United States District Court, N.D. Georgia, Atlanta Division
WALTER V. MURRAY, Movant,
UNITED STATES OF AMERICA, Respondent. v.
RICHARD W. STORY UNITED STATES DISTRICT JUDGE.
case is before the Court on Movant's "Motion to
Vacate Plea Due to Immigration Consequences" , the
Final Report and Recommendation (R&K) of Magistrate Judge
Alan J. Baverman , and the Government s Objections
Court must "make a de novo determination of those
portions of the [K&KJ to which objection is made"
and "may accept, reject, or modify, m whole or m part,
the [R&R]." 28 U.S.C. § 636(b)(1)(C). Portions
of the R&Rto which no objection is made are reviewed only
for clear error. Macort v. Prem. Inc., 208 Fed.Appx.
781, 784 (11th Cir. 2006) (per curiam).
Court originally issued an Order  construing Movant's
"Motion to Vacate Plea Due to Immigration
Consequences" as a 28 U.S.C. § 2255 motion, but
subsequently issued an Order  granting the
Government's Consent Motion to Construe the Matter as a
Petition for Writ of Error Coram Nobis , Judge Baverman
concluded that the matter is properly construed as a §
2255 motion. [See Doc. 89 at 3-4]. The parties did not object
to that conclusion, and the Court agrees with Judge
Baverman's analysis of the issue. Accordingly, the
Court's Order  granting the Government's Consent
Motion to Construe the Matter as a Petition for Writ of Error
Coram Nobis  is due to be vacated, and the
Government's Consent Motion  is due to be denied.
Baverman conducted an evidentiary hearing and recommended
that Movant's construed § 2255 motion be granted.
[Doc. 89 at 22]. Judge Baverman concluded that Movant's
retained counsel in his criminal case, David R. MacKusick,
provided ineffective assistance in advising Movant, a
noncitizen, to plead guilty to a charge of income tax
evasion. [Id. at 5-21].
Baverman determined that MacKusick performed deficiently by
failing to advise Movant that his conviction would lead to
presumptively mandatory deportation. [Doc. 89 at 7-15].
In Padilla v. Kentucky, 559 U.S. 356 (2010), the
United States Supreme Court decided that a criminal defense
attorney must advise a noncitizen client whether his charge
carries a presumptively mandatory deportation consequence.
[Id. at 11 -12]. Padilla applies to Movant because
his conviction became final twenty-eight days after Padilla
was decided, even though Padilla was not available to
MacKusick when he advised Movant. [Id. at 15 n.8].
Judge Baverman found that MacKusick fell short of the
standard in Padilla because he advised Movant that
deportation was possible, rather than certain. [Id.
Government objects that MacKusick provided sufficient advice
in emails that he sent during the two years before Movant was
charged with tax evasion on June 25, 2009. [Doc. 98 at 4-7,
10-17]. However, the Government itself concedes that
MacKusick expressed "uncertainty" in September and
October 2007 emails regarding the immigration consequences of
Movant's criminal conduct, which was then under
investigation as false claims for tax credits, not tax
evasion. [Id. at 3-6]. The Court agrees with Judge
Baverman that MacKusick's September and October 2007
emails do not satisfy the standard in Padilla. [Doc. 89 at
email sent on June 15, 2009, MacKusick told Movant that he
(1) "will... be turned over to immigration for
deportation proceedings" during the last six months of
his sentence, (2) "can be deported" following the
custodial portion of his sentence, (3) will not be on
supervised release, " and (4) "will be
deported" after the (jrovernment seizes his assets.
[Doc. 89 at 9-10]. Judge Baverman recognized that this email
could possibly be interpreted as advice that deportation was
a certainty." [Id. at 13]. However, Judge
Baverman found that the email by itself did not satisfy the
standard m Padilla because it (I) "was only one email
among the many that MacKusick and Movant exchanged, "
(2) "preceded Movant's charge by ten days and guilty
plea by approximately six months, " (3) was internally
inconsistent because it stated that Movant "can be
deported" and "will be deported, " (4) did not
appear to be representative of MacKusick's overall advice
to Movant, because MacKusick stated at sentencing that
Movant's deportation was only "possible, " and
(5) was inconsistent with MacKusick's testimony at the
evidentiary hearing, which was that he could not say anything
certain" to Movant regarding deportation. [Id.
at 10-11, 13-14].
Government objects to Judge Baverman's reasoning
regarding MacKusick s email sent on June 15, 2009. [Doc. 98
at 16-17]. After careful consideration, the Court agrees with
Judge Baverman that this single email does not satisfy
MacKusick's obligations under Padilla. The Court observes
that the Government is unable to cite even one instance when
MacKusick advised Movant that he faced presumptively
mandatory deportation after he was actually charged on June
25, 2009. For the reasons given by Judge Baverman, a
preponderance of the evidence shows that MacKusick performed
deficiently because he did not satisfy the standard m
Baverman determined that MacKusick's deficient
performance prejudiced Movant because he unknowingly gave up
the chance, however slight, of achieving his goal of avoiding
deportation. [Doc. 89 at 16-21]. In Lee v. United
States, 137 S.Ct. 1958 (2017), the Supreme Court decided
that a noncitizen criminal defendant who pleaded guilty may
establish prejudice by showing that the determinative factor
for him was to avoid deportation, rather than minimize his
prison sentence. [Id., at 17-19]. Other courts have
added that prejudice is not established if the defendant (1)
knows, from a source such as a plea agreement, that
deportation is presumptively mandatory following a guilty
plea, and (2) proceeds with a guilty plea nevertheless.
[Id. at 21 & n.10]. Judge Baverman found that
Movant established prejudice because he (1) very much wanted
to avoid deportation, and (2) did not know that deportation
was presumptively mandatory because it was not mentioned in
his plea agreement or during the plea colloquy. [Id.
Government objects that Movant was aware that his deportation
was presumptively mandatory. [Doc. 98 at 9-10]. The
Government notes that Movant consulted Joe Rosen, an
immigration attorney, in October 2007, but the Government
does not argue that Rosen gave Movant the advice required by
Padilla. [Id. at 9-10, 28-29 (stating that the
Government "is not confident that [Movant] has, even
now, disclosed... the advice provided by Rosen"].
Therefore, Movant's consultation with Rosen does not show
a lack of prejudice.
Government also explains that, in October 2007, Movant sent
an email to Rosen and MacKusick regarding Movant's own
research on immigration law. [Doc. 9 8 at 9]] In that email,
Movant (1) asked whether his conduct qualified as tax
evasion, (2) reasoned that his "only defense versus
deportation is barred if [his] actions are defined as [an]
'aggravated felony,, " and (3) stated that the
"definitions of [an] aggravated felony . . . may cover
my act" and "may be relevant to me."
[Id. at 9-10 (citing Doc. 93-5 at 7)]. The
Government argues that Movant's email revealed that he
learned the crime of tax evasion is an aggravated felony
under the immigration code. [Id. at 3]. The Court is
not convinced that Movant's email reflected a firm enough
grasp of the immigration consequences of his conduct as to
render MacKusick's deficient performance irrelevant.
Furthermore, the Government fails to cite any law explicitly
indicating that a criminal defendant cannot demonstrate
prejudice if his own legal research conflicts with his
attorney's advice and turns out to be correct. For the
reasons given by Judge Baverman, a preponderance of the
evidence shows that Movant was prejudiced by MacKusick's
on the foregoing, the Government's Objections  are
OVERRULED; Judge Baverman s R&R  is
ADOPTED as the Opinion and Order of the
Court; Movant s Motion to Vacate Plea Due to Immigration
Consequences" , construed as a § 225 5 motion,
is GRANTED;  the Judgment and Commitment in
criminal action number 1:09-cr-308-RWS-AJB-l  is
VACATED; the Court's Order  granting
the Government's Consent Motion to Construe the Matter as
a Petition for Writ of Error Coram Nobis  is
VACATED; and the Government's Consent
Motion  is DENIED. The Clerk is
DIRECTED to (1) enter judgment in favor of
Movant in The Court does not address a Certificate of
Appealability because it "is not required when . . . the
United States or its representative appeals." Fed. R.
App. P. 22(b)(3). civil action number l:15-cv-325-RWS and
CLOSE that case, and (2)
REOPEN criminal action number
1:09-cr-308-RWS-AJB-l for further proceedings.