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09/02/93 ROBERTO M. MATOS v. UNITED STATES

September 2, 1993

ROBERTO M. MATOS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)

Before Terry And Schwelb, Associate Judges, and Belson, Senior Judge. Opinion for the court by Associate Judge Terry. Concurring opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: This is an appeal from the denial of appellant's motion to vacate his sentence pursuant to D.C. Code § 23-110 (1989). In July 1984 appellant pleaded guilty in the Superior Court before the late Chief Judge Moultrie to charges of second-degree murder while armed *fn1 and assault with intent to kill while armed. *fn2 He was sentenced in September 1984 to consecutive prison terms of ten to thirty years on the murder conviction and two to twelve years on the assault conviction. Chief Judge Moultrie denied two subsequent motions for reduction of appellant's sentence. Some time thereafter, the Immigration and Naturalization Service (INS) initiated proceedings to deport appellant based on his status as an alien *fn3 with criminal convictions.

In November 1991 appellant filed a § 23-110 motion, pro se, asking that his conviction be set aside on the ground that his counsel at the time of the plea and sentencing had been ineffective, in that he had failed during sentencing to request a judicial recommendation against deportation (JRAD). *fn4 Because Chief Judge Moultrie, the original sentencing Judge, had died, the motion was referred to Judge Suda, who denied it. He found that appellant had previously made several § 23-110 motions in which he had failed to raise this issue and was therefore precluded from raising it now. *fn5 The Judge also concluded that even if appellant's claim were not procedurally barred, it would fail on the merits for three reasons: (1) the failure of trial counsel to request a JRAD did not amount to deficient performance on his part; (2) even if counsel was constitutionally deficient, appellant could not demonstrate that Chief Judge Moultrie would have granted the JRAD, and therefore could not demonstrate that he was prejudiced, a showing required by Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); and (3) even if appellant could satisfy the Strickland test, the court could not grant the relief requested because (a) the Immigration Act of 1990 *fn6 repealed the sentencing Judge's power to issue a JRAD, and (b) the passage of the thirty-day statutory period in which Chief Judge Moultrie would have had authority to issue the JRAD was jurisdictional, so that the court was without power to issue it now. Because the trial court was correct in all respects, including its decision not to grant a hearing on the motion, *fn7 we affirm.

The present appeal arises out of appellant's fourth § 23-110 motion, in which he asserted for the first time (more than seven years after his guilty plea and sentencing) that, at the time he entered his plea, his counsel had been ineffective for not requesting a JRAD. Appellant contends that a JRAD issued by the sentencing Judge would have prevented his deportation by the INS.

The provision under which appellant is deportable reads in part:

(a) Any alien in the United States (including an alien crewman) shall, upon order of the Attorney General, be deported who --

(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective Institution, for a year or more . . . .

8 U.S.C. § 1251 (a)(4) (1988). Subsection (b)(2) of the same statute provided, however, that subsection (a)(4) would not apply if the sentencing court, "at the time of first imposing judgment or passing sentence, or within thirty days thereafter," recommended to the Attorney General "that such alien not be deported." Appellant's counsel never requested the court to issue such an order. Section 505 (a) of the Immigration Act of 1990 repealed subsection (b)(2). That repeal took effect "immediately" and applies "to convictions entered before, on or after" November 29, 1990. Pub. L. No. 101-649, § 505 (b), 104 Stat. 4978, 5050 (1990).

II

The trial court was correct in concluding that appellant, at this point, is procedurally barred from asserting his ineffective assistance of counsel claim. This court has recognized that an assertion by a convicted defendant that he received constitutionally ineffective assistance of counsel may be the type of "serious defect which is typically not correctable on direct appeal and is therefore an appropriate ground for a collateral attack." Ramsey v. United States, 569 A.2d 142, 146 (D.C. 1990). We have also made clear, however, that if such a defendant "has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure." Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (citing United States v. Frady, 456 U.S. 152, 167-168, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). When the defendant has already launched several collateral attacks on his conviction, the reasons supporting the application of the cause and prejudice test are even more compelling. See McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, 1468 (1991) ("abuse of writ" doctrine generally bars subsequent consideration of "claims not raised, and thus defaulted, in the first proceeding"). *fn8

Appellant's failure to raise in any of his three prior motions the ground on which he now seeks to vacate his sentence justifies the denial of his fourth motion under Head and Frady. Such a denial is reviewed by this court only for an abuse of discretion, see Neverdon v. District of Columbia, 468 A.2d 974, 976 (D.C. 1983), and on the record before us we conclude that there was no such abuse. As the trial court noted:

The defendant here did not show any cause for his failure to raise this claim earlier. Clearly, he had numerous opportunities to present the claim. He does not assert that his appellate counsel was ineffective for not raising this issue before the Court of Appeals. Nor does he cite any exceptional circumstances to justify the delay. Because the defendant offers no explanation for his failure to raise this claim earlier, the Court finds the defendant is now precluded from asserting it.

The record is devoid of any assertions of cause, let alone prejudice, in the § 23-110 motion from which this appeal arises. Before us, in an effort to show "cause," appellant states only that his prior appellate counsel was ineffective for failing to raise the JRAD issue, a claim which even if meritorious is not properly before us. *fn9 This assertion of cause is not only untimely, in that it was never raised until the instant appeal, but also legally barred by the rule that a claim of ineffective assistance in a prior appeal cannot be raised in a ยง ...


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