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Levy v. United States

United States District Court, N.D. Georgia, Atlanta Division

April 24, 2015

UNITED STATES OF AMERICA, Respondent. Civil No. 1:13-CV-3120-AT-JFK


AMY TOTENBERG, District Judge.

The matter is before the Court on Movant's 28 U.S.C. § 2255 motion [206]; the Magistrate Judge's Final Report and Recommendation (hereinafter "R&R"), which recommends that the § 2255 motion and a certificate of appealability ("COA") be denied [246]; and Movant's objections [254].[1]

In reviewing a Magistrate Judge's Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The District Judge must "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation and internal quotation marks omitted). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, " 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, " Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b).

I. Background

In the underlying criminal proceedings, Movant was charged in Count One with attempt and conspiracy to commit bank fraud and with eleven additional counts of bank fraud and/or fraud with identification documents. (Superseding Indictment, ECF No. 45.) On August 22, 2012, represented by Thomas C. Wooldridge, Movant entered into a plea agreement, in which he pleaded guilty to Count One. (Guilty Plea and Plea Agreement, ECF No. 153-1.) The plea agreement contained a broad waiver of the right to review - Movant waived certain appeal rights and his right to collaterally attack his sentence or conviction. (Id. at 8-9.) The government agreed to dismiss the remaining eleven counts. (Id. at 4.) After a hearing, the Court accepted Movant's guilty plea. (Plea Hr'g Tr. at 33, ECF No. 211.) In a judgment entered on February 8, 2013, the Court imposed a twenty-month below-guidelines term of imprisonment and a sentence of restitution in the amount $218, 515.34. (J., ECF No. 187.) The remaining counts against Movant were dismissed. ( See Docket Entry 187.) Movant did not appeal.

In September 2013, Movant filed his § 2255 motion, in which he has asserted that counsel provided ineffective assistance (1) by advising Movant that he was pleading guilty to bank fraud and not advising him regarding mail fraud and explaining the elements of conspiracy, (2) by failing adequately to advise Movant on the immigration consequences of pleading guilty, and (3) by failing to file an appeal - "I told my attorney that I was dissatisfied with the restitution and that I wanted to appeal it, but he advised me not to." (Mot. to Vacate at 5, ECF No. 206.) The government argued that Movant failed to show ineffective assistance on any of the grounds and, additionally, that his claim regarding counsel's failure to file an appeal was barred by his collateral-review waiver. (Gov't Resp. at 3-16, ECF No. 214.)[2]

The Magistrate Judge found (1) that Ground One fails because Movant was not charged with mail fraud and he understood the elements of bank fraud and conspiracy, (2) that Ground Two fails because counsel's immigration advice was constitutionally adequate and prejudice was lacking, and (3) that Ground Three fails based on Movant's broad review waiver or, alternatively, because Movant has not shown that counsel was ineffective for failing to file an appeal. (R&R at 4-18, ECF No. 246.) Movant objects to the Magistrate Judge's findings (1) that he failed to show that counsel's immigration advice violated his right to effective assistance of counsel, (2) that he waived the right to raise a collateral claim that counsel was ineffective for failing to file an appeal, and (3) that Movant did not ask his counsel to file an appeal or reasonably demonstrate to counsel that he was interested in appealing. (Objections, ECF No. 254.)

II. Discussion

A. Whether Counsel's Immigration Advice Violated Movant's Right to Effective Assistance of Counsel

In his plea agreement, Movant agreed that there may be immigration consequences, including removal from the United States, to pleading guilty. (Guilty Plea and Plea Agreement at 9.) Movant affirmed that he wanted "to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States." (Id. ) Movant also signed an acknowledgment that he had read the plea agreement and had carefully reviewed every part of it with his attorney and that he understood its terms and conditions and voluntarily agreed to them. (Id. at 11.)

At the plea hearing, after being sworn, Movant agreed that he had signed the plea agreement and that he had signed and understood the acknowledgment. (Plea Hr'g Tr. at 3-4.) The Court inquired, "Are you a United States citizen?" (Id. at 17.) Movant responded, "I'm legally here, but I'm not a citizen." (Id. at 18.) The Court stated, "I'm not an immigration attorney, but I need to tell you that it is possible that you could be deported as a result of the plea of guilty... - this is a strong consideration that you have to consider." (Id. ) Counsel informed the Court that he had advised Movant to the "absolute extent of my knowledge. And I've told him there are possible immigration consequences and that - that he should talk to somebody that's a specialist...." (Id. at 18.) The Court determined that it did not seem as though there had been "much of a discussion" on immigration consequences and gave Movant and counsel a five-minute break to discuss the matter and stated that, if they needed more time, to simply let the Court know. (Id. at 20.) When Movant and counsel returned to the plea hearing, Movant assured the Court that he had received an adequate opportunity to discuss immigration consequences with counsel and that he wished to proceed. (Id. at 21-22.) Later in the hearing, the government went over the terms of the plea agreement and summarized the removal paragraph - "there may be adverse consequences that affect his status as a legal resident alien and his ability to remain in the United States lawfully and that he could face deportation and removal based on... his plea of guilty." (Id. at 25.)

Before accepting Movant's guilty plea, the Court asked Movant whether anyone had made him any promises or representations other than those in the plea agreement, and Movant stated, "No, Your Honor." (Id. at 26.) The Court asked Movant whether he had been threatened, pressured, forced, or intimidated into pleading guilty, and Movant stated, "No, Your Honor." (Id. ) The Court asked whether there was anything that Movant did not understand or that he wanted to go over, and Movant responded, "No, Your Honor." (Id. ) After the Court allowed Movant additional time to consult with counsel about another issue, the Court inquired whether he had any further issues, and Movant responded, "No, Your Honor." (Id. at 32.) The Court accepted Movant's guilty plea as knowing, intelligent, and voluntary. (Id. at 33.)

As recorded in Movant's pre-sentence investigation report (PSR), prepared by Vincent Boyd Collins, Movant communicated (at some time prior to sentencing) that he believed he might be a United States citizen, although Immigration and Customs Enforcement records showed that Movant was a permanent resident alien. (PSR, at Citizenship and at 31.) The lack of certainty regarding Movant's citizenship was confirmed by counsel at sentencing. (Sentencing Tr. at 40, ECF No. 228.) In his post-judgment motion for reclassification, Movant stated that he had derivative American citizenship and was wrongly housed with removable immigrants. (Mot., ECF No. 210.)

In his § 2255 motion, Movant asserts that counsel provided ineffective assistance by failing adequately to advise him on the immigration consequences of pleading guilty. (Mot. to Vacate at 5.) Movant asserts that counsel did not discuss immigration consequences until the plea hearing and that, when the court allowed him extra time to speak with counsel during the hearing, counsel told him that (1) he had derivative citizenship, (2) the Court's admonishments during the plea hearing were normal procedures for anyone born outside the United States, and (3) immigration would not be an issue for Movant.[3] (Mov't Reply at 5-7, ECF No. 218.)

During the § 2255 hearing, Movant and counsel testified regarding the extent of their pre-plea discussions and agreed that they had met five or six times. (Section 2255 Hr'g Tr. at 5, 38, ECF No. 238.) Movant testified that before he entered the plea agreement, he went over it with counsel and that counsel explained it "briefly." (Id. at 21-22.) Counsel testified that he went over the plea agreement with Movant, but could not remember whether it was on the day of the plea or before. (Id. at 40.) Counsel stated that he generally reviews a ...

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