Judge Weinstein: Defendant knew deportation risks when he pled
Brooklyn federal court judge Hon. Jack Weinstein issued an opinion on Tuesday that denied the application of a criminal defendant who claimed that bad advice from his attorney led to his deportation and asked to have his conviction vacated.
Following his arrest in 2013, Nekebwe Superville was initially charged with one count of conspiring to distribute 1,000 kilograms or more of marijuana, and one count of laundering approximately $3,000,000 in drug proceeds, according to court documents. Charges carried a mandatory minimum sentence of 10 years in prison if convicted.
Superville hired attorney Howard Greenberg to represent him and on Feb. 18, 2014, he pled guilty to the charge of conspiracy to distribute and avoided any jail time with three years of supervised release instead.
However, by pleading guilty, Superville opened himself up to deportation — something he claimed that his attorney didn’t warn him about. After an evidentiary hearing, Weinstein disagreed.
“Consistent with standard practice, a magistrate judge and a district judge warned Superville that he could face deportation if he were to plead guilty,” Weinstein wrote in his opinion. “The mandatory nature of his deportation appeared in the terms of his plea agreement, which the court finds was read by him.
“Even if Superville’s attorney advised him incorrectly, the immigration consequences of his plea were explained to him before he was sentenced on his plea of guilty,” Weinstein continued. “About his guilt of the crimes he was sentenced for, there is no doubt.”
Weinstein went on to write that he did not think that Superville would have been willing to stand trial rather than plead guilty had he been more forcefully advised on the risk of deportation he faced as the evidence against him was, “overwhelming,” and if he was found guilty he would have faced the 10-year minimum sentence.
Weinstein also said that Superville showed concern for deportation prior to pleading guilty. Superville himself said that being deported was his greatest fear which is why he hired an attorney for the trial.
Superville also exceeded the statute of limitations, according to Weinstein. He waited three years after his sentence to petition the court, but he only began the proceedings after he was picked up for deportation on July 18, 2017. He had one year to file a claim from when he could have discovered his claim. In this case, Weinstein said that he was notified of a potential deportation three times when he pled and could have discovered the claim then.
“Superville’s motion for a writ of habeas corpus or a writ of error coram nobis and to set aside his conviction is denied,” Weinstein wrote. “The court has changed the warning that it gives to non-citizen criminal defendants in a case such as this to ‘you should assume that you will be deported after conviction by plea or trial.’”
Superville will not be deported until he has exhausted his right to appeal.