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Javier Restrepo v. United States of America

November 8, 2012

JAVIER RESTREPO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Simandle, Chief Judge

OPINION

I. INTRODUCTION

On June 12, 2012, Petitioner Javier Restrepo filed a petition for a writ of error coram nobis [Docket Item 1] to vacate his October 6, 1997 conviction for conspiracy to distribute and to possess with the intent to distribute more than five kilograms of cocaine. He claims that he received ineffective assistance of counsel because his attorney never informed him that his conviction could result in deportation. His petition will be denied because, although he learned about potential deportation consequences in 1998, he did not file his petition until 2012. Coram nobis petitioners must show sound reasons for failing to seek relief earlier; Petitioner has not done so and his petition will be denied.

II. BACKGROUND

This section provides an overview of Petitioner's conviction and sentencing, the arguments in his coram nobis petition, and Respondent's arguments in opposition.

A. Factual Background

On October 6, 1997, Petitioner pled guilty before this Court to conspiracy to distribute and to possess with the intent to distribute more than five kilograms of cocaine.

The conviction occurred because Petitioner owned a tractor trailer and, in 1996, he agreed to allow Jorge Restrepo (no relation)*fn1 and a man named Pacho to outfit his trailer with a secret compartment to hold cocaine. (Plea Tr. 27:18-25.) The compartment could hold approximately 10 kilograms of cocaine. (Pre-Sentencing Report ("PSR") ¶ 53.) After the compartment was completed, Pacho loaned Petitioner $500. (Plea Tr. 28:20-24.) At his plea hearing, Petitioner emphasized that he had "no money at the time" and the $500 "was no pay for nothing, so only lent money." (Plea Tr. 28:16-19.) On January 20, 1997, Petitioner met with Jorge and Hernando Celis at a truck stop in South Kearney, New Jersey. (Plea Tr. 29:3-5.) In Petitioner's presence, Celis gave Jorge $150,000. (Plea Tr. 29:7-10.) Jorge then gave Petitioner $30,000 and asked Petitioner to deliver it to Jorge's mother. (Plea Tr. 29:14-17.)

At his plea hearing, the Court asked Petitioner, "Did you understand that the $30,000 was proceeds of the drug transaction?" (Plea Tr. 29:18-19.) Petitioner responded "[n]ot really" and said that the money "got me a surprise." (Plea Tr. 29:20-24.) Petitioner's lawyer requested a recess and spoke with his client. When Petitioner returned from the recess, he said, "Yeah, yeah, I know what the $150 so he give me the $30,000 was coming from the, the drugs." (Plea Tr. 30:5-6.)

Petitioner admitted that his actions were wrong, that he knew they were wrong at the time, and that no one forced him to participate in the conspiracy. (Plea Tr. 40:23-41:6.)

Petitioner's role in the conspiracy was minor, particularly as compared to the other defendants. He stipulated to 5 to 15 kilograms of cocaine; every other defendant stipulated to 250 kilograms or more. (PSR ¶ 53.) At the plea hearing, Petitioner said that no illegal drugs were ever actually transported in his truck. (Plea Tr. 31:13-17.) The government's allegations were somewhat different, claiming that "although [he] allowed his truck to be used to transport cocaine, he did not drive the truck himself . . . (although it was mentioned that he was due to drive to Houston, TX to pick up cocaine). . . ." (PSR ¶ 53.) But the government acknowledged that Petitioner "had limited knowledge of the organization and it's [sic] activities." (PSR ¶ 53.)

Javier Restrepo not only acknowledged his guilt in entering his guilty plea, but he also accepted responsibility for his crime, as detailed in statements he made during the interview with the Probation Office, set forth in his Presentence Investigation and Report. (PSR ¶ 56.) He acknowledged that Jorge Restrepo had approached him for permission to install a secret compartment to conceal drugs that would be transported in Javier Restrepo's truck, and he agreed that the compartment could be installed and that the truck could be used to haul drugs when Javier was not using it for legitimate purposes. (Id.) Javier would allow Jorge to borrow the truck and use it to transport drugs. (Id.) Javier said he agreed to this arrangement in hopes that Jorge would eventually purchase the truck from him. (Id.) Thus, Javier Restrepo's factual guilt of the conspiracy rested upon two spheres of conduct and knowledge: he agreed to permit Jorge to install the secret compartment and use his truck to haul drugs, and he agreed to deliver $30,000, which he knew to be drug proceeds, to Jorge's mother.

Deportation consequences were never discussed at the plea hearing, even though Petitioner was not a United States citizen. Petitioner arrived in the United States from Colombia in 1987 and, before his conviction, he possessed a valid green card. (Restrepo Aff. ¶ 2.)*fn2

On January 23, 1998, the Court sentenced Petitioner to 57 months of imprisonment followed by sixty months of supervised release and ordered him to pay a special assessment of $100. (Restrepo Aff. ¶ 1.)

At the sentencing hearing, both Petitioner's lawyer, David Secular, and the Court mentioned deportation consequences. Secular said that Petitioner "most likely will have to suffer the consequences of deportation at the end of his prison term." (Sentencing Tr. 25:21-22.) The Court told Petitioner, "I don't know whether you'll be deported or whether you'll be permitted to stay in the country. I would assume it would be deportation because this is a felony offense, but that's not a decision that is given to Judges to make. It's in the hands of the Immigration and Naturalization Service." (Sentencing Tr. 44:4-8.) In announcing the sentence and its conditions, the Court mandated that Petitioner must cooperate with the Immigration and Naturalization Service ("INS") to resolve any problems with his status in the United States and, if deported, must not re-enter the United States without written permission from the Attorney General. (Sentencing Tr. 48:11-18.)

On February 25, 1999,*fn3 Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2255. His petition was denied because it was untimely and because his claims lacked merit. Petitioner argued, inter alia, that he received ineffective assistance of counsel because his counsel failed to "argue vigorously" for a downward adjustment of three to four levels in the sentencing guidelines. Restrepo v. United States, Civ. No. 99-924, at 10 (D.N.J. Nov. 15, 1999) (Simandle, J.). The Court held that Petitioner's attorney's advocacy "cannot plausibly be characterized as brief or lacking in vigor." Id. at 12. In addition, the Court held that, even if the attorney's performance had been deficient, Petitioner's defense was not prejudiced because he received a much lighter sentence than any other conspirator. Id. at 12. In his habeas corpus petition, Petitioner never raised his attorney's failure to advise him of deportation consequences.

B. Petitioner's Arguments

Petitioner argues that his conviction is invalid and should be vacated because he is facing deportation, a collateral consequence arising directly from his conviction. He argues that his attorney's failure to advise him about the deportation consequences constituted ineffective assistance of counsel.

Petitioner claims that his lawyer, David Secular, never warned him that his plea would result in deportation and that he never would have pled guilty if he had been aware of the consequences. (Id. ¶ 3.) Petitioner claims that he would have insisted upon trial because he was innocent. (Restrepo Aff. ¶ 3, 6.) He claims that Secular pressured him to plead guilty despite his innocence to get better treatment from the judge. (Restrepo Aff. ¶ 6.) Petitioner emphasized that he was innocent, that one of his co-defendants confessed that Petitioner had not been involved in the conspiracy, and that the evidence against him was weak. (Pet. at 11.) He also alleges that the ...


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