United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Nunez-Garcia, a former federal inmate who currently is
awaiting deportation following revocation of his citizenship,
has filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. Nunez-Garcia
seeks a temporary stay of deportation and also asks to be
transported to the Western District of Virginia via a writ of
habeas corpus ad testificandum. The government has responded
to the motions. As discussed more fully below, the court
DENIES the motion to stay and the motion for
a writ of habeas corpus ad testificandum, but directs the
clerk to set an evidentiary hearing and arrange for
Garcia-Nunez to participate via video conference from
September 15, 2009 Nunez-Garcia was indicted on two counts
related to a methamphetamine dealing conspiracy which began
no later than February 12, 2009 and continued until April 29,
2009. ECF No. 1 at 1, 3. On February 26, 2010, Nunez-Garcia
entered into a written plea agreement in which he pleaded
guilty to Count 1 of the indictment. ECF No. 69 at 1. A
change of plea hearing was held on March 1, 2010 in front of
a United States Magistrate Judge who recommended that
Nunez-Garcia's plea agreement be accepted. ECF Nos. 73,
78. On May 6, 2010 judgment was entered against Nunez-Garcia
and he was sentenced to a term of 70 months in the Bureau of
Prisons to be followed by a 5-year term of supervised
release. ECF No. 84 at 2-3.
was born in Mexico and applied to become a United States
citizen. As part of the naturalization application process,
and during the time period he was involved in the
methamphetamine conspiracy, Nunez-Garcia attested under oath
in a naturalization interview that he had never committed a
crime or offense for which he had not been arrested. On April
29, 2009, two weeks after his naturalization interview,
Nunez-Garcia was arrested by local law enforcement, charged
in connection with the methamphetamine conspiracy, and
released on bond. Nunez-Garcia was scheduled for a
naturalization ceremony on July 4, 2009. When he arrived at
the naturalization ceremony, he was required to submit a
follow-up questionnaire related to his immigration
application and he stated that he had not been arrested or
charged for violation of any law and affirmed the answers on
his original application.
the federal indictment on the methamphetamine charges,
Nunez-Garcia was arrested and on September 24, 2009 he was
released on bond. On January 9, 2010 he was charged in state
court with involuntary manslaughter, felony eluding, DUI, and
child abuse. The charges arose out of an incident nine days
earlier where police tried to stop him for driving
erratically. Nunez-Garcia did not stop but led the police on
a chase, which ended with his having a single car accident
resulting in the death of his seventeen-year-old passenger.
On November 15, 2010, Nunez-Garcia pleaded guilty plea to all
of the charges except child abuse. He was sentenced to ten
years on the aggravated DUI manslaughter charge with five
years suspended; two years on the eluding police charge; and
twelve months, suspended, on the DUI charge. The 5-year
sentence was to run consecutively to his federal sentence and
the 2-year sentence was to run concurrently with his federal
sentence. ECF No. 124 at 7-8. The child abuse charge was
dropped. Nunez-Garcia was represented by Scott Hansen on both
the state and federal charges.
served seven years on the state charges before he began
serving the 70-month federal sentence. ECF No. 117 at 3. On
November 21, 2016, his federal sentence was reduced from 70
months to 57 months after an applicable sentencing guidelines
provision was lowered and made retroactively applicable to
him. ECF No. 119. In addition, he sought an order from the
court declaring that his federal term of imprisonment run
concurrently with his state term. ECF No. 122. The court
granted him limited relief, finding that the two-year
sentence for eluding police should run concurrently with his
federal sentence. ECF No. 124.
January 27, 2016 a complaint was filed against Nunez-Garcia
in the Eastern District of Virginia alleging he had made
false statements under oath as part of his application for
naturalization. The complaint referred to the questions where
he had stated that he had not committed a crime for which he
had not been arrested during the time he was participating in
the methamphetamine conspiracy. United States v.
Nunez-Garcia, l:16-cr-39 (E.D. Va. Jun. 2, 2016), at ECF
Nos. 1 and 2. A bench trial was held on April 18, 2016 and he
was found guilty. Id. at ECF No. 30.
8, 2016 Nunez-Garcia was sentenced to time served and two
years of supervised release on the false statement charges.
As a condition of his supervised release, he was to be
surrendered to a duly-authorized immigration official for
deportation review in accordance with established procedures
provided by the Immigration and Naturalization Act.
Id. at ECF No. 38, p. 4. That same day, an order was
entered revoking his citizenship. Id. at ECF No. 40.
appealed the conviction to the Fourth Circuit Court of
Appeals which affirmed. United States v.
Nunez-Garcia. No. 16-4415 (4th Cir. April 18, 2017). He
then sought a writ of certiorari from the United States
Supreme Court which denied his petition on February 20, 2018.
Nunez-Garcia v. United States. No. 17-6426 (Feb. 20,
currently is in deportation proceedings and is detained in
ICE custody in Wakulla County Jail in Crawfordville, Florida.
On May 21, 2018 he received notice that on the basis of the
methamphetamine conviction he was subject to removal pursuant
to §§ 237(a)(2)(B)® and 237(a)(2)(A)(Hi) of the
Immigration and Nationality Act. ECF No. 125 at 10. His
counsel asserts that a deportation order was entered against
him on or about November 6, 2018 and he has filed a timely
appeal of that order with the Board of Immigration Appeals
("BIA"). ECF No. 145 at 2.
filed the instant 28 U.S.C. § 2255 motion to vacate on
October 25, 2018 and alleges that he received ineffective
assistance of counsel in the methamphetamine case. He claims
that during the plea negotiations his attorney told him that
he did not have to worry about being deported because he had
been in the United States for a long time. He claims the
attorney also told him that he was about to be sworn in as a
United States citizen and as soon as that happened he would
not be deportable. ECF No. 125 at 5. As a result, he claims
that his plea was involuntary and that if he had been
accurately advised, he would not have entered the guilty
plea. Id. at 7. Nunez-Garcia has filed a motion to
temporarily stay deportation proceedings pending adjudication
of his habeas corpus claim and a request for a writ of habeas
corpus ad testificandum to which the government has responded
and Nunez-Garcia replied.
issue is whether a district court has jurisdiction to
temporarily stay an order of deportation pending adjudication
of an underlying habeas case. In 1996 Congress passed the
Immigration Reform and Immigrant Responsibility Act (IIRIRA)
which, among other things, repealed the then-existing scheme
for judicial review of final orders of deportation and
replaced it with a more restrictive scheme. Hatami v.
Ridge, 270 F.Supp.2d 763, 766-767 (E.D. Va. 2003)