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...

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