Aljubeh

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ARAFAT ALJUBEH,

Petitioner,

vs. Case No. 3:22-cv-1180-BJD-PDB

3:18-cr-17-BJD-PDB

UNITED STATES OF AMERICA,

Respondent.

_________________________________

ORDER

I. INTRODUCTION

Petitioner, Arafat Aljubeh, a federal inmate, is proceeding through

counsel on a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.

§ 2255 (Civ. Docs. 1, 5; Crim. Doc. 143)1 with a supporting memorandum of law

(Civ. Doc. 1-1; Crim. Doc. 143-1). The sole claim in his Motion relates to the

entry of his guilty plea to one count of money laundering in violation of 18

1 Citations to the record in the civil case will be denoted, “Civ. Doc.,” and citations to

the record in the criminal case will be denoted, “Crim. Doc.” Page numbers are those assigned

by the Court’s electronic case management system.

The original Motion is signed only by counsel. See Civ. Doc. 1 at 13. Counsel later

docketed a filing labeled “Amended Petition,” but the filing is another copy of the original

Motion with Petitioner’s signature. The Court will cite to the original Motion.

U.S.C. § 1956(a)(1)(B)(i). See Civ. Doc. 1 at 5. Civ. Doc. 1-1 at 1–2. See also

Crim. Doc. 88 at 1–2. Petitioner alleges that his attorneys, Glenn Seiden and

A. Russell Smith, were ineffective by misadvising him about the immigration

consequences of pleading guilty, in contravention of the standard set forth in

Padilla v. Kentucky, 559 U.S. 356 (2010). See Civ. Doc. 1-1 at 1.

On direct appeal, Petitioner raised this ineffective assistance of counsel

claim and also argued his plea was not knowing and intelligent. See Civ. Doc.

8-1 at 4, 8, 14. In a per curiam opinion, the Eleventh Circuit affirmed

Petitioner’s conviction and sentence, finding his plea was made knowingly and

intelligently and there was “no plain error in the Rule 11 colloquy.” See United

States v. Aljubeh, No. 20-13900, 2021 WL 3283031, at *2 (11th Cir. Aug. 2,

2021). However, the Eleventh Court declined to address the Padilla issue,

finding “the facts necessary to resolve [that] ineffective-assistance claim [were]

not plain from the face of the Rule 11 plea hearing transcript,” and such a claim

was more suited for resolution through a proceeding under § 2255 so a factual

record could be developed. Id. at *1–2. The court observed that, with respect to

potential immigration consequences of Petitioner’s plea, “counsel’s explanation

to the district court [at the Rule 11 plea hearing] was somewhat muddled and

even apparently self-contradictory at times,” but it was not clear from the

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transcript whether counsel misled Petitioner or provided incorrect advice. Id.

at *1.

Given Petitioner’s allegations in his § 2255 Motion, this Court instructed

Mr. Seiden and Mr. Smith to answer interrogatories under oath and to share

any information or records bearing on Petitioner’s claim. See Order (Doc. 3).

Additionally, the Court ordered that the Government, in its Response, address

specific questions related to Petitioner’s deportation status and the relevance

of any potentially incorrect advice Petitioner may have received from an

immigration attorney. Id. Mr. Smith and Mr. Seiden answered the

interrogatories (Civ. Docs. 6, 7) and provided supporting documentation (Civ.

Doc. 6 at 7–9; Civ. Doc. 7-1). Respondents filed a Response (Doc. 8), and

Petitioner filed a Reply (Doc. 11).

Under § 2255 and Rule 8(a) of the Rules Governing § 2255 Proceedings,2

and in accordance with Petitioner’s request, the Court has considered the need

for an evidentiary hearing and determines that a hearing is unnecessary. See

Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (“The district court

is not required to grant a petitioner an evidentiary hearing if the § 2255 motion

‘and the files and records of the case conclusively show that the prisoner is

2 Rule 8(a) of the Rules Governing § 2255 Proceedings expressly requires the Court to

review the record, including any transcripts and submitted materials to determine whether

an evidentiary hearing is warranted before resolving a § 2255 motion.

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entitled to no relief.’”). See also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

Cir. 1991) (holding that a § 2255 movant is not entitled to a hearing “when his

claims are merely conclusory allegations unsupported by specifics or

contentions that in the face of the record are wholly incredible”). Thus, the

Motion is ripe for review.

II. STANDARD OF REVIEW

A person in federal custody may move to vacate, set aside, or correct his

sentence on one of four grounds: (1) the sentence was imposed in violation of

the Constitution or laws of the United States; (2) the court lacked jurisdiction

to impose the sentence; (3) the imposed sentence exceeded the maximum

authorized by law; or (4) the imposed sentence is otherwise subject to collateral

attack. 28 U.S.C. § 2255(a). The movant “bears the burden to prove the claims

in his § 2255 motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir.

2015). See also Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017).

The United States Constitution provides criminal defendants the right

to the effective assistance of counsel. See U.S. Const. amend. VI. As such, a

claim that a criminal defendant has received the ineffective assistance of

counsel in violation of the Sixth Amendment may properly be brought in a

collateral proceeding under § 2255. Massaro v. United States, 538 U.S. 500,

504 (2003). To establish the ineffective assistance of counsel, a petitioner must

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satisfy two prongs: (1) that his counsel’s conduct amounted to constitutionally

deficient performance; and (2) that counsel’s deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Martin v.

United States, 949 F.3d 662, 667 (11th Cir. 2020).

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). Under Hill, a petitioner still must show that counsel’s performance

was deficient, see id. at 56–59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015), but to establish prejudice, the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial,” Hill, 474

U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

In the context of a guilty plea by a noncitizen, “counsel must advise [his

client] whether his plea carries a risk of deportation.” Padilla, 559 U.S. at 374.

In circumstances where the “deportation consequence is truly clear,” defense

counsel must give correct advice to a noncitizen client. Id. at 369. However,

recognizing that “[i]mmigration law can be complex,” the Padilla Court limits

a defense attorney’s obligation regarding immigration advice: “When the law

is not succinct and straightforward . . . a criminal defense attorney need do no

more than advise a noncitizen client that pending criminal charges may carry

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a risk of adverse immigration consequences.” Id. See also Martin v. United

States, 949 F.3d 662, 668 (11th Cir. 2020) (“Because of the uncertainty [in the

deportation consequence, the petitioner’s] counsel was required to advise him

only that his pending criminal charges may carry a risk of adverse immigration

consequence.”); Robinson v. United States, No. 21-12457-D, 2021 WL 6551365,

at *1 (11th Cir. Nov. 5, 2021) (holding counsel satisfied the dictates of Padilla

because he “inquire[d] about [the petitioner’s] immigration status, [told] him

there were possible immigration consequences, and encourage[d] him to seek

advice from an immigration lawyer” because the “immigration consequences

[were] not succinct and straightforward”).

III. FACTS & DISCUSSION

Despite the Eleventh Circuit’s observation that “it is not plain from th[e

plea transcript] that counsel misled [Petitioner] about the effect of his

conviction on his immigration status,” Aljubeh, 2021 WL 3283031, at *1,

Petitioner relies solely on the transcript from his plea hearing as proof that his

attorneys failed to meet their obligation under Padilla. See Civ. Doc. 1-1 at 2–

4, 5; Civ. Doc. 11 at 3, 6. During the plea hearing, Petitioner’s attorneys told

the Magistrate Judge that, although Petitioner, a Palestinian, was pleading to

a deportable offense, he was exempt from deportation because he had obtained

refugee status for his cooperation with the Israeli government. See Crim. Doc.

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133 at 44–46. According to Petitioner, if not for his attorneys’ “absolutely

incorrect” advice regarding the immigration consequence of his plea, “he would

not have pled guilty but would have insisted on defending against the charges,

including [at] trial if necessary,” because a return to his country would put him

at risk of death. Civ. Doc. 1-1 at 5, 7.

The relevant portion of the transcript of the plea hearing speaks for

itself. See Crim. Doc. 133 at 44–46. Mr. Seiden informed the Magistrate Judge

that Petitioner was “legally deportable, but . . . not deportable under the

immigration statutes.” Id. at 44. Mr. Smith attempted to clarify Mr. Seiden’s

confusing statement, explaining that Petitioner had obtained refugee status,

which meant he was “exempt from deportation,” because he was a Palestinian

who cooperated with the Israeli government. Id. at 45–46. The attorney for the

Government also weighed in, telling the Court that, as a citizen of Palestine,

there was “no country to deport [Petitioner] to.” Id. at 45. The Magistrate Judge

asked Petitioner whether he “fully investigated and understood any

immigration consequences to pleading guilty,” after having spoken with

immigration lawyers, who “advised [him] what the effect of a guilty plea would

be.” Id. at 46. Speaking for himself in English, and through an interpreter,

Petitioner answered “Yes.”3 Id.

3 In his memorandum of law in support of his Motion, Petitioner states that he

“spoke only Arabic” when he entered his plea. See Civ. Doc. 1-1 at 2. The record belies

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Petitioner contends his attorneys’ “very clear and unambiguous”

statements at the plea hearing demonstrate “he was given flatly wrong legal

advice.” See Civ. Doc. 11 at 3. The statements are not “very clear and

unambiguous,” as the Eleventh Circuit noted. More importantly, however, the

plea transcript does not capture the advice Petitioner received when he spoke

privately with his attorneys before the change of plea hearing. Other evidence

elucidates the advice counsel gave Petitioner.

For instance, the written plea agreement suggests Petitioner spoke with

his counsel about potential deportation consequences of pleading guilty to

money laundering: “The defendant has been advised and understands that,

upon conviction, a defendant who is not a United States citizen may be

removed from the United States, denied citizenship, and denied admission to

the United States in the future.” See Crim. Doc. 88 at 14. Petitioner initialed

the page on which this language appears and signed the agreement on June 4,

2019, three days before the plea hearing. Id. at 14, 20. At the plea hearing,

Petitioner confirmed that he had spoken with his attorneys about the written

agreement, and he verified his signature and initials on the document. See

Crim. Doc. 133 at 56. He further said that a translator “explained everything”

this statement, as will be discussed. Regardless, Petitioner does not allege that he

misunderstood his attorneys’ advice because of a language barrier. See generally id.;

see also generally Doc. 11.

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in the agreement to him in Arabic, he understood each part of the agreement,

and he had no questions about it. Id. at 58–59.

The best evidence of the advice Petitioner received comes from his

attorneys themselves. Mr. Seiden’s and Mr. Smith’s responses to the Court’s

interrogatories show that they discussed potential adverse immigration

consequences with Petitioner before he entered his plea. See Civ. Docs. 6, 7.

Mr. Seiden explains that he is an out-of-state attorney who appeared pro hac

vice for Petitioner, with Mr. Smith serving as local counsel. See Civ. Doc. 7 at

1. Mr. Seiden is not an immigration attorney, but from 2003 to 2011, he worked

for a firm that handled “primarily immigration.” Id. Mr. Seiden asserts he had

conversations with Petitioner, mostly with the assistance of an interpreter,

about possible deportation, and he advised Petitioner “multiple times that

conviction in this matter would be considered an aggravated felony . . . and he

would be subject to removal for the conviction.” Id. at 2–3. Petitioner told Mr.

Seiden that he (Petitioner) “had a withholding of removal order,” but Mr.

Seiden informed Petitioner that “should that withholding of removal be

withdrawn or the order otherwise vacated for some reason, he would be subject

to removal.” Id. at 3.

Mr. Seiden claims that he confirmed Petitioner was granted a

withholding of removal:

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During [Petitioner’s] case and before entry into the plea

agreement, I became aware that he was subject to a Withholding

of Removal order, despite the fact that he was otherwise

deportable/removable even at that time by his own admission to

me. He stated that he was deemed deportable due to either

unlawful entry or overstay, as well as potentially also his previous

conviction for Conspiracy to Traffic in Stolen Goods, from which he

was on supervised release at the time of the instant offense. I spoke

with colleagues from my time at [the primarily-immigration firm]

to confirm [Petitioner’s] status and the Withholding of Removal

order. They confirmed [Petitioner’s] statements and

understanding, as well as my own understanding.

As this was a unique situation, I additionally advised

[Petitioner] to speak with his own immigration counsel—either

someone new or someone with whom he had worked during his

previous interactions with immigration court. I did not have any

contact with that counsel.

. . . .

In addition, Probation also confirmed that “[a]ccording to

immigration authorities [Petitioner] was granted a [W]ithholding

of [R]emoval in December 2009[, and] due to the current political

climate in Palestine and the Withholding of Removal, the

defendant will not be deported in response to this offense.”

Id. at 1–2 (emphasis added). Mr. Seiden further asserts that his understanding

from his numerous discussions with Petitioner was that “immigration

consequences played no or almost no role in his ultimate decision to plead

guilty.” Id. at 3. Rather, Petitioner’s primary concern was to ensure that his

son, whose bank accounts were used for the criminal enterprise, would not be

prosecuted as an accomplice to money laundering. Id. at 3–4.

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Mr. Smith’s answers to the Court’s interrogatories align with Mr.

Seiden’s. He asserts that as local counsel, he did not participate in strategic

decisions, including plea negotiations, but he met with Petitioner on two

occasions without Mr. Seiden’s presence. See Civ. Doc. 6 at 2–3. On the first

occasion, March 26, 2018, no interpreter was present because Mr. Seiden had

assured Mr. Smith that Petitioner was proficient in the English language. Id.

at 3. Mr. Smith’s experience in speaking with Petitioner was that he indeed

“had no real problem with conversational English,” but for the second meeting,

he arranged an interpreter because Petitioner expressed some

misunderstandings when Petitioner “didn’t like what [Mr. Smith] was saying.”

Id.

At the March 26, 2018 meeting, Mr. Smith asked Petitioner about his

citizenship, and Petitioner “insisted that he could not be deported.” Id. at 4.

Petitioner would not elaborate but said he would explain his situation to Mr.

Seiden. Id. Mr. Smith spoke with the Assistant United States Attorney the

next day, and she said the Government would be seeking deportation. Id. Mr.

Smith immediately informed Mr. Seiden through an email, saying, “[T]he

[G]overnment believes our client has a Padilla problem.” Id. at 7. Mr. Smith

did not have further involvement in conversations related to Petitioner’s

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immigration status, and he did not meet with Petitioner again until over one

year later, on May 29, 2019. Id. at 3, 5.

On that date, Mr. Smith and Petitioner reviewed the written plea

agreement. Id. According to Mr. Smith, Petitioner told him that an

immigration attorney—not Mr. Seiden—advised him that “he was not

deportable” because he had been granted refugee status due to his

collaboration with the Israeli government. Id. at 3–4, 3 n.1. Despite Petitioner’s

conviction that he could not be deported, Mr. Smith asked Petitioner, through

an interpreter, if he “understood that, according to the plea agreement, he

could be deported as a result” of entering a plea. Id. at 5. Petitioner “once

again[] insisted he could not be deported” because he had been “awarded

refugee status.” Id. Mr. Smith recounts the following back-and-forth occurred

during that conversation:

I explained to [Petitioner] that the [G]overnment had told us

that [Petitioner] had not qualified for any traditional exemptions

to deportation, such as refugee/asylum status. [Petitioner] again

assured me that it was not a problem. I expressed concerns that

his understanding of his status might not be correct and suggested

he might want to make sure before changing his plea. I asked him

if he wanted a referral to another immigration lawyer, to get a

second opinion. He refused. I asked him if he wanted me to contact

his immigration counsel to confirm his status. He refused to tell

me who his immigration counsel was and assured me that Mr.

Seiden was handling the matter. [Petitioner] was insistent that he

did not need immigration advice and was dismissive of my efforts

to address the issue.

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Id. In accord with Mr. Seiden’s understanding, Mr. Smith contends that

Petitioner “showed an absolute lack of concern about his immigration status”

in connection with his decision to enter a guilty plea. Id. at 6.

Neither Mr. Seiden nor Mr. Smith spoke with the immigration attorney

Petitioner consulted, and it appears Petitioner refused to disclose the identity

of the immigration attorney to either of them. See id.; Civ. Doc. 7 at 2.

Additionally, as Petitioner explains in his Reply, neither defense counsel, the

Assistant United States Attorney, nor Probation has been able to obtain a copy

of the purported Withholding of Removal order. See Civ. Doc. 11 at 2–3.

In his Motion, Petitioner does not directly address the Withholding of

Removal order but claims that he “is not exempt from deportation as a refugee

and faces deportation to Palestine.” Civ. Doc. 1-1 at 4. In his Reply, Petitioner

explains that any Withholding of Removal order “confers not a privilege to

remain in the United States but only an immunity against removal to a

particular country,” and “there is nothing in a [W]ithholding of [R]emoval order

[that] prevents the United States from removing a Palestinian to either Israel

or Jordan.” Civ. Doc. 11 at 4 (quoting in part Viracacha v. Mukasey, 518 F.3d

511, 514 (7th Cir. 2008)). However, Petitioner does not assert or show that any

other country is a viable option for deportation. See 8 U.S.C. § 1231(b)(1)(C).

At the plea hearing and sentencing, the Assistant United States Attorney and

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Probation, respectively, confirmed that there was “no country to deport

[Plaintiff] to” because of the political climate in Palestine. Crim. Doc. 133 at

45; Crim. Doc. 116 ¶ 54 (sealed).

It is evident from the record that the precise immigration consequences

for Petitioner were unclear when he entered his plea. Although all parties were

of the understanding that Petitioner was subject to a Withholding of Removal

order, no one had seen it or apparently understood its impact on Petitioner’s

deportation status given he was Palestinian. The precise immigration

consequence remains unclear to this day: When the Government filed its

Response to Petitioner’s Motion on February 21, 2023, it advised, “ICE has not

announced whether [Petitioner] will be deported as a result of his conviction.”

See Civ. Doc. 8 at 14.

Based on the record, given the uncertainty of the deportation

consequence in Petitioner’s case, Petitioner’s counsel satisfied their obligations

under Padilla: they inquired about Petitioner’s citizenship; advised him he

would be subject to deportation based on this conviction; and further advised

him to consult with an immigration lawyer regarding the purported

Withholding of Removal order. See Civ. Docs. 6, 7. Petitioner does not address

the advice he received from counsel before the plea hearing. Rather, he argues

counsel’s statements at his plea hearing were incorrect.

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As an initial matter, it is not entirely clear counsel’s statements indeed

were incorrect based on information available at the time and based on

information provided by Petitioner himself. Petitioner was adamant in

conversations with his attorneys that he could not be deported, at least to

Palestine, because there was a Withholding of Removal order in place.

Petitioner’s statements to his attorneys cannot be ignored in assessing whether

they provided the effective assistance of counsel under Strickland. See 466 U.S.

at 691 (“Counsel’s actions are usually based, quite properly, on informed

strategic choices made by the [client] and on information supplied by the

[client].”).

Although no Withholding of Removal order has been obtained or filed

with the Court, Mr. Seiden asserts that he independently confirmed Petitioner

was subject to a Withholding of Removal order. See Civ. Doc. 7 at 2, 3. When

Petitioner entered his plea, the Assistant United States Attorney expressed

her understanding from speaking with an ICE agent was that Petitioner could

not be deported because “there was no country to deport him to.” Crim. Doc.

133 at 45. Additionally, as stated in the Presentence Investigation Report

dated September 26, 2019, Probation also independently confirmed that

immigration authorities represented Petitioner would not be deported because

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of a Withholding of Removal order and the political climate in Palestine. See

Crim. Doc. 116 ¶ 54 (sealed).

Assuming arguendo that counsel’s statements at the plea hearing were

factually incorrect, those statements are not representative of, nor do they

capture, the advice they gave their client. As noted, Mr. Seiden and Mr. Smith

told their client he could be deported if he were convicted and not subject to a

Withholding of Removal order, and they both advised him that, because of the

“unique situation,” he should consult an immigration attorney. See Civ. Doc. 6

at 5; Civ. Doc. 7 at 2. Mr. Smith even told Petitioner he was concerned that

Petitioner’s understanding of his status was not correct and encouraged him

to seek another opinion from a different immigration attorney and offered to

speak to the immigration attorney himself or refer Petitioner to one. See Civ.

Doc. 6 at 5. Petitioner refused his counsel’s advice to seek clarification from an

immigration expert about his exposure to deportation. Id.

It remains unclear whether Petitioner in fact consulted an immigration

lawyer despite his representations to Mr. Seiden, Mr. Smith, and the Court

that he had done so. Regardless, the relevant conversations are those

Petitioner had with his counsel representing him in the criminal matter. See

U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right to . . . have the assistance of counsel for his defense.”); Strickland,

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466 U.S. at 684–86, 690–91 (analyzing the Sixth Amendment’s guarantee of a

right to counsel for a person accused of a crime and defining “effective

assistance” as it relates to the attorney appointed or retained to defend a client

accused of a crime). Mr. Seiden and Mr. Smith satisfied their limited obligation

under Padilla because the immigration consequence of Petitioner’s plea was

unclear, and they indisputably advised Petitioner “that his pending criminal

charges may carry a risk of adverse immigration consequence.” See Martin,

949 F.3d at 668 (emphasis added). See also Padilla, 559 U.S. at 369. That

Petitioner rejected, disbelieved, or contested his counsel’s advice does not mean

they were ineffective under Padilla and Strickland.

Because the Court finds counsel’s performance was constitutionally

effective, the Court will not address Strickland’s prejudice prong. See

Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same order or even

to address both components of the inquiry if the [petitioner] makes an

insufficient showing on one.”).

IV. CONCLUSION

Finding Petitioner advances no argument warranting relief under 28

U.S.C. § 2255, it is hereby ORDERED:

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1. Petitioner’s Motion (Civ. Docs. 1, 5; Crim. Doc. 143) is DENIED,

and this action is DISMISSED WITH PREJUDICE.

2. The Clerk is directed to enter judgment denying the Motion and

dismissing the action with prejudice, terminate any pending motions as moot,

and close the file.

3. If Petitioner appeals this Order, the Court denies a certificate

of appealability.‘ Because this Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of

December 2025.

BRIAN. DAVIS

United States District Judge

4 This Court should issue a certificate of appealability only if a petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537

U.S. 322, 335-86 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Upon due consideration, this Court will deny a certificate of appealability.

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Jax-6

c:

Counsel of Record

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