. This person will be almost inevitably deported to Jamaica at an advanced age of fifty-some years . . . and the public will be protected because he's going to be in ICE custody upon his release of any sentence.*fn55
In his allocution, Mr. Ferron stated his concern about deportation. "It's thirty-something years now I haven't been to [Jamaica], and they're going to deport me . . . ."*fn56
When the Court gave its sentence, Judge Sedwick stated on the record the facts he was considering, including his concern about how Mr. Ferron would survive upon being deported. "I'm greatly concerned, and I'm sure Mr. Ferron is, too, about how he's going to survive when he gets back to Jamaica."*fn57 Continuing on, Judge Sedwick stated that Mr. Ferron "is an older man and he's going back to a country where even younger men can hardly ever find work . . . He does need to get himself squared away, he needs to understand who he is and where he's from because inevitably, he's going back to where he's come from."*fn58
It is painfully clear by the statements of the parties at these hearings that much attention was given to the issue of deportation. Mr. Ferron understood he would be deported. He acknowledged such at the hearing. And, there was much testimony about Mr. Ferron's competence, so there is not a concern that he was unable to understand what he was advised of regarding deportation. Mr. Ferron also stated that he was satisfied with the advice he received from his attorney, casting doubt on his allegations in this Petition.*fn59
The Petition suggests that Mr. Ferron was led to believe he would not be deported by a statement made by the Government at Sentencing. Crandon Randell, Assistant United States Attorney stated: "[Mr. Ferron] managed to thwart deportation once, no reason to think he can't do it again."*fn60 But, Petitioner takes this statement out of context. Mr. Randell was referencing Mr. Ferron's re-entry following his initial deportation in 1973-1974. Mr. Ferron illegally re-entered the United States and "thwarted" deportation. It is clear that Mr. Randell was not supposing that Mr. Ferron would not be deported following his sentencing.
Mr. Ferron was deemed competent to enter a plea. Mr. Ferron acknowledged the risk of deportation associated with his plea. The Court and counsel for Mr. Ferron stated on the record that he would likely face deportation. There is no evidence in the record that Mr. Ferron was not advised that he would likely be deported as a result of his plea.
B. Evidentiary Hearing
At Docket 56 the assigned District Judge instructed the parties to file requests for an evidentiary hearing within 30 days after the date the United States attorney filed an answer. Neither party requested an evidentiary hearing. And, Mr. Ferron has not filed any affidavits in support of his Petition.
In habeas proceedings, a defendant is entitled to an evidentiary hearing unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."*fn61 Moreover, "vague, palpably incredible, or frivolous allegations warrant summary dismissal of a section 2255 motion."*fn62
The district court may deny a § 2255 motion without holding an evidentiary hearing if "(1) the petitioner's allegations, accepted as true, would not entitled him to relief; or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or allege conclusions rather than statements of fact."*fn63 The Ninth Circuit has held that a petitioner's speculation is not an adequate basis for an evidentiary hearing.*fn64 Similarly, "conclusory allegations unsupported by specific facts are insufficient."*fn65
The record from the Change of Plea hearing and the Imposition of Sentence hearing directly contradict Mr. Ferron's allegation that he did not understand that he would likely be deported as a result of his plea agreement. This satisfies the second prong cited above as the allegations made by Mr. Ferron in his Petition are directly contradicted by the record. It is therefore not necessary to hold an evidentiary hearing in this matter.
Strickland's two-prong test requires that a defendant show not only that his attorney's representation was deficient but also that the attorney's representation prejudiced his cause.*fn66 In cases where Padilla is implicated, a defendant must also prove that had the defendant been properly advised regarding deportation, he would have rejected his plea bargain.*fn67 But here, Mr. Ferron was properly advised of the deportation consequences of his plea and he accepted those risks and entered a plea. He was advised multiple times of deportation consequences. He was advised in a way that satisfies the requirement laid out in Padilla. Therefore, the Court need not address the retroactivity of Padilla.
Even assuming Padilla is retroactively applicable for cases on collateral review, Mr. Ferron is not entitled to relief. The record is clear. Mr. Ferron was properly advised, multiple times, of the deportation consequences of his plea agreement. He acknowledged such on the record. Mr. Ferron fails to meet either prong of Strickland and his attorney's performance satisfies the requirements in Padilla. The Magistrate Judge therefore recommends the court DENY MR. FERRON'S MOTION TO VACATE HIS SENTENCE. It is so recommended.
John D. Roberts
Pursuant to Rule 59(b)(3), Federal Rules of Criminal Procedure, any objections will be considered by the District Court Judge who will accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for additional consideration and recommendation. Failure to object in accordance with this rule waives a party's right to review.
Objections to this report and recommendation shall be served and filed no later than CLOSE OF BUSINESS, Friday, February 10, 2012. Responses to objections are due by CLOSE OF BUSINESS, on Friday, February 24, 2012. Objections and responses shall not exceed 5 pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support.