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.
