United States v. Chan

• Decision Date: 09 July 2015
• Docket Number: No. 14–55239.,14–55239.
• Citation: 792 F.3d 1151
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Maureen Elaine CHAN, aka Maureen Ridley, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

792 F.3d 1151

UNITED STATES of America, Plaintiff–Appellee

v.Maureen Elaine CHAN, aka Maureen Ridley, Defendant–Appellant.

No. 14–55239.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 2, 2015.

Filed July 9, 2015.

Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena, CA, for Defendant–Appellant.

André Birotte, Jr., United States Attorney, Robert Dugdale, Chief, Criminal Division, Jean–Claude Andre (argued) and Wilson Park, Assistant United States Attorneys, Los Angeles, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. 2:93–CR–00583–RGK–1.

Before: DOROTHY W. NELSON, JAY S. BYBEE, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge D.W. NELSON

; Concurrence by Judge BYBEE ; Dissent by Judge IKUTA.

OPINION

D.W. NELSON, Senior Circuit Judge:

Appellant Maureen Elaine Chan, a/k/a Maureen Ridley (“Chan”), appeals the district court's dismissal of her petition for a writ of error coram nobis. This case requires us to determine the retroactivity of our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir.2005). Because we conclude that Kwan both survives Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and did not establish a new rule of criminal procedure under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we thus hold that Kwan applies retroactively to Chan's case. Accordingly, we reverse the district court's order dismissing Chan's petition and remand for further proceedings consistent with this opinion.

I. Background

On June 22, 1993, Chan was charged with six counts of perjury under 18 U.S.C. § 1623. Chan pleaded guilty pursuant to a plea agreement to three counts of perjury and was sentenced to two months imprisonment, three years of supervised release, and a special assessment of $150. Chan is a British citizen but has been a lawful permanent resident of the United States since 1973.

Prior to pleading guilty, Chan alleges that she consulted with her attorney and specifically asked him whether a guilty plea would affect her immigration status. She further alleges that her attorney assured her that she would not face any adverse immigration consequences.

Chan states that on February 28, 2012, she was stopped by U.S. Customs and Border Protection agents at Los Angeles International Airport, who then confiscated her passport and permanent resident card. On November 15, 2012, the Department of Homeland Security initiated removal proceedings against Chan and served her with a Notice to Appear, charging her as inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act as an immigrant convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I).

On May 15, 2013, Chan brought a petition for writ of error coram nobis in the district court. Chan sought to withdraw her guilty plea and supported her petition with one claim of ineffective assistance of counsel (“IAC”), alleging that defense counsel affirmatively misrepresented the adverse immigration consequences of her conviction. Chan claimed that, had she known the true nature of the immigration consequences of her potential convictions, she would have requested a different plea deal or gone to trial.

On September 24, 2013, the government filed a motion to dismiss the petition. The district court granted the government's motion to dismiss, concluding that Kwan established a new rule of criminal procedure under Teague and, therefore, did not have retroactive effect. Chan timely appealed the district court's dismissal to this court.

II. Standard of Review

“A district court's denial of a petition for a writ of error coram nobis is reviewed de novo.” United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007).

III. Discussion

“[T]he writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable.” Id.; see also United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (describing the writ of error coram nobis as an “extraordinary remedy” available “only under circumstances compelling such action to achieve justice”). In order to establish that she qualifies for coram nobis relief, the petitioner must show the following four factors:

(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.

Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987) ).

The district court dismissed Chan's petition under—and the parties only dispute—the fourth factor. Specifically, the district court concluded that because Kwan established a new rule under Teague and, thus, does not apply retroactively, Chan had failed to state a claim for IAC and could not show that there was an error of “the most fundamental character.”

To determine whether Chan may proceed with her IAC claim under Kwan , we first look to whether Kwan survives Padilla .¹ We then turn to whether this case is controlled by Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), which concluded that Padilla does not apply retroactively, and whether Kwan established a new rule of criminal procedure under Teague.

A. Whether Padilla Abrogates Kwan

In Kwan , we held that affirmatively misleading a client regarding the immigration consequences of a conviction could constitute the basis for an IAC claim. 407 F.3d at 1015. We noted that our holding was notwithstanding our earlier-espoused rule that “an attorney's failure to advise a client of the immigration consequences of a conviction, without more, does not constitute ineffective assistance of counsel.” Id. (citing United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003), abrogated by Padilla, 559 U.S. 356, 130 S.Ct. 1473 ).

Five years after Kwan , the Supreme Court changed the landscape of IAC claims and held that, in order to satisfy the Sixth Amendment, defense counsel “must inform her client whether his plea carries a risk of deportation.” Padilla, 559 U.S. at 374, 130 S.Ct. 1473. This holding abrogated the existing rule in all ten courts of appeals that had reached this issue—including ours, Fry, 322 F.3d 1198 —as the courts of appeals had uniformly concluded that the mere failure to advise regarding the possibility of deportation could not establish an IAC claim. Chaidez, 133 S.Ct. at 1109 & n. 7.

Padilla was simultaneously broader and narrower than our decision in Kwan : broader in that Padilla reached affirmative misrepresentations and failure to advise, but narrower in that Padilla concerned only deportation whereas Kwan considered all “immigration consequences.” Compare Padilla, 559 U.S. at 364–66, 369–74, 130 S.Ct. 1473, with Kwan, 407 F.3d at 1015–17. Further, the crux of Padilla 's holding was to reject the direct/collateral consequence distinction in the context of deportation to “conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 559 U.S. at 366, 130 S.Ct. 1473. Kwan , though, concerned itself more with the fact that an attorney misadvised his client about a matter material to the client's decision to enter into a plea agreement. See 407 F.3d at 1016 (“[C]ounsel made an affirmative representation to Kwan that he had knowledge and experience regarding the immigration consequences of criminal convictions; as a result, counsel had a professional responsibility to [correctly] inform himself and his client....”). Thus, while Padilla clearly abrogated Kwan to the extent that Kwan reaffirmed the rule in Fry, see Kwan, 407 F.3d at 1015, Kwan 's holding that affirmative misrepresentations by counsel regarding immigration consequences constitutes deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), clearly survives Padilla .

B. Whether Chaidez Controls Kwan

We next turn to the government's argument that Kwan is controlled by Chaidez. The government contends that for the same reasons Chaidez concluded Padilla announced a new rule and was not retroactive, Kwan must also have announced a new rule and not be retroactive. Because we find Kwan sufficiently distinguishable from Padilla , we conclude Kwan is not controlled by Chaidez.

In Chaidez, the Supreme Court held that Padilla did not have retroactive effect. 133 S.Ct. at 1105. In evaluating Padilla under the Teague framework, the Court explained that Padilla had not simply applied the “general standard” for IAC in Strickland, but rather “did something more.” Chaidez, 133 S.Ct. at 1107, 1108. That “something more” was answering a threshold question: whether Sixth Amendment protections governing the competence of defense counsel extended to advice regarding deportation. Id. In concluding that they did, the Court answered in part a question left explicitly open in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), whether the Sixth Amendment covered so-called “collateral consequence[s]” of a conviction. Chaidez, 133 S.Ct. at 1108 (citing Hill, 474 U.S. at 60, 106 S.Ct. 366 ). Importantly, as we noted above, the Court answered this question in Padilla by rejecting the direct/collateral consequence distinction, declining to label deportation as either and, instead, identifying it as “unique.” Id. at 1110 (quoting Padilla, 559 U.S. at 365, 130 S.Ct. 1473 ) (internal quotation marks omitted). As such, Padilla fundamentally altered Sixth Amendment jurisprudence in at least partially breaking down the distinction between direct and collateral consequences. Id. at 1110–11.

Kwan 's much narrower holding instead focused on whether counsel's performance was deficient. See 407...