United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT
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.
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]. 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].
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
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].
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].
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].
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.
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].
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].
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
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
“[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 “the Defendant was legally
innocent of the underlying charge and his attorney should
have known that.” [DE #50 at 4, 9]. The ...