Gonzalez v. United States, No. 19-11182

• Decision Date: 20 November 2020
• Docket Number: No. 19-11182
• Citation: 981 F.3d 845
• Parties: Jose Carlos GONZALEZ, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

981 F.3d 845

Jose Carlos GONZALEZ, Petitioner-Appellee,

v.UNITED STATES of America, Respondent-Appellant.

No. 19-11182

United States Court of Appeals, Eleventh Circuit.

November 20, 2020

Andrew Simmons Feldman, Feldman Firm, PLLC, MIAMI, FL, Jeffrey Evan Feiler, Law Offices of Jeffrey E. Feiler, MIAMI, FL, for Plaintiff - Appellant.

Andrea G. Hoffman, Anne Ruth Schultz, Emily M. Smachetti, Aileen Cannon, H. Ron Davidson, U.S. Attorney Service - SFL, MIAMI, FL, for Defendant - Appellee.

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal turns on the timeliness of a petition for a writ of error coram nobis. Jose Carlos Gonzalez faces mandatory removal from the United States because he pleaded guilty to attempted alien smuggling in 2002. In February 2016, the government started a proceeding to remove Gonzalez from the United States, but in October 2017, Gonzalez filed a petition to vacate his conviction. He alleged that he received bad legal advice about the effect of his guilty plea on his immigration status.

The district court denied Gonzalez's petition as untimely because he failed to provide sound reasons for not seeking relief earlier. We affirm.

I. BACKGROUND

Gonzalez is a Cuban national who entered the United States in 1993 and obtained permanent residency in 1998. In 2000, a federal grand jury charged Gonzalez with attempting and conspiring to bring aliens into the United States for profit. 8 U.S.C. § 1324(a)(2)(B)(ii) ; 18 U.S.C. §§ 2, 371. The government later filed a second superseding information charging Gonzalez only with attempted alien smuggling. 8 U.S.C. § 1324(a)(2)(A) ; 18 U.S.C. § 2. Attempted alien smuggling is a misdemeanor. Compare 18 U.S.C. § 3559(a)(6) with 8 U.S.C. § 1324(a)(2)(A).

On August 27, 2002, Gonzalez pleaded guilty. During the change-of-plea hearing, the district court discussed with Gonzalez and his attorney whether Gonzalez understood the implications of his guilty plea for his immigration status. Gonzalez's criminal defense attorney, Allen Kaufman, told the district court that the possibility of immigration consequences was a "sticking point" for Gonzalez, but that Gonzalez had consulted with an immigration attorney. That attorney was Ana Jhones. Kaufman also told the district court at the plea hearing that he had represented to Gonzalez that the guilty plea would not affect his immigration status because the charged offense was not for-profit alien smuggling.

The district court informed Gonzalez that immigration authorities might decide to commence removal proceedings against him based on his plea. The district court stated that it did not know whether immigration authorities would institute removal proceedings against Gonzalez nor what the outcome of those proceedings would be. But the district court wanted Gonzalez to be aware that his plea might subject him to removal. Gonzalez confirmed that he understood and pleaded guilty. That November, the district court sentenced Gonzalez to one year of probation and 100 hours of community service.

Gonzalez's legal residency expired in 2015. He applied for citizenship, and immigration officials reviewed his case.

On February 24, 2016, the Department of Homeland Security served Gonzalez a notice to appear on a charge of removal that, after being admitted to the United States, he was convicted of an aggravated felony under the Immigration and Nationality Act. 8 U.S.C. § 1227(a)(2)(A)(iii). Although attempted alien smuggling is a misdemeanor, it satisfies the statutory definition of "aggravated felony," with limited exceptions that do not apply here. 8 U.S.C. § 1101(a)(43)(N) ; see Biskupski v. Att'y Gen. of the United States , 503 F.3d 274, 277–81 (3d Cir. 2007).

About a week after receiving the notice to appear, Gonzalez consulted Eduardo Soto, an immigration lawyer. Soto explained to him that any advice he received that his alien-smuggling conviction would not subject him to removal was wrong. Gonzalez retained Soto's firm on March 23, 2016, and the firm assigned Alanna McCoy as his attorney. Gonzalez later received a notice of an initial hearing before an immigration judge on October 19, 2016. At that hearing, the government submitted documentary evidence of Gonzalez's conviction to satisfy its burden of proving his removability. Gonzalez's attorneys began to research possible avenues of relief.

McCoy would later testify that "at the back of everyone's mind" was the notion that if there were no options for relief in the immigration proceeding, Gonzalez could "take a deportation order ... and essentially not be in any danger of being deported." This fallback option was available because a deportation order "wasn't a big deal" then for Cubans, and even with an order, "he would be perfectly fine." That attitude changed the following January. On January 12, 2017, the United States and Cuba announced that the United States would end its policy of not removing Cuban nationals and that Cuba would accept Cubans with deportation orders from the United States.

In March 2017, McCoy consulted criminal defense attorney Jeffrey Feiler about filing a motion to vacate on Gonzalez's behalf. Then, on June 23, 2017, the Supreme Court decided Jae Lee v. United States , ––– U.S. ––––, 137 S. Ct. 1958, 198 L.Ed.2d 476 (2017), which confirmed for Gonzalez's counsel that a vacatur of their client's conviction would provide the best chance for him to stay in the United States as a permanent resident. In Jae Lee , the Court held that a convict may prove prejudice for an ineffective-assistance claim based on counsel's erroneous advice about removal consequences if he establishes a reasonable probability that he would not have pleaded guilty had he known it would lead to mandatory removal. 137 S. Ct. at 1962, 1969.

Gonzalez's next immigration hearing was scheduled for August 30, 2017, so he hired Feiler that month. Feiler provided McCoy with an opinion letter to request additional time from the immigration judge based on the view that Gonzalez had a strong chance of being able to vacate his conviction. The immigration judge granted Gonzalez a continuance.

Gonzalez filed a petition for a writ of error coram nobis on October 25, 2017. He sought to vacate his alien-smuggling conviction on the ground that he received ineffective assistance of counsel when deciding to plead guilty. The government opposed the petition as untimely and unmeritorious, and it asserted laches. A magistrate judge held a two-day evidentiary hearing in which Gonzalez and three attorneys—McCoy, Kaufman, and Jhones—testified.

McCoy testified about the events transpiring between February 2016 and October 2017, and Kaufman testified about the circumstances surrounding Gonzalez's guilty plea in 2002. Kaufman's memory was hazy, but he testified that he would not have advised Gonzalez to plead guilty unless he was certain that Gonzalez would not face any consequences to his immigration status. He also described the prosecution's offer to reduce the felony charges against Gonzalez to a misdemeanor as a "great plea offer" that was "extremely rare" in federal court. Kaufman believed that he referred Gonzalez to Jhones for advice on the immigration question.

Gonzalez testified that he consulted with Jhones, and that she told him either that there was a "good possibility" or that it was certain that his guilty plea would not affect his immigration status. According to Gonzalez, while he was in her office, Jhones called Kaufman over the phone to explain her assessment to him directly. Jhones did not recall meeting Gonzalez and had no record of his having retained her, but she left open the possibility that he may have seen her for a consultation. She testified that if she had been brought a proposed alien-smuggling plea offer, she would have said that pleading guilty to alien smuggling subjected the person to removal, but that in every consultation with Cubans then, she would have explained that "in all probability" the person would not be removed.

The magistrate judge found that Gonzalez had consulted with Jhones, and he concluded that Gonzalez received ineffective assistance of counsel and was prejudiced by it. The magistrate judge acknowledged that a coram nobis petitioner bears the burden of providing valid reasons for not having sought relief earlier, in contrast to a laches defense, for which the party asserting the defense bears the initial burden of proving prejudice as a result of the delay. But instead of concluding that Gonzalez had satisfied his burden, after a brief discussion of Gonzalez's reasons for delay, the magistrate judge turned to the analysis of laches and determined that the government failed to prove prejudice. He recommended granting Gonzalez's petition. The government objected on the grounds that Gonzalez failed to establish sound reasons for failing to seek relief earlier and failed to prove prejudice from the ineffective assistance of counsel.

The district court rejected the report and recommendation. Because the timeliness issue was dispositive, the district court did not reach any other issue. The district court found that Gonzalez "was aware of the deportation consequences of his guilty plea at the latest when [the Department of Homeland Security] served him with a Notice to Appear in removal proceedings on February 24, 2016," yet he "filed the instant Petition over twenty months later on October 25, 2017." It explained that the magistrate judge "did not make any findings as to whether [Gonzalez] established sound reasons for the delay," and instead mistakenly "applied the laches standard." And it rejected Gonzalez's argument that his 20-month delay was justifiably explained by his lack of sophistication and lack of awareness of the coram nobis remedy until he retained Feiler. The district court denied Gonzalez's petition.

II. STANDARDS OF REVIEW

We review for abuse of discretion the treatment of a magistrate judge's report...