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Anim v. United States

United States District Court, Second Circuit

August 12, 2013


Opinion & Order

KIMBA M. WOOD, District Judge.

Emmanuel Anim ("Petitioner") moves, pursuant to 28 U.S.C. § 2255, for this Court to vacate, set aside, or correct his sentence on the grounds that both his trial counsel and appellate counsel rendered ineffective assistance. [Dkt. No. 7 ("Petition")]. On October 24, 2012, the Court granted Petitioner's request to proceed in forma pauperis and appointed counsel pursuant to 18 U.S.C. § 3006A(g). [Dkt. No. 10]. The Government filed its opposition on March 8, 2013, arguing primarily that the § 2255 Petition was procedurally barred by virtue of the waiver contained in Petitioner's plea agreement. [Dkt. No. 14]. Petitioner's appointed counsel filed a reply on May 15, 2013, arguing that Petitioner should be permitted to withdraw his guilty plea, or, in the alternative, be permitted to file a new appeal. [Dkt. No. 18].

For the following reasons, Petitioner's motion pursuant to § 2255 is DENIED.


A. Petitioner's Arrest and Indictment

On July 8, 2010, agents of the United States Diplomatic Secret Service obtained an arrest warrant for Ms. Faustina Djeagu, whom they suspected of obtaining a U.S. passport under a false name. The agents also obtained a warrant to search Ms. Djeagu's Bronx residence, which she shared with Petitioner, her husband. (Decl. of U.S. Diplomatic Secret Service Officer Charles Harrison ("Harrison Decl.") ¶¶ 4, 6 [Dkt. No. 15]).

While executing the search warrant, the Secret Service agents asked Petitioner some basic questions. In response, Petitioner lied by telling the agents that his "name was Charlse Anim' and that Emmanuel Anim' had returned to Ghana many years ago." (Harrison Decl. ¶ 6). Petitioner subsequently admitted that his real name was Emmanuel Anim. (Id.). He also provided written consent for the agents to search the apartment for documents in his name. (See id. Ex. A). The agents recovered documents identifying Petitioner as "Charlse Anim, " "Emmanuel Anim, " and "Enoch Roberts."

The agents did not arrest Petitioner at that time. Instead, the Government arranged for Petitioner to be appointed counsel and to engage in a proffer in order to consider whether Petitioner would cooperate in investigating his cousin, who Petitioner had implicated in immigration fraud. Petitioner attended two proffer sessions-on August 13 and October 7, 2010-which were conducted under an agreement with the U.S. Attorney's Office for the Southern District of New York. The proffer agreement, which Petitioner signed, did not provide full immunity from prosecution. (Harrison Decl. ¶ 11).

The Government ultimately declined to offer Petitioner a cooperation agreement and instead issued a one-count Information, No. 11 Cr. 42 (KMW), charging Petitioner with knowingly procuring naturalization for himself based on false information, in violation of 18 U.S.C. § 1425(a). (Decl. of AUSA Serrin Turner ("Turner Decl.") Ex. A [Dkt. No. 16]).

B. Petitioner's Plea Agreement

Before the Government filed the Information with the Court, Petitioner entered into a Plea Agreement with the Office of the United States Attorney for the Southern District of New York. (Turner Decl. Ex. B ("Plea Agreement")). In the Agreement, Petitioner agreed to plead guilty to violating 18 U.S.C. § 1425(a). In exchange, the Government agreed not to further criminally prosecute Petitioner and to dismiss any outstanding charges. (Plea Agreement 1). The Parties also stipulated to the U.S. Sentencing Guidelines offense level, Petitioner's criminal history category, and a resulting Guidelines range of six to twelve months' imprisonment. (Id. at 2). The Parties agreed not to "[s]eek any departure or adjustment pursuant to the Guidelines, " although each side was permitted to seek a sentence outside the stipulated Guidelines range based upon the factors listed in 18 U.S.C. § 3553(a). (Id.). The Agreement also made clear that, although the Parties stipulated to a Guidelines range, the Guidelines "are not binding on the Court, " and the Court was authorized to impose any sentence "up to and including the statutory maximum." (Id. at 3).

The Agreement repeatedly noted the immigration consequences of Petitioner's plea, and explained that "denaturalization is a mandatory consequence of conviction..., and thus upon conviction... the Court is required to revoke, set aside, and declare void the final order admitting the defendant to citizenship, and to declare the defendant's certificate of naturalization to be canceled." (Id. at 1). Moreover, in the Agreement, Petitioner acknowledged "that his guilty plea and conviction make it very likely that his deportation from the United States is presumptively mandatory and that, at a minimum, he is at risk of being deported or suffering other adverse immigration consequences." (Id. at 4). Petitioner also stated that he had discussed these possible consequences with his attorney. (Id.).

The Agreement included a waiver of Petitioner's appellate rights. In the Agreement, the Parties agreed:

that the defendant will not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under [28 U.S.C. § 2255 and/or § 2241]; nor seek a sentence modification pursuant to [18 U.S.C. § 3582(c)], or any sentence within or below the Stipulated Guidelines Range of 6 to 12 months' imprisonment.

(Id. at 3). Petitioner further agreed that he "will not challenge his conviction or sentence on direct appeal, or through litigation under [28 U.S.C. § 2255 and/or § 2241], on the basis of any actual or perceived adverse immigration consequences (including denaturalization and ...

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