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Superville v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 9 th 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

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‐ 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‐ 2

‐ 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 Amendment ʺ ; and (2) ʺ [w]hether petitioner ʹ s constitutional claim was timely

under 28 U.S.C. § 2255. ʺ App ʹ x at 360. We assume the parties ʹ 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

ʺ undisputed that Superville understood that he ʹ could ʹ be deported as a result of his

guilty plea. ʺ S. App ʹ x at 10. On February 18, 2014, Superville pled guilty to two‐ 3

‐ 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 years ʹ

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 Greenberg ʹ s 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, Superville ʹ s mother, and Greenberg. In its

February 27, 2018 memorandum and order, the district court rejected several parts of

Superville ʹ s 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 ʺ could

be deported as a result of the plea, ʺ but disavowed telling Superville not to worry about

deportation. The district court denied Superville ʹ s motion because it was untimely and,‐ 4

‐ in the alternative, Superville was not prejudiced by his attorney ʹ s 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

ʺ We review a district court ʹ s findings of fact for clear error, and its denial

of a Section 2255 petition de novo

. ʺ Elfgeeh v. United Stat es, 681 F.3d 89, 91 (2d Cir. 2012).

ʺ [A] finding is ʹ clearly erroneous ʹ 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). ʺ If the district court ʹ s account of the evidence is

plausible in light of the record viewed in its entirety, [we] may not reverse it ʺ 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

petitioner ʹ s constitutional claim was timely under 28 U.S.C. § 2255 ʺ ; and (2) ʺ [w]hether

petitioner was denied the effective assistance of counsel under the Sixth Amendment of

the United States Constitution. ʺ S. App ʹ x at 13.

I. Timeliness of Superville ʹ s § 2255 Petition

A § 2255 petition is subject to a one

‐ year period of limitation, which runs

from the later of ʺ the date on which the judgment of conviction becomes final ʺ or ʺ the‐ 5

‐ 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), ʺ an 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, ʺ is not a tolling provision that

extends the length of the available filing time ʺ ; rather, § 2255(f)(4) ʺ resets the limitations

period ʹ s 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 ʺ when a duly

diligent person in petitioner ʹ s circumstances would have discovered [facts supporting

the claim]. ʺ Id. This ʺ does not require the maximum feasible diligence, only ʹ due, 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

court ʹ s 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,‐ 6

‐ 2014, based in part on the court ʹ s 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 Superville ʹ s § 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 court ʹ s finding that Superville ʹ s 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 plea ʹ s immigration consequences,

including in the plea agreement he signed in February 2014 acknowledging that

ʺ because [of the offenses to which] the defendant is pleading guilty

. . . removal is

presumptively mandatory. ʺ App ʹ x 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.‐ 7

‐ 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) ʺ counsel ʹ s performance

was deficient ʺ and (2) ʺ the deficient performance prejudiced the defense. ʺ Id. at 687.

When a defendant alleges that a counsel ʹ s deficient performance led him to accept a

guilty plea rather than go to trial, we ʺ consider 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, ʺ the defendant must show that there is a reasonable

probability that, but for counsel ʹ s 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 counsel ʹ s advice

that Superville ʺ could ʺ be deported was unreasonable, but held that even assuming

Greenberg was ineffective (by saying ʺ could ʺ rather than ʺ would ʺ ), Superville had failed

to show prejudice. The court found that Superville failed to show ʺ that a stronger

warning would have led him to stand trial. ʺ S. App ʹ x at 10. This finding was not

clearly erroneous, particularly in light of the three other warnings Superville received,‐ 8

‐ including one in the plea agreement, which he read and signed, that ʺ removal is

presumptively mandatory. ʺ App ʹ x at 48. Much of the evidence that Superville relies on

are post hoc assertions, and we will ʺ not upset a plea solely because of post hoc

assertions ʺ about how a petitioner ʺ would have pleaded but for his attorney ʹ s

deficiencies. ʺ Jae Lee

, 137 S. Ct. at 1967. The district court did not credit this aspect of

Superville ʹ s testimony, and ʺ clear error review mandates that we defer to the district

court ʹ s 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 Greenberg ʹ s alleged ineffectiveness.

* * *

We have considered Superville ʹ s remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk