Kovacs v. United States

Decision Date03 March 2014
Docket NumberDocket No. 13–0209.
Citation744 F.3d 44
CourtU.S. Court of Appeals — Second Circuit
PartiesStephen KOVACS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.

OPINION TEXT STARTS HERE

Nicholas A. Gravante, Jr. (Thomas Ling, on the brief), Boies, Schiller & Flexner LLP, New York, N.Y., for Appellant.

Michael H. Warren (Peter A. Norling, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

Before: KEARSE, JACOBS, and PARKER, Circuit Judges.

The Opinion of the Court is filed by Judge JACOBS. Judge KEARSE concurs except for Part I.B.1.

DENNIS JACOBS, Circuit Judge:

Petitioner Stephen Kovacs appeals from a judgment of the United States District Court for the Eastern District of New York (Wexler, J.), denying his petition for a writ of coram nobis. Kovacs was convicted for misprision of felony, in violation of 18 U.S.C. § 4, and seeks the writ on the ground that his lawyer rendered ineffective assistance by giving erroneous advice concerning the deportation consequences of pleading guilty to that offense, with the result that he is at risk of detention and deportation if he reenters the United States. The district court denied the petition without an evidentiary hearing. For the reasons that follow, we reverse and order the granting of the writ.

BACKGROUND

Stephen Kovacs is an Australian national who became a permanent resident of the United States in 1977. While here, Kovacs founded International Bullion and Metal Brokers, Inc., an importer and distributor of gold and metal jewelry. After Kovacs' company lost $250,000 in a 1991 burglary, Hanover Insurance Company dispatched a public adjustor named Eliot Zerring to assess the loss. Zerring, who was corrupt, see Chubb & Son Inc. v. Kelleher, No. 92 CV 4484, 2010 WL 5978913 (E.D.N.Y. Oct. 22, 2010), purportedly convinced Kovacs to inflate the claim to $850,000. The claim was submitted in September 1991 and paid later that month. Kovacs ultimately took $400,000 of the $850,000, and Zerring kept the rest.

Kovacs was charged in October 1996 with wire fraud and conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 371 and 1343. Kovacs instructed his lawyer, Robert Fink, to negotiate a plea that would have no immigration consequences. Fink advised Kovacs that a conviction for misprision of felony, 18 U.S.C. § 4, would not impact his immigration status. Fink allegedly conveyed these immigration concerns to the Government, which agreed to the misprision of felony charge.

On November 24, 1999, Kovacs pled guilty to a single count of misprision of felony. Kovacs' immigration concerns were aired during the plea hearing. At the outset, Fink sought to seal the minutes of the guilty plea so immigration officials could not see them. The district court warned Kovacs that immigration consequences were not in its control and that it would give no such assurance. Fink, however, responded that he “researched it and we feel comfortable that this is not a deportable offense.” Special App. at 12, ECF No. 31 (transcript of plea proceeding). At the conclusion of the proceeding, Fink again stated that “misprision of felony is not deportable.” Id. at 16. The court accepted the plea.

Kovacs was sentenced on December 17, 2001 to five years' probation and restitution of $600,000. The district court granted a downward departure for extraordinary acceptance of responsibility in view of Kovacs' decision to forgo an available defense based on the five-year statute of limitations. Kovacs paid the restitution in full by August 8, 2002. In 2006, the district court granted a motion to terminate Kovacs' probation early.

Kovacs continued his regular international travel until April 2009, when immigration officials questioned Kovacs' eligibility for reentry on the ground that misprision of felony is considered a crime of moral turpitude. At that point, immigration officials directed him to appear for an interview to evaluate his immigration status. Kovacs discussed his options with his lawyers, but allegedly none of them advised him to seek vacatur of his conviction.

Before his scheduled interview, on the advice of counsel, Kovacs returned to Australia, where he currently resides. His wife and children, all United States citizens, remain here. Kovacs' children have had to adjust their lives to carry on the family business.

Kovacs alleges that, notwithstanding his efforts to seek counsel earlier, he first became aware of the possibility of coram nobis relief in October 2011. At about that time, his counsel asked the Government to negotiate an agreed-upon motion for a writ of error coram nobis. Negotiations failed, and Kovacs submitted a petition for the writ in May 2012. The district court denied the petition on the ground that Kovacs could not show prejudice within the framework established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the court denied the petition on those grounds, it did not reach the merits of the Government's other arguments: that the petition was untimely, and that Kovacs could not show Fink's advice was objectively unreasonable at the time the conviction became final. Kovacs now appeals the denial of his petition.

DISCUSSION

A writ of error coram nobis is an “extraordinary remedy,” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954), typically available only when habeas relief is unwarranted because the petitioner is no longer in custody. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir.2005). We review the legal standards applied by the district court de novo.Id.

A petitioner seeking coram nobis relief “must demonstrate that 1) there are 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 his conviction that may be remedied by granting of the writ.” Foont v. United States, 93 F.3d 76, 79 (2d Cir.1996) (internal citations and quotation marks omitted). There is no doubt that Kovacs' likely ineligibility to reenter the United States constitutes a continuing consequence of his conviction. The remaining questions are whether Fink's misadvice warrants granting the writ, and whether the petition was timely.

I

Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.” Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Thus, ineffective assistance of counsel is one ground for granting a writ of coram nobis. See Chhabra v. United States, 720 F.3d 395, 406 (2d Cir.2013). A claim of ineffective assistance entails a showing that: 1) the defense counsel's performance was objectively unreasonable; and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052;see also Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding Strickland test applies to guilty plea challenges); Bennett v. United States, 663 F.3d 71, 84 (2d Cir.2011).

A

The performance component of the Strickland test asks whether a counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. A defense counsel's performance is unreasonable when it is so deficient that it falls outside the “wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

As the district court observed, “there is no dispute that Fink misadvised Kovacs regarding the immigration consequences of his plea.” Memorandum and Order, Kovacs v. United States, No. 12–cv–02260, at 3 (E.D.N.Y. Jan. 2, 2013, ECF No. 18). The transcript of the plea allocution reflects repeated erroneous assurances by Fink that misprision of felony was not a deportable offense. We held in United States v. Couto, 311 F.3d 179, 188 (2d Cir.2002), that an affirmative misrepresentation of the deportation consequences of a guilty plea falls outside this range of professional competence. However, Couto was decided the year after Kovacs' 2001 conviction became final. If Kovacs had entered his plea after Couto was decided, there is little doubt Fink's performance would be deemed unreasonable. Kovacs seeks to apply Couto retroactively.1

The retroactive application of case law is governed by the rule set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which looks to a decision's novelty. If a decision announces a new rule, “a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013). Only if the Court applies a settled rule “may a person avail herself of the decision on collateral review.” Id. [A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis in original). Such a holding must have been “apparent to all reasonable jurists.” Chaidez, 133 S.Ct. at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)).

We have little trouble concluding that, by the time Kovacs' conviction became final, the Couto rule was indicated, and was awaiting an instance in which it would be pronounced. Courts had concluded similar misadvice was objectively unreasonable as far back as the 1970s 2; our decisions reflected this trend long before Kovacs' conviction. See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (“Since [defense counsel] does not aver that he made an affirmative misrepresentation, [petitioner] fails to state a claim for ineffective assistance of counsel.”); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974) (“While recognizing that deportation was a serious sanction,this...

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