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Martin v. United States

United States District Court, S.D. Florida

April 23, 2018

NIGEL CHRISTOPHER MARTIN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          BET BLOOM, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon the Motion to Vacate Pursuant to 28 U.S.C. Section 2255, ECF No. [1] (“Motion”), filed on January 23, 2018 by Movant Nigel Christopher Martin (“Movant”). On February 28, 2018, the Court entered an order requiring the Government to show cause why the Motion should not be granted. ECF No. [6]. The Government filed its response, ECF NO. [7] (“Response”), on March 28, 2018, and Movant filed a reply on April 6, 2018, ECF No. [9] (“Reply”). On April 20, 2018, Movant filed a Motion for Expedited Ruling on Post-Conviction Motion, ECF No. [10], advising the Court that Movant is “days away from being deported to his native Jamaica” and “request[ing] that the Court make an expedited ruling on his case before his actual deportation to Jamaica.” Id. ¶¶ 4-5. The Court has reviewed the Motion, the memoranda in support and opposition, the record, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

         I. FACTUAL BACKGROUND

         Movant is a 26 year old native of Jamaica who engaged in a scheme to make unauthorized credit card purchases at Home Depot through the store's telephone transaction system. ECF No. [1] ¶ 8; see also No. 16-cr-60238, ECF No. [68] (“Factual Proffer”). Based on this conduct, on December 6, 2017, Movant was charged, along with three other co-defendants, by a superseding indictment on three counts: Count 1, Conspiracy to Commit Device Fraud under 18 U.S.C. § 1029(b)(2); Count 2, Access Device Fraud under 18 U.S.C. 1029(a)(2); and Count 9, Aggravated Identify Theft under 18, U.S.C. § 1028(A)(a)(1). ECF No. [1] ¶ 1; see also No. 16-cr-60238, ECF No. [37] (“Superseding Indictment”).

         On January 1, 2017, Movant entered into a plea agreement, No. 16-cr-60238, ECF No. [69] (“Plea Agreement”). Pursuant to the Plea Agreement, Movant agreed to plead guilty to Counts 2 and 9, and the Government agreed to seek dismissal of Count 1 after sentencing. Id. ¶¶ 1-2. Paragraph 10 of the Plea Agreement stated as follows:

The defendant is aware that the sentence has not yet been determined by the Court. The defendant also is aware that any estimate of the probable sentencing range or sentence that the defendant may receive, whether that estimate comes from the defendant's attorney, this Office, or the probation office, is a prediction, not a promise, and is not binding on this Office, the probation office or the Court.

Id. ¶ 10 (emphasis added). Regarding the potential immigration consequences of Movant's plea, Paragraph 16 of the Plea Agreement states:

Defendant recognizes that pleading guilty may have consequences with respect to the defendant's immigration status if the defendant is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offenses to which defendant is pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including the defendant's attorney or the Court, can predict to a certainty the effect of the defendant's conviction on the defendant's immigration status. Defendant nevertheless affirms that the defendant wants to plead guilty regardless of any immigration consequences that the defendant's plea may entail, even if the consequence is the defendant's automatic removal from the United States.

Id. at ¶ 16 (emphasis added). At the plea hearing, Movant confirmed under oath that he had read and understood the Plea Agreement, and that his attorney, Mr. Gibson, had answered all of his questions regarding the Plea Agreement. See No. 16-cr-60238, ECF No. [101] (“Plea Tr.”) at 4, 21-22. Movant also confirmed under oath that he had read and understood the Factual Proffer, and he admitted that the facts contained in the Factual Proffer were true, including that Capital One's fraud loss related to the scheme was in excess of $200, 000. See No. 16-cr-60238, ECF No. [68] at 2-3; [101] at 21-22; [185] at 19.

         During the plea colloquy the Court confirmed that Movant had received no assurances related to his plea beyond what was set forth in the Plea Agreement:

THE COURT: Has anyone made any promises or assurances of any kind, other than what is set forth in the Plea Agreement, to persuade you to enter into it?
THE DEFENDANT: No, Your Honor.

Id. at 4-5. Upon entry of his guilty plea as to Count 2, the Court a second time asked Movant:

         “Has anyone made any promises or assurances to you, other than what's set forth in the Plea Agreement, to persuade you to plead guilty?” Id. at 6. Movant responded “No, Your Honor.” Again, upon entry of his guilty plea as to Count 9, the Court for a third time asked Movant: “Has anyone made any promises or assurances to you, other than what's set forth in ...


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