Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Herrera-Pagoada

United States District Court, E.D. North Carolina, Southern Division

January 13, 2020

UNITED STATES OF AMERICA,
v.
LEXY LEONEL HERRERA-PAGOADA, Defendant.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on the government's motion to dismiss, [DE #69], petitioner's motion to vacate under 28 U.S.C. § 2255, [DE #50]. Petitioner has filed a response, [DE #80]. The time for further filing has expired. This matter is ripe for adjudication.

         BACKGROUND

         Petitioner is a citizen of Honduras who entered the United States in 1997 at approximately age 19. [PSR ¶ 27 and DE #70-1 Exhibit 1 Track Two].[1] On June 21, 1999, petitioner was arrested for trafficking in cocaine by possession in Wilmington, NC. [PSR ¶ 10]. Petitioner pled guilty to this felony drug charge on April 24, 2000. [PSR ¶ 10]. However, he absconded before his sentencing. [PSR ¶ 4]. Petitioner's application for Temporary Protected Status was denied on October 28, 2002. [DE #70-1 Exhibit 1 Track One]. Between October 2002 and 2007, petitioner committed several misdemeanor offenses, including a number of offenses for driving while impaired. [PSR ¶¶ 11-16].

         At petitioner's June 2010 Removal Hearing, he admitted he was a native and citizen of Honduras who illegally entered the United States. [DE #70-1 Exhibit 1 Track One]. The immigration judge at the hearing asked petitioner if he had funds to pay for his own departure, and repeated the question asking “do you have monies to pay for your trip to Honduras?” [DE #70-1 Exhibit 1 Track One at 4:28]. Petitioner answered that he did not. [DE #70-1 Exhibit 1 Track One at 4:16-4:32]. Petitioner was asked by the judge if he had a fear of persecution or torture upon return to his home country and he answered that he did not. [DE #70-1 Exhibit 1 Track One]. The immigration judge also told petitioner that he may be eligible for non-LPR cancellation, in light of petitioner's two children with U.S. citizenship, and that if he would like to make a request, the immigration judge would give him a continuance and the application form and a list of attorneys. [DE #70-1 Exhibit 1 Track Two]. Petitioner answered “No, I want to go back to my home country.” Id. The immigration judge found that

removability has been established by clear and convincing unequivocal evidence, respondent is not a native or citizen of the United States, but a native and citizen of Honduras who entered lately; was offered non-LPR cancellation; he has chosen against it; he does not have a fear of persecution or torture; doesn't have sufficient funds to pay for his own departure; does not otherwise qualify for any other relief.

[DE #70-1 Exhibit 1 Track Three]. The immigration judge ordered petitioner “removed, returned to Honduras, country of nativity and citizenship on the charges contained in the Notice to Appear.” Id. The immigration judge also advised petitioner of his right to appeal and advised petitioner if he accepted the decision as final, it would become final as of that day, June 21, 2010. Petitioner responded, “[t]hat's fine.” Id. Petitioner was deported on July 19, 2010. [PSR ¶ 4].

         Petitioner reentered the United States at some time after July 19, 2010, and was arrested on March 9, 2012 for his 1999 drug charge and sentenced on September 11, 2012 to 35-42 months custody. He was released from custody on December 25, 2014, and was deported on February 23, 2015. [PSR ¶ 10].

         On June 23, 2015, petitioner illegally reentered the United States and was encountered two days later by border patrol agents and taken into custody. [PSR ¶ 20]. Petitioner was deported on July 2, 2015. [PSR ¶¶ 4, 20].

         Petitioner reentered the United States again some time after July 2, 2015, and was arrested on November 15, 2015 as a previously deported felon and illegal alien. [PSR ¶ 3]. On January 11, 2016, petitioner pled guilty in the instant matter without a written memorandum of plea agreement to illegal reentry by a felon, in violation of 8 U.S.C. § 1326(a)&(b)(1) (Count One). On April 12, 2016, this court sentenced petitioner to a total term of imprisonment of 11 months and 3 years of supervised release. [DE #26]. Petitioner did not appeal.

         On December 14, 2018, a motion for revocation of supervised release was filed. [DE #28]. The basis for the revocation motion was petitioner's arrest on November 15, 2018, in the Southern District of California for attempted illegal reentry, in violation of 8 U.S.C. § 1326. [DE #28]. Petitioner was charged with two counts in the Southern District of California: misdemeanor improper entry in violation of 8 U.S.C. § 1325 (Count One), and felony reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b) (Count Two). [United States v. Herrera-Pagoada, No. 3:19-CR-522-MDD (S.D. Cal) DE #1]. On March 19, 2019, petitioner pled guilty to Count One and the government dismissed Count Two, the felony count. Petitioner was sentenced on the same day to time served. [United States v. Herrera-Pagoada, No. 3:19-CR-522-MDD (S.D. Cal) DE #15].

         On March 22, 2019, petitioner's sentencing counsel in the instant matter, James Todd, an Assistant Federal Public Defender in the Eastern District of North Carolina, received an email from Assistant Federal Public Defender Marcus Bourassa, who represented petitioner in the Southern District of California. [DE #50-1 at 1]. Mr. Bourassa informed Mr. Todd that by obtaining the recording of petitioner's July 2010 removal hearing, Mr. Bourassa was able to discover that the immigration judge had failed to “adequately inform [petitioner] of the option to seek a voluntary departure, in lieu of an order of deportation, which legally invalidates the order of deportation.” Id. Mr. Bourassa informed Mr. Todd that he was able to persuade the government to dismiss the § 1326 count, due to the failure of the immigration judge to adequately inform petitioner regarding voluntary departure, invalidating the July 2010 removal order. Id. at 1-2. Mr. Bourassa also informed Mr. Todd there was caselaw precluding reliance on a subsequent reinstatement of an initial invalid deportation order as a basis for an illegal reentry conviction. Id.; See United States v. Charleswell, 456 F.3d 347, 352 (3d Cir. 2006) (“And, where either proceeding - the reinstatement or the original - is so procedurally flawed that it ‘effectively eliminated the right of the alien to obtain judicial review,' we may invalidate the criminal charges stemming therefrom.” (citing United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987) (footnote omitted)) and United States v. Arias-Ordonez, 597 F.3d 972, 982 (9th Cir. 2010) (“As we have seen, the original removal was statutorily and constitutionally flawed, so the reinstatements stand on no stronger legal basis. As the district court recognized, the government has built a house of cards that falls once the first is removed.”). On April 16, 2019, petitioner was removed to the Eastern District of North Carolina in connection with his motion for revocation of supervised release. [DE #28 and DE #31].

         On July 18, 2019, petitioner, proceeding pro se, filed the instant motion to vacate under 28 U.S.C. § 2255, [DE #50], arguing ineffective assistance of counsel and including an affidavit from his sentencing counsel, providing in pertinent part:

Had I properly obtained the recording of the July 19, 2010 hearing, and researched the issue of whether a reinstatement could provide the basis of a 1326 conviction, I should have and would have filed a motion to dismiss the indictment, given the material and prejudicial omission of adequately informing Mr. Herrera-Pagoada of the voluntary departure option, 8 U.S.C. § 1326(d).

[DE #50-1 at 2]. In his motion to vacate, petitioner argues β€œ[t]here had been an issue regarding his guilty plea and it affecting [sic] his legal status in which he was not made aware of, ” and β€œthe Defendant was legally innocent of the underlying charge and his attorney should have known that.” [DE #50 at 4, 9]. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.