UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 9, 2009
JUAN ALBERTO MEJIA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Honorable Joseph E. Irenas
Presently, before the Court are Petitioner Juan Alberto Mejia's Petition to Vacate, Set Aside or Correct Sentence brought under 28 U.S.C. § 2255, and the government's Motion to Dismiss Mejia's Petition.*fn1
On July 29, 1999, Petitioner, a citizen of the Dominican Republic, was detained upon arrival in the United States at JFK Airport, New York, while trying to enter the country under a false name. (Gov't Br. at 8-9.) The same day, after interviewing Petitioner, an Immigration and Naturalization Inspector from the U.S. Immigration and Nationalization Service (INS) removed him from the United States back to the Dominican Republic. (Id. at 9-10.) Petitioner subsequently returned to this country, and was arrested on February 24, 2007 for distribution of cocaine.*fn2 (Presentence Investigation Report at 10.)
On August 2, 2007, Petitioner pled guilty to two felony charges: (1) conspiring to distribute and possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846, and (2) illegal re-entry by a removed alien in violation of 8 U.S.C. § 1362(a).*fn3 In exchange for a guilty plea, the government agreed to forego further charges against Petitioner for past violations of drug and immigration laws. (Plea Agreement at 1.) In addition, the plea agreement signed by all parties precluded their filling of appeals, collateral attacks, and writs or motions after sentencing, including petitions under 28 U.S.C. § 2255. (Id. at 3.)*fn4
On November 19, 2007, the Court applied the statutory "safety valve"*fn5 and sentenced Petitioner to a term of 37 months imprisonment for Count I and 24 months for Count II, to be served concurrently, based on finding an offense level of 21 and criminal history of I under the Guidelines. On August 4, 2008, despite the stipulations of the plea agreement, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2255 claiming he was denied his Sixth Amendment right to effective assistance of counsel.*fn6 While Mejia had counsel during his plea and sentencing, he now proceeds in forma pauperis and pro se contending that his counsel failed to object to the charge of illegal re-entry prior to Petitioner signing a plea agreement.*fn7
He argues that because he was removed by an INS Inspector without a deportation order from an immigration judge, he was never subject to 8 U.S.C. § 1362(a), and his counsel should have argued that point. As a result, he contends that his term of imprisonment should be reduced from 37 to 30 months.
Before directly addressing the merits of Petitioner's claim, the Court will first address the government's argument that Mejia's waiver of collateral attack is valid and enforceable and therefore, his Petition is barred. The Third Circuit has held that waivers of the right to appeal are "permissible" if entered into "knowingly and voluntarily, unless they work as a miscarriage of justice." United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). Additionally, the Supreme Court has extended the ability to waive rights to include Constitutional rights like the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 465 (1995). Moreover, the Third Circuit has applied the Khattak analysis to waivers of collateral attacks. United States v. Perry, 142 F. App'x 610, 611-12 (3d Cir. 2005) (upholding the district court's dismissal of a § 2255 collateral attack because Petitioner failed to show a "miscarriage of justice" ). Similarly, numerous courts in this district have also applied the Khattak test in barring collateral attacks. See, e.g., Coffee v. United States, No. 06-1296, 2007 WL 2705163, at *2 (D.N.J. Sep. 17, 2007) (Brown, C.J.).*fn8
Mejia does not deny that his waiver was signed "knowingly and voluntarily." In addition, prior to accepting Mejia's plea, the Court asked him very specific questions to ensure he understood the agreement in which he was about to enter:
THE COURT: And do you also understand that even after an appeal, even after an unsuccessful appeal, you may have the right to challenge your sentence under what we call a collateral attack or post conviction relief?
THE DEFENDANT: Yes, sir.
THE COURT: But do you understand that in this case, in your plea agreement, and specifically... Paragraph 17 of Schedule A, you have waived, surrendered, given up your right to appeal, and your right to post conviction relief or collateral attack, if you are sentenced at a guideline criminal range, criminal offense range of 21 or lower.
THE DEFENDANT: Yes, sir.
THE COURT:... Do you understand that you waived forever you right to appeal, you waived forever your right to collateral attack if you are sentenced at an offense level under the guidelines of 21 or lower?
THE DEFENDANT: Yes, sir.
THE COURT: Did you discuss that particular provision with Mr. Crisonino?
THE DEFENDANT: Yes, sir.
THE COURT: And did you agree to that waiver willingly and voluntarily?
THE DEFENDANT: Yes, sir.
THE COURT: Did anybody exercise any force or compulsion on you to make you agree to that waiver?
THE DEFENDANT: No, sir. (Plea Tr. at 21:11-22:13.)
As anticipated by the plea agreement, at sentencing, the Court indeed sentenced Mejia based on an offense level of 21. Considering the language of the signed plea agreement and Petitioner's colloquy with the Court, there is no reason to believe that he was not aware of the conditions of the agreement, or that he was coerced in any way. Accordingly, the Court holds that Petitioner waived his right to any collateral attack "knowingly and voluntarily." Khattak, 273 F.3d at 558.
Petitioner can overcome an affirmative finding that the waiver was knowing and voluntary if he can prove that upholding the waiver creates a "miscarriage of justice." United States v. Gwinnett, 483 F.3d 200, 205 (3d Cir. 2007). In determining whether there would be a miscarriage of justice, the Third Circuit adopted the reasoning from United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001), holding: The clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
Khattak, 273 F.3d at 563 (quoting Teeter). "Morever, a waiver does not 'become unenforceable simply because a defendant "claims"... ineffective assistance of counsel,' but only 'if the record of the criminal proceeding revealed that the claim that the waiver was the result of ineffective assistance of counsel was meritorious.'" United States v. Akbar, 181 F. App'x 283, 286-87 (3d Cir. 2006) (quoting United States v. Monzon, 359 F.3d 110, 119 (2d Cir. 2004)). Therefore, to determine whether Mejia's waiver of his rights to petition under § 2255 is enforceable, the Court must examine if his claim of ineffective counsel might succeed on the merits.
To prevail on a Sixth Amendment claim of ineffective assistance of counsel, Petitioner must make two independent showings: (1) Counsel's performance was deficient under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2) Counsel's deficient performance was prejudicial to his case because "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."*fn9 Id. at 694. Because a successful claim requires that Petitioner prove both elements, if one fails, there is no need to examine the other. Id.
Under the first prong of the Strickland test, Judicial scrutiny of counsel's performance must be highly deferential,[because] [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was reasonable.
Flamer v. Delaware, 68 F.3d 710, 719-28 (3d Cir. 1995) (quoting Strickland, 466 U.S. at 687-89).
Mejia argues that because he was removed by an INS Inspector and not an immigration judge, 8 U.S.C. § 1326 does not apply. He alleges that his counsel's performance was deficient because counsel failed to argue that Petitioner's initial removal was improper, and as such, he could not have violated 8 U.S.C. § 1326(a), and was wrongfully convicted of illegal re-entry. However, based on the facts of this case and the high threshold required for a successful claim of ineffective assistance of counsel, Petitioner has failed to prove that his counsel acted outside expected norms of his profession.
8 U.S.C. § 1326(a) states in pertinent part: Subject to subsection (b) of this section, any alien who-
(1) has been denied admission, excluded, deported, or removed... and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States, or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned.
8 U.S.C. § 1326(a).
Petitioner had no legal grounds on which to refute the charge of illegal re-entry. In 1999, Mejia arrived at JFK Airport from the Dominican Republic and attempted to enter the United States under a false name. An Immigration and Naturalization Inspector then found that Petitioner was inadmissible in accordance with § 235(b)(1) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1225(b)(1)).*fn10 After an Order of Expedited Removal was issued, Petitioner was removed from the United States. There is no evidence that Mejia's initial removal was improper. When Petitioner was found illegally for the second time in the United States, he was clearly in violation of 8 U.S.C. § 1326(a).
Furthermore, because there was no clear legal defense for the charge of illegal re-entry, Petitioner's counsel was justified in recommending that his client sign a plea agreement. As a result of counsel's efforts, Mejia received the lowest sentence within the agreed Guidelines range.*fn11 Not only was Petitioner's counsel acting within the expected norms of his profession, he ensured a favorable outcome for his client.
Accordingly, because Mejia's counsel acted reasonably within his profession and Petitioner himself was served well by counsel's actions, the first prong of the Strickland test is not satisfied. Without a showing that counsel's actions were deficient, there is no need to examine whether Petitioner was prejudiced. See Strickland, 466 U.S. at 694. Because Petitioner failed to meet the Strickland test for claiming ineffective counsel, the Court upholding the waiver would be a "miscarriage of justice". Accordingly, Petitioner's waiver of collateral attack is enforceable and the Court will grant the government's Motion to Dismiss.*fn12
For the reasons set forth above, the Court will grant the government's Motion and dismiss Mejia's Petition to Vacate, Set Aside or Correct Sentence brought pursuant to 28 U.S.C. § 2255. Because the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c). The Court will issue an appropriate order.
JOSEPH E. IRENAS, S.U.S.D.J.