2255 Was Untimely Filed After Naturalized Citizen’s Guilty Plea

US v. Nunez-Garcia: Nunez-Garcia came to the United States in 1999 and, in 2009, began naturalization proceedings. Around the same time, he was also engaged in a conspiracy to distribute methamphetamine. As part of the naturalization process, he affirmed that he “had never knowingly committed a crime or offense for which he had not been arrested,” even after being arrested on state drug charges. Nunez-Garcia became a citizen and then, moths later, was indicted federally for conspiring to distribute methamphetamine.

During negotiations about a plea bargain, Nunez-Garcia asked his attorney if a guilty plea would “result in de facto deportation.” Counsel told him “don’t worry about it; you[r’e] not going to get deported because you are a citizen.” Nunez-Garcia pleaded guilty and was sentenced to 70 months in prison for what was, in immigration terms, an “aggravated felony” that would subject a noncitizen to deportation.

In 2016, Nunez-Garcia was charged federally for making false statements during his naturalization process. He was found guilty after a bench trial. Prior to sentencing, Nunez-Garcia’s new counsel told him “he would lose his citizenship and be subject to deportation.” At sentencing, counsel made that fact a part of his argument for a lower sentence. Counsel also told Nunez-Garcia that his drug conviction was an aggravated felony.  Two years after he was sentenced for that offense, deportation proceedings were begun against Nunez-Garcia. He filed a 2255, arguing that his original counsel had failed to inform him of immigration consequences of his drug conviction. The district court denied his motion, concluding that it had been untimely filed. 

The Fourth Circuit affirmed the denial of Nunez-Garcia’s 2255 motion. At issue was when Nunez-Garcia had notice that his drug conviction could potentially lead to his deportation. Nunez-Garcia argued that notice only came in 2018 when deportation proceedings began (he filed the 2255 motion later that year). The court disagreed, concluding both that Nunez-Garcia’s second lawyer told him about the impact of the drug conviction in 2016 and that, even if he didn’t specifically do so, the arguments made at sentencing (which involved his risk of deportation) put Nunez-Garcia on sufficient notice.