22-3179 United States v. Leonard

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 20th day of November, two thousand twenty-four. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 JOSÉ A. CABRANES, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. No. 22-3179 17 18 RAYMOND LEONARD, 19 20 Defendant-Appellant. 21 ________________________________ 22 23 FOR APPELLEE: Nicholas J. Moscow, Andrew D. Grubin, 24 Assistant United States Attorneys, of counsel, for 25 Breon Peace, United States Attorney for the 26 Eastern District of New York, Brooklyn, NY. 27 28 FOR DEFENDANT-APPELLANT: Elizabeth M. Johnson, Law Office of Elizabeth 29 M. Johnson, New York, NY.

1 1 2 Appeal from a judgment of the United States District Court for the Eastern District of New

3 York (Kuntz, J.).

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

5 DECREED that the judgment of the district court is AFFIRMED.

6 Leonard pleaded guilty to illegal reentry following his 2010 deportation. He appeals his

7 conviction, arguing that the district court should have granted his motion to dismiss the indictment

8 because the underlying deportation order is invalid, since one of the two convictions on which the

9 order was premised was not for a crime of moral turpitude. His failure to raise that argument on

10 direct review is excused, he argues, by his immigration counsel’s ineffectiveness. We assume the

11 parties’ familiarity with the facts, procedural history, and issues on appeal.

12 We affirm Leonard’s conviction because he has not established that his counsel’s

13 performance was ineffective. See United States v. Perez,

(2d Cir. 2003). Even

14 if one of the two convictions alleged by INS did not qualify as a crime of moral turpitude, INS

15 could easily have added one or more additional qualifying convictions from Leonard’s extensive

16 criminal record. Leonard does not dispute this. Accordingly, on the facts of this case, his

17 immigration counsel’s failure to pursue this particular moral-turpitude argument more doggedly

18 did not constitute ineffectiveness. See Jameson v. Coughlin,

(2d Cir. 1994)

19 (counsel’s failure to raise argument “he was entitled to believe . . . would have been futile” under

20 existing law was not ineffective). Leonard has therefore not established that the deportation order

21 can be collaterally attacked.

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2 1 We have considered Leonard’s remaining arguments and find them to be without merit.

2 Accordingly, we AFFIRM the judgment of the district court.

3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court

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