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Second Circuit Rules District Court Improperly Denied Coram Nobis Petition Claiming Ineffective Assistance of Counsel

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit ruled that the district court erred in denying a writ of error coram nobis that claimed ineffective assistance of counsel due to counsel’s erroneous advice regarding deportation as a result of a guilty plea.

Defendant, identified as John Doe to protect his identity, pleaded guilty to a conspiracy only after receiving repeated assurances from his attorney that he would not be deported and receiving promises from the Government it would do everything possible to keep him in the country.

After Doe was sentenced, he learned that he was deportable when he was placed into removal proceedings upon applying for renewal of his green card. Because Doe’s victims’ losses had exceeded $10,000, Doe’s conviction was an aggravated felony, resulting in a lifetime citizenship bar, a conclusive presumption of deportability, and an automatic denial of discretionary relief.

Doe was then referred to new agents, and after agreeing to cooperate in “more sensitive matters,” his removal proceedings were administratively closed. Doe sought to vacate his conviction, but his agents repeatedly assured him they would obtain citizenship for him or have his conviction vacated. The agents discouraged him from speaking with an attorney about a motion to vacate his conviction. After a lengthy time, Doe realized the agents could not obtain citizenship for him, so he contacted a new lawyer. Because of a delay in retrieving the original criminal complaint, several months elapsed before the attorney filed a coram nobis petition alleging a claim of ineffective assistance of counsel (“IAC”).

Initially, the Government opposed the petition. But after meeting with Doe, the Government filed a letter with the district court requesting the court to grant the petition and transfer the case to another circuit. At the hearing on the petition, the Government credited Doe’s story, believed his claimed IAC, and “could not ... in good conscience oppose the motion.” Doe’s former counsel stated he was ignorant of immigration law, was completely unaware that Doe’s conviction required deportation, and that he and Doe had relied on the Government’s assurances it would do everything possible to keep Doe in the country. The court orally denied the petition. On appeal, the Second Circuit remanded because the reasoning for the denial was not clear. The district court again denied the petition, stating no “serious constitutional question would be raised by withdrawing [Doe’s] guilty plea at this stage.” Doe reinstated his appeal. The Government then switched positions and opposed Doe on appeal.

The Second Circuit explained that a writ of error coram nobis is an “extraordinary remedy” that’s “typically granted only when a prisoner is out of custody and so cannot pursue habeas relief.” United States v. Morgan, 346 U.S. 502 (1954). The sole issue before the Court was whether the district court improperly denied Doe’s petition.

The Second Circuit determined that the district court failed to apply the appropriate standard in deciding the petition. Coram nobis relief requires a petitioner to show: “(1) circumstances compelling such action to achieve justice, (2) sound reasons exist for failure to seek appropriate earlier relief, and (3) the petitioner continues to suffer legal consequences from a conviction that may be remedied by the writ.” Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014). A proven claim of IAC is a circumstance compelling the grant of a timely application for coram nobis relief. Id. To prove IAC, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984), i.e., show that his or her counsel’s performance was objectively unreasonable and the deficient performance prejudiced the defense. “An affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is ... objectively unreasonable.” United States v. Couto, 311 F.3d 179 (2d Cir. 2002). Prejudice exists “if it is shown that, but for counsel’s unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense.” Kovacs. A petitioner must clearly demonstrate he or she placed particular emphasis on immigration consequences in deciding whether or not to plead guilty. Id. Courts “look to contemporaneous evidence to substantiate” whether immigration consequences were a factor in the decision. Jae Lee v. United States, 137 S. Ct.1958 (2017).

Doe demonstrated he was deeply concerned about deportation when he reviewed the plea agreement, and both his attorney and the Government assured him he would not be deported. Had his counsel correctly advised him about the immigration consequences, Doe could have negotiated a plea to a lesser crime that wouldn’t have subjected him to deportation. The Government had already stipulated it would do everything possible to keep Doe in the country. Alternatively, Doe could have gone to trial with a defense that his personal participation in the crime did not result in losses exceeding $10,000. Thus, Doe proved his IAC claim.

Doe’s sound reasons for his failure to seek appropriate earlier relief included the repeated assurances of his agents that they would obtain citizenship for him or have his conviction vacated as well as the lengthy delay in obtaining the original criminal complaint from the Government.

Doe continued to live under the threat of deportation as a result of his conviction, and that threat could be eliminated by granting the writ. Regarding the Government’s flip-flop in opposing Doe, the Court admonished the Government with words from former Attorney General Robert F. Kennedy, “It is, after all, not the Department of Prosecution but the Department of Justice .... [T]he interest of the Government ... is not that it shall win a case, but that justice shall be done.”

Accordingly, the Court reversed and remanded with instructions to grant the writ, vacate Doe’s plea and conviction, and to transfer the case to another jurisdiction. See: Doe v. United States, 915 F.3d 905 (2d Cir. 2019). 

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