In Martin v. United States, No. 18-12643 (Feb. 4, 2020) (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.
The defendant alleged that he would not have pled guilty to access device fraud and aggravated identity theft but for counsel’s erroneous advice about the deportation consequences of his plea. Specifically, he alleged that counsel failed to advise him that deportation would be mandatory for an aggravated felony conviction, and that counsel informed him that the loss amount would be less than the aggravated-felony threshold. On appeal, the Court found no deficient performance. His convictions did not make deportation presumptively mandatory. And because the deportation consequences were uncertain and subject to an immigration proceeding, counsel was required to advise him only that his pending criminal charges may carry a risk of adverse immigration consequences. Furthermore, counsel could not have predicted the sentencing court’s loss findings, to which he objected, and the defendant may have had another opportunity to contest them in the immigration proceeding. Finally, the Court found no abuse of discretion in denying an evidentiary hearing, as the allegations in the 2255 motion were contradicted by the record.