Commonwealth v. Farouq Sameja.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-306

COMMONWEALTH

vs.

FAROUQ SAMEJA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, who is not a United States citizen, was born

in Dar Es Salaam, Tanzania, and lawfully emigrated to the United

States at the age of nineteen. Approximately twenty years ago,

he was sentenced to a one-year term of incarceration as a result

of the revocation of his probation in the District Court. As we

explain in more detail below, the imposition of the one-year

sentence subjected the defendant to automatic deportation

without the possibility of reentry into the country.

Represented by new counsel, the defendant filed a motion under

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
asserting, among other things,1 that his prior attorney

(probation counsel or counsel) was ineffective for failing to

advocate for a sentence that would have avoided deportation.

The motion was denied by a judge (motion judge), who was not the

plea judge or the judge who revoked the defendant's probation

(probation hearing judge), and the defendant appealed.2 We

affirm.

Background. On December 7, 2001, the defendant pleaded

guilty to one count of credit card misuse, in violation of G. L.

c. 266, § 37B (i), and three counts of larceny under $250, in

violation of G. L. c. 266, § 30 (1). He was sentenced to one

year of probation and ordered to pay restitution as a condition

of probation. Another condition of his probation was that he

not violate any criminal laws.

While on probation, the defendant committed new criminal

offenses of driving with a suspended license and driving an

1 The defendant also claimed that (1) probation counsel did
not adequately present all mitigating factors; (2) counsel did
not advise the defendant of the right to appeal the revocation
of probation and the sentence, which could have avoided his
deportation; (3) counsel did not file a motion to reconsider the
defendant's sentence; (4) the probation hearing judge failed to
determine the defendant's ability to pay restitution and if the
alleged violation was willful; (5) the same judge failed to make
a statement of reasons for the revocation and sentence imposed;
and (6) the trial court did not advise the defendant that he had
a right to appeal.

2 The defendant also filed a motion to reconsider that was
denied.

2
uninsured motor vehicle. He also failed to pay restitution. As

a result, a notice of violation of probation was issued on March

28, 2002, alleging that he had violated the conditions of his

probation by committing new criminal offenses and for missing an

office visit. The defendant stipulated to the violations on

April 17, 2002. A subsequent notice of violation of probation

was issued on December 6, 2002 (and later amended in March

2003), for two missed office visits, failure to pay restitution

and a victim witness fee, and for committing additional criminal

offenses. However, before a hearing was conducted, the

defendant was taken into custody by Immigrations and Customs

Enforcement (ICE) and held in prison in Louisiana. An

immigration judge granted cancellation of removal. In his

affidavit submitted in support of his new trial motion, the

defendant avers that the judge told him to "settle this case [in

Massachusetts]."

Thereafter, on October 1, 2004, the defendant appeared in

the District Court for his final violation of probation hearing,

where he was found to be in violation of his probation.

Probation was revoked on all four convictions, and concurrent

sentences of one year in the house of corrections were imposed.

According to the defendant, he informed the probation hearing

judge that he had been in removal proceedings. Given the

passage of time, there is no transcript of the hearing; however,

3
the defendant further asserts that while his counsel requested a

lesser sentence, counsel did not inform the probation hearing

judge (or him) that, upon receiving a one-year term of

incarceration, the defendant's State misdemeanor convictions

would be treated as aggravated felonies under Federal law,

subjecting him to automatic deportation.

Thereafter, on January 4, 2005, the defendant was taken

from the house of corrections and into custody by ICE a second

time, and deportation proceedings commenced before an

immigration judge in Boston, who issued a formal order of

removal in August 2005. However, the defendant was not deported

until approximately fourteen years later, on December 19, 2019.

The defendant's motion for a new trial was filed on July 11,

2023. As previously noted, the motion, as well as a subsequent

motion for reconsideration, were denied.

Discussion. It is well settled that the defendant was

entitled to the effective assistance of counsel at the final

violation of probation hearing and that such a claim is properly

brought under Mass. R. Crim. P. 30 (b). See Commonwealth v.

Patton, 458 Mass. 119, 120 (2010). In reaching her conclusion

that the defendant had not met his burden of establishing that

(1) "behavior of counsel [fell] measurably below that which

might be expected from an ordinary fallible lawyer" and

(2) "whether it has likely deprived the defendant of an

4
otherwise available, substantial ground of defen[s]e,"

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the motion

judge noted that prior counsel "could not ethically have

requested the [probation hearing] judge to consider the

immigration consequences of a one-year sentence, nor could the

judge have done so" at that time. The motion judge was correct.

The controlling law in 2004, as explained in Commonwealth v.

Quispe, 433 Mass. 508, 512-513 (2001), was that "[t]aking

immigration consequences into consideration [at sentencing] was

improper. The possibility that the defendant would be subject

to action by the [relevant immigration authority] [was] a

collateral consequence and [could not have] be[en] the basis for

the judge's decision as to the disposition of this or any future

case."3 Accordingly, while we recognize the hardship the

defendant has endured and, according to his affidavit, continues

to face, and we are cognizant of the fact that, had the

probation hearing judge imposed a sentence of 364 days rather

than 365, the defendant might not have faced the same

immigration consequences, the record does not support his claim

of ineffective assistance of counsel and the motion was properly

denied on this ground.

3 We recognize that Quispe, 433 Mass. 508, was overruled a
decade later. See Commonwealth v. Marinho, 464 Mass. 115, 128
n.19 (2013).

5
The defendant's remaining arguments require little

discussion. We are not persuaded that Commonwealth v. Marinho,

464 Mass. 115, 128 n.19 (2013), which overruled Quispe, 433

Mass. 508, applies retroactively. In any event, even if we were

to conclude otherwise, the defendant fares no better if only

because he has not established that the outcome of the

proceeding would have been different. In addition, we agree

with the motion judge who, with respect to the defendant's

argument that there was no evidence that the probation hearing

judge considered his ability to pay the restitution he owed,

concluded that because the seminal case on the subject,

Commonwealth v. Henry, 475 Mass. 117 (2016), had not been

decided at the time of the defendant's violation hearing, there

was no error. The motion judge further noted that "failure to

pay restitution was but one of several violations considered by

the [probation hearing] judge, violations which included a new

offense for which the defendant was subsequently found guilty

and sentenced to a six-month period of incarceration." Lastly,

we agree with the motion judge, who, relying on Commonwealth v.

Hoyle, 67 Mass. App. Ct. 10 (2006), determined that the

defendant "has not rebutted the presumption of regularity which

applies to this very old case, of which a complete record is no

longer available given the passage of time." As a result, the

defendant's claims, which are supported only by his own

6
affidavit, including his argument that he allegedly was not

advised of his right to appeal, are unavailing.

Lastly, we discern no abuse of discretion in the denial of

the defendant's motion to reconsider. Contrary to the

defendant's assertion, the motion judge's decision was supported

by our case law and was not "without legal justification."

Furthermore, although the motion judge did not directly address

the question, we are not persuaded that, at the time of the

defendant's probation revocation hearing, it was predictable

that Quispie would be overruled and therefore he should not be

precluded from making the argument that the probation hearing

judge should have considered the immigration consequences of a

one-year sentence.

Order denying motion for new
trial affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Vuono,
Brennan & D'Angelo, JJ.4),

Clerk

Entered: March 27, 2025.

4 The panelists are listed in order of seniority.

7