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Ubiera v. United States

February 27, 2007

EDUARDO MONTAS UBIERA, PRO SE, PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Pro se petitioner Eduardo Montas Ubiera seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255, vacating his conviction and sentence for ineffective assistance of counsel. On March 10, 2005, petitioner pled guilty to importation of a controlled substance in violation of 21 U.S.C. § 952(a). On June 14, 2005, this Court sentenced petitioner to twenty-four months of imprisonment followed by three years of supervised release. Petitioner contends that trial counsel, in violation of the Sixth Amendment to the United States Constitution, failed to advise him that he would be subject him to certain deportation if he pled guilty. For the reasons set forth below, the motion is denied and the petition is dismissed in its entirety.

Background

On November 15, 2004, petitioner arrived at John F. Kennedy International Airport on a flight from the Dominican Republic. (Plea Hr'g Tr.*fn1 at 22.) Upon his arrival, customs officials searched petitioner and discovered over eight kilograms of cocaine hidden inside his luggage. (Id.) Petitioner was arrested and indicted on one count of importation of cocaine and one count of possession of cocaine with intent to distribute. (Gov't. Br. at 3.)

On March 10, 2005, petitioner, a native of the Dominican Republic and a United States permanent resident alien, pursuant to a written plea agreement, pled guilty to one count of importation of a controlled substance, an "aggravated felony" under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA").*fn2 In the plea agreement, petitioner expressly waived his right to appeal or collaterally attack his conviction or sentence if sentenced to sixty three months of imprisonment or below. (Plea Agreement at ¶ 4; Plea Hr'g Tr. at 13.)

During his plea hearing, through the assistance of a Spanish language interpreter, the court asked petitioner a series of questions. (Plea Hr'g Tr. at 2.) Specifically, the court inquired whether petitioner was satisfied with his attorney's representation:

THE COURT: Are you fully satisfied with the representation and the advice given to you in this case by your attorney, Mr. Miedel?

THE DEFENDANT: Yes. (Id. at 7.) The court went on to explain to petitioner the possible direct and collateral consequences of a guilty plea, including possible deportation.

THE COURT: Mr. Montas Ubiera, are you a sentence [sic - citizen] of the United States?

THE DEFENDANT: No.

THE COURT: I must also advise you that by a conviction in this case by pleading guilty as well and [sic - as] receiving a sentence, that you could also be subject to deportation or removal from the United States.

Do you understand that?

THE DEFENDANT: Yes. (Id. at 18.) Before the court accepted petitioner's plea, the court asked petitioner:

THE COURT: Mr. Montas Ubiera, do you have any questions that you would like to ask me about this charge or your rights or ...


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