United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
KIMBALL UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner Jeffery Fanueli
Pouha's Petition under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence, filed July 19, 2017. The
United States has responded to the petition and the court
considers the petition fully briefed.
22, 2003, Defendant entered a guilty plea and signed a
Statement in Advance of Plea (“Plea Agreement”).
Pursuant to the Plea Agreement, the court sentenced
Petitioner to 48 months imprisonment. Petitioner did not
pursue a direct appeal. Given the length of his sentence,
Petitioner has been released from prison for more than ten
years. However, Petitioner now attacks his sentence on the
grounds that he received ineffective assistance of counsel in
relation to his guilty plea because his counsel did not
advise him of the immigration consequences of his plea.
district court is authorized to modify a Defendant's
sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.”
United States v.Blackwell, 81 F.3d 945, 947 (10th
Cir. 1996). Under 28 U.S.C. § 2255, a prisoner in
custody can move the court to vacate, set aside, or correct a
sentence if the sentence was unconstitutional, illegal, in
excess of the maximum authorized by law, or otherwise subject
to collateral attack.
one-year statute of limitation applies to motions brought
under § 2255. “The limitation period shall run
from the later of (1) the date on which the judgment of
conviction becomes final; (2) the date on which the
impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion
by such governmental action; (3) the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or (4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2255.
duty to advice clients regarding the possible immigration
consequences of a guilty plea did not exist in 2003 when
defendant entered his plea. In 2010, in United States v.
Padilla, the Supreme Court established that counsel had
the obligation to provide advice to clients in criminal
proceedings regarding the possible immigration consequences
of a guilty plea. 559 U.S. 356, 368-73 (2010). Such an
obligation was a new standard. Id. at 1487, 1492
(Alito, J., concurring).
Padilla, the Tenth Circuit has held that the duty
established in Padilla is a new constitutional rule
but it does not apply retroactively. United States v.
Chang Hong, 671, F.3d 1147, 1157 (10th Cir.
2011); Cabrera v. Trammell, 488 Fed.Appx. 294, 296
(10th Cir. 2012).Therefore, Petitioner's
counsel in this case cannot be held to the standard
established in Padilla. Accordingly,
Petitioner's counsel did not provide ineffective
assistance of counsel.
has not demonstrated that the one-year statute of limitation
is subject to equitable tolling in this case. Equitable
tolling is only available “when an inmate diligently
pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond
his control.” Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000). Petitioner admits that his
conviction rendered him a priority for deportation. His
release from prison was over ten years ago. However, he has
remained in the United States because of his medical
conditions. Petitioner has, therefore, known that he was a
priority for deportation for the past ten years and failed to
file the present motion. Therefore, Petitioner has failed to
file his petition within the time period required by 28
U.S.C. § 2255.
Petitioner's petition could be considered timely, he has
not demonstrated that his counsel's conduct resulted in
any actual prejudice. To establish a claim for ineffective
assistance of counsel, a petitioner must show: “(1) his
counsel's performance was constitutionally deficient, and
(2) his counsel's deficient performance was
prejudicial.” United States v. Cook, 45 F.3d
388, 392 (10th Cir. 1995); United States v.
Glover, 97 F.3d 1345, 1349 (10th Cir. 1996)
(applying standard to sentencing proceedings and plea
hearings). The prejudice that Petitioner claims must be more
than a subjective statement, such as his claim that he would
not have pleaded guilty if he had known that the conviction
had made him a priority for deportation. Rather, the alleged
prejudice “must convince the court that a decision to
reject the plea bargain woul dhave been rational under the
circumstances.” United States v. Padilla, 559
U.S. at 371.
case, the weight of the evidence at the trial against
Petitioner's co-defendant demonstrates that a conviction
at trial for Petitioner was also highly likely. Petitioner
admitted in his Plea Agreement that he assisted his
co-defendant in a drug sale to a confidential source by
collecting the funds owed to his co-defendant.
Petitioner's counsel was able to avoid a minimum
mandatory sentence by having Petitioner plead to a lesser
offense. The Plea Agreement also allowed Petitioner to obtain
acceptance of responsibility, which together with the lesser
offense, cut Petitioner's sentence to less than half the
mandatory guideline sentence. Given his exposure to a much
longer sentence if he had gone to trial, it would have been
irrational to reject the plea deal and go to trial based on
the potential immigration consequences. Therefore, the court
concludes that Petitioner has not demonstrated actual
above reasons, Petitioner's Petition under 28 U.S.C.
§ 2555 is DENIED and DISMISSED because it is barred by