The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner George Martin's ("Martin") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Martin's motion [#1] is DENIED IN PART.
On April 15, 2008, by grand jury indictment, Martin was charged with six counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2, and one count of access device fraud in violation of 18 U.S.C. § 1029(a)(1) and (2). On July 31, 2008, Martin entered a blind plea of guilty to Count 6, wire fraud in violation of 18 U.S.C. §§ 1343 and 2. On November 20, 2008, Martin was sentenced to 37 months of imprisonment and 5 years of supervised release, and the Government's oral motion to dismiss Counts 1-5 and 7 was granted by the Court. Judgment was entered against Martin on November 24, 2008, and he did not file a direct appeal.
Martin was born in Sierra Leone and came to the United States from Ghana as a refugee in 2004. At the time he committed the offense for which he was sentenced, he was in the United States as a legal resident alien. Martin filed the instant § 2255 Motion raising three issues: 1) ineffective assistance of counsel in violation of the Sixth Amendment for counsel's alleged failure to apprise Martin more fully of the immigration consequences of his guilty plea, 2) the Court failed to inform Martin of possible immigration consequences in violation of Federal Rule of Criminal Procedure 11, and 3) ineffective assistance of counsel in violation of the Sixth Amendment for counsel's alleged failure to notify him of his right to contact his consulate in violation of the Vienna Convention. The Government filed its Response, and the parties submitted supplemental briefs at the direction of the Court because of a recent Supreme Court case relevant to the issues raised in Martin's § 2255 Motion. This Order follows.
A prisoner may bring a § 2255 motion where he claims that his "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255(a); Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (§ 2255 relief only available where there was an error of law that was jurisdictional, constitutional, or resulted in a complete miscarriage of justice). Federal courts lack power under § 2255 to rectify errors that fall short of "vitiating the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Broadway v. United States, 104 F.3d 901, 903 (7th Cir. 1997) (internal citation omitted).
Because a § 2255 motion cannot be used as a substitute for a direct appeal, a § 2255 petitioner is barred from raising: 1) issues that were raised on direct appeal, absent a showing of changed circumstances, 2) non-constitutional issues that could have been raised on direct appeal but were not, and 3) constitutional issues that were not raised on direct appeal, unless the petitioner can show both cause for the procedural default and actual prejudice from the failure to appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205 (1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 719-20 (7th Cir. 1994).
Here, Martin attempts to show cause for his procedural default by arguing that his counsel was ineffective. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88; Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009). Courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S.at 690. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Martin must satisfy both prongs of the test in order to meet his burden, and a finding against him on either prong ends the inquiry. Id. at 697 ("there is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
I. Immigration Consequences of Guilty Plea
Martin argues that his counsel was ineffective for failing to advise him more fully on the immigration consequences of his guilty plea, and that counsel failed to take action to shield him from mandatory deportation. Martin further argues that he received misleading information that he would not face immigration consequences and that if he had been advised of those consequences, he would not have pled guilty. In his Traverse and supplemental brief, Martin argues that Strickland's two-part test governs ineffective assistance of counsel claims, and that the "collateral consequences" rule is incompatible with the Sixth Amendment. Respondent argues that Martin's position - that he received ineffective assistance of counsel due to counsel's alleged failure to advise him of the immigration consequences of his guilty plea - is without support. Respondent cites to Seventh Circuit cases which provide that counsel's failure to inform a client as to the immigration consequences that may result from a guilty plea does not alone deprive the client of effective assistance of counsel. See United States v. George, 869 F.2d 333, 338 (7th Cir. 1989); Santos v. Kolb, 880 F.2d 941, 945 (7th Cir. 1989).
In George, the petitioner brought a § 2255 motion arguing ineffective assistance of counsel due to counsel's alleged failure to inform the petitioner that his guilty plea could subject him to deportation. 869 F.2d at 333-34. The petitioner had been properly advised of the immigration consequences of his guilty plea after he plead, but before sentencing. Id. at 336. The Seventh Circuit explained that "While the Sixth Amendment assures an accused of effective assistance of counsel in 'criminal prosecutions,' this assurance does not extend to collateral aspects of the prosecution." Id. at 337. The Seventh Circuit explained that it would not hold as a matter of law that counsel's failure to inform a client of immigration consequences of a guilty plea, without more, amounted to less than professionally competent assistance under Strickland. Id. at 338. Similarly, in Santos, the petitioner brought a § 2254 petition alleging ineffective assistance of counsel for counsel's alleged failure to advise him of immigration consequences of a conviction and for counsel's alleged failure to seek judicial recommendation against deportation. 880 F.2d at 942. The Santos court cited George and cases in other circuits to support its holding that counsel's failure to inform the petitioner of the immigration consequences of his guilty plea did not deprive him of effective assistance of counsel as guaranteed by the Constitution. Id. at 944, 945. See also Jimenez v. United States, 154 F. App'x 540, 541 (7th Cir. 2005) (noting that, like other courts, the Seventh Circuit has concluded that possible immigration consequences of a guilty plea are collateral, not covered by the Sixth Amendment, and so failure of counsel to advise of those consequences is not ineffective assistance of counsel).
In a recent Supreme Court case, Padilla v. Kentucky, the defendant brought a motion for post-conviction relief in state court alleging that his counsel not only failed to advise him of the immigration consequences of his guilty plea, but also gave him erroneous advice about those immigration consequences. 130 S.Ct. 1473, 1478 (Mar. 31, 2010). The Supreme Court considered changes in immigration law and the expansion of deportable offenses, concluding that deportation may be the most important part of the penalty that noncitizen defendants may experience when they plead guilty to certain crimes. Id. at 1479-80. The Court further concluded that distinguishing between collateral and direct consequences of a criminal conviction is "ill-suited to evaluating a Strickland claim concerning the specific risk of deportation" and that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Id. at 1482. The Court determined that the petitioner had adequately alleged the first prong of Strickland, constitutionally deficient counsel, where counsel could have easily determined the plea would make the petitioner eligible for deportation, deportation was presumptively mandatory, and the advice given was incorrect. Id. at 1483-84.
In the end, the Supreme Court held that counsel must inform a client of whether the client's plea includes a risk of deportation. Id. at 1486. The question of whether the petitioner was prejudiced by counsel's constitutionally deficient performance was not before the Supreme Court and so it did not reach that question. Id. at 1487.
Here, the arguments Martin makes in his supplemental brief in support of his claim of ineffective assistance of counsel echo the Supreme Court's discussion in Padilla v. Kentucky. However, at the time Martin plead guilty and was sentenced, Santos and George remained binding upon the issue of whether counsel's alleged failure to inform a defendant of the possible immigration consequences of a guilty plea amounted to ineffective assistance of counsel. The Government contends that Padilla v. Kentucky announced a new rule of criminal procedure that does not apply retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 309-10 (1989) (stating that "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality . . ." and holding that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to cases on collateral review which have become final before the new rules are announced").
A "new rule" under Teague is one that "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301; see also Butler v. McKellar, 494 U.S. 407, 412 (1990). In Padilla v. Kentucky, the Supreme Court considered the first prong of Strickland and discussed how prevailing professional norms suggest that counsel advise their clients of the possible deportation risks following a guilty plea. 130 S.Ct. at 1482. The Supreme Court also rejected the position that its holding should be limited to affirmative misadvice of counsel, noting that it is the "critical obligation of counsel to advise the client of 'the advantages and disadvantages of a plea agreement.'" Id. at 1484 (citing Libretti v. United States, 516 U.S. 29, 50-51 (1995)). The Padilla case likely did not break new ground or impose new obligations given the Supreme Court's emphasis on Strickland, prevailing professional norms, and the "long recognized" importance of the plea negotiation phase. Id. at 1482-86; see also Osagiede v. United States, 543 F.3d 399, 408 n. 4 (7th Cir. 2008) (explaining that Teague presented no problem in a case where the defendant argued ineffective assistance of counsel for a Vienna Convention Article 36 violation because "counsel's duty to know the applicable law, at least when it matters to his client's defense, has been clearly established by Strickland and its progeny"). Padilla v. Kentucky therefore applies to Martin's claim of ineffective assistance of counsel for his counsel's alleged failure to fully inform him of the possible immigration consequences of his guilty plea.
The Government argues that under George and Santos, counsel's failure to inform a client as to the immigration consequences of a guilty plea does not violate the standards of competence identified in Strickland. The Government further argues that Padilla is inapplicable to the instant case because Martin was continually and thoroughly advised of the consequences of his guilty plea by his counsel. Martin's attorney, Robert Alvarado, has submitted an affidavit in which he states that he spent a significant amount of time warning Martin about his possible deportation if convicted, that he continually urged Martin to consult a lawyer specializing in immigration issues, that he always advised Martin that he would likely go to prison if convicted and then face a prospect of deportation, and that he never left Martin with the impression that deportation was something he need not worry about. On the other hand, Martin has submitted a sworn ...