Opinion
99 Civ. 3251 (HB)(HBP)
September 6, 2001
OPINION ORDER
Bessam Reyati ("Reyati") brings this petition for relief under 28 U.S.C. § 2254 to vacate his conviction on the grounds that he did not knowingly and voluntarily enter into his plea agreement. Specifically he alleges that the government promised as a part of the plea that he would be able to withdraw his plea if his conviction negatively impacted his immigration status, and then reneged on its promise when the INS ordered that Reyati be deported. For the following reasons, the petition is denied.
BACKGROUND
Petitioner's conviction stems from his participation in a shooting incident that occurred on March 1, 1994, when Rashid Baz, while driving across the Brooklyn Bridge, fired shots into a van of Hasidic teenagers, killing one person and seriously injuring others. Reyati's involvement apparently began after the incident, when Baz returned to Reyati's car service garage where he worked as a driver. Although the precise details are not a part of the record, it appears that Reyati learned of the crime after Baz returned and assisted him by "dispos[ing] of shell casings from Baz's weapons, remov[ing] the car's broken windshield, and [driving] Baz, who still had his weapons, to Baz's home." Gov. Opp. at 2. The next day, authorities arrested both Baz and Reyati. On March 16, 1994, Reyati was indicted on two counts of violating New York Penal Law § 205.60 in that he hindered prosecution in the second degree and on one count of violating § 2 15.40 for tampering with physical evidence for his role in helping Baz after the shooting. Gov. Opp. at 1-2.
After petitioner's indictment, there were extended discussions between the court, prosecutor and defendant regarding whether petitioner would or would not accept a plea offer. Petitioner's concern was the impact of a potential conviction on his immigration status, which was then in a transitional stage. He was awaiting a change to a permanent resident status from the INS. Petitioner had been married for almost two years to a United States citizen and had a petition pending before the Immigration and Naturalization Service ("INS") for adjustment of status from conditional to permanent resident. It appears that all involved were uncertain as to what impact a plea would have, as from January 1995 to June 1996, the court repeatedly adjourned the plea date while petitioner's counsel attempted to assure herself that the proposed guilty plea would not have an adverse impact on petitioner's immigration status. This concern is reflected by a letter from petitioner's counsel to the Assistant District Attorney, in which she stated, "As per our previous telephone conversation, thank you for adjourning this matter to Sept. 20, 1995. We are waiting for my client's immigration status to change so that he will not have negative immigration consequences from a guilty plea." See David Aff Ex. B.
The parties appear to have reached a rapprochement at the urging of the trial judge, and, on June 12, 1996, the petitioner plead guilty in the New York Supreme Court, New York County before the late Justice Harold Rothwax to one count of hindering prosecution in the second degree. During plea proceedings, defense counsel stated that the plea was "conditional" such that "if for any reason this plea creates a problem for my client [in terms of his] immigration status [he would be] allowed to withdraw his plea." Trans. June 12, 1996, at 2. The prosecutor concurred with defense counsel's statement, and the Court asserted that "this plea is conditioned on the supposition that there will be no problem with the Immigration and Naturalization Service." Id at 5.
On October 16, 1996, Reyati was sentenced to five years probation and ordered to pay a thousand dollar fine. At sentencing, the trial court stated, apparently in reference to the conditional plea.
Ms. David, I am prepared to adhere to the promise that was made initially at the time the plea was entered; you may be guided by that.Id. at 16. On March 8, 1997, the INS granted Reyati's petition for removal of conditions, thus he became a permanent resident. However, on May 20, 1997, petitioner was stopped by immigration officials when he reentered the United States from Mexico, and on July 14, 1997, deportation proceedings were instituted against him on the ground that he was convicted of a crime of moral turpitude (i.e. the conviction at issue here) within five years of his admission as a permanent citizen. On October 30, 1997, an immigration judge issued a final order of deportation against petitioner.
Prior to his deportation order, on October 8, 1997, Reyati had been arrested in Kings County for another crime, criminal possession of stolen property in the fourth and fifth degrees. On February 10, 1998, Justice Herbert Altman found him guilty of a probation violation and, on March 26, 1998, resentenced him to one and one-third to four years imprisonment.
On November 10, 1997, a month after he was ordered deported and a year after his conviction, petitioner made a motion in the Supreme Court of New York County to vacate his original judgment of conviction on the ground that his immigration status had changed, as he had been ordered deported. On December 8, 1997, Justice Carol Berkman denied the motion. Justice Berkman noted that under New York procedural law, one cannot withdraw a plea of guilty following judgment and found nothing in the record to support petitioner's contention that his conviction survived his plea.
Under New York CPL 220.60(3) "[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored."
Petitioner then filed a second motion before Justice Berkman asking the court to vacate his conviction pursuant to New York Criminal Procedure Law §§ 440.10(1)(b) and 440.10(1)(h), but, on February 17, 1998, Justice Berkman denied the motion. Petitioner then appealed to the New York Appellate Division. On October 27, 1998, that court affirmed Justice Berkman's decision, holding that the petitioner had not offered evidence to support a finding that the conditional nature of the plea survived the sentencing. See People v. Reyati, 681 N.Y.S.2d 231, 232 (1st Dep't 1998) (citations omitted).
On February 18, 1999 the New York Court of Appeals denied leave to appeal without comment. See People v. Reyati, 93 N.Y.2d 856, 710 N.E.2d 1103, 688 N.Y.S.2d 504 (1999).
On May 5, 1999, Reyati filed a petition before this court to vacate the judgment of conviction by writ of habeas corpus. This Court referred the petition to Magistrate Judge Pitman for a Report and Recommendation, which Judge Pitman issued on December 29, 2000. The Report recommended that defendant's petition be denied. On January 8, 2001 petitioner filed a timely Objection to the Report and Recommendation.
DISCUSSION
I. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), courts deciding federal habeas corpus claims must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the claims either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2); see Williams v. Taylor, 529 U.S. 362 (2000).
II. Petitioner's Claim that His Plea Was Not Knowingly and Voluntarily Made
Petitioner claims that his plea was not knowingly and voluntary as it was based on a promise by the government that he would be able to withdraw his plea if it created any problems with his immigration status.
It is well settled that federal constitutional law requires that defendant's enter into plea agreements knowingly and voluntarily and, therefore, that "when a plea rests in any significant degree on a promise-or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). A plea is knowing when made "with understanding of the nature of the charge and the consequences of the plea." Id.
Here, the government does not dispute that the plea agreement provided that the petitioner could withdraw his plea if it had a negative impact on his immigration status, however, it contends that there were two limitations on these terms. First, the government contends that its obligation to allow the petitioner to withdraw his plea terminated at the time of sentencing, in other words that the conviction was final after sentencing. Second, the government contends that the plea agreement allowed the petitioner to withdraw the plea only if it affected the INS's decision to grant him permanent resident status, not for any conceivable immigration problem that petitioner may have as a result of the conviction.
There is a line in the record that lends support to petitioner's claim that the agreement lived on after the sentence. At sentencing the trial judge said that he intended to continue his promise to the petitioner. However, there is nothing to suggest that this line was meant to give such a condition a life of its own, added to which is the deference I must accord to the state court's findings of fact. See Williams, 529 U.S. at 368. Thus, I conclude that the agreement did not extend beyond sentencing.
Further, there is evidence to support the government's second claim that the plea agreement was only intended to allow the petitioner to withdraw his plea should the INS deny the petitioner permanent residence status. Unfortunately, the transcript is less than crystal clear as it only refers to the petitioner and a "problem" with his "immigration status" as a result of his plea. See Trans. June 12, 1996 at 2 (the court stated, "this plea is condition on the supposition that there will be no problem with the Immigration and Naturalization Service"). A letter from the defense counsel to the Assistant District Attorney sheds some light on the problem. In the letter the defense attorney expresses her thanks the DA for granting an adjournment of the trial and explains that the purpose of the delay was to wait for the change in petitioner's INS status so that there would not be "negative immigration consequences from a guilty plea." As it happened, after a long delay, the judge became unwilling to wait any longer and the trial court, the prosecutor and the petitioner agreed that the petitioner would enter the conditional plea. That plea and the condition it effected, i.e. the change in his status to permanent resident, came about on March 8, 1997. Given these facts, I must conclude that the cause for the delay and the plea were one and the same — to address the petitioner's concern that the INS would deny him permanent resident status.
It is well settled law that misinformation on the part of a trial counsel regarding the immigration effects of a conviction is not grounds for habeas relief. United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) ("Since Mitchell does not aver that he made an affirmative misrepresentation (as to his post-conviction immigration status], Santelises fails to state a claim for ineffective assistance of counsel."); Atunrase v. Lacy, 1996 WL 1088921, (E.D.N.Y., 1996) ("Nor can counsel's misinforming petitioner regarding the immigration consequences of his guilty plea constitute ineffective assistance. First, it appears from the record that counsel did not make any affirmative representation as to the effect that petitioner's plea would have on his immigration status, but merely speculated that he would "probably" not be deported. Such speculation cannot be characterized as ineffective assistance. . . Second, deportation is a "collateral consequence" of a criminal conviction, and, as such, an attorney is not ineffective for failing to advise a client of that possibility.").
Clearly, petitioner's focus at the plea and sentencing was solely on his status change, and it was that potential problem that the plea agreement was intended to guard against.
Thus, viewing the terms of the plea agreement in the light most favorable to the petitioner, counsel's communication with the district attorney illuminates the parties' intent in entering into the agreement. This interpretation also is in accord with common sense, as it is illogical to conclude that the court and the prosecutor would permit a defendant to withdraw his plea at any time in the future, no matter how far out, if the conviction turned out to have a negative impact on his immigration status.
CONCLUSION
For the above reasons, petitioner's writ of habeas corpus is denied. The clerk of court is instructed to close the case.