People v Ramirez
Decided on April 11, 2012
Supreme Court, Bronx County
The People of the State of New York
Dimas Ramirez, Defendant.
For the People:
Assistant District Attorney Megan R. Roberts
Office of Robert T. Johnson
District Attorney, Bronx County
198 East 161st Street
Bronx, NY 10451
For the defendant:
Heidi Bota, Esq.
The Legal Aid Society
Criminal Appeals Division
199 Water Street, 5th Floor
New York, NY 10038
Martin Marcus, J.
The petitioner, a native and citizen of Colombia, was admitted to the United States as a Lawful Permanent Resident on or about June 17, 1973. On July 12, 1996, he was indicted by the Bronx County Grand Jury for Criminal Sale of a Controlled Substance in or near School Grounds and related charges, for offering to sell heroin to an undercover police officer within a thousand feet of school grounds. See Penal Law §§ 220.00(14), 220.44(2). On February 6, 1997, pursuant to a plea agreement, the petitioner pled guilty before this Court to Attempted Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §§ 110/220.39), a class B felony, in satisfaction of the indictment. On March 20, 1997, he was sentenced pursuant to the plea agreement to five years probation.
In 2006 and 2010, the petitioner applied for United States citizenship. His application was denied each time based upon a finding that he was unable to demonstrate that he was "a person of good moral character" because of his 1997 conviction. By Notice to Appear dated June 24, 2010, the Department of Homeland Security initiated removal proceedings against the petitioner pursuant to sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act, based upon the 1997 conviction. A removal hearing in Immigration Court is scheduled for May 10, 2012.
The petitioner now moves pursuant to CPL § 440.10 to vacate the judgment of
conviction, claiming that he was denied the effective assistance of counsel. In support of his claim, he alleges that his attorney failed to advise him that his conviction would result in his automatic deportation and failed to negotiate a plea that would have reduced the likelihood of his [*2]deportation. The People oppose the petitioner's motion. For the reasons set forth below, the petitioner's motion is summarily denied.
In seeking to overturn this nearly fifteen-year-old conviction, the petitioner primarily relies on Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In Padilla, the United States Supreme Court, recognizing that "deportation is a particularly severe penalty" with a "close connection to the criminal process," held that the Sixth Amendment imposes upon defense attorneys a duty to provide noncitizen clients with accurate advice regarding the deportation consequences of pleading guilty. 130 S.Ct. at 1481-82, 1484, 1486 (internal quotations marks and citations omitted). The scope of that duty is dependent upon the circumstances of each case:
When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse deportation consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.
Id. at 1483. The People argue that Padilla should not be retroactively applied to the petitioner's case, and that under the prevailing law at the time, his attorney would not have been ineffective for failing to advise him of the deportation consequences of his plea.
The Supreme Court was silent as to whether its decision in Padilla was to be applied
retroactively, and neither the New York Court of Appeals nor any of the Departments of the Appellate Division have considered the question of its retroactivity. Although numerous trial and appellate term courts have done so, they have reached conflicting conclusions.[FN1] While the Second Circuit has not taken up the issue, other Circuits, as well as federal District Courts within this state, have. Like the State's trial and appellate term courts, their decisions are in conflict.[FN2] Although none of these decisions are binding, I find the decision of the Tenth Circuit in United States v. Chang Hong, ___ F.3d ___, 2011 WL 3805763 (10th Cir. Sept. 1, 2011), particularly persuasive and follow it here.
Whether a Supreme Court decision is to be applied retroactively depends in part on whether it announces a "new rule." "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion); see People v. Eastman, 85 NY2d 265, 275 (1995). A rule is "old" if a "court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." O'Dell v. Netherland, 521 U.S. 151, 156 (1997) (alteration in original) (internal quotation marks and citations omitted). If it is a new rule, it is to be applied retroactively in a collateral proceeding only if "(1) the rule is substantive or (2) the rul[e] is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bockting, 549 U.S. 406, 416 (2007) (alteration in original) [*3](internal quotation marks and citations omitted); see Teague, 489 U.S. at 310; Beard v. Banks, 542 U.S. 406, 417 (2004). A rule that does not "alter the range of conduct or the class of persons the law punishes" is not a new rule of substantive law, but rather, a new rule of criminal procedure. See Schriro v. Summerlin, 542 U.S. 348, 353 (2004).
Criminal defense attorneys have always been under a duty to provide competent advice regarding the consequences of criminal convictions when negotiating guilty pleas. Whether or not an attorney's representation was constitutionally deficient, however, depended in part on whether the attorney misadvised a client about a particular consequence or gave the client no advice at all, and in part on whether that consequence was direct or collateral to the criminal conviction. In holding that defense attorneys are under an absolute obligation to provide accurate deportation advice to noncitizen clients, Padilla rejected the distinctions between misadvising a client and giving no advice at all, and between direct and collateral consequences. See Padilla, 130 S.Ct. at 1481-84, 1486. No such affirmative obligation existed prior to Padilla. See People v. McDonald, 1 NY3d 109, 113-14 (2002); People v. Ford, 86 NY2d 397, 403-05 (1995); United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curium); see also People v. Gravino, 14 NY3d 546, 554 n.4 (2010).
Since the holding in Padilla was a departure from the prevailing law and was not dictated by existing precedent, it constitutes a new rule within the meaning of Teague. As the Tenth Circuit observed in Chang Hong, "Padilla is a new rule of constitutional law not because of what it applies " Strickland " but because of where it applies " collateral immigration consequences of a plea bargain." Chang Hong, ___ F.3d ___, 2011 WL 3805763, *8. And, since it did not change the range of punishment for the crime of which the petitioner was convicted or the class of persons the law punished for the crime, it is a new procedural rule, rather than a substantive one. Thus, Padilla should be applied retroactively only if it is a "watershed rule."
The Supreme Court has held that in order for a new rule to constitute such a "watershed rule," it must both "be necessary to prevent an impermissibly large risk of an inaccurate conviction," and "must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Bockting, 549 U.S. at 418 (internal quotation marks omitted). While no rule has yet been held to be such a "watershed," the Supreme Court has offered as an example its decision in Gideon v. Wainwright, 372 U.S. 335 (1963). See Bockting, 549 U.S. at 418-19; Banks, 542 U.S. at 417. As the court in Chang Hong concluded, "Padilla is not Gideon." ___ F.3d ___, 2011 WL 3805763, *9. It does not "concern the fairness and accuracy of a criminal proceeding," and "is simply not germane to concerns about risks of inaccurate convictions or fundamental procedural fairness." Id. Thus, Padilla does not apply retroactively to cases on collateral review.
Analyzed under the law prevailing when the petitioner pled guilty in 1997, his ineffective assistance of counsel claim fails. The petitioner alleges that his attorney did not advise him that pleading guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree would result in mandatory deportation. Then considered a collateral consequence, such a failure did not constitute ineffective assistance of counsel under either New York or federal law. See McDonald, 1 NY3d at 114; Ford, 86 NY2d at 403-04; People v. Feliciano, 31 Misc 3d at 128(A) (App. Term, 1st Dept. 2011). Concomitantly, the petitioner's attorney was not ineffective for allegedly failing to "bargain for a plea that
would result in less severe immigration consequences or proceed to trial."
For these reasons, the petitioner's motion is summarily denied.
This constitutes the order and decision of the Court.
Dated: April 11, 2012
______________________MARTIN MARCUS [*4]
Footnote 1: Trial and appellate term decisions concluding that Padilla is not retroactive include People v. Feliciano, 31 Misc 3d 128(A)(App. Term, 1st Dept. 2011) and People v. Lorente, 34 Misc 3d 1225(A)(Sup. Ct. Queens Co. 2012). Decisions concluding that Padilla is retroactive include People v. Nunez, 30 Misc 3d 55 (App. Term, 9th and 10th Jud. Dists. 2010), People v. Bennett, 28 Misc 3d 575 (Crim. Ct. Bx. Co. 2010) and People v. DeJesus, 30 Misc 3d 1203(A)(Sup. Ct. NY Co. 2010).
Footnote 2: Circuit Court decisions concluding that Padilla is not retroactive include United States v . Chang Hong, ___ F.3d ___, 2011 WL 3805763 (10th Cir. Sept. 1, 2011). The Third Circuit has concluded that Padilla is retroactive. United States v. Orocio, 645 F.3d 630 (3d Cir. 2011). Federal District Court decisions concluding that Padilla is not retroactive include Medina v. United States, No. 12 Civ. 238 (JPO), 2012 WL 742076 (S.D.NY Feb. 21, 2012), Ellis v. United States, 806 F.Supp.2d 538 (E.D.NY 2011) and Rosales v. Artus, No. 10-CV-2742 (JFB), 2011 WL 3845906 (E.D.NY Aug. 30, 2011). Decisions concluding that Padilla is retroactive include United States v. Obonaga, No. 10-CV-2951(JS), 2010 WL 2710413 (E.D.NY June 30, 2010).