Fernando Torres Morales v. Guillermo Viera Rosa

• Court: District Court, C.D. California
• Decided: March 13, 2024
• Docket: 2:23-cv-07959
• Status: Unknown

Opinion

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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 FERNANDO TORRES MORALES, ) Case No. 2:23-cv-07959-SSS (DTB) ) 12 ) Petitioner, ) 13 ) v. ) ORDER ACCEPTING FINDINGS, 14 ) CONCLUSIONS AND 15 GUILLERMO VIERA ROSA, ) ) RECOMMENDATIONS OF INTERIM CHIEF PROBATION ) UNITED STATES MAGISTRATE 16 OFFICER, LOS ANGELES ) JUDGE 17 COUNTY, ) )

) 18 Respondent. 19

20 Pursuant to 28 U.S.C. ' 636, the Court has reviewed the Petition, all the 21 records and files herein, and the Report and Recommendation of the United States 22 Magistrate Judge. Objections to the Report and Recommendation have been filed 23 herein. 24 The Report recommends denial of the Petition and dismissal of this action 25 with prejudice, specifically, denial of Petitioner’s claim that his defense counsel was 26 ineffective for failing to advise him of the adverse immigration consequences of his 27 28 1 plea. (ECF No. 10.) As stated below, Petitioner’s objections to the Report do not 2 warrant a change to the Magistrate Judge’s findings or recommendation. 3 Petitioner objects that his counsel did not provide complete and accurate 4 advice about the immigration consequences of Petitioner’s plea. (ECF No. 1 at 4- 5 5.) Counsel testified that he told Petitioner that Petitioner “would be deported and 6 that he would not be allowed back into the United States.” (ECF No. 1-1 at 58.) But 7 counsel also testified that he told Petitioner that Petitioner “can lose his green card.” 8 (Id. at 60.) According to Petitioner, the latter advice, reflecting “only a possibility 9 10 that he could lose his green card,” was “confusing and misleading when, as in this 11 case, the immigration consequences (including the loss of permanent resident status) 12 were mandatory.” (ECF No. 12 at 5.) To the contrary, counsel’s advice that 13 Petitioner “can lose” -- rather than “would lose” -- his green card was not misleading. 14 See United States v. Armendariz, 80 F.4th 546, 553 (5th Cir. 2023) (counsel’s advice 15 that an adverse immigration consequence was “very likely,” rather than a certainty, 16 was not deficient performance). Counsel did not make the type of “affirmative 17 misrepresentation regarding immigration consequences” that would constitute 18 ineffective assistance. United States v. Kwan, 407 F.3d 1005, 1015 (9th Cir. 2005), 19 abrogated on other ground by Padilla v. Kentucky, 559 U.S. 356, 370 (2010). 20 Rather, counsel told Petitioner he “would be deported,” which clearly and accurately 21 conveyed to Petitioner that the plea “would almost certainly cause him to be 22 deported” and that he faced “a near-certain risk of deportation.” Kwan, 407 F.3d at 23 1009, 1016. Counsel never suggested to Petitioner that deportation “was not a 24 serious possibility.” Id. at 1008. 25 Petitioner objects that his counsel did not advise Petitioner of his ineligibility 26 for cancellation of removal. (ECF No. 12 at 6.) Because Petitioner was convicted 27 28 1 of an aggravated felony, he was ineligible for discretionary relief through 2 cancellation of removal. 8 U.S.C. § 1229b(a)(3). But by advising Petitioner that he 3 would be deported (ECF No. 1-1 at 58), counsel effectively conveyed to Petitioner 4 that he would be ineligible for discretionary relief. Counsel therefore complied with 5 the duty to give Petitioner advice that deportation was “virtually certain, or words to 6 that effect.” United States v. Rodriguez, 49 F.4th 1205, 1214 (9th Cir. 2022); see 7 also United States v. Ramirez-Jimenez, 907 F.3d 1091, 1094 (8th Cir. 2018) 8 (rejecting argument that counsel was ineffective for failing to advise the defendant 9 that he was “ineligible for relief from removal” where counsel did advise him that 10 deportation was likely). 11 12 Petitioner objects that his counsel only advised him of the “possibility of being 13 detained by immigration officials,” rather than the “mandatory detention 14 consequences” of the plea. (ECF No. 12 at 6.) But Petitioner does not cite any 15 authority or provide a persuasive argument for the proposition that his counsel was 16 constitutionally required to advise him about mandatory immigration detention. See 17 United States v. Chezan, 2014 WL 8382792, at *24 (D. Ill. Oct. 14, 2014) (rejecting 18 argument that counsel was constitutionally required to advise client of matters aside 19 from deportation, such as mandatory immigration detention, as a consequence of a 20 guilty plea). 21 Petitioner objects that his counsel’s advice about the immigration 22 consequences of the plea was not rendered adequate merely by any similar 23 advisements given by the prosecutor and the Tahl waiver form. (ECF No. 12 at 6- 24 7.) To be sure, “[t]o assess whether counsel’s performance was deficient under the 25 first prong of Strickland, we look only to the advice given and not the other ways 26 that [the defendant] could have uncovered the truth.” Rodriguez, 49 F.4th at 1214. 27 28 1 But sources of information other than defense counsel, such as the court or the 2 prosecutor, can be relevant to the second prong of Strickland, regarding the question 3 of prejudice. See Lee v. United States, 582 U.S. 357, 369 n.4 (2017) (“Several courts 4 have noted that a judge’s warnings at a plea colloquy may undermine a claim that 5 the defendant was prejudiced by his attorney’s misadvice.”) (citing cases). Here, as 6 the Report reasonably found, sources of information other than defense counsel 7 supported the conclusion that Petitioner was aware of and understood the 8 consequences of his plea. (ECF No. 10 at 20-21.) These circumstances undermine 9 Petitioner’s argument that he was prejudiced by his counsel’s allegedly erroneous 10 advice. 11 12 Petitioner objects that his counsel failed to seek an “immigration neutral plea,” 13 even though “a reasonable alternative was available” though, for example, a guilty 14 plea to kidnapping. (ECF No 12 at 7-8.) This objection is speculative. “A petitioner 15 may demonstrate that there existed a reasonable probability of negotiating a better 16 plea by identifying cases indicating a willingness by the government to permit 17 defendants charged with the same or substantially similar crime to plead guilty to a 18 non-removable offense.” United States v. Rodriguez-Vega, 797 F.3d 781, 789 (9th 19 Cir. 2015). Petitioner has not identified any such cases. Rather, as the Report found, 20 the prosecutor “made clear that she was not willing to accept anything other than the 21 two charges to which the petitioner pled guilty.” (ECF No. 10 at 22.) 22 Petitioner objects that he did establish prejudice from his counsel’s deficient 23 performance. (ECF No. 12 at 8-9.) Petitioner specifically argues that, had his 24 counsel advised him of the existence of an immigration neutral plea, he would not 25 have been adamant about avoiding prison time for the criminal charges. (Id.) But 26 nothing in the record suggests that Petitioner “placed a ‘particular emphasis’ on the 27 immigration consequence of a plea in deciding whether or not to accept it.” 28 I Rodriguez-Vega, 797 F.3d at 789 (quoting Kwan, 407 F.3d at 1017-18). Rather, 2 || Petitioner “made clear that he did not want to serve prison time and wanted out of 3 || custody as soon as possible.” (ECF No. 10 at 22.) Petitioner did not waver from 4 position even when faced with the likelihood of deportation. Thus, speculation 5 |labout the existence of an immigration neutral plea fails to show a reasonable 6 || probability of a different outcome to Petitioner’s criminal proceeding. Having 7 ||made a de novo determination of those portions of the Report and Recommendation 8 ||to which objections have been made, the Court concurs with and accepts the 9 || findings, conclusions and recommendations of the Magistrate Judge. 10 IT THEREFORE IS ORDERED that Judgment be entered denying the 11 || Petition and dismissing this action with prejudice. 12 13 || Dated: March 13, 2024 SUNSHINE S@YKES 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28