WILLIAM Q. HAYES, District Judge.
The matters before the Court are the motions under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by Defendant. (10cr1472WQH, ECF No. 79; 12cv3015WQH, ECF No.1; 13cv1778WQH, ECF No. 1).
On April 5, 2010, Defendant was arrested for alien smuggling. (ECF No. 1 at 3). On April 21, 2010, Defendant was charged by indictment with one count of conspiracy to transport illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(I), and two counts of transportation of an illegal alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(II). (ECF No. 15).
On November 11, 2010, Defendant entered into a Plea Agreement with the Government. (ECF No. 48). The Plea Agreement provided that "Defendant agree[d] to plead guilty to Count 1 of the indictment, " and "[t]he Government [would] move to dismiss the remaining counts in [the] indictment against Defendant after he [was] sentenced." Id. at 2. The Plea Agreement stated in part: "Defendant understands that the crime to which defendant is pleading guilty carries the following penalties:... As a consequence of this guilty plea, Defendant may be removed from the United States." Id. at 4.
On November 12, 2010, the Defendant appeared before the District Judge and entered a plea of guilty to Count 1. At the plea hearing, the District Judge stated: "The Plea Agreement sets forth the penalties that you are facing, Mr. Hernandez. The maximum sentence is five years in prison, a $250, 000 fine, a $100 special assessment, and three years' supervised release, and also you could be removed from the United States as a result of your guilty plea in this case. Do you understand?" Defendant answered: "yes." (ECF No. 83 at 7). The District Judge asked the Defendant "Have any promises been made to you other than what is in this plea agreement? Any other promises?" Defendant answered: "No." Id. at 6-7.
The District Judge asked defense counsel at the plea hearing about the Defendant's "status in the United States." Defendant counsel stated in open court: "He's a lawful permanent resident, your honor.... the fact that he could be removed has obviously been discussed with him, and all parties both to this agreement and to other potential agreements in the future are aware of his status and the possibility that he could be removed." Id. at 12.
The District Judge accepted Defendant's plea of guilty to Count 1. Pursuant to the agreement of the parties, Defendant waived preparation of the plea agreement and both parties requested that the Court impose a sentence of time served. The Court entered Judgment sentencing Defendant to a term of time served and two years of supervised release on Count 1. (ECF No. 51 at 1-2). Counts 2 and 3 were dismissed. (ECF No. 49).
On December 19, 2012, Defendant filed the initial motion to vacate, set aside, or correct sentence. (10cr1472WQH, ECF No. 79; 12cv3015WQH, ECF No.1).
On July 16, 2013, Defendant filed a second motion to vacate, set aside, or correct sentence. (13cv1778WQH, ECF No. 1).
On September 30, 2013, the Government filed a response. (ECF No. 86).
II. Contentions of the Parties
Defendant contends that he is entitled to relief from judgment on the ground that he was denied "effective assistance of counsel." (ECF No. 79 at 5). Defendant contends that his counsel "ha[d] a duty to investigate the immigration consequences of a plea, " and that his "counsel failed to advise [him] on the particular circumstances." Id. Defendant contends that the "conviction [was] obtained by a violation of the protection against double jeopardy." Id. Defendant alleges that "there was an agreement between the District Attorney and Defendant counsel regarding this plea would not deprive [Defendant of his] lawful permanent residence - which he is in removal proceedings as a consequence of the plea." Id.
The Government contends that "[D]efendant's motion is improper under § 2255, meritless, and untimely." (ECF No. 86 at 2). The Government contends that the motion is untimely because "[D]efendant filed it more than a year after the deadline imposed by § 2255." Id. The Government contends that Defendant "is not in federal criminal custody at this time, and has not been since April 2010[, ]... [and therefore, ] he cannot bring a motion under § 2255." Id. The Government further asserts that Defendant "was admonished repeatedly - including by his counsel - that he could be ...