Garcia v. United States
| Decision Date | 05 November 2012 |
| Docket Number | No. CR 97-022 MEJ,CR 97-022 MEJ |
| Parties | GABRIEL GARCIA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of California |
Before the Court is Petitioner Gabriel Garcia's Petition for Writ of Error Coram Nobis, filed on February 7, 2012. Dkt. No. 14. After considering the parties' papers and for the reasons explained below, the Court DENIES the petition.
Petitioner Gabriel Leyva Garcia filed this writ of error coram nobis seeking to vacate his 1997 criminal conviction based upon a claim of ineffective assistance of counsel. Garcia pleaded guilty and was convicted for violating 18 U.S.C. § 1028(a)(4), "knowingly possessing a . . . false identification document with the intent such document . . . be used to defraud the United States."
Garcia is a 39 year-old El Salvadorian citizen and national. (Pet. at 3, Dkt. No. 14.) In 1992, he entered the United States without inspection. Id. On November 30, 1996, he married a United States citizen, Delmy A. Garcia, and they now have three children, ages 10, 12, and 15. All three children are United States citizens. (Garcia Decl. at 1, Dkt. No. 14.) Garcia is currently onTemporary Protected Status and is authorized to work in the United States. Id. at 2.
On October 24, 1996, Garcia filed a United States passport application supported by a Puerto Rican birth certificate with the name Gabriel Leiba Mendez and a birth date of March 7, 1971. (Vancio Aff. ¶ 4a, attached to Compl., Dkt. No. 1.) Additionally, he submitted a California Driver's License bearing the same name as collateral proof of identity. Id. at ¶ 4c. However, on January 10, 1997, the Fraud Department at the San Francisco Passport Office informed United States Department of State Special Agent William Vancio that the Bureau of Vital Statistics in San Jose, Puerto Rico had no birth record of a Gabriel Leiba Mendez, born March 7, 1971. Id. at ¶ 6.
That same day, Garcia was arrested at the San Francisco Passport Agency for violation of 18 U.S.C. § 1542; False statement in application and use of passport. Id. at ¶ 7. Section 1542 carries a penalty of ten years imprisonment and a $250,000 fine. 18 U.S.C. § 1542 (1996). Garcia was then advised of his Miranda Rights in Spanish, which he acknowledged. (Vancio Aff. ¶ 7, Dkt. No. 1.) He did not sign a waiver of his rights; however, after invoking those rights, he voluntarily provided "that his true name [was] Gabriel Leyva Garcia, born in San Vicente, San Salvador, and that he [was] not a U.S. citizen." Id. Garcia "continued that he entered the United States near San Diego, California without inspection" in 1992. Id. Finally, Garcia "indicated that he ha[d] been working in the United States since that time, and that he ha[d] not had cause to depart the United States in the preceding five years." Id.
On January 30, 1997, pursuant to a signed plea agreement, Garcia pleaded guilty before this Court to a one count information charging him with violation of Title 18, U.S.C. § 1028(a)(4). (Information, Dkt. No. 5.) On May 1, 1997, the Court sentenced Garcia to one year probation, 50 hours of community service, and ordered him to pay a special assessment of $25. (Dkt No. 11.)
As a collateral consequence of his conviction, Garcia was permanently barred from gaining permanent residence status in the United States. 8 U.S.C. § 1182(a)(6)(C)(ii). When he pleaded guilty, it is undisputed that Hilary Fox, Garcia's federal public defender, did not advise him of the immigration consequences of his guilty plea. (Opp'n, at 2, Dkt. No. 19.) However, in 1997, the Sixth Amendment Right to Counsel did not require counsel to inform Mr. Garcia of those collateralconsequences. (Garcia Decl. ¶ 7, Dkt. No. 14.)
On November 4, 2008, Garcia's wife filed a relative visa petition for her husband, which was approved. Id. Garcia did nothing further with his visa petition, and he now claims that he did not learn of his inadmissibility until the "Fall of 2010," when his immigration attorney at the time informed him.1 Id. In March of that year, the United States Supreme Court decided Padilla v. Kentucky, a case that changed the scope of the Sixth Amendment Right to Counsel. — U.S. —, 130 S.Ct. 1473, (2010). Specifically, Padilla now requires defense counsel to inform the defendant of certain adverse immigration consequences of a conviction. Id. at 1487.
Id. at ¶ 5. In the roughly 15 months that followed, Shaiken states that he prepared Garcia's case; specifically, he obtained Garcia's "old criminal file, petitioner's immigration file, interview[ed] petitioner and his immigration lawyer, and research[ed] the controlling law." (Pet'r Reply at 3, Dkt. No. 20.)
On February 7, 2012, Garcia filed the current petition for writ of error coram nobis seeking to vacate his 1997 conviction. (Dkt. No. 14.) On April 26, 2012, the government filed an opposition, (Dkt. No. 19), and Garcia filed a reply on May 17, 2012 (Dkt. No. 20).
The writ of coram nobis is an extraordinary remedy that allows a petitioner to attack anunconstitutional or unlawful conviction after the petitioner has served his sentence and is no longer in custody. United States v. Morgan, 346 U.S. 502, 511 (1954); Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995). "The writ provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of facts and egregious legal errors." United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (internal citations and quotations omitted). To qualify for coram nobis relief, a petitioner must establish 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 to satisfy the case and controversy requirement of Article III; and (4) the error suffered is of the most fundamental character. United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005) (abrogated on other grounds by Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, (2010)).
The government does not contest that Garcia satsifies the first and third elements of the test for coram nobis relief. Instead, the dispute between the parties centers on the second and fourth prongs of the analysis: whether Garcia has valid reasons for not attacking the conviction earlier, and whether the error Garcia suffered is of the most fundamental character.
In his petition, Garcia contends that he is entitled to coram nobis relief because his Sixth Amendment rights were violated. (Pet. at 11, Dkt. No. 14.) Specifically, Garcia argues that the failure of his counsel to advise him of the adverse immigration consequences of his conviction when he pleaded guilty constitutes ineffective assistance of counsel. Id. Additionally, Garcia argues that valid reasons exist for not attacking the conviction earlier because Shaiken needed time to prepare his case, and the Government can not show that this delay caused prejudice. Id. at 13. Finally, he contends that the error suffered is of the most fundamental character because, had he been advised of the adverse immigration consequences, he would not have accepted the plea bargain and would have either bargained for a better plea or gone to trial. Id. at 11.
In its opposition, the Government argues that Garcia is not entitled to relief because his delay was unreasonable and he has not suffered fundamental error. First, the Government claims thatGarcia has given no reason for his substantial delay from 1997 to 2010 (pre-Padilla), and from 2010 to 2012 (post-Padilla). (Opp'n, at 11, Dkt. No. 19.) Second, the Government contends that Garcia has not suffered fundamental error because he failed to establish prejudice. Id. at 12. Particularly, the Government contends that Garcia's plea deal was favorable because it dropped his charge from a felony to a misdemeanor. Further, the Government argues that the evidence against Garcia was overwhelming; thus even if his counsel would have advised him of the immigration consequences of a guilty plea, Garcia still would have decided against going to trial. Id.
In his petition, Garcia offers the following three arguments as to why his delay was valid: (1) he had no grounds to attack his conviction until 2010 because "until Padilla was decided, [Garcia had] no legal basis for a petition"; (2) subsequent to 2010, Shaiken needed time to prepare his case; and (3) Shaiken needed to pay close attention to "the trends in the application of Padilla," because federal circuits were split as to the retroactivity of the change in law. (Reply at 2-3, Dkt. No. 20.) Regarding the time needed to prepare his case, Garcia claims that Shaiken needed to gather his criminal and immigration files and interview both Garcia and his old immigration attorney. Id. Without explanation, Garcia assures the Court that "the time was put to good use." Id. at 3. Alternatively, even if the reason for delay was not valid,...
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