Defendant waited too long to collaterally attack guilty plea

Where a naturalized citizen whose citizenship was revoked in 2016 waited until 2018 before attempting to collaterally attack his 2010 guilty plea on drug charges, and the record showed he could have discovered facts supporting his claim in 2016, his petition was untimely.

Background

Jose Nunez-Garcia, a naturalized United States citizen, received advice from counsel in 2010 that because of his newly obtained citizenship, his guilty plea to one count of conspiring to possess, with the intent to distribute, methamphetamine and mixtures containing methamphetamine would not subject him to deportation. But his citizenship was revoked in 2016. In 2018, Nunez-Garcia received a notice to appear informing him that he would be removed from the country because his 2010 conviction was an aggravated felony. Upon receiving that notice, he filed a collateral attack upon his 2010 guilty plea under 28 U.S.C. § 2255.

The district court found that Nunez-Garcia’s 2018 petition was untimely under § 2255(f)(4), which provides a one-year limitations period from the date on which he could have discovered the facts supporting his claim through due diligence. The court explained that Nunez-Garcia was on notice in 2016, when his citizenship was revoked, that he could be deported as a result of his 2010 methamphetamine conviction.

Analysis

Nunez-Garcia contends that he did not have inquiry notice in 2016 that his 2010 methamphetamine conviction could serve as the basis for his eventual deportation. Instead, he posits that he needed notice “that his 2010 conviction was an aggravated felony that would subject him to automatic deportation.” He asserts that the only time he received that particular notice was in 2018, when he was served with the notice to appear and therefore his October 2018 petition was timely. The court disagrees for two reasons.

First, Nunez-Garcia testified that his Alexandria-based attorney told him in 2016 that his methamphetamine conspiracy conviction was an aggravated felony. That notice alone triggered § 2255(f)(4)’s limitations period in 2016. Nunez-Garcia contends now that the statement was an oversight owing to his lack of proficiency with the English language. Instead, he claims he meant to say that he first learned in 2018 that his methamphetamine conviction was an aggravated felony and that the district court should have made a factual finding in that regard.

However, he had the opportunity to make that “correction” in the district court and he failed to do so. Moreover, both of his answers could be truthful. There is no reason to doubt that Nunez-Garcia was told by his Alexandria attorney in 2016 that his 2010 conviction was an aggravated felony, and that the 2018 notice to appear again informed him that his 2010 conviction was an aggravated felony. The two propositions are not mutually exclusive.

Second, even setting aside that admission, the nature of Nunez-Garcia’s sentencing proceedings on July 8, 2016, put him on inquiry notice that his 2010 conviction was an aggravated felony. His own attorney stressed that Nunez-Garcia was likely to face deportation once released from custody, and after sentencing, the district court revoked Nunez-Garcia’s citizenship in his presence. A person in Nunez-Garcia’s position exercising due diligence could have discovered in short order that the reason his deportation was so likely was that his 2010 conviction qualified as an aggravated felony.

The foregoing factors distinguish this case from Nunez-Garcia’s cited authority United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), and Klaiber v. United States, 471 F. Supp. 3d 696 (D. Md. 2020). In both cases, the petitioners’ Strickland claims, based on their counsel’s incorrect advice about the immigration consequences of their guilty pleas, were timely because no intervening circumstances arose that would have put them on inquiry notice that the advice they had received was inaccurate.

Here, however, Nunez-Garcia’s circumstances had materially changed by July 8, 2016. By then, his counsel had repeated multiple times the likelihood that he would be deported, which the district court reinforced by revoking his citizenship. He therefore had a duty to inquire into the immigration consequences he likely faced at that time.

Affirmed.

United States v. Nunez-Garcia, Case No. 20-6710, April 20, 2022. 4th Cir. (Niemeyer), from WDVA at Harrisonburg (Urbanski). Erin Margaret Trodden for Appellant. Samuel Cagle Juhan for Appellee. VLW 022-2-102. 17 pp.