F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 27 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 99-7060
(D.C. No. 98-CV-395-S)
FERNANDO H. S. FAGUNDES, (E.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **
Mr. Fagundes, an inmate appearing pro se, seeks to appeal from the denial
of his 28 U.S.C. § 2255 motion. Mr. Fagundes pleaded guilty to mail fraud, 18
U.S.C. § 1341, and tax evasion, 26 U.S.C. § 7201, and received eighteen month
concurrent sentences on the two counts. He did not pursue a direct appeal. The
district court denied his § 2255 motion and denied a certificate of appealability.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
On appeal, Mr. Fagundes contends that the district court erred by denying
relief without an evidentiary hearing and that he is entitled to relief because he
was not advised of one of the consequences of his plea, mandatory deportation, by
either counsel or the court. He claims that his guilty plea was involuntary.
The Tenth Circuit has addressed the advice required given possible
deportation in Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992). “The question
before us is whether an alien defendant must be advised of the collateral
consequences of possible deportation prior to the entry of a guilty plea. We hold
that he need not be so advised.” Id. at 1357; accord United States v. Banda, 1
F.3d 354, 356 (5th Cir. 1993). A criminal defendant need only be advised of the
direct consequences of a guilty plea, and deportation is an indirect consequence.
See Banda, 1 F.3d at 356.
Mr. Fagundes attempts to distinguish Varela by limiting it to instances of
“possible deportation” in which the accused still has the possibility of receiving a
waiver of deportation. Under the provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(enacted since the decision in Varela), Mr. Fagundes argues that his deportation is
now mandatory, and not merely a possibility. However, this distinction does not
change the underlying collateral nature of deportation. Whether mandatory or
merely a possibility, deportation remains an indirect consequence of the plea.
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“Actual knowledge of the consequences that are collateral to the guilty plea is not
a prerequisite to the entry of a knowing and intelligent plea.” Varela, 976 F.2d at
1358. The record demonstrates that Mr. Fagundes’ plea was voluntary and his
later discovery of collateral consequences does not render the plea involuntary.
Mr. Fagundes also summarily claims that “counsel was ineffective by not
informing [him] about the elements of the offense the Government would need to
prove to a jury in order to find him guilty.” Aplt. Br. at 15. However, this “mere
allegation that, but for original counsel’s failure to inform him . . ., he would have
insisted on going to trial, is insufficient to establish prejudice.” United States v.
Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Mr. Fagundes has not demonstrated
that the outcome “likely would have changed” had he gone to trial and has thus
failed to prove prejudice as required by Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Given these legal standards, the district court did not abuse its discretion in
declining to hold an evidentiary hearing. Because Mr. Fagundes has not “made a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), we DENY his request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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