686 F.3d 248 (4th Cir. 2012), 09-7554, United States v. Akinsade

Docket Nº:09-7554.
Citation:686 F.3d 248
Opinion Judge:GREGORY, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Temitope AKINSADE, Defendant-Appellant.
Attorney:Thomas Kirk Ragland, Duane Morris, LLP, Washington, D.C., for Appellant. Christen Anne Sproule, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. Richard S. Basile, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Jonathan ...
Judge Panel:Before TRAXLER, Chief Judge, and GREGORY and WYNN, Circuit Judges. Vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge WYNN joined. Chief Judge TRAXLER wrote a dissenting opinion. TRAXLER, Chief Judge, dissenting:
Case Date:July 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 248

686 F.3d 248 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Temitope AKINSADE, Defendant-Appellant.

No. 09-7554.

United States Court of Appeals, Fourth Circuit.

July 25, 2012

Argued: Dec. 9, 2011.

Page 249

ARGUED:

Thomas Kirk Ragland, Duane Morris, LLP, Washington, D.C., for Appellant.

Christen Anne Sproule, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF:

Richard S. Basile, Greenbelt, Maryland, for Appellant.

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Jonathan C. Su, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and WYNN, Circuit Judges.

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Vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge WYNN joined. Chief Judge TRAXLER wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

Appellant Temitope Akinsade appeals the district court's denial of his petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651 claiming that he was denied effective assistance of counsel when he plead guilty to embezzlement by a bank employee in violation of 18 U.S.C. § 656, a Class B felony. For the following reasons, we grant the petition and vacate Akinsade's conviction.

I.

Now thirty years old, Akinsade is a Nigerian citizen who legally came to America in July 1988 at the age of seven and became a lawful permanent resident in May 2000. In 1999, at the age of nineteen, Akinsade was employed as a teller at a Chevy Chase bank in Aspen Hill, Maryland. During his employment, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account. Eventually, Akinsade reported the transactions to his supervisor, who then contacted the FBI. When interviewed by the FBI several months later, Akinsade agreed to cooperate against the individuals for whom he cashed the checks. Neither arrested nor taken into custody at that time, Akinsade was ordered to appear in court at a later date.

On March 1, 2000, Akinsade was charged with embezzlement by a bank employee in the amount of $16,400. 18 U.S.C. § 656 (1948). Considering the Government's plea agreement, Akinsade asked his attorney on at least two different occasions about the potential immigration consequences of a guilty plea. Both times his attorney misadvised him that he could not be deported based on this single offense. His attorney told him that he could only be deported if he had two felony convictions. This advice was contrary to the law at that time. See 8 U.S.C. §§ 1101(a)(43)(M)(i), 1227(a)(2)(A)(iii) (1952).

Relying on his attorney's advice that one count of embezzlement was not a deportable offense, Akinsade pled guilty. The plea agreement made no mention that deportation was mandatory or even possible due to the offense. During the Rule 11 plea colloquy, the district court reviewed the civil ramifications of his plea:

The Court: [P]eople who are found guilty of felonies, often lose their right to vote, certain professional licenses may be denied them, may not be able to serve on a jury. And I know felons can't possess firearms. Certain jobs may be denied you.

If you are on parole or probation with another system, that can be affected. Or if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. Do you understand that?

Akinsade: Yes, Your Honor.

The Court: Knowing that do you still wish to plead guilty?

Akinsade: Yes, Your Honor.

Supp. J.A.(I) 1.

On June 5, 2000, the district court sentenced Akinsade to one month of imprisonment to be served in community confinement, a three-year term of supervised release, and a special assessment of $100. At sentencing, the district court recognized that Akinsade had paid the full amount of restitution, which came to

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$8,000. The court also determined that Akinsade's conduct was " out of character" based on his family background. J.A. 41. The court thus gave Akinsade the minimum sentence under the sentencing guidelines.

After serving his sentence, Akinsade attended the University of Maryland where he received a bachelor's degree in computer science. He later earned a master's degree from the university, graduating with a 3.9 GPA, and received a fellowship from the National Science Foundation. Akinsade then entered into a leadership program at General Electric Company and moved to upstate New York.

Almost nine years after Akinsade's conviction, on January 8, 2009, immigration authorities arrested him at home and placed him in detention in Batavia, New York. After seventeen months in detention, the immigration authorities released Akinsade and charged him with removability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 2000 embezzlement conviction.1

Under threat of deportation,2 Akinsade filed this petition for writ of error coram nobis in federal court alleging a violation of his Sixth Amendment rights due to his counsel's misadvice. The Government argued that Akinsade was not entitled to this extraordinary remedy because he alleged " a mere garden-variety ineffective assistance of counsel claim" that was not a " fundamental error." J.A. 50.

After conducting a hearing, the district court denied the petition. The court held that while counsel's affirmative misrepresentations rendered his assistance constitutionally deficient under the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Akinsade was not prejudiced as required under Strickland's second prong. It reasoned that its admonishment of the potential for deportation during the plea colloquy cured counsel's affirmative misrepresentations. Akinsade timely appeals the denial of the petition.3

II.

This Circuit has not clearly expressed the standard with which to review

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a district court's denial of a petition of writ of error coram nobis. See United States v. Wilson, No. 94-7322, 1996 WL 71098, at *2 (4th Cir. Feb. 7, 1996) (finding that the district court did not abuse its discretion when it denied the petitioner's writ of error coram nobis without an evidentiary hearing). Other circuits have applied an abuse-of-discretion standard in this context. See United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002); Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998) (quoting Foont v. United States, 93 F.3d 76, 78 (2d Cir.1996)). We apply the same standard and thus review " the district court's ultimate decision to deny the writ for abuse of discretion." Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir.2008), abrogated on other grounds by Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 1481, 176 L.Ed.2d 284 (2010).

As a remedy of last resort, the writ of error coram nobis is granted only where an error is " of the most fundamental character" and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir.1988). The writ is narrowly limited to " ‘ extraordinary’ cases presenting circumstances compelling its use ‘ to achieve justice.’ " United States v. Denedo, 556 U.S. 904, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). Thus, the writ provides relief in cases where the error " rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that " (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). For the following reasons, we hold that Akinsade has met all four requirements.

First, Akinsade cannot seek relief under the typical remedies for a direct or collateral attack of a federal judgment and sentence because he is no longer in custody. See 28 U.S.C. § 2255 (1948); 28 U.S.C. § 2241 (1948). Second, valid reasons exist for Akinsade not attacking the conviction earlier. Until physically detained by immigration authorities in 2009, Akinsade had no reason to challenge the conviction as his attorney's advice, up to that point in time, appeared accurate.4 With respect to the third coram nobis requirement, the risk of deportation is an adverse consequence of conviction sufficient to create a case or controversy as required by Article III of the Constitution. See United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir.2005), abrogated on other grounds by Padilla, 130 S.Ct. 1473.

Under the final requirement, we must consider whether counsel's misadvice is an error of the " most fundamental character"

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such that coram nobis relief is required to " achieve justice." Denedo, 129 S.Ct. at 2220. To determine this, we examine the merits of Akinsade's ineffective assistance of counsel claim to decide whether Akinsade has been prejudiced. See Mandel, 862 F.2d at 1074-75.

A.

To show prejudice, Akinsade must demonstrate that but for his counsel's error, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The district court determined that Akinsade had not been prejudiced because its admonishment regarding potential immigration consequences of the guilty plea and Akinsade's acknowledgement of that admonishment functioned to...

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