Melchor Munoz v. United States ( 2021 )


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  • USCA11 Case: 20-14688      Date Filed: 10/12/2021   Page: 1 of 7
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 20-14688
    Non-Argument Calendar
    ____________________
    MELCHOR MUNOZ,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Northern District of Florida
    D.C. Docket Nos. 4:18-cv-00489-RH-MAF,
    4:11-cr-00037-RH-MAF-2
    ____________________
    USCA11 Case: 20-14688         Date Filed: 10/12/2021      Page: 2 of 7
    2                       Opinion of the Court                  20-14688
    Before WILLIAM PRYOR, Chief Judge, LUCK, and LAGOA, Circuit
    Judges.
    PER CURIAM:
    Melchor Munoz, a federal prisoner, appeals the denial of his
    motion to vacate his sentence. 
    28 U.S.C. § 2255
    . Munoz, a natural-
    ized citizen, argues that his trial counsel was ineffective for advising
    him that he “could,” instead of that he “would,” have his citizen-
    ship revoked for failing to disclose his drug crimes in his application
    for naturalization. We affirm the denial of Munoz’s motion.
    Munoz illegally entered the United States from Mexico in
    1992 and, after becoming a legal resident in 2004, began trafficking
    drugs. In 2011, Munoz was indicted for conspiring to distribute five
    or more kilograms of cocaine and 100 or more kilograms of mari-
    juana between June 1, 2008, and May 30, 2011. 
    21 U.S.C. §§ 841
    (a)(1), 846. In his written agreement with the government,
    Munoz acknowledged that his plea of guilty “specifically excludes
    and does not bind any other state or federal agency, including other
    United States Attorneys . . . from asserting any civil, criminal, or
    administrative claim against [him].” Munoz also acknowledged
    “that [his] conviction may adversely affect [his] immigration status
    and may lead to revocation of his citizenship and deportation.”
    During Munoz’s change of plea hearing, the prosecutor
    highlighted that Munoz “is a nationalized citizen of the United
    States, originally from Mexico” and “[t]he law provides that, if
    USCA11 Case: 20-14688         Date Filed: 10/12/2021      Page: 3 of 7
    20-14688                Opinion of the Court                          3
    someone was engaged in criminal activity and thus not of good
    moral character as they professed when becoming a citizen, that
    that citizen is subject to revocation.” The prosecutor stated that
    “one of the potential consequences of [the] plea of guilty is that the
    government may seek to revoke Mr. Munoz's citizenship and have
    him deported at the conclusion of his sentence” and that “[t]he de-
    cision has not been made whether or not to do that, but that is a
    possibility in this case.” The district court asked whether it
    “need[ed] to talk to Mr. Munoz about that” and defense counsel
    responded “that was in the plea agreement. It was reviewed in de-
    tail and discussed with my client.” Nevertheless, the district court
    told Munoz that his plea of guilty “could have an effect on your
    citizenship status,” but the district court “[did]n’t know that it will”
    or whether “it won’t.” The district court asked Munoz whether
    “anybody made any promises to [him] one way or the other . . .
    about whether or not this will affect your citizenship status,” and
    Munoz responded, “no.” And when the district court asked Munoz
    if he was “pleading guilty because [he is], in fact, guilty of this
    charge,” he replied, “Yeah, I’m guilty.”
    In 2012, the district court sentenced Munoz to 188 months
    of imprisonment. Munoz did not appeal. In 2016, Munoz suc-
    ceeded in having his sentence reduced to 151 months of imprison-
    ment. See 
    18 U.S.C. § 3582
    (c)(2).
    In 2018, Munoz moved to vacate his conviction. He argued
    that his trial counsel was ineffective for misrepresenting what effect
    his conviction would have on his U.S. citizenship. Munoz attached
    USCA11 Case: 20-14688         Date Filed: 10/12/2021     Page: 4 of 7
    4                       Opinion of the Court                 20-14688
    to his motion affidavits from his trial counsel stating that his advice
    was consistent with what he was told in his plea agreement and by
    the district court and from his postconviction counsel stating that
    Munoz “was not properly advised of the immediate immigration
    consequences of his plea.” Munoz also submitted a copy of a com-
    plaint filed in July 2018 to revoke his United States citizenship for
    participating in a conspiracy to traffic drugs and filing an applica-
    tion for naturalization that falsely denied involvement in any crim-
    inal activities. See 
    8 U.S.C. § 1451
    (a).
    The government opposed Munoz’s motion as untimely and,
    in the alternative, as without merit. The government argued that
    Munoz failed to exercise due diligence to challenge his conviction
    when he knew of the potential effect his guilty plea would have on
    his status as a U.S. citizen before his change of plea hearing. See 
    28 U.S.C. § 2255
    (f)(1). The government also argued that Munoz was
    dilatory in filing his postconviction motion more than a year after
    his immigration lawyer responded on October 26, 2017, to a letter
    dated September 25, 2017, from the Department of Justice warning
    that Munoz faced revocation of his citizenship. See 
    id.
     § 2255(f)(4).
    Alternatively, the government argued that Munoz’s counsel did
    not perform deficiently by misjudging the immigration conse-
    quences of his guilty plea and that Munoz suffered no prejudice
    given that he submitted no evidence that he had pleaded guilty to
    retain his citizenship and overwhelming evidence supported his
    conviction.
    USCA11 Case: 20-14688         Date Filed: 10/12/2021      Page: 5 of 7
    20-14688                Opinion of the Court                          5
    The government attached to its response the letter that the
    Department sent Munoz. The letter warned that the Department
    “plan[ned] to bring denaturalization proceedings against [Munoz]
    to revoke your United States citizenship.” The letter stated that
    Munoz had “illegally obtained . . . citizenship” by “engag[ing] in . . .
    [a] conspiracy to distribute and possess cocaine and marijuana . . .
    during the period in which Congress required you to have good
    moral character” and by “conceal[ing] and misrepresent[ing] your
    criminal misconduct during the naturalization process.” The letter
    explained that Munoz’s “Application for Naturalization (Form N-
    400), [falsely] attest[ed] that [he] had not knowingly committed any
    crime for which [he] had not been arrested, and that [he] never sold
    or smuggled controlled substances, illegal drugs, or narcotics” and
    that, during his interview “on July 6, 2009,” he affirmed . . . [those
    false] answers.” The letter offered to “explore the possibility of set-
    tlement prior to filing proceedings against [Munoz],” but it was
    “not negotiable” that “any settlement must, at a minimum, include
    that [he] give up . . . [his] United States citizenship.”
    The government also submitted correspondence that
    Munoz’s immigration attorney sent the Department. In a letter
    dated October 26, 2017, Munoz’s immigration attorney stated his
    firm is “now the attorney of record and request[ed] any further
    matters [be] forwarded to our attention.”
    A magistrate judge recommended that the district court
    deny Munoz’s motion as untimely, but the district court denied the
    motion on the merits. The district court ruled that Munoz could
    USCA11 Case: 20-14688         Date Filed: 10/12/2021     Page: 6 of 7
    6                       Opinion of the Court                 20-14688
    not prove trial counsel performed deficiently because he provided
    accurate advice that loss of citizenship was a possibility but not a
    certainty. The district court determined that counsel’s advice was
    accurate because the government exercised some discretion in re-
    voking citizenship for a drug crime and because Munoz admitted
    specifically to wrongdoing in 2011, but not in the five years before
    he applied for citizenship. The district court ruled that reasonable
    jurists could disagree about its decision and granted Munoz a cer-
    tificate of appealability.
    The decision to deny Munoz’s claim of ineffectiveness of
    trial counsel is subject to plenary review. We review findings of fact
    for clear error and the application of the law to those facts de novo.
    Hollis v. United States, 
    958 F.3d 1120
    , 1122 (11th Cir. 2020). “Re-
    gardless of the ground stated in the district court’s order or judg-
    ment, we may affirm on any ground supported by the record.” Bee-
    man v. United States, 
    871 F.3d 1215
    , 1221 (11th Cir. 2017) (internal
    quotation marks omitted and alteration adopted).
    A federal prisoner has one year from the latest of four speci-
    fied events to file a postconviction motion seeking relief from his
    sentence. 
    28 U.S.C. § 2255
    (f). The one-year period commences, for
    purposes of this appeal, on either “the date on which the judgment
    of conviction becomes final” or “the date on which the facts sup-
    porting the claim or claims presented could have been discovered
    through the exercise of due diligence.” 
    Id.
     § 2255(f)(1), (4). Due dil-
    igence required Munoz “to make reasonable efforts” to discover
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    20-14688               Opinion of the Court                        7
    the facts supporting his claim for relief. See Aron v. United States,
    
    291 F.3d 708
    , 712 (11th Cir. 2002).
    Munoz’s motion to vacate is untimely. Munoz was warned
    before and during his change of plea hearing of the possibility that
    his citizenship could be revoked due to his conviction, but he made
    no efforts to discover whether his citizenship was in jeopardy in the
    more than five years between his conviction and the commence-
    ment of revocation proceedings. See 
    28 U.S.C. § 2255
    (f)(1). But
    even if we assume that the multiple warnings Munoz received
    were insufficient to trigger the one-year deadline, he knew to a cer-
    tainty that the Department would revoke his citizenship when he
    received its letter dated September 25, 2017. Munoz made no “rea-
    sonable effort” to challenge his conviction promptly. See Aron, 
    291 F.3d at 712
    . Munoz’s immigration attorney responded to the letter
    from the Department by October 26, 2017. Even using that date,
    Munoz missed the one-year deadline by waiting until October 29,
    2018, to file his postconviction motion. See 
    28 U.S.C. § 2255
    (f)(4).
    The district court correctly denied Munoz’s motion.
    We AFFIRM the denial of Munoz’s motion to vacate.
    

Document Info

Docket Number: 20-14688

Filed Date: 10/12/2021

Precedential Status: Non-Precedential

Modified Date: 10/12/2021