Paque v. United States

• Court: District Court, N.D. California
• Decided: January 16, 2025
• Docket: 5:23-cv-04652
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 UNITED STATES OF AMERICA, Case No. 19-cr-00611-BLF-2

8 Plaintiff, ORDER DENYING DEFENDANT 9 v. PAQUE’S § 2255 MOTION

10 OCTAVIO PAQUE, [Re: ECF 161] 11 Defendant.

13 14 Defendant Octavio Paque pled guilty to, and was convicted of, conspiracy to distribute and 15 possess with intent to distribute cocaine. He now moves to vacate the conviction under 28 U.S.C. 16 § 2255, claiming that his counsel provided ineffective assistance by failing to advise him that the 17 plea agreement rendered his removal from the United States a virtual certainty. See § 2255 Mot., 18 ECF 161. The Government has filed an opposition to the motion and Defendant has filed a reply. 19 See Opp., ECF 172; Reply, ECF 177. 20 The Court held an evidentiary hearing on December 3, 2024, at which three witnesses 21 testified: Jesse Ortiz, the attorney who represented Defendant at the plea stage and through 22 sentencing; Brian Hedrick, an immigration attorney Defendant consulted before entering his guilty 23 plea; and Defendant himself. Defendant thereafter filed a post-hearing brief and the Government 24 filed a post-hearing response brief. See Post-Hearing Briefs, ECF 209, 210. 25 Having considered the briefing, the evidence, and the relevant legal authorities, the Court 26 concludes that Defendant has failed to establish that Mr. Ortiz provided him with ineffective 27 assistance of counsel during his criminal proceedings. 1 I. BACKGROUND 2 On November 14, 2019, a grand jury issued an Indictment charging Defendant and two 3 other individuals with drug offenses. See Indictment, ECF 10 (Gov’t Ex. 4). Defendant is not a 4 United States citizen, but at the time of the Indictment he was a green card holder with lawful 5 permanent resident status. See Evid. Hrg. Tr. 82:2-6, ECF 208. His native language is Spanish, 6 and he was provided with the services of a certified Spanish interpreter at his court appearances. 7 See Evid. Hrg. Tr. 81:10-20, ECF 208; Minute Entry, ECF 12. Defendant speaks, reads, and 8 writes some English. See Evid. Hrg. Tr. 81:21-82:1. Initially, he was represented by court- 9 appointed counsel, but Mr. Ortiz substituted in as retained defense counsel in September 2021. 10 See Minute Entry, ECF 6; Minute Entry, ECF 60. 11 Plea Discussions 12 In the spring or summer of 2022, the parties discussed a possible plea agreement. See 13 Evid. Hrg. Tr. 13:18-24. Mr. Ortiz went over the draft plea agreement with Defendant on multiple 14 occasions, once with the assistance of a Spanish interpreter. See id. 14:13-15:1. Mr. Ortiz also 15 referred Defendant to an immigration lawyer, Brian Hedrick, and Defendant had a consultation 16 with Mr. Hedrick before signing the plea agreement. See id. 31:4-15, 85:20-86:5. 17 Plea Agreement 18 Defendant signed the plea agreement on August 16, 2022, agreeing to plead guilty to 19 Count One of the Indictment, which charged him with conspiring to distribute and possess with 20 intent to distribute cocaine, its salts, optical and geometric isomers, and salts of its isomers in 21 violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C). See Plea Agreement ¶ 1, ECF 124 (Gov’t 22 Ex. 3). The plea agreement advises that “it is virtually certain that pleading guilty will have 23 consequences with respect to my immigration status if I am not a natural born citizen of the United 24 States,” and acknowledges that the offense to which Defendant pled is a removable offense. See 25 id. The plea agreement indicates that no one “can predict to a certainty” the effect of the 26 conviction on Defendant’s immigration status, but states, “I want to plead guilty regardless of any 27 immigration consequences that may result from my guilty plea, even if the consequence is my 1 The following affirmation appears directly above Defendant’s signature on the plea 2 agreement: “I confirm that I read this entire Plea Agreement with the assistance of a Spanish 3 language interpreter and in the presence of my attorney.” Plea Agreement ¶ 19. The plea 4 agreement also contains an affirmation by Mr. Ortiz that he fully explained the terms of the plea 5 agreement to Defendant, and a certification by a certified Spanish language interpreter stating that 6 the plea agreement was accurately translated to Defendant. See id. ¶ 20. 7 Change of Plea Hearing 8 The Court held a change of plea hearing on August 16, 2022. See Minute Entry, ECF 125. 9 Mr. Ortiz was not present at that hearing; another attorney from Mr. Ortiz’s office, Andres Salas, 10 appeared for Defendant. See id. The Court engaged in an extensive colloquy with Defendant, 11 advising him of the rights he would give up by changing his plea to guilty. See Change of Plea 12 Hrg. Tr. 7:9-15:20, ECF 172-1 (Gov’t Ex. 1). The Court then asked Defendant, “If you are not a 13 citizen of the United States, have you discussed the possible immigration consequences of a guilty 14 plea with your attorney?” Id. 15:21-23. Defendant responded in the affirmative. See id. 15:24. 15 The Court also asked Defendant, “Do you understand that in addition to any of the other 16 consequences of this conviction, if you are not a United States citizen, it is virtually certain that 17 the immigration authorities will deport you after you have served your prison sentence?” Id. 16:7- 18 11. Defendant again responded that he understood. See id. 16:12. The Government then made an 19 offer of proof, and Defendant pled guilty to Count One of the Indictment. See id. 17:8-21:19. 20 Sentencing and Judgment 21 A sentencing hearing was held on December 13, 2022. See Minute Entry, ECF 137. The 22 Court sentenced Defendant on Count 1 of the Indictment as follows: a 24-month term of 23 imprisonment, a 3-year term of supervised release, and a $100 assessment. See id. Judgment was 24 entered on December 19, 2022. See Judgment, ECF 138. 25 Current § 2255 Motion 26 Defendant filed the current § 2255 Motion on September 11, 2023, asserting a single claim 27 of ineffective assistance of counsel at the plea stage of his criminal proceedings. Defendant claims 1 lose his lawful permanent resident status and be removed from the United States. See § 2255 Mot. 2 at 6, 14. Defendant claims that he would not have accepted the plea agreement had Mr. Ortiz 3 advised him that he would be deported, but rather “would have insisted on going to trial unless he 4 obtained a plea-agreement with more favorable terms.” Id. at 14. 5 Upon the completion of the briefing, the Court set an evidentiary hearing for October 8, 6 2024. See Order, ECF 182. The Court subsequently advanced the hearing to August 20, 2024, 7 after being informed that Defendant was awaiting deportation at an Immigration and Customs 8 Enforcement (“ICE”) processing center in Tacoma, Washington. See Order, ECF 185. Due to a 9 delay in transporting Defendant, however, the evidentiary hearing did not go forward until 10 December 3, 2024. See Minute Entry, ECF 204. 11 Three witnesses testified at the evidentiary hearing, as discussed in detail below: Mr. 12 Ortiz, who represented Defendant in his criminal proceedings; Mr. Hedrick, who consulted with 13 Defendant on immigration issues; and Defendant himself.1 The Court also admitted five exhibits 14 offered by the Government: Exhibit 1, the transcript of the change of plea hearing; Exhibit 3, the 15 plea agreement; Exhibit 5, a declaration signed by Mr. Ortiz; Exhibit 6, text messages between 16 Mr. Ortiz and Defendant; and Exhibit 8, a draft declaration of Mr. Ortiz that he did not sign. See 17 Evid. Hrg. Tr., Index of Exhibits. Defendant did not submit any exhibits. 18 The Court granted the parties’ request for leave to file post-hearing briefs, directing that 19 Defendant’s brief be filed by December 17, 2024 and that the Government’s brief be filed by 20 December 24, 2024. See Evid. Hrg. Tr. 99:20-100:10. Both briefs have been filed, and the § 2255 21 motion is ready for disposition. See Post-Hearing Briefs, ECF 209, 210. 22 II. LEGAL STANDARD 23 A prisoner in federal custody may move to vacate, set aside, or correct his sentence based 24 on a claim that “the sentence was imposed in violation of the Constitution or laws of the United 25 States, or that the court was without jurisdiction to impose such sentence, or that the sentence was 26 in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 27 1 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that 2 the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the 3 United States attorney, grant a prompt hearing thereon, determine the issues and make findings of 4 fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “If the court finds . . . that 5 there has been such a denial or infringement of the constitutional rights of the prisoner as to render 6 the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and 7 shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may 8 appear appropriate.” Id. 9 A claim that defense counsel was ineffective at the plea stage is cognizable under § 2255. 10 See United States v. Rodriguez-Vega, 797 F.3d 781, 784 (9th Cir. 2015). To prevail on such a 11 claim, the defendant must demonstrate that (1) “counsel’s representation fell below an objective 12 standard of reasonableness,” and (2) the defendant suffered resulting prejudice, meaning “there is 13 a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 14 would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); see also 15 United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022) (applying Strickland standard 16 when evaluating § 2255 claim of ineffective assistance of counsel). 17 III. DISCUSSION 18 In order to prevail on his § 2255 motion under the legal standards articulated above, 19 Defendant must establish both (1) that Mr. Ortiz’s performance fell below an objective standard of 20 reasonableness, and (2) resulting prejudice, meaning a reasonable probability that the result of the 21 criminal proceedings would have been different but for Mr. Ortiz’s deficient performance. See 22 Rodriguez, 49 F.4th at 1213. Defendant bears the burden of proof on both prongs. See Rodriguez- 23 Vega, 797 F.3d at 786 (describing defendant’s burden under Strickland); Rodriguez, 49 F.4th at 24 1213 (same). 25 A. First Prong of Strickland 26 The objective standard of reasonableness against which Mr. Ortiz’s performance must be 27 measured is dependent on whether the immigration consequences of the contemplated guilty plea 1 particular plea are unclear or uncertain.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010); see also 2 Rodriguez-Vega, 797 F.3d at 786. In those circumstances, “a criminal defense attorney need do no 3 more than advise a noncitizen client that pending criminal charges may carry a risk of adverse 4 immigration consequences.” Padilla, 559 U.S. at 369 (emphasis added). “However, where the 5 law is ‘succinct, clear, and explicit’ that the conviction renders removal virtually certain, counsel 6 must advise his client that removal is a virtual certainty.” Rodriguez-Vega, 797 F.3d at 786 7 (quoting Padilla, 559 U.S. at 368-69). 8 The parties agree that Defendant’s plea of guilty to the charged offense – conspiring to 9 distribute and possess with intent to distribute cocaine – renders his deportation a virtual certainty. 10 Mr. Ortiz testified to his understanding that Defendant’s guilty plea makes deportation mandatory 11 given the nature of the drug offense. See Evid. Hrg. Tr. 18:1-8, 31:8-11, 35:8-24. Mr. Hedrick 12 testified that a non-citizen convicted of a drug trafficking offense is ineligible to assert most 13 defenses to removal, and that the only defense available to such an individual is under the 14 Convention Against Torture (“CAT”). See id. 45:13-16-24, 47:4-20. The standard for obtaining 15 relief under CAT is very high, and requires proof that the non-citizen would suffer torture if 16 removed to his country of origin. See id. The record contains no indication that Defendant could 17 meet that standard. Accordingly, the Court finds that Mr. Ortiz had a duty to advise Defendant 18 that removal from the United States was a virtual certainty if Defendant pled guilty to Count One 19 of the Indictment. 20 Defendant contends that Mr. Ortiz failed to give him the required advisement that entering 21 a guilty plea was virtually certain to result in deportation. The Government contends that Mr. 22 Ortiz not only gave Defendant the required advisement, but also ensured that Defendant 23 understood the immigration consequences of his guilty plea by referring him to Mr. Hedrick, an 24 immigration attorney. Defendant concedes that he consulted with Mr. Hedrick, but maintains that 25 Mr. Hedrick merely explained immigration procedures in general and did not advise him regarding 26 the immigration consequences of his contemplated guilty plea. 27 Both versions of events cannot be true. The Court’s determination whether Defendant has 1 deficient, turns in large part on the credibility of the witnesses. The Court summarizes the relevant 2 testimony below, in the order it was presented. By agreement of the parties, the Government’s 3 witnesses Mr. Ortiz and Mr. Hedrick testified first. Defendant testified last. 4 1. Mr. Ortiz’s Testimony 5 On direct examination by the Government’s counsel, Mr. Ortiz testified that he has been a 6 practicing attorney for thirty years and that his case load is half civil and half criminal. See Evid. 7 Hrg. Tr. 10:1-18. Mr. Ortiz has represented non-citizens facing deportation as a result of pleading 8 guilty. See id. 10:19-22. Mr. Ortiz represented Defendant prior to his entry of the guilty plea and 9 through sentencing. See id. 11:12-12:25. During that time, Mr. Ortiz met with Defendant on ten 10 or fifteen occasions, sometimes in person and sometimes on the telephone, and they conversed in a 11 mixture of English and Spanish. See id. 12:18-13:17. Defendant told Mr. Ortiz that he was a 12 lawful resident with a green card. See id. 12:1-4. 13 Mr. Ortiz testified that he met with Defendant three times to discuss the draft plea 14 agreement, and that one of those meetings was conducted at the courthouse and with the aid of an 15 interpreter. See Evid. Hrg. Tr. 14:13-15:21. According to Mr. Ortiz, he and Defendant discussed 16 the immigration consequences of pleading guilty to a felony drug charge on multiple occasions. 17 See id. 17:21-18:3. Specifically, Mr. Ortiz testified that, “I advised Mr. Paque that it was my 18 understanding that given the nature of the offense, the drug offense, that it was a mandatory 19 deportation consequence.” Id. 18:6-8. However, Mr. Ortiz also advised Defendant to consult with 20 an immigration attorney to be certain of the immigration consequences of pleading guilty. See id. 21 18:10-11. In Mr. Ortiz’s view, Defendant understood Mr. Ortiz’s advice that deportation would 22 be mandatory if Defendant pled guilty. See id. 18:20-24. 23 Mr. Ortiz referred Defendant to Mr. Hedrick, an immigration attorney. See Evid. Hrg. Tr. 24 20:20-24. The Government introduced text messages between Mr. Ortiz and Defendant making 25 clear that Defendant wished to consult with an immigration attorney before entering a guilty plea, 26 and that Mr. Ortiz offered to get the change of plea hearing continued to give Defendant time to 27 consult with Mr. Hedrick. See id. 21:11-22:25 & Ex. 6. Mr. Ortiz learned from Mr. Hedrick that 1 decided to change his plea to guilty. See id. 23:20-24:3. Defendant in fact pled guilty at the 2 change of plea hearing on August 16, 2022. See id. 24:4-5. 3 On cross-examination, Defendant’s counsel elicited testimony from Mr. Ortiz that only a 4 small portion of his criminal practice has been in federal court, and that he has represented non- 5 citizens in immigration removal proceedings a total of five to seven times, all approximately nine 6 or ten years ago. See Evid. Hrg. Tr. 32:17-33:11. Defendant’s counsel then questioned Mr. Ortiz 7 regarding his knowledge of immigration law, including what convictions render a non-citizen 8 deportable. See id. 34:11-39:20. It appeared that Defendant’s counsel was trying to establish that 9 Mr. Ortiz lacked sufficient knowledge of immigration law to give Defendant adequate advice 10 regarding the immigration consequences of a guilty plea. See id. Mr. Ortiz stated that he did not 11 know with certainty what the immigration consequences of a guilty plea would be, and for that 12 reason he referred Defendant to an immigration attorney. See id. 40:5-8. 13 The Government’s counsel had no questions for Mr. Ortiz on redirect. 14 2. Mr. Hedrick’s Testimony 15 Mr. Hedrick testified next. The Government’s counsel established on direct examination 16 that Mr. Hedrick has been a lawyer for more than six years and has owned his own practice for 17 three years. See Evid. Hrg. Tr. 43:18-44:6. Mr. Hedrick speaks Spanish and does not require the 18 aid of an interpreter when meeting with Spanish-speaking clients. See id. 45:3-9. Mr. Hedrick 19 gave an overview of the removal process, indicated that a non-citizen convicted of a controlled 20 substance offense would be ineligible to present certain defenses to removal, and in essence stated 21 that a non-citizen convicted of drug trafficking would have only one potential defense to removal 22 under CAT. See id. 45:13-20. Mr. Hedrick testified that a non-citizen would have a very high 23 standard to meet for relief under CAT. See id. Mr. Hedrick stated that it is his regular practice to 24 discuss those aspects of the removal process with clients facing a conviction for a federal drug 25 trafficking crime. See id. 48:2-6. 26 Mr. Hedrick then testified that Mr. Ortiz referred Defendant to him to get a more thorough 27 explanation of the immigration consequences of Defendant’s contemplated guilty plea; Mr. 1 offense; and Mr. Hedrick had a consultation with Defendant before Defendant entered his guilty 2 plea. See Evid. Hrg. Tr. 48:7-24. Mr. Hedrick disclosed that he took notes during his consultation 3 with Defendant, shared those notes with Mr. Ortiz, and also discussed the consultation with Mr. 4 Ortiz. See id. 51:20-14. However, at that point in his testimony Mr. Hedrick did not provide any 5 details regarding the substance of his notes or the consultation. See id. It was clear that Mr. 6 Hedrick was attempting to answer the Government counsel’s questions without violating the 7 attorney-client privilege. 8 On cross-examination, Defendant’s counsel established that Mr. Hedrick had one 9 consultation with Defendant prior to Defendant’s entry of his guilty plea, and that the consultation 10 was via a telephone call on August 9, 2022. See Evid. Hrg. Tr. 52:23-53:2. Mr. Hedrick did not 11 recall how long the call lasted, but he stated that his consultations typically are for one hour. See 12 id. 53:3-13. Defendant’s counsel then asked Mr. Hedrick several questions going to his 13 knowledge of the criminal charge, the contents of the plea agreement, and what he discussed with 14 Defendant. See id. 53:14-58:9. It became clear that Defendant’s counsel intended to argue that 15 the advice given by Mr. Hedrick was deficient, not because of any incompetence on Mr. Hedrick’s 16 part, but because Mr. Hedrick did not receive sufficient information from Mr. Ortiz to adequately 17 advise Defendant. See id. 60:11-64:11. The Court found that line of argument sufficient to waive 18 the attorney-client privilege as to Mr. Hedrick. See id. 64:25-65:17. 19 The Government was allowed to resume its direct examination of Mr. Hedrick in light of 20 the waiver of the attorney-client privilege. Mr. Hedrick testified that Mr. Ortiz told him (Mr. 21 Hedrick) that Defendant was considering pleading guilty to “21 U.S.C. 846 and 841, one being 22 distribution of a controlled substance, the other I think being a conspiracy.” Evid. Hrg. Tr. 67:14- 23 23. Mr. Ortiz told Mr. Hedrick that Defendant was facing 37 months in prison, and that Defendant 24 needed to speak with an immigration attorney about the consequences of the contemplated guilty 25 plea. See id. 68:6-15. Mr. Hedrick stated that Defendant provided additional information about 26 the charge he was facing, including the type of controlled substance. See id. 68:19-24. Mr. 27 Hedrick felt that he had enough information about the charge Defendant was facing to provide him 1 provided by Mr. Hedrick included an explanation of the removal process, the information that 2 conspiracy to distribute a controlled substance is an aggravated felony precluding most defenses to 3 removal, and Mr. Hedrick’s opinion that the only defense to removal that might be available to 4 Defendant would be under the Convention Against Torture. See id. 71:5-22. 5 On continued cross-examination, Defendant’s attorney asked Mr. Hedrick point-blank, 6 “Did you tell him that his deportation was a virtual certainty or words to that effect?” Evid. Hrg. 7 Tr. 77:2-4. Mr. Hedrick answered, “Yes.” Id. A few moments later, Mr. Hedrick reiterated that 8 he had discussed with Defendant the fact that Defendant is subject to mandatory deportation. See 9 id. 77:19-21. 10 3. Defendant’s Testimony 11 Defendant’s counsel advised the Court at the start of the evidentiary hearing that he did not 12 intend to call any witnesses and that Defendant’s declaration, which was filed in support of the § 13 2255 motion, would be offered in lieu of Defendant’s live testimony. See Evid. Hrg. Tr. 5:15-6:5. 14 The Court expressed the view that Mr. Paque, having offered a declaration, would be subject to 15 cross-examination by the Government. See id. 6:6-8. Both Defendant’s counsel and the 16 Government’s counsel agreed. See id. 6:9-10. After the Government’s witnesses finished 17 testifying, the Government indicated that it did wish to cross-examine Defendant. See id. 80:1-4. 18 The Court noted that “Mr. Paque voluntarily submitted a declaration which has been offered into 19 evidence and therefore makes himself subject to cross-examination. There has been no 20 objection.” Id. 80:6-9. Defendant thereafter was sworn and the Government began its cross- 21 examination of him. See id. 81:4-14. 22 Defendant confirmed that, prior to signing the plea agreement, he met with Mr. Ortiz 23 multiple times, went over the plea agreement with Mr. Ortiz, went over the plea agreement with a 24 Spanish language interpreter, and consulted with Mr. Hedrick. See Evid. Hrg. Tr. 82:23-86:5. 25 Defendant also confirmed his acknowledgment to the Court at his change of plea hearing that he 26 understood pleading guilty would mean it was virtually certain that he would be deported after 27 serving his sentence if he was not a citizen. See id. 91:10-14. 1 relating to immigration consequences of pleading guilty, testifying that “that whole paragraph was 2 always confusing for me,” and that “the whole agreement was confusing for me.” Evid. Hrg. Tr. 3 95:4-96:3. Defendant also denied that Mr. Ortiz advised him that deportation was mandatory 4 based on the charges to which Defendant was going to plead guilty. See id. 92:21-24. According 5 to Defendant, when he asked Mr. Ortiz what would happen with respect to deportation, Mr. Ortiz 6 said “that he didn’t know.” See id. 97:25-98:4. 7 Defendant likewise denied that Mr. Hedrick advised him regarding the deportation 8 consequences of his guilty plea. See Evid. Hrg. Tr. 86:6-15. It is Defendant’s position that Mr. 9 Hedrick advised him “about the immigration process but not about the consequences.” See id. 10 Defendant testified that Mr. Hedrick talked “about the process of deportation, about people with 11 federal charges, but not particularly about my case because he didn’t have my information.” See 12 id. 87:12-15. According to Defendant, his consultation with Mr. Hedrick was very short, only 13 fifteen minutes. See id. 88:19-20. Defendant testified that “there are many things that I don’t 14 remember” about his consultation with Mr. Hedrick. Id. 88:20. When asked whether Mr. Hedrick 15 advised him about the potential defenses Defendant could raise to deportation, Defendant 16 responded, “I don’t remember that very well.” Id. 88:8-11. When asked whether Mr. Hedrick 17 advised him about the potential defenses Defendant could not raise to deportation, Defendant 18 responded, “I don’t remember very well.” Id. 88:12-15. 19 4. Court’s Credibility Determinations 20 Having carefully considered the demeanor of the witnesses and the totality of their 21 testimony, the Court makes the following credibility determinations. The Court finds credible Mr. 22 Ortiz’s testimony that he advised Defendant that it was his (Mr. Ortiz’s) understanding that given 23 the nature of the offense to which Defendant was about to plead guilty, deportation was a 24 mandatory consequence. See Evid. Hrg. Tr. 18:6-8. The Court also finds credible Mr. Hedrick’s 25 testimony that he advised Defendant that he would be subject to mandatory deportation if he 26 entered the contemplated guilty plea. See id. 77:2-21. Finally, the Court finds credible Mr. 27 Hedrick’s testimony that he received sufficient information from Mr. Ortiz and Defendant himself 1 67:14-69:10. Mr. Ortiz and Mr. Hedrick appeared to have clear recollections about the advice 2 they gave to Defendant, and their testimony was consistent internally and with each other. 3 Moreover, the testimony of Mr. Ortiz and Mr. Hedrick is consistent with Defendant’s 4 statements to the Court during the change of plea hearing, specifically, Defendant’s statement that 5 he understood that if he is not a United States citizen, it is virtually certain that the immigration 6 authorities would deport him after he served his prison sentence. See id. 16:7-12. The Court is 7 not suggesting that its colloquy with Defendant could cure a deficiency in Mr. Ortiz’s 8 performance, if such a deficiency were established. “The government’s performance in including 9 provisions in the plea agreement, and the court’s performance at the plea colloquy, are simply 10 irrelevant to the question whether counsel’s performance fell below an objective standard of 11 reasonableness.” Rodriguez-Vega, 797 F.3d at 787 (citing Padilla, 559 U.S. at 371). The Court 12 simply observes that Defendant’s statements during the plea colloquy are consistent with the 13 testimony of Mr. Ortiz and Mr. Hedrick that they explained the immigration consequences of a 14 guilty plea to Defendant. 15 The Court does not find credible Defendant’s testimony that neither Mr. Ortiz nor Mr. 16 Hedrick advised him of the deportation consequences of his guilty plea. Defendant testified that 17 he met with Mr. Ortiz multiple times before pleading guilty and that he (Defendant) told the Court 18 at his change of plea hearing that he was satisfied with Mr. Ortiz’s representation. See Evid. Hrg. 19 Tr. 82:23-25, 90:16-19. That testimony is inconsistent with Defendant’s testimony that Mr. Ortiz 20 said he did not know what the immigration consequences of a guilty plea would be. With respect 21 to Defendant’s consultation with Mr. Hedrick, it defies logic that Defendant would have asked Mr. 22 Ortiz to get a continuance of the change of plea hearing so as to allow Defendant an opportunity to 23 consult with an immigration lawyer about the consequences of entering a guilty plea, and then be 24 satisfied with information regarding immigration procedures in general. However, there is no 25 evidence that Defendant complained about his consultation with Mr. Hedrick, and in fact 26 Defendant decided to change his plea shortly after that consultation. The Court notes as well that 27 Defendant did not have a clear memory of certain portions of his consultation with Mr. Hedrick. 1 the required advisement that deportation was a virtual certainty if Defendant pled guilty, but also 2 || ensured that Defendant understood the immigration consequences of his guilty plea by referring 3 him for a consultation with Mr. Hedrick, an immigration attorney. The Court thus concludes that 4 || Defendant has failed to carry his burden of showing that Mr. Ortiz’s performance was deficient. 5 B. Second Prong of Strickland 6 Having determined that Defendant has not established deficient performance, the Court 7 need not and does not address Strickland’s second prong, prejudice. See Strickland, 466 U.S. at 8 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both 9 || components of the inquiry if the defendant makes an insufficient showing on one.”). 10 IV. ORDER 11 (1) Defendant’s § 2255 motion is DENIED; and 12 (2) This order terminates ECF 161.

14 Dated: January 16, 2025 □□□ fhacncar 2 BETH LABSON FREEMAN 16 United States District Judge

18 19 20 21 22 23 24 25 26 27 28