The opinion of the court was delivered by: Baer, District Judge.[fn1]
Juan Tapia-Garcia (the "petitioner") moves pursuant to
28 U.S.C. § 2255, to set aside his guilty plea to the crime
of re-entry after deportation following an aggravated felony in
violation of 8 U.S.C. § 1326(b)(2). I referred this
matter to Magistrate Judge Peck, who issued a Report and
Recommendation (the "Report") on November 3, 1998 and
recommended that the petitioner's motion to vacate his
conviction be denied. The petitioner filed timely objections.
For the reasons stated below, I agree with Judge Peck.
The procedural history of this case is recited in the Report
and Recommendation. To summarize, in August 1995, the
petitioner agreed to plead guilty pursuant to a plea agreement
between the U.S. Attorney and the defendant in the Southern
District of New York to a two-count information charging him
"(i) with illegal re-entry into the United States after having
been deported after conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a); and (ii) with escape
from custody, in violation of 18 U.S.C. § 751(a)." Report
at 3 (quoting United States v. Tapia-Garcia, No. 96-1773,
141 F.3d 1152, 1998 WL 88035, at *1 (2d Cir. Feb. 25, 1998)). The
petitioner pled guilty in accordance with that agreement on
January 4, 1996. On November 21, 1996, the petitioner was
sentenced by this Court to 105 months of incarceration,
followed by three years of supervised release, and a $100
special assessment. See id. Tapia-Garcia was represented by
Goldenberg at both his guilty plea allocution and sentencing.
On appeal to the Second Circuit, the petitioner was
represented by new counsel, and the issues raised dealt with
sentencing guideline calculations. See id. The Second Circuit
in February of 1998 affirmed the petitioner's sentence. See id.
In March 1998, the petitioner filed his present pro se
section 2255 petition. See id.
A district court reviews de novo the determination of those
parts of a Magistrate Judge's Report and Recommendation to
which any party objects. It may accept, reject, or modify, in
whole or in part, the Report and Recommendation. See 28 U.S.C.
Section 636(b)(1)(B) & (C) (1988). However, the court need not
conduct a de novo hearing. See Grassia v. Scully, 892 F.2d 16,
19 (2d Cir. 1989) (citing United States v. Raddatz,
447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). The court may
adopt without review those parts to which the petitioner does
not object and with which the court finds no clear error.
Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
B. Petitioner's Objections
The petitioner objects to the Report and Recommendation on
two grounds: (1) that his appellate counsel was ineffective for
failing to raise the issue that the information should have
been vacated on the ground that attempted murder was not an
"aggravated felony" at the time of his attempted murder
conviction; and (2) that he is entitled to be deported before
he completes his prison term, or alternatively, that he is
entitled to a downward departure from his current sentence
because he will be deported thereafter.
First, as to the petitioner's deportation and downward
departure argument, "[i]t is well-established . . . that the
failure to raise a claim on direct appeal is itself a default
of normal appellate procedure which a defendant can overcome
only by showing cause and prejudice." Andre Rodriguez v. United
States, 878 F. Supp. 20, 23 (S.D.N.Y. 1995) (internal quotations
and citations omitted). Cause must be something external to the
petitioner, something that cannot be fairly attributed to him.
See Salvador Rodriguez v. United States, 866 F. Supp. 783, 785
(S.D.N.Y. 1994). In the main, the petitioner asserts that his
failure to raise his deportation and downward departure claim
arose from his failure to understand the legal system, or the
"complex web of procedural rules," (Petitioner's Motion
Objecting to Magistrate's Report and Recommendation at 10).
This is so despite the fact that he was represented by counsel
both during trial and on appeal. Regardless, ignorance of the
law is not sufficient to sustain the petitioner's burden in a
habeas case. See Salvador Rodriguez, 866 F. Supp. at 785.
Therefore, the petitioner's deportation and downward departure
objection is procedurally barred.
Next, the petitioner objects to the Report and Recommendation
based on a new claim of ineffective assistance of appellate
counsel and utilizes the same reasoning from his claim of
ineffective assistance of trial counsel which is now
procedurally barred.*fn2 Tapia-Garcia again argues that
he was denied effective representation because his appellate
attorney failed to raise the argument that attempted murder was
not an "aggravated felony" under 8 U.S.C. § 1326(b)(2) at the
time of his conviction. To establish a claim for ineffective
assistance of counsel, the petitioner must show (i) that his
attorney's performance "fell below an objective standard of
reasonableness," and (ii) "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068,
80 L.Ed.2d 674 (1984); see also, Bethea v. Artuz, 126 F.3d 124,
126 (2d Cir. 1997). "The same standard applies to a review of
the effectiveness of appellate counsel." McKee v. United
States, 167 F.3d 103, 106 (2d Cir. 1999). Furthermore, the
Supreme Court has held that in deciding an ineffective
assistance claim the court need not address both elements of
the inquiry, in other words, if the petitioner is unable to
demonstrate one component, the court need not explore the
other. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
"In evaluating the prejudice component of
Strickland, a court must determine whether, absent counsel's
deficient performance, there is a reasonable probability that
the outcome of the proceeding would have been different."
McKee, 167 F.3d at 106. Here, Tapia-Garcia has failed to
demonstrate any prejudice in connection with his claim for
ineffective assistance of appellate counsel. After a review of
the relevant statutes and the chronology of events in this
case, I agree with the thorough analysis articulated in
Magistrate Judge Peck's Report and Recommendation which
concludes the "aggravated felony" provision of 8 U.S.C. § 1326(b)
applies to Tapia-Garcia's attempted murder conviction.
See Report at 11-22. Although Magistrate Judge Peck tracked the
history of the statute vis a vis the petitioner's ineffective
assistance of trial counsel, the analysis is the same.
Tapia-Garcia was convicted of attempted murder in 1985,
deported in March 1993 and then illegally re-entered the United
States two months later in May 1993. Since the petitioner's
conviction predated the enactment of the statute authorizing an
enhanced sentence for reentry after deportation and conviction
of an aggravated felony, the Court must make two inquiries in
order to determine whether Tapia-Garcia's attempted murder
conviction falls under the statute: (1) whether attempted
murder is an "aggravated felony" under 8 U.S.C. § 1101(a)(43),
and (2) whether 8 U.S.C. § 1326(b)(2) applies to defendants
with pre-1988 aggravated felonies. I conclude that both
questions must be answered in the affirmative.
As to the first inquiry, under 8 U.S.C. § 1101(a)(43), from
the enactment of the sentencing enhancement provision in 1988
through its current amendments, the definition of "aggravated
felony" applied to 8 U.S.C. § 1326(b) has included murder and
attempted murder. Anti-Drug Abuse Act of 1988, Pub.L. No.
100-690, § 7342, 102 Stat. 4181, 4469-70 (1988); see also,
United States v. Westcott, 159 F.3d 107, 111 (2d Cir. 1998) ("§
1101(a)(43)'s definition of 'aggravated felony' was limited to
murder, certain drug and firearm trafficking crimes, and
attempts and conspiracies to commit these crimes" prior to the
passage of the Immigration Act of 1990). Thus, there is no
doubt that Tapia-Garcia's attempted murder conviction is an
Next, although the Second Circuit has not explicitly decided
this issue, all the Courts of Appeals to consider the statute
have concluded that 8 U.S.C. § 1326(b)(2) applies to defendants
with pre-1988 aggravated felonies, and authorizes an enhanced
sentence for reentry after deportation. See, e.g., United
States v. Lozano, 138 F.3d 915, 916-17 (11th Cir. 1998); United
States v. Baca-Valenzuela, 118 F.3d 1223, 1228-29 (8th Cir.
1997); United States v. Campbell, 94 F.3d 125, 126-28 (4th Cir.
1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847,
137 L.Ed.2d 1050 (1997); Scheidemann v. INS, 83 F.3d 1517,
1523-25 (3d Cir. 1996); United States v. Cabrera-Sosa,
81 F.3d 998, 1000-01 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct.
218, 136 L.Ed.2d 151 (1996); United States v. Saenz-Forero,
27 F.3d 1016, 1020-21 (5th Cir. 1994); United States v. Troncoso,
23 F.3d 612, 613-14 (1st Cir. 1994), cert. denied,
513 U.S. 1116, 115 S.Ct. 912, 130 L.Ed.2d 793 (1995); United States
v. Arzate-Nunez, 18 F.3d 730, 734-35 (9th Cir. 1994).
Therefore, I conclude that Tapia-Garcia cannot show the
degree of prejudice necessary to satisfy this prong of the
Strickland standard. Put another way, his appellate counsel
would not have succeeded had he chosen to challenge whether the
petitioner's attempted murder conviction qualified as an
"aggravated felony." In short, there is no reasonable
probability that the result of the appeal would have been
different absent the appellate counsel's alleged deficient
After conducting a de novo review of those parts of the
Report and Recommendation to which the petitioner objected and
finding no clear error with respect to the balance of the
Report and Recommendation, I adopt Magistrate Judge Peck's
Report and Recommendation in all respects. The motion is denied
and the Clerk of the Court is directed to close the case.
Petitioner Juan Tapia-Garcia petitions for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2255, to set aside his guilty
plea to the crime of re-entry after deportation following an
aggravated felony in violation of 8 U.S.C. § 1326(b)(2). First,
Tapia-Garcia claims that his trial counsel was ineffective for
failing to move to vacate the information on the ground that
attempted murder was not an "aggravated felony" at the time of
his attempted murder conviction. Second, Tapia-Garcia petitions
for resentencing on the ground that he is entitled to be
deported before he completes his prison term, or alternatively,
that he is entitled to a downward departure from his current
sentence because he will be deported after he serves his
sentence. For the reasons set forth below, Tapia-Garcia is
procedurally barred from raising these issues in his habeas
petition because they could have been raised on direct appeal
(for which he had new counsel), and Tapia-Garcia has not
demonstrated cause for his failure to raise these claims on
direct appeal. Even if the claims were not procedurally barred,
however, they lack merit. Tapia-Garcia's ineffective assistance
claim does not meet the Strickland v. Washington standard, and
his sentencing claims are frivolous. The Court should deny
Tapia-Garcia's habeas petition.
At sentencing, Judge Baer referred to Tapia-Garcia as a
"one-man crime wave until he was caught." (11/21/96 Sentencing
Tr. at A49.)*fn1 The facts of that one-man crime wave are not
disputed on this Petition, and for the most part are summarized
in the Second Circuit's unpublished opinion affirming
Tapia-Garcia's conviction on direct appeal:
Tapia-Garcia, a citizen of the Dominican
Republic, was convicted of attempted murder in the
Supreme Court of the State of New York, Bronx
County, on October 16, 1985. On January 6, 1993,
after serving eight years of a longer sentence, he
was transferred to the custody of the Immigration
and Naturalization Service for deportation. He was
deported in March 1993, after he had been served
with a notice of penalties
for illegal re-entry into the United States.
Less than two months later, in May 1993, he was
arrested at the Miami International Airport as he
attempted to re-enter the United States without
authorization. He was detained by the INS until
June 3, when he escaped after assaulting a
detention officer. He was subsequently arrested
and was detained in a Florida jail until he again
escaped, after assaulting two more guards. After a
complicated, dramatic, and violent set of events,
Tapia-Garcia was finally subdued and arrested in
New York in March 1995 pursuant to an arrest
warrant issued by New Jersey state police.
In August 1995, Tapia-Garcia signed a plea
agreement with the United States Attorney's office
for the District of New Jersey. He agreed to plead
guilty in the Southern District of New York to a
two-count information charging him (i) with
illegal re-entry into the United States after
having been deported after conviction of an
aggravated felony, in violation of 8 U.S.C. § 1326(a);
and (ii) with escape from custody, in
violation of 18 U.S.C. § 751(a). On January 4,
1996, his case was transferred to the Southern
District and he pled guilty in accordance with the
United States v. Tapia-Garcia, 141 F.3d 1152 (table), 1998 WL
88035 at *1 (2d Cir. Feb.25, 1998). (See also, e.g., A11-14,
A17, A35-39, A62-63, A66-67.)
On November 21, 1996, in light of Tapia-Garcia's criminal
history as a "one-man crime wave until he was caught" (A49),
Judge Baer sentenced Tapia-Garcia to "105 months of
incarceration, followed by three years of supervised release.
And $100 special assessment." (11/21/96 Sentencing Tr. at A59;
see also A85-91.)
Tapia-Garcia was represented by attorney Steven Goldenberg at
both his guilty plea allocution and sentencing. (See A2021,
A42-43.) On his direct appeal, Tapia-Garcia was represented by
new counsel, Colleen P. Cassidy of the Legal Aid Society's
Federal Defender Division. (See, e.g., A92.) See also United
States v. Tapia-Garcia, 1998 WL 88035 (counsel appearances).
Tapia-Garcia's direct appeal dealt with sentencing guideline
calculations (alleged double-counting of offense levels and
inclusion of old and minor offenses). See United States v.
Tapia-Garcia, 1998 WL 88035 at *2-3. The Second Circuit
affirmed Tapia-Garcia's sentence. Id. at *3.
In March 1998, less than a month after the Second Circuit's
decision on his direct appeal, Tapia-Garcia filed his present
pro se § 2255 habeas petition. His Petition raises two issues:
first, alleged ineffective assistance of trial counsel for
failing to move to vacate the information on the ground that
Tapia-Garcia's attempted murder conviction was not then an
"aggravated felony." (Pet. at 7-11.) Second, Tapia-Garcia
alleges that he is entitled to ...