Jose Marte v. USA

• Court: District Court, D. New Hampshire
• Decided: April 3, 2001
• Docket: CV-01-55-B
• Status: Published

Opinion

Jose Marte v. USA CV-01-55-B 04/03/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jose Marte

v. Civil N o . 01-55-B 2001DNH105 United States of America

O R D E R

Jose Marte cites four grounds to support his petition under

28 U.S.C. § 2255. He claims that: (1) the government withheld

unspecified exculpatory evidence; (2) his lawyer denied him

effective assistance of counsel by failing to understand the

governing law, failing to properly investigate, and failing to

appraise him of the fact that he could be deported if he was

found guilty; (3) he was mentally impaired when he pleaded

guilty; and (4) neither his counsel nor the court properly

advised him that he could face deportation proceedings if he was

found guilty.

Marte signed his § 2255 motion on January 2 6 , 2001. Since

this date is more than two years after the last possible date

that his conviction could be considered final, the government

argues that Marte’s claims are barred by the one-year limitation period that governs § 2255 motions. See 28 U.S.C. § 2255(1)-(4).

Marte anticipated the government’s argument. When he filed his

motion, he argued that his claims are not time-barred because he

did not become aware of the fact that he could face deportation

proceedings as a result of his guilty plea until he was served

with a notice to appear in a deportation proceeding on December

2 2 , 2000. He argues that the statute of limitation concerning

his claims thus did not begin to run until that date because it

was not until then that “the facts supporting the claim or claims

presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2255(4). He also argues that his claims

are saved from the statute of limitations by the equitable

tolling doctrine for the same reason. I reject both arguments.

The only claims Marte makes in his § 2255 petition that

could be directly affected by the commencement of deportation

proceedings against him are his claims that his lawyer and the

court erred in failing to advise him of the fact that he could

face deportation as a result of his plea. Learning that he could

be subject to deportation as a result of his guilty plea does not

in any way affect the merits of his claims that the government

withheld exculpatory evidence, his lawyer was ineffective in

-2- investigating the case or in understanding relevant case law, or

that he was mentally impaired when he entered his guilty plea.

Accordingly, these claims are not saved from the statute of

limitations either by 28 U.S.C. § 2255(4) or by the equitable

tolling doctrine.

Marte’s claims that his lawyer and the court failed to

inform him that he could face deportation proceedings as a result

of his guilty plea fail, even if I assume that he did not

discover the factual basis for the claims until December 2 2 ,

2000. The First Circuit Court of Appeals has recently held in

United States v . Gonzalez, 202 F.3d 20 (1st Cir. 2000), that

neither a lawyer’s failure to advise a client of the potential

immigration consequences of a guilty plea nor the court’s failure

to advise a defendant of the fact that he could face deportation

as a result of a guilty plea renders the plea defective.

Petitioner’s motion for relief under § 2255 is denied.

SO ORDERED.

Paul Barbadoro Chief Judge April 3 , 2001

cc: Jose Marte, pro se Peter Papps, Es

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