Mendoza v. U.S., Criminal No. 1:01cr214.

• Citation: 774 F.Supp.2d 791
• Decision Date: 24 March 2011
• Docket Number: Criminal No. 1:01cr214.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Ana L. MENDOZA, Petitioner,v.UNITED STATES of America, Respondent.

774 F.Supp.2d 791

Ana L. MENDOZA, Petitioner,

v.UNITED STATES of America, Respondent.

Criminal No. 1:01cr214.

United States District Court, E.D. Virginia,Alexandria Division.

March 24, 2011.

John T. Morton, U.S. Attorneys, Alexandria, VA, for Respondent.Denise Jakabcin Tassi, Alexandria, VA, for Petitioner.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

This petition for a writ of error coram nobis comes nearly ten years after petitioner's conviction became final. The occasion for the filing at this time is the Supreme Court's recent decision in Padilla v. Kentucky, –––U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), holding that the Sixth Amendment requires defense counsel to inform a client defendant whether his or her plea carries a risk of deportation. Specifically, petitioner contends that her conviction and already fully-served sentence must now be vacated because her court-appointed counsel rendered constitutionally ineffective assistance by failing to advise her of the possible immigration consequences of her guilty plea, in violation of Padilla. For the reasons that follow, petitioner's motion must be denied.

I.

On June 14, 2001, petitioner Ana L. Mendoza, a Nicaraguan citizen with legal permanent resident status,¹ appeared for a scheduled plea hearing accompanied by her court-appointed counsel and a Spanish–English interpreter. In the course of the hearing, petitioner knowingly and voluntarily waived her right to an indictment and pled guilty to a criminal information charging her with one count of identification document fraud, in violation of 18 U.S.C. §§ 1028(a)(1), (b)(1)(B) and (c)(3)(A) and 2. Petitioner pled guilty on this occasion pursuant to a written Plea Agreement and Statement of Facts, both of which were signed by petitioner, her court-appointed counsel, and counsel for the government.

As described in the Statement of Facts, petitioner began working for Jenni Wrenn Inc. Realtors shortly after her arrival in this country. In the course of that employment, between June 2000 and February 2001, petitioner participated in an extensive scheme designed to assist illegal aliens living in states other than Virginia to obtain Virginia driver's licenses and identification documents by means of fraud. Petitioner personally participated in the fraud by assisting with the completion of numerous false Virginia Department of Motor Vehicle forms. Significantly, petitioner knew that the aliens for whom she prepared forms did not live in Virginia; she also knew that those aliens later used the false forms to obtain Virginia driver's licenses and identification documents to which they were not legally entitled.

A review of the plea transcript confirms that an extensive Rule 11 plea colloquy occurred prior to acceptance of petitioner's guilty plea. In the course of this colloquy, petitioner was explicitly advised of all of the possible penalties and consequences of a plea of guilty in this case, including the risk of deportation. See Tr. of 6/14/2001 Plea Hr'g at 22 (where petitioner was specifically advised that she “will also be subject to deportation” as a result of her guilty plea). The record further reflects that petitioner confirmed, under oath in the course of the plea hearing, that she understood all of the possible consequences of her guilty plea. See id. (where petitioner replied unequivocally “Yes, sir,” when asked whether she “underst[ood] ... all of th[e] ... possible consequences of [her] plea in this case”). The specific Rule 11 exchange on this issue was as follows:

THE COURT: Ms. Mendoza, it is important that you understand all of the consequences of your plea of guilty, and I am going to list those for you now. First, the maximum penalty for the offense is a maximum term of 15 years in prison.... You could also be required to pay a punitive fine of up to $250,000, [and] a special assessment. You would be required to serve three years of supervised release following any period of confinement. And if you were to violate any of the terms of the supervised release, you could be returned to prison for the full three-year term. And finally, you will also be subject to deportation. Do you understand that all of those are possible consequences of your plea in this case?

THE DEFENDANT: Yes, sir.

Id. at 21–22 (emphasis added).

Petitioner later appeared for sentencing on September 7, 2001, again with her court-appointed counsel and a Spanish–English interpreter. At the hearing, petitioner was granted a two-level reduction to her offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, thereby placing her at a total offense level of 10 and a criminal history category of I. This offense level was then further reduced by half to 5 on the government's substantial assistance motion pursuant to U.S.S.G. § 5K1.1, resulting in a guidelines range of imprisonment of zero to six months. Petitioner was ultimately sentenced to a period of two years of supervised probation, with the special conditions that she serve six weekends in jail and perform fifty hours of community service. Petitioner neither appealed her conviction nor filed a collateral attack, and she successfully served her custody sentence and two-year period of supervised probation without incident or violation.

Now, nearly ten years after her conviction, but as a result of the conviction, petitioner finds herself facing removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) (providing that an alien is deportable if he or she “is convicted of a crime involving moral turpitude committed within five years ... after the date of admission” and “is convicted of a crime for which a sentence of one year or longer may be imposed”). Given this, and in the wake of the Supreme Court's recent decision in Padilla v. Kentucky, –––U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), petitioner, by newly retained counsel, filed the instant motion for a writ of error coram nobis, claiming that her court-appointed counsel rendered constitutionally ineffective assistance by failing to advise her of the possible immigration consequences of her guilty plea. In this regard, petitioner contends that she would not have pled guilty had she known she could or would be deported and that she instead would have proceeded to trial. As a result of this alleged ineffective assistance of counsel, petitioner contends that her conviction and sentence must be vacated. Both parties have fully briefed and argued the issues raised in petitioner's coram nobis motion and the matter is now ripe for resolution.

II.

The Supreme Court recognized long ago that a writ of coram nobis is available to correct errors “of the most fundamental character” that have occurred in a criminal proceeding. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Yet, it is clear that such “extraordinary” relief is only available “under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. 247. In other words, a writ of error coram nobis may only issue “to correct errors resulting in a complete miscarriage of justice.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996).

It is well-established that five requirements must be met to obtain coram nobis relief, namely (i) that petitioner's conviction or sentence involved an error of the most fundamental character; (ii) that it is probable that a different result would have occurred if not for the error; (iii) that adverse consequences continue to flow from the conviction such that a case or controversy exists within the meaning of Article III; ² (iv) that a more usual remedy is not presently available to correct the error; and (v) that sound reasons exist for not challenging the error earlier, such as by direct appeal or collateral attack. See Hanan v. United States, 402 F.Supp.2d 679, 684 (E.D.Va.2005) (citing Scates v. United States, 914 F.2d 249 (4th Cir.1990) (unpublished opinion); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987)). In analyzing these requirements, a reviewing court must presume that the underlying proceedings were correct and the burden of showing otherwise rests on the petitioner. See, e.g., Morgan, 346 U.S. at 512, 74 S.Ct. 247; U.S. v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000); Foont v. U.S., 93 F.3d 76, 78–79 (2d Cir.1996). Notably, that burden is substantial, exceeding that of a habeas petitioner. See, e.g., U.S. v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989) (stating that the burden placed on a petitioner seeking a writ of coram nobis exceeds the corresponding burden placed on a habeas petitioner); Jimenez, 91 F.3d at 768 n. 6 (same). Accordingly, successful coram nobis petitions are exceedingly rare and “generally involve[ ] such fundamental defects as deprivation of counsel ... or coerced guilty pleas.” U.S. v. Keogh, 391 F.2d 138, 148 (2d Cir.1968) (citation omitted); see also Morgan, 346 U.S. at 512, 74 S.Ct. 247 (stating that “[w]here it cannot be deduced from the record whether counsel was properly waived, ... no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard”).

Here, the government correctly concedes that petitioner has satisfied three of the five coram nobis requirements, given that it is clear (i) that adverse consequences continue to flow from the instant conviction in the form of petitioner's impending deportation, (ii) that a more usual remedy is not now available to correct the error as petitioner has already completed service of her sentence, and (iii) that sound reasons exist for not challenging the error earlier. Where the parties diverge is in their analysis of the two remaining requirements, namely (i) that petitioner's conviction involved an error of the most fundamental character and (ii) that it is probable that a different result would have...