United States v. Arce-Flores
| Decision Date | 12 January 2018 |
| Docket Number | CASE NO. CR15-0386JLR |
| Court | U.S. District Court — Western District of Washington |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MONICA ARCE-FLORES, Defendant. |
Before the court are the parties' supplemental briefs regarding Defendant Monica Arce-Flores's motion for writ of error coram nobis (Mot. (Dkt. # 317)). (Def. Supp. Br. (Dkt. # 328); Pl. Supp. Br. (Dkt. # 329).) The court ordered the supplemental briefing (see Min. Order (Dkt. # 327)) after the Ninth Circuit Court of Appeals remanded Ms. Arce-Flores's appeal "for the limited purpose of enabling the [] court to consider [her] motion for a writ of error coram nobis" (Remand (Dkt. # 326) at 1). The court has considered the supplemental briefs, the relevant portions of the record, and the applicable law. Being fully advised,1 the court VACATES Ms. Arce-Flores's six-month sentence, and IMPOSES a sentence of 179 days.
The court recited most of the operative facts in its first order on Ms. Arce-Flores's motion. (See Order at 2-8.) The court will not repeat the facts except insofar as it is helpful to the final disposition of the motion.
On August 14, 2017, Ms. Arce-Flores moved for a writ of error coram nobis, alleging a violation of her Sixth Amendment right to counsel. (See Mot.) 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 sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015). On October 16, 2017, the court found that Ms. Arce-Flores's motion demonstrated the first and third Chan factors. (See Order at 11-12, 15-19.) As to the second and fourth factors, however, the court found that the motion only raised a substantial issue. (Id. at 12-14, 19-27.)
More specifically, regarding the second factor, the court concluded that the Government's presentation precluded the court from determining whether Ms.Arce-Flores's motion was unreasonably delayed. (Id. at 12-14.) Regarding the fourth factor, the court analyzed whether Ms. Arce-Flores's prior counsel provided ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) (). Under Strickland, the court found counsel's performance "was deficient in the plea process" because he misadvised Ms. Arce-Flores on the immigration consequences of pleading guilty to an offense with a maximum sentence of more than 180 days, despite clear law on this issue. (Id. at 22-23); 8 U.S.C. § 1107(f) (). In addition, the court found that counsel's deficient performance during the plea process prejudiced Ms. Arce-Flores. (Order at 26.)
The parties, however, did not address "the interplay between [counsel's] performance at sentencing—both the hearing and the subsequent motion to clarify—and his deficiency during the plea process." (Id. at 23.) The parties also failed to address the "the appropriate standard for evaluating [counsel's] performance at the sentencing stage." (Id.) Similarly, the parties did not discuss "how the sentencing phase affects, if at all, a finding of prejudice arising from the plea process," including whether the court's clarification of Ms. Arce-Flores's sentence cured the prejudice from the plea process. (Id. at 27; see also Order Clarifying Sentence (Dkt. # 304).) Therefore, the court wasunable to make a final determination on whether Ms. Arce-Flores had demonstrated she suffered prejudice from counsel's deficient performance. (See Order at 27.)
After the Ninth Circuit remanded Ms. Arce-Flores's appeal, the court ordered the parties to file supplemental briefing regarding three outstanding issues from the underlying motion:
(Min. Order at 1-2 (internal citations omitted).) The court now addresses these topics.
Coram nobis petitions are not subject to any statute of limitations. See Telink, Inc. v. United States, 23 F.3d 42, 45 (9th Cir. 1994); United States v. Rodriguez-Trujillo, Nos. 4:11-cv-00593-BLW, 4:08-cr-00240-BLW, 2013 WL 1314247, at *4 (D. Idaho Mar. 28, 2013). Instead, a petitioner must show that she had "sound reasons" for not challenging her conviction sooner. See United States v. Kwan, 407 F.3d 1005, 1013 (9th Cir. 2005), abrogated on other grounds in Padilla v. Kentucky, 559 U.S. 356 (2010). A petitioner has no sound reason when she delays for no reason whatsoever, the respondent demonstrates prejudice from the delay, or the petitioner appears to abuse the writ. Id. at1014. In its October 16, 2017, order, the court clarified that this inquiry should not, as the Government argued, focus on "when Ms. Arce-Flores realized the legal significance of her plea," but rather "the proper focus is on when Ms. Arce-Flores realized the potential ineffective assistance of her counsel—the basis of her petition." (Order at 13.)
The parties agree that Ms. Arce-Flores did not unreasonably delay filing her motion. (Def. Supp. Br. at 15; Pl. Supp. Br. at 6 ().) The court agrees. Ms. Arce-Flores first became aware of counsel's misadvice in March 2017 when the immigration court denied her bond in part because she had served over 180 days for a criminal offense, which in turn meant that she was ineligible for a good moral character removal waiver. (Bond Order (Dkt. # 317-6).) Counsel filed the motion to clarify on April 3, 2017 (Mot. to Clarify (Dkt. # 303)), and the court ruled on the motion on April 7, 2017 (Order Clarifying Sentence). Ms. Arce-Flores's new counsel, Neil Fox, was appointed on May 31, 2017. (Appt. (Dkt. # 313).) Ms. Arce-Flores then filed the underlying motion on August 14, 2017. (See Mot.)
In total, five months passed between when Ms. Arce-Flores learned about counsel's ineffective assistance and her filing the underlying motion. Only for the latter ten weeks of that time period did Ms. Arce-Flores have new counsel who was better able to address prior counsel's ineffective assistance. In addition, the Government does not assert any prejudice from this delay (see Pl. Supp. Br. at 6-7), and Ms. Arce-Flores hasnot abused the writ, see Kwan, 407 F.3d at 1014. Accordingly, the court finds that Ms. Arce-Flores had sound reasons for not challenging her conviction sooner.
The parties agree that the court should apply the Strickland test to determine whether Mr. Engelhard provided ineffective assistance during Ms. Arce-Flores's sentencing phase. (See Pl. Supp. Br. at 3; Def. Supp. Br. at 2); see also Daire v. Lattimore, 812 F.3d 766 767 (9th Cir. 2016) (en banc). As stated above, to establish ineffective assistance of counsel under Strickland, a petitioner must prove (1) that "counsel's performance was deficient," and (2) that "the deficient performance prejudiced the defense." 466 U.S. at 687. Counsel's failure to "inform[] the sentencing judge that a sentence only two days shorter than the sentence ultimately imposed would enable [the defendant] to avoid deportation" is grounds for ineffective assistance of counsel. Kwan, 407 F.3d at 1016.
As discussed, the court has already determined that counsel provided ineffective assistance during the plea process. (Order at 26.) Moreover, the parties agree that counsel's failure to inform the sentencing judge about the consequences of a 180-day sentence versus a 179-day sentence—let alone advocate for a sentence that would allow Ms. Arce-Flores to demonstrate good moral character—"compel[s] a conclusion" that counsel provided a deficient performance that prejudiced Ms. Arce-Flores at the sentencing phase. (See Pl. Supp. Br. at 3-6; Def. Supp. Br. at 7-13.) The court agrees.
A 179-day sentence would have allowed Ms. Arce-Flores to apply for a good moral character waiver, which is necessary to avoid removal. See 8 U.S.C.§ 1229b(b)(1)(B). A 180-day sentence disqualifies her from this waiver. Id.; see 8 U.S.C. § 1107(f)(7). Under Kwan, Mr. Engelhard had the obligation to inform the sentencing court of the important consequences of a 179-day versus a 180-day sentence. Kwan, 407 F.3d at 1018. His failure to do so makes his performance "objectively unreasonable" and therefore deficient. Id. at 1017.
In addition, there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694. Where "a nominally shorter sentence" would enable a petitioner to avoid...
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