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Cedeno-Gonzalez v. United States

United States District Court, S.D. Florida

January 16, 2018

MARIO JAVIER CEDENO-GONZALEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent,

          ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE, DENYING CERTIFICATE OF APPEALABILITY, AND CLOSING CASE

          PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on the Report of Magistrate Judge [DE-13]. In that Report, Magistrate Judge White recommends that Movant's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody [DE-12] be denied. The Report finds that the Movant's Motion, which raises two ineffective assistance of counsel claims, lacks merit because it is directly contradicted by the record. Movant has filed objections [DE-16]. For the reasons set forth below, the Report is affirmed and adopted, Movant's objections are overruled, and the Motion is denied.

         Movant maintains that counsel was ineffective because (1) counsel misadvised Movant to plead guilty without explaining the collateral consequences a guilty plea could have on Movant's immigration status and (2) counsel failed to object to the loss assessment set forth in the relevant conduct section of the Presentence Investigation Report. At his plea hearing, Movant represented that he had spoken with both his defense counsel and his immigration counsel about the deportation consequences of a guilty plea. Further, the signed plea agreement stated that his guilty plea could result in immediate removal and deportation from the United States and the Court advised Movant of the possible deportation consequences during the plea colloquy. Thus, the Report found that, regardless of whether counsel had misadvised Movant, Movant suffered no prejudice. As to the second claim, the Magistrate Judge found that Movant also could not demonstrate prejudice as to that claim because he has not shown that he would likely have received a lesser sentence.

         Movant's objections regarding the Report's findings and recommendations are not proper objections. Movant, instead of pointing to specific errors of fact or law made by the Magistrate Judge, simply reargues several of the arguments made in his Amended Motion. Nonetheless, the Court will briefly address Movant's "objections."[1]

         I. Objections to the Report's Findings as to the First Claim

         A. Movant's Objections Regarding Counsel's Performance Are Overruled

         Movant raises several objections as to the Report's finding that counsel was not ineffective regarding his immigration status. First, Movant maintains that the Magistrate Judge's finding effectively overruled Padilla v. Kentucky, 559 U.S. 356 (2010), by finding that Movant's counsel was not deficient. However, the Report did not find that counsel's actions were not deficient; instead, the Report found that even if counsel's actions were deficient, Movant has failed to demonstrate prejudice. Thus, this first objection is overruled.

         Movant also argues that the Court's plea colloquy with Movant cannot cure any deficiency by counsel. However, as noted above, the Report did not find that the Court "cured" counsel's deficient performance; it found that regardless of whether counsel's performance was deficient, Movant was unable to establish prejudice. Thus, this objection is overruled.

         B. Movant's Objections Regarding Prejudice Are Overruled

         Movant objects to the Report's finding that Movant suffered no prejudice as a result of his counsel's allegedly deficient performance regarding the immigration issue. In his objections, Movant maintains that had he been properly advised by counsel of the deportation consequences of a guilty plea, he might have chosen to go to trial. Interestingly, Movant never states he would certainly have gone to trial; instead, he argues it would have been rational for him to have chosen to go to trial. While it might have been rational for Movant to choose to go to trial under the circumstances, such an assertion does not establish prejudice. In contrast, in his Amended Motion, Movant does argue that he would have insisted either on going to trial or on a plea offer that would not have resulted in deportation. However, other than conslusory statements, such as he "demonstrated clearly that he places a 'particular emphasis' in the immigration consequences of his plea in deciding whether or not to accept it, " Movant has offered no actual evidence to support this conclusion.

         Further, and equally importantly, as the Report finds, at the time of his plea, Movant was fully apprised of the deportation consequences of his plea. The plea agreement, that Movant acknowledged executing, stated that a guilty plea could result in automatic removal from the United States. Movant also argues, in a separate objection, that the plea agreement does not cure any prejudice he may have suffered as a result of counsel's deficient performance. Movant maintains that the language of the plea agreement was insufficient to inform him that removal was a near certainty. However, the plea agreement was not the only information Movant received about possible deportation.

         At the change of plea hearing, the Court asked Movant if he was aware that by pleading guilty he could be subject to deportation and would not be able to return to the United States without written permission from the Department of Homeland Security. Movant responded that he was aware. The Court continued by asking if Movant had discussed the ramifications with counsel, understood the impact of the guilty plea on the possibility of his deportation, and understood that Movant would never be able to return to the United States. Movant responded yes to all of these questions. Thus, despite being fully informed of the immigration consequences of his guilty plea, Movant proceeded to plead guilty. Furthermore, in the plea agreement signed by Movant, it stated that "Defendant wants to plead guilty regardless of any immigration consequences that the Defendant's plea may entail, eve if the consequence is the Defendant's denaturalization and removal from the United States." (emphasis added). Consequently, the record clearly rebuts any claim of prejudice. Accordingly, these objections are overruled.

         II. Objections to the Report's Findings as to the Second Claim

         A. Movant's Objections Regarding Counsel's ...


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