The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Defendant Walid Aly moves for a second time to withdraw his plea of guilty to charges of making false statements to a Government agency and illegal re-entry after deportation. The motion will be denied.
I. Indictment and Guilty Plea
On April 4, 2006, the Grand Jury charged Walid Aly with two crimes: illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a), and making false statements to a federal officer in violation of 18 U.S.C. § 1001. On May 10, 2006, Aly proffered a guilty plea before the Honorable Andrew J. Peck, United States Magistrate Judge. At the plea proceeding, Aly stated under oath that he is not a United States citizen, that he was deported from the United States in 2005, and that he returned to the United States during or before January 2006 without seeking or obtaining permission from the relevant Government authorities. (5/10/06 Tr. 15.) He further admitted that on June 8, 2005, he falsely told agents of the United States Bureau of Immigration and Customs Enforcement in an interview at Rikers Island that he and his wife then lived together, when in fact they did not. (Id. 15-16.)
Sentencing was scheduled for June 16, 2006. The sentencing was expedited at defendant's request, since defendant hoped that the sentencing guidelines would permit a sentence of time served since his arrest. (6/16/06 Tr. 3.) This Court entered an order accepting the guilty plea on June 14, 2006.
On the scheduled sentencing day, however, defense counsel informed the Court that Aly wanted to withdraw his plea. (Id. 2.) The Court gave defendant two weeks to file a motion to that effect. No motion was filed, however. Instead, defense counsel advised the Court that Aly had changed his mind again, was prepared to proceed to sentence, and did not wish to withdraw his plea. (See 7/5/06 Tr. 2.) Accordingly, sentencing was rescheduled for July 5, 2006.
On that occasion, however, Aly indicated that he had had another change of heart. Defense counsel advised the Court that although Aly had "decided at some point last week that he did not want to file a motion to rescind his plea and wanted to simply go forward with the sentencing," immediately before the scheduled sentencing Aly advised that he again would like to rescind his plea, and furthermore that he wanted a new lawyer. (Id. 3.) The Court accommodated Aly's request, relieving his lawyer and appointing new counsel.
III. First Motion to Withdraw Plea
On August 1, 2006, through his new counsel, Aly finally filed a motion to withdraw his plea. His five-page memorandum of law argued that Aly's plea had not been voluntary, because he was "pressured by his [then attorney] to quickly enter a plea," he was in pain from kidney stones at the time the plea was entered, and he was not advised that he could challenge the underlying deportation order in the criminal proceeding. (7/31/06 D. Mem. 4-5.) In reply papers filed after the Government opposed the motion, defendant for the first time set forth his defense to the illegal re-entry charge, arguing that his initial deportation was unlawful because he had never received notice that his prior application for permanent residence on the basis of marriage to a United States citizen had been denied, that the denial did not apply to him in any case because the notice of decision bore his name but an incorrect "A" number, and that the denial was erroneous. (Letter of Edward D. Wilford, Esq., to the Court, dated August 30, 2006, at 1-2.) Aly made no attempt to assert a defense to the second count of the indictment, which charged him with falsely stating, in an interview with an immigration investigator, that he continued to live with the woman who had applied for permanent residence for him.
IV. Denial of the First Motion
The Court heard argument on the motion on September 6, 2006. At the conclusion of the argument, the Court denied the motion in a 15-page oral opinion. (9/6/06 Tr. 20-35.) The Court noted that Aly made no intelligible claim of innocence of the false statement charge. (Id. 22.) With respect to the illegal re-entry charge, the Court first noted that "to the extent Mr. Aly claims that he simply didn't understand or was ill at the time of the plea or just in general that he didn't really know what he was doing, the transcript of the plea allocution completely and absolutely refutes that claim." (Id.) As the Court stated, "Judge Peck asked Mr. Aly specifically about his health and about his satisfaction with counsel, and Mr. Aly expressed no doubts or hesitation about either, but said he was satisfied with counsel and physically and mentally fit to proceed." (Id. 23; see 5/10/06 Tr. 4, 6-7.) When Aly exhibited a momentary hesitation about entering the plea, Judge Peck "addressed Mr. Aly directly, told him that if he had any doubts the matter could be postponed to allow him to think further about his decision, emphasized that the decision was his, and that he should feel under no pressure, and reminded him that if he went ahead the decision was irrevocable. Judge Peck specifically stated that, 'I don't want anyone to be twisting your arm. I don't want you to later come back to court and say somebody twisted your arm or was forcing you to make a bad decision or was convincing you to do something that you didn't really want to do.'" (9/6/06 Tr. 23-24, citing 5/10/06 Tr. 13-14.) Although the Magistrate Judge twice offered Aly additional time to think about it, and emphasized the solemnity and irrevocability of a decision to go forward with the plea, Aly insisted that he wanted to go ahead. (Id. 24, citing 5/10/06 Tr. 14.) The Court concluded that Judge Peck's careful inquiry "put to bed forever" Aly's claims of having been coerced. (Id. 25.)
With respect to Aly's claim of ineffective assistance, the Court, while noting its respect for defendant's prior counsel, assumed arguendo that Aly had not been adequately advised of the possibility of raising a collateral challenge to the underlying deportation order. (Id.) Noting, however, that to establish ineffective assistance of counsel defendant would have to show prejudice, the Court emphasized that this factor overlapped with the consideration of whether defendant had a viable claim of legal innocence -- in the context of defendant's motion, whether he did indeed have a viable challenge to the deportation order. (Id. 25-26.) "But despite having been given every opportunity to brief the matter, [and] a further opportunity to argue here today as well, the defendant has not presented any basis for believing that he has such a motion, and in the absence of such a viable motion there is neither a viable claim of legal innocence nor a basis for believing that Mr. Aly was poorly advised or was prejudiced by a failure to address this avenue of defense." (Id. 26.)
As the Court noted, defense counsel conceded that in his papers on the motion to withdraw the plea he had in effect made the motion to dismiss the re-entry count that he would have made had the motion to withdraw been granted. (Id. 26; see id. 17.) Having reviewed the entire record of the deportation proceedings and heard defendant's motion, the Court concluded that the motion would have to be denied, and that Aly's claim of legal innocence was without merit. (Id. 26)
Whatever Aly's potential objections to the handling of his green card application, the Court ruled, the question in this case is whether he has a valid challenge to his deportation proceeding. In order to collaterally challenge a deportation order in a prosecution for illegal re-entry, a defendant must satisfy the criteria set forth in 8 U.S.C. § 1326(d), which effectively codifies the conditions set forth for such a challenge in United States v. Mendoza-Lopez, 481 U.S. 828, 837-42 (1987). See United States. v. Scott, 394 F.3d 111, 116 (2d Cir. 2005). The defendant must show (1) that he has exhausted any administrative remedies that may have been available to him to seek relief against the deportation order; (2) that the deportation proceeding in which the order was issued improperly deprived him of an opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d), cited at 9/6/06 Tr. 30. Aly, the Court ruled, could satisfy none of these conditions.
Far from exhausting his administrative remedies, Aly specifically declined to pursue the administrative remedies of which he was specifically advised. Represented by counsel at his immigration hearing, Aly conceded deportability. (9/6/06 Tr. 29; see Imm. Tr. 22-23.) Upon being advised by the immigration judge that he had a right to appeal, Aly "initially asserted a desire to waive appeal, but after the very persistent and diligent immigration judge explained yet again the significance of waiving appellate rights and explained that Mr. Aly could reserve a right to appeal and take time to think it over and could still waive appeal and seek prompt removal if he chose to do that at a later time," Aly decided not to waive appeal at the hearing. (9/6/06 Tr. 29; see Imm. Tr. 42.) However, the very next day Aly's attorney advised the immigration judge in writing that Aly had changed his mind again and wanted to waive his appeal. (8/16/06 Lavigne Decl. Ex. E.)
The record thus demonstrated that far from being deprived of his right to review of the results of the removal hearing, Aly was fully advised of his right to seek such review. In fact, the immigration judge affirmatively declined to accept Aly's initial effort to waive his appeal rights, and virtually compelled him to take additional time to consider whether to take such a step. After taking advantage of that time, and having further consulted his attorney, Aly "consciously chose with the advice of counsel to waive" his administrative remedies. (9/6/06 Tr. 31.)
Finally, the Court ruled that Aly could not show that the deportation order was fundamentally unfair. Whatever the merits of Aly's objections to the earlier denial of his application for permanent residence, it is undisputed that at the time of his removal hearing Aly had no legal right to remain in the United States. His parole status and work authorization both had expired in 2004, and neither at the immigration hearing nor at any time since has Aly made any claim that he was legally authorized to remain in the United States or that he was not subject to removal at the time of the hearing in August 2005. (Id. 28-29, 31-32.) "The defendant has not presented this [C]court with any reason to believe that under immigration law or procedure he had any right at that time to re-raise his green card denial, but even if he did[,] with the advice of counsel he withdrew any effort to pursue that claim further." (Id. 32.)
The Court thus concluded that Aly's proffered defense was without merit, and that he therefore had suffered no prejudice from any failure on the part of his original defense attorney to advance or advise him of that defense. Accordingly, the motion to withdraw the guilty plea was denied.
V. Second Motion to Withdraw Plea
Aly immediately returned to the fray. On September 10, 2006, he sent a pro se letter to the Court, arguing that he had in fact instructed his first attorney to seek to withdraw his plea not on the morning of the scheduled sentencing on June 16, when the issue was first raised with the Court, but on May 14, within days of proffering the plea before Judge Peck. The difference was potentially significant; since the Court did not receive a transcript of the allocution before the Magistrate Judge and enter an order accepting the plea until June 14, had counsel immediately acted on Aly's purported instruction, defendant's application to withdraw the plea would have been filed before the plea had been accepted. Under Federal Rule of Criminal Procedure 11(d)(1), a defendant's guilty plea may be withdrawn "before the court accepts the plea, for any reason or no reason," while under Rule 11(d)(2) an application to withdraw a plea after acceptance requires the defendant to "show a fair and just reason for requesting the withdrawal."*fn1
Since Aly's first motion had been styled a motion to withdraw his plea, and since the Court had not been notified of any desire on Aly's part to rescind his plea of guilty until after the plea had been accepted, the Court had addressed the motion under the standard provided by Rule 11(d)(2). Aly's letter raised the possibility that his attorney had been derelict not in advising him to enter a plea, but in failing to act on his client's wish to withdraw the plea at a time when he arguably could have done so as a matter of right. ...