United States v. Patrice Talbot , 611 F. App'x 74 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-3697
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UNITED STATES OF AMERICA
v.
PATRICE EBAI TALBOT,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(1-13-cr-00215-001)
District Judge: Hon. Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 24, 2015
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Before: HARDIMAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
(Opinion Filed: May 7, 2015)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Patrice Ebai Talbot (“Appellant” or “Talbot”) is a native and citizen of Cameroon,
who unlawfully entered the United States in June 2002. A few months after his arrival,
Appellant filed an application for asylum, withholding of removal, and withholding of
removal under the Convention Against Torture. His application was denied and he was
served with a Notice to Appear. Throughout his immigration proceedings, Talbot was
represented by attorney Patrick Tzeuton.1 Appellant testified and presented evidence
including the testimony of two witnesses. The Immigration Judge (“IJ”) denied
Appellant’s request for asylum, finding that his testimony was not credible and that the
evidence he presented was uncorroborated. The Board of Immigration Appeals (“BIA”)
dismissed Talbot’s appeal and affirmed the IJ’s decision without opinion.
On three separate occasions in 2013, Immigration and Customs Enforcement
officers attempted to remove Talbot. Each time, Appellant prevented his removal.
Appellant was charged with hindering removal from the United States and filed an
unsuccessful pretrial motion collaterally challenging the validity of the removal order.
After a bench trial, the District Court found Appellant guilty and sentenced him to time
served. Appellant timely appealed.
1
Four years after the conclusion of Talbot’s immigration proceedings,
Tzeuton was convicted of conspiracy to commit immigration fraud, seven counts of
immigration fraud, and one count of obstruction of an official proceeding. In light of
this, the BIA banned Tzeuton from practicing in immigration proceedings. These facts
form the basis of Talbot’s ineffective assistance of counsel claim, discussed below.
2
Talbot argues that the District Court erred in denying his pretrial motion, which
alleged that his final order of removal was invalid due to ineffective assistance of
counsel.2 For his motion to succeed, Talbot had to establish that his counsel’s
ineffectiveness undermined the fundamental fairness of his removal proceeding.
Contreras v. Att’y Gen., 665 F.3d 578, 584 (3d Cir. 2012). “To evaluate the merits of an
ineffectiveness claim, we apply the familiar two-part error-and-prejudice test . . . ask[ing]
whether competent counsel would have acted otherwise [and] [i]f so, . . . whether
counsel’s poor performance prejudiced the alien.” Id. (internal quotation marks and
citations omitted). Talbot failed to establish any nexus between the conduct underlying
Tzeuton’s criminal convictions and the legal representation he received. Furthermore,
Talbot did not establish that competent counsel would have handled his case differently.
As such, the District Court correctly concluded that his due process rights were not
violated.
Talbot also argues that he is not a “deportable alien” under 8 U.S.C. § 1227(a).
Specifically, he asserts that given the plain language of § 1227(a), in order “for an alien
to be ‘deportable,’ the Attorney General must issue, by delegation or otherwise, a proper
travel document” and no such travel document was issued here. Appellant’s Br. at 24.
This argument is not borne out by the statute. Rather, § 1227(a)(1)(B) states: “Any alien
2
Our review of a district court’s denial of a pretrial motion collaterally
attacking the validity of a removal order is for clear error as to factual findings and
plenary as to conclusions of law. United States v. Charleswell, 456 F.3d 347, 351 (3d
Cir. 2006).
3
. . . in and admitted to the United States shall, upon the order of the Attorney General, be
removed if the alien is . . . present in the United States in violation of this Act or any
other law of the United States . . . .” Contrary to Talbot’s argument, an alien is
“deportable” when a removal order is issued. It is this order that must originate from the
Attorney General, not a “proper travel document.” Talbot concedes that he is a native
and citizen of Cameroon who entered the United States unlawfully in June 2002 and that
he never received any type of immigration status in the United States. As such, he is a
deportable alien under § 1227.
Talbot’s final argument is that the District Court erred in concluding that he was
not justified in hindering his removal.3 To establish the affirmative defense of
justification, Talbot first had to show by a preponderance of the evidence “that [he] or
someone else was under unlawful and present threat of death or serious bodily injury.”
United States v. Dodd, 225 F.3d 340, 342 (3d Cir. 2000) (reciting the requirements of a
justification defense for a defendant charged as a felon in possession).4 He failed to make
3
We exercise plenary review over a district court’s determination as to the
sufficiency of evidence supporting the affirmative defense of justification. United States
v. Paolello, 951 F.2d 537, 539 (3d Cir. 1991).
4
The justification defense, as articulated in Dodd, requires a defendant to
show: “(1) that the defendant or someone else was under unlawful and present threat of
death or serious bodily injury; (2) that the defendant did not recklessly place himself in a
situation where he would be forced to engage in criminal conduct; (3) that the defendant
had no reasonable legal alternative that would avoid both the criminal conduct and the
threatened death or injury; and (4) that there was a direct causal relationship between the
criminal act and the avoidance of the threatened harm.” Id. Because we agree that
4
this showing. As the District Court noted, Talbot “testified that after his release from
prison [in Cameroon] for the 2001 arrest, he remained in Cameroon for an additional
eleven months without incident before fleeing to Canada.” United States v. Talbot, 22
F. Supp. 3d 419, 425 (M.D. Pa. 2014). Even if we accept that Talbot was a member of
organizations at odds with the government of Cameroon, he did not present any evidence
establishing a specific, imminent threat upon his return to Cameroon. Therefore, he
failed to satisfy the first prong of his justification defense.
For the foregoing reasons, we will affirm.
Talbot did not establish the first of these conjunctive prongs, we need not analyze the
remaining requirements.
5