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Rodriguez v. People

United States District Court, E.D. New York

May 2, 2017

Edwin Leonel Rodriguez and Edwin Ricardo Rodriguez, Petitioners,
v.
The People of the State of New York and Suffolk County, Respondents.

          Petitioners are represented by Christopher J. Cassar, P.C.

          Respondents are represented by Grazia DiVincenzo and Rosalind C. Gray, Assistant District Attorneys, on behalf of Thomas J. Spota, District Attorney.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO, UNITED STATES DISTRICT JUDGE

         On October 7, 2016, petitioners Edwin Leonel Rodriguez (“Edwin Rodriguez”) and Edwin Ricardo Rodriguez (“Ricardo Rodriguez”) (collectively, “petitioners) filed a petition for a writ of habeas corpus (“Pet.”), challenging guilty pleas entered on May 9, 2012 in the County Court of Suffolk County. (See ECF No. 1 at 1-2, 5.) The County Court sentenced petitioners to a term of probation for six years (id. at 2, 6), but Ricardo Rodriguez has since been deported (id. at 11), and Edwin Rodriguez is presently in the custody of Immigration and Customs Enforcement (“ICE”) with a deportation proceeding pending against him (see ECF No. 8). Petitioners contend that they received ineffective assistance of counsel because their attorney did not advise them that their guilty pleas were certain to result in deportation, thus entitling them to habeas relief under Padilla v. Kentucky, 559 U.S. 356 (2010).

         As set forth below, the Court concludes that (1) the petition is untimely with respect to Ricardo Rodriguez and, in any event, he is not in respondent's custody; and (2) Edwin Rodriguez's ineffective assistance of counsel claim lacks merit. As such, the petition for a writ of habeas corpus is denied.

         I. Background

         The Court has adduced the following facts from the petition and its supporting exhibits.

         Edwin and Ricardo Rodriguez are twin brothers and natives of El Salvador who illegally entered the United State at age 9 with their parents. (Pet. at 15; id., Ex. A (“Plea Hearing”) at 2.) Prior to the underlying proceedings, both had received Temporary Protected Status from the United States. (Pet. at 15, 17; Plea Hearing at 18.) In November 2011, the People charged them each with one count of second-degree rape under New York Penal Law (“NYPL”) § 130.30, a Class C felony, and one count of sexual misconduct under NYPL § 130.20[1], a Class A misdemeanor. (Pet. at 2, 5.) Both petitioners plead guilty to the sexual misconduct count on May 9, 2012 in the County Court of Suffolk County and were sentenced to six-year terms of probation at a later proceeding held on July 10, 2012. (Id. at 2, 5-6; see also id., Ex. B (“Sentencing Hearing”).)

         At the Plea Hearing, petitioners signed a waiver of the right to appeal, which contained the following acknowledgement:

I have been advised that and understand that if, [sic] I am not a U.S. citizen, my plea of guilty may have an effect upon my immigration status including a likelihood or a certainty of deportation, which has been explained to me by my attorney . . .

(Pet. at 39; see also Plea Hearing at 8-10.) Also at that proceeding, petitioners confirmed that they were not U.S. citizens. (See Plea Hearing at 18.) The County Court then asked them, “Do you understand that no one can make any promises to you as to what effect these pleas of guilty will have on your status here?” (Id. at 18.) Each petitioner responded, “Yes.” (Id.) The court also asked their attorneys if they had “explained these immigration issues to [their] respective clients?” (Id.) Both attorneys stated that they had. (Id.)

         With the aid of new counsel, Edwin Rodriguez filed a motion pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 on January 9, 2013 to vacate his judgment of conviction before the same County Court, arguing that he was denied effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), because his plea counsel failed to advise him that a guilty plea to sexual misconduct was certain to result in deportation. (Pet. at 3.) The County Court denied the motion on October 22, 2013. (Id.; see also id., Ex. C (“October 22 Order”).) The County Court reasoned that the only factual support for Edwin Rodriguez's claim was “his own self-serving affidavit in which he claims that counsel failed to inform him” of the consequences of his guilty plea. (October 22 Order at 2.) “Conspicuously absent from the moving papers, ” the County Court continued, “is an affirmation from plea counsel which would tend to corroborate the defendant's allegations.” (Id.) Furthermore, the County Court noted that “the defendant's arguments are belied by the record made at the plea proceeding, ” highlighting the exchanges it had with both petitioners and their attorneys. (Id. at 3.) It therefore concluded that “[i]t was clear based upon an examination of the entire record before the Court that defendant was sufficiently advised of the possible immigration consequences of his guilty plea and that he was not afforded ineffective assistance of counsel.” (Id.) Accordingly, it denied the motion. (Id.)

         Ricardo Rodriguez filed his § 440.10 motion on February 6, 2014, raising the same arguments as his brother and arguing that he was denied due process based on the County Court's statements at the Plea Hearing. (Pet. at 6.) The County Court denied the motion on March 12, 2014. (Id., Ex. D (“March 12 Order”), at 4.) It rejected his ineffective assistance of counsel argument for the same reasons it rejected Edwin Rodriguez's identical argument, citing the statements at the Plea Hearing and the written advisement in the waiver of the right to appeal. (See Id. at 2-3.) The County Court also referenced CPL § 440.30(4)(d), which permits denial of motions to vacate where an allegation of fact is “made solely by the defendant and is unsupported by any other . . . evidence.” (Id. at 3.) As for the due process argument, the County Court held that it “sufficiently warned” Ricardo Rodriguez “that a guilty plea would have negative effects on his immigration status.” (Id. at 4.) Moreover, even assuming this warning was deficient under People v. Peque, 22 N.Y.3d 168 (N.Y. 2013)-a case decided after petitioners plead guilty-the County Court concluded that Peque announced a new rule of constitutional criminal procedure, and, therefore, did not apply retroactively. (March 12 Order at 4.) For these reasons, it denied the motion to vacate. (Id.)

         The Appellate Division granted Ricardo Rodriguez leave to appeal the March 12 Order on August 21, 2014. (Pet. at 6.) At that time, ICE had commenced removal proceedings against him. (See Id. at 10.) An immigration judge entered a final order of removal against Ricardo Rodriguez on January 5, 2015. (Id.) The Board of Immigration Appeals subsequently denied his appeal and he was deported before the Appellate Division ruled on his appeal of the March 12 Order. (Id. at 11.)

         On June 22, 2015, Edwin Rodriguez filed a direct appeal in the New York Supreme Court, Appellate Division. (Pet. at 4.) He also sought leave to appeal the October 22 Order, which the Appellate Division granted. (Id.) The Appellate Division then consolidated these two appeals. (Id. at 4.)

         On February 24, 2016, the Appellate Division denied the appeals of both petitioners. See People v. Edwin Rodriguez, 25 N.Y.S.3d 614 (N.Y.App.Div. 2016) (“Edwin Rodriguez”); People v. Ricardo Rodriguez, 25 N.Y.S.3d 643, 644 (N.Y.App.Div. 2016) (“Ricardo Rodriguez”). With respect to Edwin Rodriguez, it held that he “was not deprived of the effective assistance of counsel, as it was plain that he was aware of the deportation consequences of his plea of guilty at the plea proceeding.” Edwin Rodriguez, 25 N.Y.S.3d at 614. It dismissed Ricardo Rodriguez's appeal on the grounds that he had been deported, noting that, if it reversed the March 12 Order and vacated his conviction, Ricardo Rodriguez's “continued participation in the proceedings would be required.” Ricardo Rodriguez, 25 N.Y.S.3d at 644 (citing CPL § 470.60(1)). The court further held, however, that the dismissal was “without prejudice to a motion to reinstate the appeal should the defendant return to this Court's jurisdiction.” Id.

         Edwin Rodriguez sought leave to appeal the Appellate Division's ruling to the New York Court of Appeals, but the court denied him leave on June 6, 2016. (Pet. at 5; id., Ex. F.) He has not filed a petition for a writ of certiorari in the U.S. Supreme Court. (Id. at 5.)

         Both petitioners filed the instant petition on October 7, 2016. (ECF No. 1.) Respondents filed their response on November 10, 2016. (ECF No. 5.) On March 10, 2017, Edwin Rodriguez requested expedited resolution based on the initiation of removal proceedings against him on March 7, 2017. (ECF No. 8.) This Court issued an order requesting supplemental briefing from Edwin Rodriguez concerning the timeliness of his petition on April 4, 2017 (ECF No. 9), and he submitted such a brief on April 18, 2017 (ECF No. 10). The Court has fully considered the parties' submissions.

         II. Discussion

         Respondents argue that the Court should deny the petition on the merits because the record demonstrates that plea counsel, the County Court, and the prosecutors each advised petitioners of the immigration consequences of their plea to the extent required by Padilla, 559 U.S. 356. They further argue that the petition is procedurally barred with respect to Ricardo Rodriguez because it is untimely and, in any event, Ricardo Rodriguez is not in their custody. As set forth below, the Court holds that the petition is untimely with respect to Ricardo Rodriguez, and he does not meet the “in-custody” requirement for habeas relief. Furthermore, Edwin Rodriguez's ineffective assistance of counsel claim lacks merit because he failed to demonstrate prejudice from plea counsel's deficient performance.

         A. Ricardo Rodriguez

         With respect to Ricardo Rodriguez, the Court concludes that the petition satisfies neither the timeliness nor the “in custody” requirement of 28 U.S.C. § 2244. Consequently, the petition is denied with respect to him.

         1. Timeliness

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No 104-132, 110 Stat. 1214, which, among other things, amended 28 U.S.C. § 2244(d)(1) to provide a one-year limitations period for filing a petition for a writ of habeas corpus by a person in state custody pursuant to a state court judgment. The general rule is that the limitations period will begin to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The statute also provides three exceptions under which the one-year limitations period will commence on a later date, specifically:

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims could have been discovered through the ...

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