The opinion of the court was delivered by: Hurley, District Judge
Rohan Manragh ("Manragh" or "defendant") has moved for reconsideration of this Court's Order and Memorandum of April 17, 2006. Reconsideration is denied for the reasons indicated infra.
Defendant stands accused of illegally reentering the United States after being deported following his conviction for an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). He moved unsuccessively to dismiss the indictment on the ground that the deportation order underlying the current charge violated due process in that he was allegedly denied effective assistance of counsel at both the hearing and appellate levels.
BASES FOR RECONSIDERATION MOTION
In asking that I reconsider the April 17, 2006 decision, two grounds are advanced: (1) that the Court overlooked the "presumption of prejudice" said to arise in cases "where an appellate attorney fails to file a necessary brief in support of an appeal of an immigration proceeding" (Randi L. Chavis Affirmation Submitted in Supp. Mot. for Recons. at unnumbered page 3), and (2) that defendant was "not deported pursuant to a final order of deportation and[,] as such, his prior removal from the United States cannot be used to satisfy an element of 8 U.S.C. § 1326." (Id. at unnumbered page 5.)
After discussing the standard applicable to reconsideration motions, these two grounds will be discussed seriatim.
There is no specific rule governing criminal motions for reconsideration. United States v. Goldenberg, No. 04-CR-159, 2006 WL 1229152 (May 5, 2006 E.D.N.Y.). As a result, courts considering criminal reconsideration motions typically adopt the established standards which govern such motions in a civil context as set forth in the Federal Rules of Civil Procedure, applicable local rules, and related case law. Id. at *1. "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
To place this claim in context, brief reference to the earlier decision should prove helpful. In that decision, the Court noted that the "omissions charged to [appellate counsel], such as neglecting to file an appellant's brief, constitute[d] ineffective assistance of counsel." (Apr. 17, 2006 Order and Memorandum at 16.) However, as the Court further noted, for those deficiencies "to rise to the level of satisfying the third requirement of Section 1326(d), defendant must demonstrate prejudice, i.e. a reasonable probability that, but for the errors, he would have enjoyed a different outcome." (Id. at 17.) Given the absence of a plausible proffer as to how "defendant would have avoided deportation had appellate counsel performed properly," the Court concluded that the errors by appellate counsel were insufficient to warrant the relief requested. (Id.)
Against the above backdrop, it warrants mention that the presumption of prejudice referenced by defendant pertains solely to the errors committed by appellate counsel, not those supposedly committed by his counterpart at the hearing level. In maintaining that the Court overlooked that presumption in its earlier decision, defendant cites Dakane v. United States Attorney General, 399 F.3d 1269 (11th Cir. 2005) and Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003), wherein the Eleventh and Ninth Circuits respectively speak of a presumption of prejudice arising where an appellate attorney fails to file a necessary brief in support of an immigration appeal. The Ninth Circuit also indicated in Rojas-Garcia that a defendant need only show some "plausible grounds for relief" to avoid the presumption from being rebutted. Rojas-Garcia, 339 F.3d at 826 (internal quotation marks and citations deleted). Rojas-Garcia was not cited by defendant in his motion to dismiss the indictment. Dakane was, however, and, in fact, Dakane is mentioned in the Court's decision albeit absent any reference to the presumption of prejudice language now under discussion.
The government reports that it was "unable to find any decision in this Circuit or the United States Supreme Court that adopted the rebuttable presumption of prejudice standard of review." (Gov't's Mem. Opp'n at 3-4.) Defendant has not suggested that the government's research was incomplete or otherwise flawed. But assuming the subject principle is applicable in this Circuit, and that my failure to mention the presumption may be equated with overlooking it for reconsideration purposes, this first of the two bases advanced by defendant for the relief sought falls short of the mark.
The fault ascribed to hearing counsel is that he "did not present sufficient evidence of Mr. Manragh's medical condition [, and its effect on his employment history, to the immigration judge,] nor did he seek an adjournment to procure such evidence." (Apr. 17, 2006 Order and Memorandum at 10 (internal quotation marks and citations deleted).) But, as explained in the April 17th decision, the legitimacy of that claim is belied by a review of the hearing record. (Id. at 13-14.) That record demonstrates that abundant evidence as to both issues was presented to IJ Rohan. And, as again explained in the April 17th decision, even if ...