26 F.3d 557 (5th Cir. 1994), 92-2909, United States v. Castro

Docket Nº:92-2909.
Citation:26 F.3d 557
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marvin CASTRO, Defendant-Appellant.
Case Date:July 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 557

26 F.3d 557 (5th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Marvin CASTRO, Defendant-Appellant.

No. 92-2909.

United States Court of Appeals, Fifth Circuit

July 11, 1994

Arturo Hernandez-Melendez, San Jose, CA, for appellant.

Jeffrey A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Page 558

Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN, [*] District Judge.

FRANK A. KAUFMAN, District Judge:

Petitioner appeals from the denial of his motion for a writ of coram nobis which he seeks, contending that when he pleaded guilty to a felony conviction, his counsel's failure to advise him of the availability of a Judicial Recommendation Against Deportation ("JRAD") constituted ineffective assistance of counsel. We reverse.


Petitioner, Marvin Castro, is a citizen of Honduras. In 1984, while attending college in Texas, Castro and several of his co-defendants pleaded guilty to conspiracy to transport stolen trucks from Texas to Louisiana in violation of 18 U.S.C. Secs. 371, 2312, and 2313. The district court sentenced Castro to a four year sentence, with six months' imprisonment and three and one-half years suspended and five years supervised probation. At the time of sentencing, neither of Castro's two attorneys ever informed Castro of, or requested from the Court, a JRAD pursuant to 8 U.S.C. Sec. 1251, 1 which would permit the district court to exercise its discretion at the time of sentencing or thirty days thereafter to order that Castro not be deported or excluded from the United States on account of his conviction. 2

Castro served his sentence and never directly or collaterally attacked his guilty plea. Subsequently, Castro married a resident alien and became the father of a child born in the United States. Sometime after this, Castro was apparently deported. 3 Seeking to

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return to this country and rejoin his family, Castro sought a writ of coram nobis in the district court below, asserting that he would have not pleaded guilty if he had known that he would not be allowed to live in the United States and that he would have requested a JRAD from the sentencing judge had he known about the availability of such possible relief. The district court denied Castro's said quest for relief, concluding that Castro's claim was procedurally barred under the cause and prejudice standard applicable in connection with 28 U.S.C. Sec. 2255, and that in any event, Castro's claim fails on the merits. The district court reasoned that because a sentencing judge has absolute discretion to grant a JRAD, Castro could never show that he would receive a JRAD if one was requested and thus, could not demonstrate prejudice resulting from his counsel's failure to utilize the JRAD route. Castro appeals from that denial, contending that he has been denied effective assistance of counsel because his counsel never informed Castro of the availability of JRAD relief. 4


The writ of coram nobis is an "extraordinary remedy," United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954), available to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where "the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify the extraordinary relief." United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir.1989) (citations omitted). The remedy of coram nobis "should issue to correct only errors which result in a complete miscarriage of justice." Id. (citing Morgan, 346 U.S. at 512, 74 S.Ct. at 253).

In United States v. Drobny, 955 F.2d 990, 996 (5th Cir.1992), we noted that the standard for coram nobis relief was more "demanding" than the cause and prejudice standard for habeas corpus relief under 28 U.S.C. Sec. 2255. Without setting a more specific standard for coram nobis relief, we stated that, "[u]nder Morgan, if Drobny could prevail on his ineffective assistance of counsel claim, he would be entitled to relief even under the rigorous standards of coram nobis." Id. Thus, if Castro succeeds on his claim for ineffective assistance of counsel, then under the law of this circuit, he is entitled to coram nobis relief. 5

To demonstrate ineffective assistance of counsel, a criminal defendant must demonstrate both that his counsel's representation was deficient and that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "The proper standard for attorney performance is an objective standard of reasonableness under prevailing professional norms." Smith v. Puckett, 907 F.2d 581, 584 (5th Cir.1990), cert. denied, 498 U.S. 1033, 111 S.Ct. 694, 112 L.Ed.2d 685 (1991). "To show prejudice, [the defendant] 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id., at

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584 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

Relying on United States v. Gavilan, 761 F.2d 226 (5th Cir.1985), the government argues that Castro's lawyers were not ineffective. In Gavilan, we held that counsel's failure to advise an alien charged with possession of marijuana that his guilty plea could result in deportation did not make the guilty plea defective. Id. at 228-29. Subsequently, in United States v. Banda, 1 F.3d 354, 356 (5th Cir.1993), we held that failure to inform a client of the possibility of deportation did not establish ineffective assistance of counsel in violation of the Sixth Amendment. As we noted in Banda, our holding in that case is supported by other Circuits which have addressed the issue. See Banda, 1 F.3d at 356 (citing cases which have so held).

However, Castro is not contending in this appeal that he would have changed his guilty plea if he had known that deportation was a collateral consequence of that plea; nor is he arguing in this Court that his counsel's failure to advise him of that consequence violated the Sixth Amendment's guarantee of effective assistance of counsel. 6 Rather, Castro contends in this Court that his counsel was ineffective for failing to advise him of the availability of a JRAD or to request the same from the sentencing court. A deprivation of an opportunity to have a sentencing court exercise its discretion in a defendant's favor can constitute ineffective assistance of counsel. See United States v. Golden, 854 F.2d 31, 32 (3rd Cir.1988) (ineffective assistance of counsel may be established where defense counsel failed timely to file a motion for reduction of sentence).

That principle formed the basis of the Second Circuit's decision in Janvier v. United States, 793 F.2d 449 (2nd Cir.1986), in which the Second Circuit faced the precise issue raised in the within appeal. In Janvier, a jury found Janvier, a Haitian citizen, guilty of possession of counterfeit United States currency. Immediately upon his release from prison, Janvier was released into the custody of the INS for deportation. Janvier's counsel did not know of JRAD relief at the time of sentencing and thus never advised his client before or during sentencing of the possibility of such relief, or requested it from the sentencing court. In a Sec. 2255 petition, Janvier argued that he had been denied effective assistance of counsel. The district court, however, did not reach that issue, determining instead that any alleged ineffective assistance occurred at a time other than a critical stage of a criminal proceeding and that therefore, the Sixth Amendment protection did not apply.

The Second Circuit reversed, holding that a request for a JRAD, "is part of the sentencing process, a critical stage of the prosecution to which the Sixth Amendment safeguards are applicable," rather than part of the civil deportation proceedings to which the protection against ineffective assistance of counsel does not apply. Id. at 455. Judge Kearse, writing for a unanimous Court, was persuaded by the following factors: (1) only the sentencing court had the power to grant JRAD relief; (2) the sentencing judge's determination was binding on the Attorney General, and was thus part of a sentencing judge's imposition of penalty; and (3) the thirty day time period within which a determination might be made is "strictly linked to the time of the first imposition of a valid sentence." Id. at 452. Judge Kearse examined the legislative history in great detail, concluding that Congress adopted the thirty day JRAD provision in order to make the JRAD part of sentencing.

The First Circuit, in a 2-1 decision, rejected the conclusion of the Second Circuit in Janvier, holding instead that the JRAD is "substantively a part of civil deportation measures." United States v. Bodre, 948 F.2d 28, 35 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1487, 117 L.Ed.2d 628 (1992). 7 In so doing, Judge Hill of the Eleventh Circuit, sitting by designation, stated that although the JRAD is procedurally part of the

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sentencing process, the "substantive effect of a JRAD was on the alien's deportability status and not upon the sentence imposed," id. at 34, and that "to the extent the Second Circuit's opinion in Janvier held that the JRAD was substantively within the scope of criminal sentencing, we respectfully disagree." Id. at 35. In dissent, Judge Bownes, after acknowledging that "deportation proceedings are civil in nature," stated that "[t]he question should not focus on the nature of a deportation proceeding.... [but] on the nature of a JRAD proceeding." Id. at 37. The Ninth Circuit, in United States v. Shaibu, 957 F.2d 662 (9th Cir.1992), held that a JRAD ruling is a...

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