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TAPIA-GARCIA v. U.S.

May 24, 1999

JUAN TAPIA-GARCIA, PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Baer, District Judge.[fn1]

  MEMORANDUM AND ORDER

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.

I.  BACKGROUND

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 attorney Steven 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. at 4.

In March 1998, the petitioner filed his present pro se section 2255 petition. See id.

II. DISCUSSION

A. Standard of Review

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 "aggravated felony."

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 performance.

III. CONCLUSION

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.

SO ORDERED.

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.

FACTS

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
  agreement.

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 ยง 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 ...


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