18‐680‐pr Superville v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of May, two thousand nineteen.
PRESENT: AMALYA L. KEARSE, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
NEKEBWE SUPERVILLE, Petitioner‐Appellant,
v. 18‐680‐pr
UNITED STATES OF AMERICA, Respondent‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER‐APPELLANT: VINOO P. VARGHESE, Varghese & Associates, P.C., New York, New York.
FOR RESPONDENT‐APPELLEE: MARCIA M. HENRY, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Weinstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Petitioner‐appellant Nekebwe Superville appeals pursuant to a certificate
of appealability issued March 6, 2018, by the United States District Court for the Eastern
District of New York (Weinstein, J.). The certificate of appealability certified two issues
for appeal: (1) ʺ[w]hether petitioner was denied the effective assistance of counsel under
the Sixth Amendmentʺ; and (2) ʺ[w]hether petitionerʹs constitutional claim was timely
under 28 U.S.C. § 2255.ʺ Appʹx at 360. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
Superville is not a United States citizen. In May 2013, he was arrested for
participating in a drug trafficking organization. He retained attorney Howard
Greenberg and agreed to cooperate with the government. Before pleading guilty,
Superville received warnings in the plea agreement and from the magistrate judge and
district judge that his conviction would have immigration consequences. It is
ʺundisputed that Superville understood that he ʹcouldʹ be deported as a result of his
guilty plea.ʺ S. Appʹx at 10. On February 18, 2014, Superville pled guilty to two
‐2‐ aggravated felonies: one count of conspiring to distribute 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and one count of
conspiring to transfer and deliver United States currency involving the proceeds of
narcotics trafficking, in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i). Because of
his assistance to the government, Superville was sentenced principally to three yearsʹ
probation. Judgment was entered on November 14, 2014.
On July 18, 2017, Superville was detained by immigration officers
pursuant to a Department of Homeland Security notice to appear for removal
proceedings. On October 5, 2017, Superville, represented by new counsel, filed a
motion under 28 U.S.C. § 2255, or for a writ of error coram nobis, to vacate his guilty plea
and conviction, arguing that Greenbergʹs performance was constitutionally ineffective
by failing to advise him that his plea subjected him to mandatory deportation.
The district court held an evidentiary hearing on February 14 and 16, 2018,
and three witnesses testified: Superville, Supervilleʹs mother, and Greenberg. In its
February 27, 2018 memorandum and order, the district court rejected several parts of
Supervilleʹs testimony because it conflicted with the contemporaneous evidence that he
knew there was a strong possibility of deportation and he still would have pled guilty
even with a stronger warning. Greenberg testified that he told Superville that he ʺcould
be deported as a result of the plea,ʺ but disavowed telling Superville not to worry about
deportation. The district court denied Supervilleʹs motion because it was untimely and,
‐3‐ in the alternative, Superville was not prejudiced by his attorneyʹs alleged
ineffectiveness. On March 6, 2018, the district court issued its certificate of
appealability. Superville filed a timely notice of appeal on March 9, 2018.
STANDARD OF REVIEW
ʺWe review a district courtʹs findings of fact for clear error, and its denial
of a Section 2255 petition de novo.ʺ Elfgeeh v. United States, 681 F.3d 89, 91 (2d Cir. 2012).
ʺ[A] finding is ʹclearly erroneousʹ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.ʺ Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)
(internal quotation marks omitted). ʺIf the district courtʹs account of the evidence is
plausible in light of the record viewed in its entirety, [we] may not reverse itʺ even if we
would have weighed the evidence differently. Id. at 573‐74.
DISCUSSION
As certified by the district court, two issues are presented: (1) ʺ[w]hether
petitionerʹs constitutional claim was timely under 28 U.S.C. § 2255ʺ; and (2) ʺ[w]hether
petitioner was denied the effective assistance of counsel under the Sixth Amendment of
the United States Constitution.ʺ S. Appʹx at 13.
I. Timeliness of Supervilleʹs § 2255 Petition
A § 2255 petition is subject to a one‐year period of limitation, which runs
from the later of ʺthe date on which the judgment of conviction becomes finalʺ or ʺthe
‐4‐ date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.ʺ 28 U.S.C. § 2255(f)(1), (4). For the
purposes of § 2255(f)(1), ʺan unappealed federal criminal judgment becomes final when
the time for filing a direct appeal expires.ʺ Moshier v. United States, 402 F.3d 116, 118 (2d
Cir. 2005) (per curiam).
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18‐680‐pr Superville v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of May, two thousand nineteen.
PRESENT: AMALYA L. KEARSE, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
NEKEBWE SUPERVILLE, Petitioner‐Appellant,
v. 18‐680‐pr
UNITED STATES OF AMERICA, Respondent‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER‐APPELLANT: VINOO P. VARGHESE, Varghese & Associates, P.C., New York, New York.
FOR RESPONDENT‐APPELLEE: MARCIA M. HENRY, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Weinstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Petitioner‐appellant Nekebwe Superville appeals pursuant to a certificate
of appealability issued March 6, 2018, by the United States District Court for the Eastern
District of New York (Weinstein, J.). The certificate of appealability certified two issues
for appeal: (1) ʺ[w]hether petitioner was denied the effective assistance of counsel under
the Sixth Amendmentʺ; and (2) ʺ[w]hether petitionerʹs constitutional claim was timely
under 28 U.S.C. § 2255.ʺ Appʹx at 360. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
Superville is not a United States citizen. In May 2013, he was arrested for
participating in a drug trafficking organization. He retained attorney Howard
Greenberg and agreed to cooperate with the government. Before pleading guilty,
Superville received warnings in the plea agreement and from the magistrate judge and
district judge that his conviction would have immigration consequences. It is
ʺundisputed that Superville understood that he ʹcouldʹ be deported as a result of his
guilty plea.ʺ S. Appʹx at 10. On February 18, 2014, Superville pled guilty to two
‐2‐ aggravated felonies: one count of conspiring to distribute 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and one count of
conspiring to transfer and deliver United States currency involving the proceeds of
narcotics trafficking, in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i). Because of
his assistance to the government, Superville was sentenced principally to three yearsʹ
probation. Judgment was entered on November 14, 2014.
On July 18, 2017, Superville was detained by immigration officers
pursuant to a Department of Homeland Security notice to appear for removal
proceedings. On October 5, 2017, Superville, represented by new counsel, filed a
motion under 28 U.S.C. § 2255, or for a writ of error coram nobis, to vacate his guilty plea
and conviction, arguing that Greenbergʹs performance was constitutionally ineffective
by failing to advise him that his plea subjected him to mandatory deportation.
The district court held an evidentiary hearing on February 14 and 16, 2018,
and three witnesses testified: Superville, Supervilleʹs mother, and Greenberg. In its
February 27, 2018 memorandum and order, the district court rejected several parts of
Supervilleʹs testimony because it conflicted with the contemporaneous evidence that he
knew there was a strong possibility of deportation and he still would have pled guilty
even with a stronger warning. Greenberg testified that he told Superville that he ʺcould
be deported as a result of the plea,ʺ but disavowed telling Superville not to worry about
deportation. The district court denied Supervilleʹs motion because it was untimely and,
‐3‐ in the alternative, Superville was not prejudiced by his attorneyʹs alleged
ineffectiveness. On March 6, 2018, the district court issued its certificate of
appealability. Superville filed a timely notice of appeal on March 9, 2018.
STANDARD OF REVIEW
ʺWe review a district courtʹs findings of fact for clear error, and its denial
of a Section 2255 petition de novo.ʺ Elfgeeh v. United States, 681 F.3d 89, 91 (2d Cir. 2012).
ʺ[A] finding is ʹclearly erroneousʹ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.ʺ Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)
(internal quotation marks omitted). ʺIf the district courtʹs account of the evidence is
plausible in light of the record viewed in its entirety, [we] may not reverse itʺ even if we
would have weighed the evidence differently. Id. at 573‐74.
DISCUSSION
As certified by the district court, two issues are presented: (1) ʺ[w]hether
petitionerʹs constitutional claim was timely under 28 U.S.C. § 2255ʺ; and (2) ʺ[w]hether
petitioner was denied the effective assistance of counsel under the Sixth Amendment of
the United States Constitution.ʺ S. Appʹx at 13.
I. Timeliness of Supervilleʹs § 2255 Petition
A § 2255 petition is subject to a one‐year period of limitation, which runs
from the later of ʺthe date on which the judgment of conviction becomes finalʺ or ʺthe
‐4‐ date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.ʺ 28 U.S.C. § 2255(f)(1), (4). For the
purposes of § 2255(f)(1), ʺan unappealed federal criminal judgment becomes final when
the time for filing a direct appeal expires.ʺ Moshier v. United States, 402 F.3d 116, 118 (2d
Cir. 2005) (per curiam). Section 2255(f)(4), moreover, ʺis not a tolling provision that
extends the length of the available filing timeʺ; rather, § 2255(f)(4) ʺresets the limitations
periodʹs beginning date, moving it from the time when the conviction became final
[under § 2255(f)(1)] . . . to the later date on which the particular claim accrued.ʺ Wims v.
United States, 225 F.3d 186, 190 (2d Cir. 2000). The relevant inquiry is ʺwhen a duly
diligent person in petitionerʹs circumstances would have discovered [facts supporting
the claim].ʺ Id. This ʺdoes not require the maximum feasible diligence, only ʹdue,ʹ or
reasonable, diligence.ʺ Id. at 190 n.4. The question of when the limitations period
begins to run is a fact‐specific issue, see id. at 190, and therefore we review the district
courtʹs determination for clear error, see Elfgeeh, 681 F.3d at 91.
Here, the limitations period began to run from the date the judgment of
conviction became final. Under § 2255(f)(1), the judgment became final on November
28, 2014, fourteen days after it was entered on November 14, 2014, as Superville did not
appeal. See Fed. R. App. P. (4)(b) (requiring appeal in criminal case to be filed within
fourteen days of judgment). Although the district court found that Superville could
have discovered that he was subject to mandatory deportation no later than October 8,
‐5‐ 2014, based in part on the courtʹs statements in imposing sentence that day, the one‐year
limitations period began to run on November 28, 2014 ‐‐ the later of the two dates ‐‐
and Supervilleʹs § 2255 motion was time‐barred because he did not file his motion until
October 5, 2017.
Superville argues that under § 2255(f)(4) the limitations period actually
began to run on July 18, 2017, when he was arrested by immigration officers and first
learned he was subject to mandatory deportation, and therefore his motion is timely.
The district courtʹs finding that Supervilleʹs could, with due diligence, have discovered
his deportation status in October 2014 at the latest, however, is supported by the record.
Superville received at least three warnings about his pleaʹs immigration consequences,
including in the plea agreement he signed in February 2014 acknowledging that
ʺbecause [of the offenses to which] the defendant is pleading guilty . . . removal is
presumptively mandatory.ʺ Appʹx at 48. Superville stated under oath that he read it
thoroughly and discussed it with his attorney, and he told both the magistrate and
district judges that he understood the immigration consequences of his guilty plea.
Based on these warnings, a reasonably diligent person would have discovered that he
was subject to presumptively mandatory deportation in October 2014. Therefore, on
this record, the district court did not err in finding that Superville could, with due
diligence, have discovered that he was subject to mandatory deportation prior to
November 2014, and in concluding that his § 2255 petition was time‐barred.
‐6‐ II. Ineffective Assistance of Counsel
Even if the § 2255 petition had been timely filed, it would fail on the
merits. The Sixth Amendment grants criminal defendants the right to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In general, a
defendant claiming ineffective assistance must show that (1) ʺcounselʹs performance
was deficientʺ and (2) ʺthe deficient performance prejudiced the defense.ʺ Id. at 687.
When a defendant alleges that a counselʹs deficient performance led him to accept a
guilty plea rather than go to trial, we ʺconsider whether the defendant was prejudiced
by the denial of the entire judicial proceeding to which he had a right.ʺ Jae Lee v. United
States, 137 S. Ct. 1958, 1965 (2017) (alteration and internal quotation marks omitted). To
demonstrate prejudice, then, ʺthe defendant must show that there is a reasonable
probability that, but for counselʹs errors, he would not have pleaded guilty and would
have insisted on going to trial.ʺ Hill v. Lockhart, 474 U.S. 52, 59 (1985); accord Kovacs v.
United States, 744 F.3d 44, 52 (2d Cir. 2014).
The district court did not reach the question of whether counselʹs advice
that Superville ʺcouldʺ be deported was unreasonable, but held that even assuming
Greenberg was ineffective (by saying ʺcouldʺ rather than ʺwouldʺ), Superville had failed
to show prejudice. The court found that Superville failed to show ʺthat a stronger
warning would have led him to stand trial.ʺ S. Appʹx at 10. This finding was not
clearly erroneous, particularly in light of the three other warnings Superville received,
‐7‐ including one in the plea agreement, which he read and signed, that ʺremoval is
presumptively mandatory.ʺ Appʹx at 48. Much of the evidence that Superville relies on
are post hoc assertions, and we will ʺnot upset a plea solely because of post hoc
assertionsʺ about how a petitioner ʺwould have pleaded but for his attorneyʹs
deficiencies.ʺ Jae Lee, 137 S. Ct. at 1967. The district court did not credit this aspect of
Supervilleʹs testimony, and ʺclear error review mandates that we defer to the district
courtʹs factual findings, particularly those involving credibility determinations.ʺ
Phoenix Glob. Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir. 2005)
(per curiam). The district court, therefore, did not err in holding that Superville failed
to show he was prejudiced by Greenbergʹs alleged ineffectiveness.
* * *
We have considered Supervilleʹs remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
‐8‐