ORDER DENYING RESPONDENT'S MOTION TO DISMISS § 2255 MOTION AND GRANTING MOVANT'S MOTION FOR RECONSIDERATION.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Respondent United States of America moves the Court to dismiss Movant Juanita Navarro's section 2255 motion. Ms. Navarro opposes the motion. The matter was taken under submission on the papers.
Ms. Navarro moves the Court to reconsider its June 13, 2005 order ruling that she had waived the attorney-client privilege with respect to advice that her attorney may have given her about the deportation consequences of her November 24, 2003 guilty plea. The United States opposes the motion. This matter was also taken under submission on the papers.
Having considered the parties' papers and the evidence cited therein, the Court denies the government's motion to dismiss Ms. Navarro's section 2255 motion and grants Ms. Navarro's motion for reconsideration.
On November 24, 2003, Ms. Navarro signed an agreement to plead guilty to one count of conspiracy to manufacture methamphetamine. The plea agreement listed deportation under the sub-heading "Other possible consequences of guilty plea," and stated as follows:
If the defendant requests, and in the government's judgment the request is reasonable, the government will recommend to the Department of Justice that the defendant and, if appropriate, other individuals not be deported. The government has the authority only to recommend the foregoing and the final decision whether to grant such relief rests with the Department of Justice, which will make its decision in accordance with applicable law.
By signing the agreement, Ms. Navarro promised, among other things, the following:
I agree not to file any collateral attack on my conviction, including a petition under 28 U.S.C. § 2255, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated.
Ms. Navarro appeared in Court to enter her guilty plea. At the plea hearing, the Court asked Ms. Navarro, whether she understood that by pleading guilty she was giving up her "right to appeal on your guilt or innocence, the right to appeal your sentence, and a right to file a later collateral attack against your sentence." Ms. Navarro answered, "Yes." The Court told Ms. Navarro that the "maximum penalty on this offense is life in custody, a four million dollar fine, five years of supervised release and a one hundred dollar special assessment. Also possible are mandatory and discretionary denial of federal benefits and deportation as well. There's a mandatory minimum prison sentence of ten years." When asked by the Court, "Do you understand all that," she answered, "Yes."
Based upon her plea, Ms. Navarro was subsequently convicted of conspiracy to manufacture methamphetamine and, on March 29, 2004, she was sentenced to twenty-four months in federal prison. Ms. Navarro is subject to an immigration hold, pursuant to which she will be placed in removal proceedings by the Department of Homeland Security upon completion of her prison sentence. The offense to which Ms. Navarro plead guilty constitutes an aggravated felony under Title 8 U.S.C. section 1101(a), which Ms. Navarro contends mandates her deportation. Ms. Navarro's status as an aggravated felon does mean that she is not eligible for discretionary cancellation of removal. See 8 U.S.C. § 1229b(a)(3).
On April 20, 2005, Ms. Navarro filed, pursuant to Title 28 U.S.C. section 2255, a motion to vacate her conviction. In that motion, Ms. Navarro argues, among other things, that the guilty plea upon which her conviction was based was not knowing and voluntary because the language in the plea agreement and that used by the Court during the plea hearing misled her to believe that deportation was a possible, but not mandatory, consequence of her plea.
On May 17, 2005, the United States filed a motion for an order finding that Ms. Navarro had, in moving to vacate her sentence, waived the attorney-client privilege with respect to advice her attorney may have given her about the deportation consequences of her guilty plea. Ms. Navarro opposed the motion. On June 13, 2005, the Court granted the government's motion, ruling as follows:
Movant has filed a declaration stating that prior to her plea of guilty she did not know that conviction of the offense to which she plead guilty would result in mandatory deportation. The United States is entitled to test the credibility of this claim by cross-examining Movant and by inquiring into the likely sources of Movant's possible knowledge: her attorneys. The United States ...