United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
CHARLES RONALD NORGLE, District Judge.
Before the Court is Petitioner Vasile George Husti's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied.
Petitioner Vasile George Husti ("Husti") was born in Romania and is a Green Card holder, i.e., he has been granted authorization to live and work in the United States on a permanent basis. Husti attended high school in the United States; he speaks both Romanian and English. Husti is now twenty-three-years old. On July 8, 2010, a grand jury returned an indictment charging Husti, along with twelve others, with conspiring to steal, purloin, and knowingly convert to their own use and the use of another money of the United States, in violation of 18 U.S.C. § 641, of conspiring to defraud the United States by impeding, impairing, obstructing and defeating the lawful government functions of the Internal Revenue Service of the Department of Treasury, in violation of 18 U.S.C. § 371 (Count One), as well as with stealing, purloining, and knowingly converting to his own use and the use of another money belonging to the United States, in violation of 18 U.S.C. §§ 641 and 642 (Count Thirteen). On September 25, 2012, Husti pleaded guilty pursuant to a written plea agreement as to Count Thirteen of the indictment for his role in submitting fraudulent claims for income-tax returns. Following the change of plea hearing, judgment of guilty was entered on the plea. On February 13, 2013, the Court sentenced Husti to 366 days' imprisonment.
On direct appeal, Husti, an alien, likely to be removed from the United States, argued that the Court erred by failing to discuss his request for a lower sentence based on his potential removal from the United States. United States v. Stanciu, 546 F.App'x 589, 589 (7th Cir. 2013) (non-precedential order). The Seventh Circuit rejected this argument for two reasons: first because the Court did discuss Husti's alienage and stated that it was irrelevant to the sentence imposed, and second because it has previously held in United States v. Ramirez-Fuentes , 703 F.3d 1038, 1047-49 (7th Cir. 2013), that this "stock" argument may be rejected even without discussion. Id . Husti also argued that his attorney rendered ineffective assistance during the sentencing hearing by arguing that the Court lacked the authority to adjust his sentence to prevent his automatic removal. Id . The Seventh Circuit held that Husti's ineffective assistance of counsel argument was "doomed by inability to show prejudice." Id. at 590. Specifically, the Seventh Circuit found that the following evidence demonstrated the lack of prejudice:
(a) counsel recognized his mistake and corrected it; (b) an Assistant United States Attorney informed the judge that he had the power to adjust the sentence in a way that could influence immigration consequences; (c) the judge stated that he knew that he had this power; (d) the judge said that he was unwilling to take defendants' immigration status into account, one way or the other, when shaping the sentence; and (e) Husti's sentence of 366 days is six months below the lower bound of the applicable Guideline range, implying that counsel achieved an excellent result for his client.
Id. Husti now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion is fully briefed and before the Court.
A. Standard of Decision
"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States , 476 F.3d 518, 521 (7th Cir. 2007). This relief is available only in limited circumstances, such as where an error of law is jurisdictional, of constitutional magnitude, or "constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States , 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation marks and citation omitted). The Court reviews the evidence and draws all reasonable inferences therefrom in the light most favorable to the government. Messinger v. United States , 872 F.2d 217, 219 (7th Cir. 1989) (citations omitted).
A defendant "faces an uphill battle" where, as here, he has already "presented a claim of ineffective assistance of counsel to the court of appeals unsuccessfully." United States v. Taglia , 922 F.2d 413, 418 (7th Cir. 1991). The law of the case bars the Court from reexamining a ruling by a court of appeals "unless there is some good reason for reexamining it such as an intervening change in law, or new evidence." Id . (internal quotation marks and citations omitted).
B. Ineffective Assistance of Counsel
Having failed on his ineffective assistance of counsel argument on appeal, Husti now advances a different theory of ineffective assistance in his § 2255 motion, seeking to vacate his judgment of conviction and guilty plea. Husti asserts that his attorney rendered ineffective assistance by providing him with "false assurances that his conviction would not result in his automatic removal from this country." 28 U.S.C. § 2255 Mot. to Vacate J. & Plea Based on Ineffective Assistance of Counsel ¶ 20 [hereinafter § 2255 Mot.]. Husti claims that he signed the plea agreement "because Mr. Goodman told me that was the only way that I would stay in the country with my family." Id . Ex. A, ¶ 15.
To prevail on his ineffective assistance of counsel claim, Husti must establish both: (1) that his counsel's performance was objectively deficient; and (2) that the deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 691-92, 700 (1984). In assessing counsel's performance, the Court's review is "highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Koons v. United States , 639 F.3d 348, 351 (7th Cir. 2011) (internal quotation marks and citation omitted). Additionally, "[t]o establish prejudice in the plea context, the defendant must demonstrate through objective evidence that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id . (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)) (additional citations omitted).
With respect to the first prong, the Supreme Court has held that "counsel must inform [his] client whether his plea carries a risk of deportation." Padilla v. Kentucky , 559 U.S. 356, 374 (2010). Here, the record belies Husti's claim that his decision to plead guilty was based on his attorney's alleged affirmative misrepresentation that he will not be removed from the United States. For example, on January 5, 2012, Husti's attorney filed a motion for additional discovery which states, inter alia, that
[A]ttorneys for Husti met with the attorneys for the government to discuss a possible plea bargain for Husti.... [A]nd urged the government to consider a plea deal which would not cause Husti to be deported and separated from his family. A plea to a felony theft charge involving more than $10, 000 would be considered an "aggravated felony" which would be a deportable offense.
... Husti only has a green card, not full citizenship, and has a real fear that a conviction ...