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.

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NEKEBWE SUPERVILLE,

     Petitioner‐Appellant,    

     v.           18‐680‐pr

UNITED STATES OF AMERICA,

     Respondent‐Appellee.

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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
   

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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
   

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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,
   

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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
   

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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,
   

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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.
   

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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,
   

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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