Elmour v. Gov't of the Virgin Islands
| Decision Date | 06 January 2011 |
| Docket Number | D.C.Crim.App. No. 2007/020. |
| Citation | 54 V.I. 740 |
| Parties | Brian Peter ELMOUR, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
On Appeal from the Superior Court of the Virgin Islands. Re: Sup.Ct.Crim. No. 178/2001.
Eszart A. Wynter, Esq., St. Croix, U.S.V.I., for Appellant.
Terrlyn M. Smock, AAG, St. Thomas, U.S.V.I., for Appellee.
Before CURTIS V. GOMEZ, Chief Judge, U.S. District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the U.S. District Court of the Virgin Islands; and BRENDA J. HOLLAR, Judge of the Superior Court of the Virgin Islands, sitting by designation.
In this appeal, the Court is asked to determine whether a coram nobis petitioner is entitled to an evidentiary proceeding to determine the effectiveness of counsel who fails to advise his client of the deportation consequences of entering a guilty plea. In line with the Supreme Court's recent holding in Padilla v. Kentucky, we remand for further evidentiary proceedings. 559 U.S. 356, ––––, 130 S.Ct. 1473, 1478, 176 L.Ed.2d 284 (2010). We, however, do not address the merits of the instant coram nobis petition. Id.
At the time of his sentencing, Brian Peter Elmour (“Elmour”), a native of England, was a 40 year old lawful permanent resident who lived in the United States for over thirty-seven years.1 Elmour was charged in a two-count criminal information with third degree assault and carrying or using a dangerous weapon for allegedly striking his roommate with a saltshaker and stabbing him in the abdomen.2
On September 14, 2001, while represented by counsel, Elmour entered a plea of guilty on the assault charge. In return for his guilty plea, the Government dismissed the weapon charge. On October 21, 2001, the trial court sentenced Elmour to a three-year period of incarceration, all of which was suspended and a five-year period of supervised probation.3 Elmour claims that, prior to his plea, his counsel advised him that he would not be deported if he pled guilty. (Appellant's Brief at a.)
However, in November of 2002, Elmour was taken into custody by the Immigration and Naturalization Service and subjected to deportation proceedings.4 Upon the initiation of removal proceedings, Elmour realized that his counsel had given him erroneous advice regarding the immigration consequences of his plea conviction. He subsequently filed a motion to modify his sentence to a period of incarceration of 364 days. Elmour argued that such a sentence would not subject him to deportation. Elmour's motion was denied.
Subsequently, Elmour filed a motion to withdraw his plea.5 In this motion, Elmour alleged that both his Fifth Amendment right to Due Process and his Sixth Amendment right to Effective Assistance of Counsel were violated when his defense counsel affirmatively misinformed him that his plea would not render him deportable.
On August 8, 2003, the trial court denied Elmour's motion to withdraw his plea. The trial court reasoned that deportation was a collateral civil consequence of a criminal proceeding and that the Sixth Amendment right to effective assistance of counsel does not extend to collateral aspects of prosecution. (J.A. 67–69.) In a direct appeal distinct and separate from the matter before us, Elmour challenged the Superior Court's August 2003 ruling. In that appeal, Elmour invoked Strickland v. Washington6 and argued that he was entitled to relief under an ineffective assistance of counsel theory. Elmour argued that both the court and counsel was required to inform him that his deportation may occur as a result of his plea.
On June 24, 2005, this Court affirmed the trial court's August 8, 2003, ruling and also held that neither Elmour's counsel nor the lower court had a duty to inform Elmour about the collateral deportation consequences of his plea. However, we declined to review Elmour's collateral ineffective assistance of counsel claim on direct appeal because the facts surrounding defense counsel's representation were insufficiently developed on the record submitted. (App.71–84.) We did not remand for an evidentiary hearing and left Elmour to elect to pursue his collateral challenge in the Superior Court. ( Id. at 84.)
On August 31, 2005, Elmour renewed his ineffective assistance of counsel challenge in a separate petition for a writ of coram nobis in the Superior Court. On June 6, 2006, without the benefit of an evidentiary hearing, the Superior Court summarily denied Elmour's petition in a two-page order. On June 14, 2006, this timely appeal followed.
This Court has jurisdiction over appeals of final judgments or orders that were entered before January 29, 2007. SeeRevised Organic Act of 1954 23A, 48 U.S.C. § 1613(a)7; Act No. 6687 § 4 (October 29, 2004); V.I. CODE ANN. tit. 4, § 33 (2006); see also Gabriel Joseph v. People of the V.I., 2008 U.S. Dist. LEXIS 107654, at *17 (D.V.I. App. Div. Dec. 9, 2008).
This Court has jurisdiction to review a conviction entered upon a guilty plea, only to the extent such appeal rises a colorable constitutional claim. Karpouzis v. Virgin Islands, 58 F.Supp.2d 635, 637 (D.V.I. 1999); see alsoHenry v. Gov't of the Virgin Islands, 340 F.Supp. 583, 585-86 (D.V.I. App. Div. 2004)(notwithstanding statutory limitation on appeals from guilty pleas, the court must nonetheless review appeals from guilty pleas where constitutional claims are raised)(citing Gov't of the Virgin Islands v. Warner, 48 F.3d 688, 691-92 (3d Cir. 1995). A colorable constitutional claim is implicated where the issue on appeal concerns Appellant's Sixth Amendment right to effective assistance of counsel. United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740, 744 (3d Cir. 1979); Evola v. AG of the United states, 190 Fed.Appx. 171, 174 (3d Cir. 2006).
Relief by writ of coram nobis may be pursued in the Courts of the United Stated pursuant to the all Writs Act, 28 USC § 1651, United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (citations omitted), and in the Superior Court of the Virgin Islands pursuant to 4 V.I.Code Ann. tit. 4, § 83.8
We exercise plenary review over whether the trial court applied the proper legal standard, but we review the trial court's ultimate decision to deny the writ without an evidentiary hearing for abuse of discretion. See Blanton v. United States, 94 F.3d 227, 230 (6th Cir.1996); Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998); Alikhani, 200 P.3d at 734 (citing Fleming v. United States, 146 F.3d 88. 90 (2d. Cir.1998)(coram nobis review holding that, “an error of law is an abuse of discretion per se”).
To satisfy constitutional due process, a guilty plea must both be knowing and voluntary. When a guilty plea is entered in a state criminal trial, several federal constitutional rights are waived, including the privilege against compulsory self-incrimination, the right to jury trial, and the right to confront one's accusers. SeeFed.R.Crim.P. 11; see also Super. Ct. R. 126; see also Boykin v. Alabama, 395 U.S. 238, 242–244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Hence, before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” Strickland v. Washington, 466 U.S. 668 1984, 104 S.Ct. 2052, 80 L.Ed.2d 6749; see, e.g., Smith v. Freeman, 892 F.2d 331, 338 (3d Cir.1989)(the entry of a guilty plea necessarily involves an intentional, voluntary and knowledgeable abandonment of certain rights); see also Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941) ()
Viewed as essentially a remedy of last resort, the writ of coram nobis is an extraordinary remedy available in compelling circumstances where necessary to achieve justice.11Morgan, 346 U.S. at 511;Fleming, 146 F.3d at 89;United States v. Cariola, 323 P.2d 180, 184 (3d Cir.1963). Coram nobis redress can be had where there are errors of “ ‘the most fundamental kind’, that is, such as to render the proceeding itself irregular and invalid.” 12Cariola, 323 F.2d at 184 (quoting Mayer, 235 U.S. at 69 (citations omitted)). As such, the bar for coram nobis is high.
The writ of coram nobis is also a rarely invoked remedy.13 Hence, case law in this jurisdiction is sparse concerning whether a trial court is required to hold an evidentiary hearing prior to disposing of a petition for writ of coram nobis. Our understanding is, thus, gleaned from the Circuits, which have consistently concluded that the necessity of a hearing on a coram nobis motion should he resolved in the same manner as under federal habeas corpus petitions pursuant to 28 U.S.C. § 2255.14United States v. Taylor, 648 F.2d 565, 573 (9th Cir.Cal.1981) (quoting Owensby v. United States, 353 F.2:d 412, 417 (10th Cir.1965)); see also Pitts v. United States, 763 F.2d 197, 198 (6th Cir.1985) ().15 Accordingly, we will treat the present challenge to Elmour's coram nobis proceeding in the same manner as a habeas petition. See, e.g., United States v. Vogel, 2006 U.S. Dist. LEXIS 27945 (D.S.C. Apr. 20, 2006).
Elmour contends that the trial court's denial of his collateral petition for a writ without an evidentiary hearing was procedurally deficient. Where a trial court denies a collateral petition without holding an evidentiary hearing, our review consists of a two-step analysis.16Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir.2010)(habeas proceeding); ...
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