United States v. Jose Nunez-Garcia

Citation: Not availableDocket: 20-6710

Court: Court of Appeals for the Fourth Circuit; April 20, 2022; Federal Appellate Court

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Jose Nunez-Garcia, a naturalized U.S. citizen, faced deportation due to a 2010 conviction for conspiracy to distribute methamphetamine, which was classified as an aggravated felony. He was advised by counsel in 2010 that his citizenship would protect him from deportation. However, his citizenship was revoked in 2016, and he received a Notice to Appear in 2018 regarding his removal from the country. Following this, Nunez-Garcia filed a collateral attack on his 2010 guilty plea under 28 U.S.C. § 2255, claiming that he was unaware of the deportation risk until the 2018 notice. The district court determined that his petition was untimely because he should have been aware of the potential for deportation as early as 2016, when his citizenship was revoked. Nunez-Garcia appealed this decision, asserting that the 2018 notice was his first indication of deportation risk. The Fourth Circuit Court affirmed the district court's ruling, agreeing that he had sufficient notice prior to the 2018 notice. Nunez-Garcia had entered the U.S. as a child of a lawful permanent resident and engaged in criminal activity while applying for naturalization, providing misleading affirmations on his application despite his arrest in 2009 for methamphetamine-related charges.

In September 2009, shortly after becoming a U.S. citizen, Nunez-Garcia was indicted for his involvement in a methamphetamine conspiracy and retained attorney Mr. Hansen for representation. He inquired whether accepting a plea bargain would lead to deportation, to which Hansen reportedly assured him he would not be deported due to his citizenship. Nunez-Garcia accepted the plea, pleading guilty to conspiracy to distribute methamphetamine, resulting in a 70-month prison sentence. His conviction was classified as an “aggravated felony” under the Immigration and Nationality Act (INA), making him subject to automatic removal from the U.S. and ineligible for certain discretionary reliefs.

In February 2016, a federal grand jury investigated the validity of Nunez-Garcia’s statements on his naturalization forms, leading to an indictment for making false statements under oath. He was found guilty after a bench trial, with his new attorney informing him that he would lose his citizenship and face deportation—information that was previously unknown to him. The Presentence Report indicated he would lose his citizenship and be subject to removal upon completing his prison term. During sentencing on July 8, 2016, his counsel requested a time-served sentence due to the impending loss of citizenship. The court granted this request, imposed a two-year supervised release, and mandated cooperation with immigration authorities, revoking Nunez-Garcia’s citizenship immediately upon sentencing.

Nearly two years after his 2016 sentencing, Nunez-Garcia received a Notice to Appear for removal proceedings, citing his 2010 conspiracy conviction as a basis for his removal due to it being classified as both a “controlled substance” conviction and an “aggravated felony.” In response, he filed an “Emergency Motion to Vacate” in the U.S. District Court for the Western District of Virginia, later amending it with legal counsel to assert a claim under Strickland v. Washington regarding ineffective assistance of counsel. Nunez-Garcia contended that his attorney misinformed him that pleading guilty to the methamphetamine conspiracy would not result in deportation, which he argued made his plea involuntary.

The Government moved to dismiss the petition as time-barred, arguing that Nunez-Garcia was aware of his Strickland claim by either 2010 or July 8, 2016, when he was informed in court of his deportation risk. The district court conducted an evidentiary hearing and concluded that Nunez-Garcia was indeed on notice of his deportation risk as of July 8, 2016, supported by his attorney's statements during sentencing and Nunez-Garcia’s own testimony. This finding triggered the statute of limitations for his Strickland claim under 28 U.S.C. § 2255(f)(4), which allows only one year from the date of notice to file a claim. Since Nunez-Garcia filed his motion in October 2018, over a year later, the court found it untimely and dismissed the petition. Nunez-Garcia appealed, and a certificate of appealability was granted, allowing for a de novo review of the district court's findings related to the statute of limitations.

The case centers on the timeliness of Nunez-Garcia’s 2255 petition, which must typically be filed within one year after the judgment of conviction becomes final, per 2255(f)(1). However, if the petition is based on facts arising post-conviction, it must be filed within one year of when those facts could have been discovered through due diligence, as outlined in 2255(f)(4). Late filings are dismissed as untimely, referencing United States v. Gasden, 332 F.3d 224, 226 (4th Cir. 2003).

To assess Nunez-Garcia’s petition's timeliness, a "particular time" must be identified that necessitates diligence, as established in Johnson v. United States, 544 U.S. 295, 308 (2005). The term "due diligence" implies a rule of "inquiry notice," meaning that once a petitioner is aware of circumstances that might warrant challenging a conviction, the due diligence requirement is activated. Diligence may be demonstrated by prompt actions once the petitioner realizes an interest in contesting the prior conviction, without needing full knowledge of the underlying claim.

The analysis will determine whether a reasonably diligent person in similar circumstances would have discovered the relevant facts supporting the claims in the petition, referencing cases like Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). A reasonable investigation is required, but the petitioner is not expected to exhaust every option or engage in futile efforts. The process of reasonable diligence is ongoing and contingent on what the petitioner knows at any given time, as noted in United States v. Denny, 694 F.3d 1185, 1190 (10th Cir. 2012).

Nunez-Garcia argues on appeal that he lacked inquiry notice in 2016 regarding his 2010 methamphetamine conviction's potential use as a basis for deportation. He claims that he only received pertinent notice in 2018, when served with a Notice to Appear, thus asserting that his October 2018 petition is timely.

Nunez-Garcia was informed by his Alexandria attorney in 2016 that his methamphetamine conspiracy conviction constituted an aggravated felony, which triggered the one-year limitations period under 2255(f)(4) for filing a petition. Additionally, during his sentencing proceedings on July 8, 2016, he was put on inquiry notice regarding the aggravated felony status of his conviction, as his attorney indicated that he could face deportation and the district court revoked his citizenship in his presence. Nunez-Garcia admitted during an evidentiary hearing that he learned in 2016 that his conviction was an aggravated felony, confirming that he had actual notice of this fact, which further supports the conclusion that his October 2018 petition was filed beyond the limitations period. The court upheld the dismissal of his petition as untimely, referencing similar cases that establish the importance of actual notice in determining the start of the limitations period.

Nunez-Garcia does not dispute the legal relevance of the testimony regarding his understanding of his 2010 conviction as an aggravated felony but argues that the district court erred in relying on it. He asserts that a language barrier led to a misstatement, claiming he first learned of the aggravated felony status in 2018, rather than in 2016 when informed by his attorney. He points to a specific response to counsel where he stated he learned about the aggravated felony status upon receiving a notice to appear. 

There are two interpretations of his testimony: he may have misspoken or both statements could be true, as he was informed in 2016 and again in 2018. The district court's choice to accept the latter interpretation is not considered clear error. The court, as the trier of fact, is better positioned to assess credibility and context, justifying the affirmation of its judgment.

Additionally, even ignoring the 2016 notice, the July 8, 2016, sentencing hearing itself should have put Nunez-Garcia on inquiry notice about the potential deportation consequences of his conviction. A diligent investigation would have confirmed that his 2010 conviction was an aggravated felony, further supporting the conclusion that his petition is untimely. During sentencing, his counsel emphasized the likelihood of deportation following his release, highlighting the severe consequences he would face due to his conviction.

Nunez-Garcia testified at an evidentiary hearing that in 2016, he became aware of the possibility of deportation after discussions with his Alexandria attorney. The Presentence Report (PSR) indicated that he would lose his U.S. citizenship and face removal from the United States after serving his 70-month sentence for a 2010 conviction. His attorney emphasized the severity of the consequences during the sentencing hearing and requested a time-served sentence, which the district court granted, acknowledging the collateral consequences of the conviction. The court mandated that Nunez-Garcia cooperate with the Department of Homeland Security and signed an order revoking his citizenship in court. By July 2016, Nunez-Garcia understood he was no longer a citizen and would likely face removal proceedings post-sentence. 

He had a duty to inquire about the immigration consequences of his status as a noncitizen. There were indications that he might have been on notice of these consequences as early as 2010 when considering a plea bargain, despite his claims of not being informed about losing his citizenship if he signed incorrect immigration forms. His attorney, Mr. Hansen, expressed curiosity about how Nunez-Garcia obtained citizenship after state charges were dropped and stated that he believed everything was handled properly by the immigration attorney. However, Nunez-Garcia contended that he was never advised about the risks of losing his citizenship. The district court did not resolve this conflicting testimony, which is not considered in the decision.

The principles from Klaiber do not apply to Nunez-Garcia's case, which is distinguished from both United States v. Akinsade and Klaiber v. United States due to materially different circumstances. In Akinsade and Klaiber, the petitioners’ claims regarding ineffective counsel were timely because no intervening events indicated that their counsel's advice was flawed. In contrast, by July 8, 2016, Nunez-Garcia was repeatedly informed by his counsel about the likelihood of deportation, and the district court's action of revoking his citizenship emphasized this. Consequently, he had a duty to investigate the immigration implications of his situation. Nunez-Garcia acknowledged that his 2010 conviction constituted an aggravated felony, confirming his actual notice of potential deportation. Even setting aside this admission, there are additional grounds supporting the district court’s finding that the statute of limitations under 2255(f)(4) had expired before Nunez-Garcia's petition was filed in October 2018. The district court's judgment is therefore affirmed.