U.S. v. Kwan

• Decision Date: 12 May 2005
• Docket Number: No. 03-50315.,03-50315.
• Citation: 407 F.3d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kwok Chee KWAN, aka Jeff Kwan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

407 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Kwok Chee KWAN, aka Jeff Kwan, Defendant-Appellant.

No. 03-50315.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2004.

Filed May 12, 2005.

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David Ross, Ross, Rose & Hammill, LLP, Beverly Hills, CA, for the defendant-appellant.

John Owens, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CR-96-00433-SVW.

Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Kwok Chee Kwan appeals the district court's dismissal of his petition for writ of error coram nobis. Kwan's petition collaterally attacks his conviction by guilty plea and his sentence on the ground of ineffective assistance of counsel. Because we find that Kwan's counsel was constitutionally ineffective in affirmatively misleading him as to the immigration consequences of his conviction, and that Kwan has satisfied all of the requirements for coram nobis relief, we reverse.

I.

Kwan entered the United States in March of 1989. Subsequently, he became a lawful permanent resident. His wife and three children, ages 12, 15, and 18, are United States citizens. In February of 1996, Kwan was indicted for two counts of bank fraud. When considering whether to plead guilty, Kwan asked his defense counsel whether doing so would cause him to be deported. Defense counsel assured Kwan that although there was technically a possibility of deportation, "it was not a serious possibility." Counsel further assured Kwan that this advice was based "on his knowledge and experience." Counsel also explained to Kwan that, at his plea colloquy, the judge would tell him that he might suffer immigration consequences, but reassured him that there was no serious possibility that his conviction would cause him to be deported.

On July 9, 1996, Kwan pled guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344(1). Under the Sentencing Guidelines, the sentencing range for Kwan's conviction was 18-24 months imprisonment; however, Kwan was potentially eligible for various downward adjustments that, if granted, could reduce his sentence to less than one year.

Legal permanent residents who are convicted of an aggravated felony are subject to deportation. 8 U.S.C. § 1227(a)(2)(iii). On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") was enacted; inter alia, IIRIRA amended the definition of an aggravated felony under the Immigration and Nationality Act ("INA") by reducing the prison-sentence requirement for a qualifying theft offense from "at least five years" to "at least one year." See Pub.L. No. 104-208, 1996 HR 3610 (amending 8 U.S.C. § 1101(a)(43)(G)). IIRIRA expressly provided that changes in the definition of an aggravated felony would apply retroactively, regardless of the date of conviction. 8 U.S.C. § 1101(a)(43) ("Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.").

Defense counsel did not inform Kwan that, as a result of this change in the definition of an aggravated felony, he had pled guilty to an offense that would almost certainly cause him to be deported. Nor did counsel inform Kwan, or the court, that Kwan potentially could avoid deportation, either by renegotiating his plea agreement or by receiving a sentence of less than one year. On December 2, 1996, the court applied one downward adjustment (for acceptance of responsibility), which reduced the sentencing range from 18-24 months to 12-18 months. The court then sentenced Kwan to a prison term of one year and one day. The court also ordered him to pay restitution of $10,000.

On May 1, 1997, the Immigration and Naturalization Service ("INS") issued Kwan a Notice to Appear, which stated that he was subject to deportation because he had been convicted of an aggravated felony. Kwan retained immigration counsel and challenged his deportation, and on December 10, 1997, the Immigration Judge ("IJ") ruled that Kwan's offense was not an aggravated felony as defined under either 8 U.S.C. § 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R). Kwan completed his prison term and was released from INS custody. After rejoining his family, he completed his period of supervised release and paid the entire $10,000 restitution ordered by the sentencing court.

However, on May 26, 2000, the INS issued Kwan a second Notice to Appear, which again informed Kwan that he was subject to deportation because his 1996 conviction was an aggravated felony. On February 26, 2001, the second IJ to consider Kwan's status found that he had been convicted of a theft offense for which a term of imprisonment of at least one year was imposed, an aggravated felony as defined under 8 U.S.C. § 1101(a)(43)(G). After Kwan's Motion to Revisit was denied, he filed the petition for writ of coram nobis that is the subject of this appeal.

II.

Before addressing the merits of this appeal, we must address the government's motion to dismiss for lack of jurisdiction, which argues that we lack jurisdiction over this appeal because Kwan failed to first obtain a Certificate of Appealability ("COA"). Whether the COA requirement of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), as specified in 28 U.S.C. § 2253(c)(1), applies to coram nobis proceedings is a question of first impression for this court. We find that the COA requirement does not apply to coram nobis proceedings, hold that we have jurisdiction to review the district court's denial of Kwan's coram nobis petition without a COA, and deny the motion to dismiss.

In reaching our conclusion, we keep in mind the particular nature of coram nobis relief: whereas petitions for habeas corpus relief and motions for relief under 28 U.S.C. § 2255 may only be filed by persons who are in government custody, "[t]he writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney By and Through McKinney v. United States, 71 F.3d 779, 781 (9th Cir.1995). "Specifically, the writ [of coram nobis] provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Id. (quotation marks and citation omitted).

Section 2253(c)(1) makes the grant of a COA necessary in only two kinds of appeals: an appeal from "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1); see also Forde v. United States Parole Comm'n, 114 F.3d 878, 879 (9th Cir.1997) (concluding that the plain language of 28 U.S.C. § 2253(c)(1) does not require a COA in an appeal from an order denying a § 2241 petition where the detention complained of does not arise out of a process issued by a state court). Thus, the plain language of 28 U.S.C. § 2253(c)(1) indicates that a COA is not required to obtain appellate review of the denial of a coram nobis petition.

The Third Circuit is the only circuit that has ruled on the question of whether a COA is required before an appeal of a petition for a writ of error coram nobis may be taken, and it held that there is no COA requirement for coram nobis appeals.¹ See United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3d Cir.2000) ("Neither the statute making the writ of error coram nobis available in federal courts in criminal matters, see 28 U.S.C. § 1651(a), nor any Federal Rule of Appellate Procedure requires a certificate of appealability before an appeal may be taken, nor does such a requirement appear in the case law.").

In arguing that this court should find that coram nobis appeals are subject to the COA requirement, despite the plain language of 28 U.S.C. § 2253(c)(1) and the Third Circuit's holding in Baptiste, the government points only to cases that are inapposite here. First, the government cites two cases in which we have applied AEDPA's COA requirement to motions collaterally attacking convictions but not brought under 28 U.S.C. § 2255: Porter v. Adams, 244 F.3d 1006 (9th Cir.2001) and Ortiz v. Stewart, 195 F.3d 520 (9th Cir. 1999). What the government fails to recognize is that in both Porter and Ortiz, we held that the petitioners' motions were subject to the COA requirement only because we found that the motions had to be construed as successive habeas petitions: in both cases, the petitioners were attempting to raise claims via forms of collateral attack that are not subject to the COA requirement solely because they had already unsuccessfully attempted to obtain relief via forms of collateral attack that are subject to the COA requirement. See Porter, 244 F.3d at 1007 (applying the COA requirement to a § 2241 motion and distinguishing Forde after concluding that the motion should be construed as a successive § 2255 motion to which § 2253(c)(1) applied); Ortiz, 195 F.3d at 520-21 (applying the COA requirement to a Rule 60(b) motion after concluding that the motion should be construed as a successive habeas petition to which § 2253(c)(1) applied). Unlike the motions at issue in Porter and Ortiz, Kwan's coram nobis petition cannot be construed as a successive petition for collateral relief.

The government also relies upon cases where we have prevented the use of coram nobis petitions to circumvent AEDPA's gatekeeping provisions by persons who would be eligible to petition for the forms of collateral relief governed by AEDPA but for those gatekeeping provisions. For example, the government cites ...