The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Murtada S. Ebrahim ("Petitioner" or "Ebrahim") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ebrahim challenges the constitutionality of a judgment of conviction entered against him on September 26, 2008, in New York State County Court, Wayne County, following a negotiated guilty plea to charges stemming from Ebrahim's alleged commission of Medicaid fraud.
This conviction was found to constitute an "aggravated felony" for purposes of the Illegal Immigration Reform and Immigrant Responsibility Act, and Ebrahim, a native of Sudan, was ordered to be deported. Because United States Immigration and Customs Enforcement ("ICE") was unable to obtain the necessary travel documents from Sudan, Ebrahim was released from ICE custody under an order of supervision. He has not been deported, and ICE officials have represented to Respondent that obtaining the requisite travel documents from Sudan is "slim to none."
II. Factual Background and Procedural History
In 2007, the New York State Attorney General Office's Medicaid Fraud Control Unit ("MFCU") conducted an investigation M&M Medical Transport, Inc. ("M&M"), of which Ebrahim was the owner and president. MFCU discovered evidence that M&M had been fraudulently billing the State Medicaid program since 2003 for patient transportation services provided by unqualified ambulette drivers or services that M&M actually had not provided. See Respondent's Exhibit ("Resp't Ex.") B at 1-3, 12, 36 (Dkt #12). State officials executed a search warrant at Ebrahim's offices on December 6, 2007, and Ebrahim retained counsel, Rudolph J. LePore ("Attorney LePore").
Over the course of several meetings with prosecutors in March, April, and June 2008, Attorney LePore examined the prosecution's documentary evidence. The parties ultimately negotiated a plea bargain that would resolve all potential State charges. Resp't Ex. B at 12, 57a; Transcript dated July 8, 2008 ("7/8/08 Tr.") at 5-7. Pursuant to the plea agreement, Ebrahim would (1) plead guilty to Grand Larceny in the Third Degree (i.e., wrongfully taking more than $3,000 with the requisite criminal intent, a class D felony) (New York Penal Law ("P.L.") § 155.35); (2) plead guilty to Offering a False Instrument for Filing in the First Degree (i.e, filing a false instrument with the intent to defraud the State, a class E felony) (P.L. § 175.35); (3) repay $971,267.76 to the State Medicaid program; and (4) receive an indeterminate concurrent sentence of 2 to 6 years imprisonment on each count. Resp't Ex. B at 12-14; 7/8/08 Transcript ("Tr.") at 24-25, 28-30 (Dkt #12-7). Ebrahim consulted three other experienced attorneys for second opinions on the plea agreement. See 7/8/08 Tr. at 6-7, 27; Resp't Ex. B at 46; 9/24/08 Tr. at 19-20, 25-26 (Dkt #12-7).
On July 8, 2008, the parties appeared in Wayne County Court (Kehoe, J.). Attorney LePore informed the court that, as a result of extensive negotiations, the parties had reached a proposed plea and sentence agreement, and that defense counsel had reviewed it "very thoroughly" with Ebrahim. 7/8/08 Tr. at 6-7. Ebrahim confirmed this synopsis was "all correct," but stated that he needed "fifteen minutes to read [the written agreement]." Id. at 7. The judge granted a recess. Id. at 9, 11.
When the proceedings resumed, the prosecutor explained the terms of the plea agreement. Defense counsel stated that he and Ebrahim had reviewed all the terms of the written plea agreement, and stated that Ebrahim "understands, fully, the consequences of the Plea Agreement . . . and is prepared again to go forward." 7/8/08 Tr. at 12, 17-19. Ebrahim confirmed that he had heard the explanation of the terms of the agreement, had reviewed and discussed them with counsel, and understood them. Id. at 19, 21, 23, 36. Ebrahim verified that he understood English and understood the court proceedings; that he had discussed case with Attorney LePore; and had consulted with three other attorneys about the advisability of pleading guilty. Ebrahim affirmed that he was "satisfied" that he "fully" understood the proceeding and what was taking place at the hearing. 7/08/08 Tr. at 25, 27.
Special Assistant Attorney General Jerry Solomon ("SAAG Solomon") noted that Petitioner had been advised that the conviction "could subject him to deportation." 7/08/08 Tr. at 18. SAAG Solomon explained,
I would mention to the Court as I mentioned to Mr. LePore, that our Investigators have talked to people at INS and because Mr. Ebrahim is from the Sudan, because of the political situation there, it is unlikely that he would be deported. That doesn't mean they couldn't still do it but they have, at least, advised us that it's unlikely, but it would be their prerogative.
Id. at 18. The trial court explained to Ebrahim that no one besides ICE could make any promises in regard to the deportation issue, and confirmed that Ebrahim was not relying on the prosecutor's comments as legal advice. Id. at 19-20. In addition, Ebrahim executed a written plea agreement, explicitly acknowledging as follows: "I understand, and have discussed with my attorney, that my plea in this matter could lead to my deportation from the United States." Resp't Ex. B at 13. Under oath, Petitioner confirmed that he had sufficient opportunity to review and discuss all aspects of the plea agreement with Attorney LePore. 7/08/08 Tr. at 25, 36.
In response to the trial court's questioning, Ebrahim admitted that he was in fact guilty of each offense as charged, that no one had made any promises to him other than those on the record, and that he was satisfied with Attorney LePore's representation. Id. at 31-34. Ebrahim confirmed that no one had "threatened, forced or coerced [him] to plead [guilty]" and that he was doing so out "of [his] own free will." Id. at 33-34. When the trial court asked whether he had any questions before entering his guilty pleas, Ebrahim replied, "I am all set." Id. at 34-35. The trial court then found that Ebrahim was pleading guilty "knowingly, voluntarily, and intelligently." Id. at 35.
Ebrahim signed the written plea agreement, which stated in pertinent part that Ebrahim was guilty, in fact; that he understood the trial rights he was waiving; that he "ha[d] read completely" and understood the plea agreement; that his guilty plea was "given freely, voluntarily, knowingly, and without coercion of any kind"; that "[n]o threats or promises, except the sentence agreement, ha[d] been made to [him] to induce [him] to plead guilty"; and that he was satisfied with his attorney's representation. 7/8/08 Tr. at 36; Resp't Ex. B at 11, 13-14. The plea agreement also included the following acknowledgment: "I understand, and have discussed with my attorney, that my plea in this matter could lead to my deportation from the United States." Resp't Ex. B at 13.
The trial court released Ebrahim on his own recognizance pending sentencing in late September 2008. 7/8/08 Tr. at 37.
B. The Motion to Withdraw the Guilty Plea
Prior to sentencing, Ebrahim retained new counsel, John V. Elmore, Esq. ("Attorney Elmore"), who, on August 27, 2008, filed a motion to withdraw the guilty plea pursuant to New York Criminal Procedure Law ("C.P.L.") § 220.60. See Resp't Ex. B (Dkt #12-1). Ebrahim argued that his guilty plea was not knowing and voluntary because he is a native speaker of Arabic and therefore could not understand the proceedings and plea agreement without an interpreter. He also asserted that Attorney LePore had coerced him into pleading guilty.
In support of his motion, Ebrahim submitted an affidavit from a former M&M Medical Transport employee averring that he had difficulty understanding written and spoken English. Resp't Ex. B at 30a (Dkt #12-1). He also submitted an affidavit from an Arabic interpreter who reviewed the plea transcript and opined that Ebrahim had understood only 50% of the statements made. Id. at 31b. In an affidavit of his own, Ebrahim alleged that he was innocent. He claimed that Attorney LePore had coerced him at the plea hearing by telling him to "stop the bullshit and sign" or he "would immediately be indicted by a Grand Jury and sentenced to jail for fifteen (15) years." Resp't Ex. B at 29b.
In opposition, the prosecution submitted affidavits and documentary evidence demonstrating Ebrahim's fluency and comprehension of the English language: Ebrahim had been in the United States for at least seventeen years; had owned and operated at least five businesses in the United States over the past sixteen years (writing numerous letters in English; executing legal documents in English, and conducting civil litigation); had spoken fluent English in numerous conversations with public agency employees between 2002 and 2007; had passed a written driving test in English with a perfect score in 2002; had given investigators a interview in fluent English; and had spoken fluent English in a lengthy conversation with prosecutors and defense counsel on April 25, 2008. See Resp't Ex. B at 46-49 & attached exhibits (Dkt #12-1).
At oral argument on September 24, 2008, defense counsel conceded that Ebrahim "understands English well enough to communicate with people on a daily basis," but argued that Ebrahim could not understand "complicated legal terms" such as the constitutional rights he waived as part of the guilty plea. 9/24/08 Tr. at 10-11, 19 (Dkt #12-7).
Based on Ebrahim's responses, the trial court's observations during the plea colloquy, and the evidence submitted in support of the motion, the trial court reaffirmed its previous finding that Ebrahim had entered a "knowing, voluntary, and intelligent" guilty plea. Id. at 32-33.
Ebrahim's assigned counsel sought leave to appeal to the Appellate Division, Fourth Department, which was denied.
On September 26, 2008, Ebrahim was sentenced in accordance with the plea agreement to concurrent, indeterminate terms of imprisonment of two to six years on the Grand Larceny in the Third Degree conviction and one and one-third years to four years on the Offering a False Instrument for Filing conviction. Pursuant to the terms of the plea agreement, the trial court ordered restitution in the amount of $971,267.76. 9/26/08 Tr. at 19-20.
Represented by new counsel on direct appeal to the Appellate Division, Fourth Department, of New York Supreme Court, Ebrahim argued that the trial court abused its discretion in denying his motion to withdraw his plea and that the failure of his first attorney to alert the trial court to his need for an interpreter constituted ineffective assistance of counsel. The Appellate Division unanimously affirmed the conviction without discussion on November 13, 2009, and denied reargument on February 11, 2010. People v. Ebrahim, 67 A.D.3d 1388 (4th Dept. 2009), rearg. denied, 70 A.D.3d 1419 (4th Dept. 2010). The New York Court of Appeals denied leave to appeal on January 21, 2010. People v. Ebrahim, 13 N.Y.3d 933 (2010). Ebrahim timely sought reconsideration, which was denied on April 8, 2010. recons. denied, 14 N.Y.3d 840 (2010).
E. First Motion to Vacate the Judgment
While his direct appeal was pending, Ebrahim filed a pro se motion before the trial court seeking to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. See Dkt #9-6. Ebrahim argued that his plea was involuntary because he had a limited understanding of English, was rushed into accepting the plea, and was subjected to psychological coercion. Ebrahim alleged that he was "threaten[ed] off the record" by his attorney with "15 years" in prison if he did not sign the plea agreement. On June 4, 2009, the trial court orally denied the motion on the basis that the arguments raised could be reviewed adequately on his pending direct appeal. See Dkt #12-3 (citing N.Y. CRIM. PROC. LAW § 440.10(2)(b)).*fn1
F. Second Motion to Vacate the Judgment
Following the affirmance of his conviction on direct appeal, Ebrahim he filed a second pro se C.P.L. § 440.10 motion, arguing, in relevant part, that he did not understand the plea agreement because of his limited English, that he was innocent, and that he was coerced into pleading guilty out of fear of "fac[ing] the possibility of 15 years" in prison. Petitioner repeated his argument that Attorney LePore had told him off the record that "the Judge wants to throw the book at you," that "if you don't sign, [and] plead today, you will be going to jail today . . . [and] indicted and sentenced to jail for fifteen (15) years." Resp't Ex. P at 3-6 (Dkt # ).
In a written opinion dated May 24, 2010, the trial court denied the motion, observing that it had previously determined, "based on the credible evidence, [Petitioner] understood the nature of his plea and its consequences, and that his understanding of the English language was adequate." Resp't Ex. R at 2-3. The trial court further held that "the majority of [Petitioner's] arguments" were record-based claims that were procedurally barred pursuant to C.P.L. § 440.10(2)(a) and (c). Id. at 4. The trial court refused to credit Petitioner's claim of "off-the-record conversations between himself and his first attorney, during which he was allegedly subjected to coercion by this lawyer to enter a plea," in view of the record as a whole, including Petitioner's own statements during plea colloquy. Resp't Ex. R at 4-5. Permission to appeal the denial of this motion was denied by the Appellate Division on October 1, 2010.
G. Third Motion to Vacate the Judgment
After Petitioner filed the instant federal habeas application, see infra at Section II.H, Petitioner filed a third C.P.L. § 440.10 motion on April 1, 2010. Petitioner alleged that he would not have pled guilty had trial counsel advised him that his plea would result in deportation. Petitioner relied upon Strickland v. Washington, 466 U.S. 668 (1984), and Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) (holding that deportation is not a collateral consequence and "counsel must inform her client whether his plea carries a risk of deportation"). The trial court granted Ebrahim's request for counsel and assigned Gregory Power, Esq. ("Attorney Power") of the Wayne County Public Defender's Office to represent him. The trial court also heard oral argument, at which time an Arabic-speaking interpreter was provided. See 8/17/10 Tr. (Dkt #29-8). SAAG Solomon of the New York State Attorney General's Office appeared for the People.
Attorney Power argued that trial counsel should have advised Ebrahim that because he was being convicted of what is considered an "aggravated felony" under the Immigration and Nationality Act ("I.N.A."), the "likelihood . . . of a deportation was extremely high if not 100 percent likely . . . ." 8/17/10 Tr. at 5 (Dkt #12-7). Attorney Power disagreed with SAAG Solomon that the convictions would be considered crimes of moral turpitude, in which case the Attorney General would have "latitude and discretion in terms of the possibility . . . of deporation[.]" Id. at 5,14. SAAG Solomon also argued that Padilla could not be applied retroactively to Ebrahim's case, and that even if it did, trial counsel provided adequate advice and Ebrahim could not demonstrate he was prejudiced. Id. at 10-15.
To refute Petitioner's affidavit asserting that Attorney LePore "assured [him] that . . . pleading guilty would not expose [him] to deportation," Resp't Ex. V at Issue 2, the prosecutor submitted an affidavit from Attorney LePore detailing his discussions with Petitioner regarding the plea:
[O]n multiple occasions I advised [Petitioner] that . . . the potential charges he was facing, and the plea that was proposed by the prosecution, were deportable offenses. . . .I informed him that there were no guarantees that he wouldn't be deported and it was a risk he faced either after a plea or upon conviction after a trial. . .
I discussed the risk of deportation with . . . [Petitioner] on at least three occasions. . .
[I] absolutely advised [Petitioner] . . . that his plea carried the risk of causing his deportation.
Resp't Ex. Y. See also 8/17/10 Tr. at 12.
The trial court denied the motion on the merits in a written decision dated September 30, 2010. See Resp't Ex. Z (Dkt #12-4). On April 29, 2011, the Appellate Division, Fourth Department, denied leave to appeal. See Resp't Supp. Ex. CC (Dkt # 29).
H. The Federal Habeas Petition
In Petitioner's original habeas corpus petition, filed in this Court on July 2, 2010, he presented the following claims: (1) his guilty plea was not knowing and voluntary, because he did not speak English well enough to understand the plea proceedings; (2) he was denied the effective assistance of counsel, because his counsel failed to obtain a translator for him); and (3) his guilty plea was "coerced," because of "pressure brought to bear upon [him], not only by [his] attorney, but [by] circumstances," namely "the threat that [he] would be placed in jail immediately, ...