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Nunez-Garcia v. United States

United States District Court, W.D. Virginia, Harrisonburg Division

March 1, 2019

JOSE NUNEZ-GARCIA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge

         Jose 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 immigration custody.

         BACKGROUND

         On 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.

         Nunez-Garcia 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.

         Following 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.

         Nunez-Garcia 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.

         On 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.

         On July 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.

         Nunez-Garcia 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, 2018).

         Nunez-Garcia 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.

         Petitioner 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.

         APPLICABLE LAW

         At 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) ...


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