The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Presently before this Court is the of motion of Petitioner, Benedict Jacob, to vacate, set aside, or correct his sentence and conviction pursuant to 28 U.S.C. § 2255.*fn1 Jacob alleges such relief is appropriate because his attorney failed to warn him of the deportation consequences of his plea and because his attorney failed to make a motion under the Speedy Trial Act. For the reasons discussed below, this Court finds a hearing on this motion unnecessary and denies Jacob's motion.*fn2
2. On October 28, 2010, in accordance with his plea agreement, Jacob appeared before this Court and pleaded guilty to count one of the indictment in case number 10-CR-167, which, in violation of 18 U.S.C. § 1001(a)(2), charged him with willfully making a false statement to officers of Customs and Border Protection. (Indictment, at 1*fn3 ; Docket No 19. Plea Hr'g Tr., at 18; Docket No. 60.) Specifically, it charged him with representing to the officers that his name was Osemuanhu Edenojie and that he was a lawful resident alien of the United States, neither of which was true. (Indictment, at 1.)
3. The plea agreement, which Jacob signed and later assented to at the plea hearing, explicitly described the effect that a guilty plea would have on his status in this country:
Under federal law, the crime to which the defendant is pleading is a removable offense. The defendant understands that, as a result of the offense to which the defendant is pleading guilty, removal is presumptively mandatory. (Plea agreement, ¶ 15; Docket No. 44.)
4. At the plea hearing, this Court informed Jacob that if he pleaded guilty, he would be subject to deportation. Jacob said that he understood:
THE COURT: Okay. And Roman numeral V [of the plea agreement] references the fact that -- and that's at the bottom of page 7 and it goes on to the top of the next page -- that it appears that you are not a citizen of the United States. You will be turned over to immigration authorities, and you cannot come back into this country if you are deported without the permission of the Attorney General or Secretary of Homeland Security of this country, do you understand?
THE DEFENDANT: Yes, your Honor.
THE COURT: And if you were to come back without proper permission, you would be subject to further prosecution, and you could do considerably more jail time for that crime, do you understand?
THE DEFENDANT: Yes, your Honor. (Plea Hr'g Tr., at 15; Docket No. 60.)
5. On February 7, 2011, this Court sentenced Jacob to time served-15 months-and noted for the record that it would have considered a sentence within the Guideline range-6--12 months-if Jacob had not already served 15 months. (Sentencing Hr'g Tr., at 7; Docket No. 64.) Defense counsel requested such a notation on the record because, in his words, "most important to Mr. Jacob is not only this proceeding, but the proceeding subsequent to this which will-will be involved with immigration." (Id., at 5.)
6. Jacob now argues, however, that his guilty plea was "entered into involuntarily and unknowingly due to the trial counsel's failure to adequately warn [him] of [the] possible immigration consequences of pleading guilty." (Motion, at 4; Docket No. 54.)
7. This accusation has its roots in the Sixth Amendment, which, in pertinent part, provides that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." U.S. Const. amend VI. It is well-established that "the right to counsel is the right to the effective assistance of counsel." Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir. 2003) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).
To establish an ineffective-assistance-of-counsel claim, a defendant must satisfy two requirements: he must show that counsel's performance was deficient and that the deficient performance prejudiced the defense, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding below would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S .Ct. 2052, 80 L. Ed. 2d 674 (1984). When a conviction is secured by way of plea, the second Strickland factor is modified to require a defendant to demonstrate that, but for counsel's unprofessional errors, he ...