United States v. Delhorno

• Citation: 915 F.3d 449
• Decision Date: 08 February 2019
• Docket Number: No. 18-1707,18-1707
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben DELHORNO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

915 F.3d 449

UNITED STATES of America, Plaintiff-Appellee,

v.Ruben DELHORNO, Defendant-Appellant.

No. 18-1707

United States Court of Appeals, Seventh Circuit.

Argued October 23, 2018

Decided February 8, 2019

Gail J. Hoffman, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Plaintiff-Appellee.

Gerardo S. Gutierrez, Attorney, LAW OFFICE OF GERARDO S. GUTIERREZ, Chicago, IL, for Defendant-Appellant.

Before Kanne, Hamilton, and St. Eve, Circuit Judges.

Hamilton, Circuit Judge.

Defendant-appellant Ruben Delhorno filed a petition for a writ of coram nobis, a rare form of collateral attack on a criminal judgment. This ancient common-law remedy is available to correct errors of fact and law in criminal cases, but only when: "(1) the error alleged is ‘of the most fundamental character’ as to render the criminal conviction ‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) ‘the defendant continues to suffer from his conviction even though he is out of custody.’ "

United States v. Wilkozek , 822 F.3d 364, 368 (7th Cir. 2016), citing United States v. Sloan , 505 F.3d 685, 697 (7th Cir. 2007), and United States v. Keane , 852 F.2d 199, 203 (7th Cir. 1988). Delhorno fails the second requirement. He cannot offer "sound reasons" for failing to seek earlier relief through a direct appeal or habeas corpus petition. We therefore affirm the district court’s decision denying Delhorno’s writ of coram nobis.

I. Factual and Procedural Background

Delhorno, age 42, was born in Mexico but came to the United States with his parents when he was just three years old. He was living in the United States as a lawful permanent resident. (He could have applied for citizenship but never did.) In 2011, Delhorno was pulled over for speeding. While the officer was writing a speeding ticket, another officer arrived with his drug-detection canine. The dog sniffed the vehicle and alerted to the presence of drugs. Another officer at the scene had been instructed in the installation of "trap" compartments in vehicles and noticed that Delhorno’s vehicle contained unusual wiring. The officers discovered four kilograms of cocaine in a trap compartment in Delhorno’s vehicle.

Delhorno was indicted by a grand jury in the Eastern District of Wisconsin for one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B). Delhorno pleaded guilty to the indictment on January 26, 2012. At the change of plea hearing, Delhorno stated that he was born in Mexico and was a permanent resident of the United States. However, there was no discussion about the immigration consequences of his guilty plea, even though the hearing took place more than a year after the Supreme Court held in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that a criminal defense lawyer provided ineffective assistance of counsel by failing to advise his client that his guilty plea would subject him to automatic deportation.

Following the change of plea hearing, the United States Probation Office prepared a presentence report that included this passage:

49. Mr. Delhorno explains he was born in Mexico, but came with his parents to the United States when he was three years old. His family settled in Chicago Heights, Illinois. Mr. Delhorno notes his parents came to the United States illegally, seeking better opportunities for themselves and their children. In 1988, his parents were able to take advantage of an amnesty program and were granted legal residency status. Mr. Delhorno notes at that time he also was granted legal resident status. He acknowledges at the age of 18, he could have applied for citizenship, but he has not done so. Mr. Delhorno understood all his friends were born in the United States so he never thought of himself differently, so he did not pursue citizenship. Mr. Delhorno understands this may present problems for him, but he is trying to make arrangements to remain in the United States.

50. Bureau of Immigrations and Customs Enforcement confirmed Mr. Delhorno was granted legal permanent resident status on 4/29/89. At this time, the defendant is not under investigationfor deportation, but upon entry of judgement, the matter will be investigated .

Presentence Report ¶¶ 49–50 (emphasis added).

Delhorno was sentenced on October 5, 2012. His lawyer told the judge that Delhorno was seeking a "visa to remain in the United States because he is a resident alien and never sought citizenship[.]" Delhorno’s Sentencing Guideline range was 78 to 97 months in prison. He was sentenced to 60 months in prison, followed by a supervised release term of four years. The court entered the written judgment and commitment order that same day. Delhorno never filed a direct appeal or a habeas corpus petition.

On February 26, 2015, while Delhorno was in prison, he filed a motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2), based on a retroactive change to the Sentencing Guidelines. After briefing, this motion was denied. On May 26, 2016, Delhorno filed an amended motion to modify his term of imprisonment pursuant to § 3582, which was also denied.

On approximately May 1, 2017, Delhorno completed his prison sentence and was transferred to the custody of the U.S. Immigration and Customs Enforcement ("ICE") for removal procedures. On October 13, 2017, Delhorno filed his petition for a writ of coram nobis. In the petition and attached affidavit, Delhorno argued that he received ineffective assistance of counsel in his criminal case because his lawyer failed to advise him that pleading guilty subjected him to mandatory deportation. He contended that if he had known this, he would never have pleaded guilty. Delhorno referenced and included the transcript from his change of plea hearing which shows that the court also failed to address the immigration consequences of his guilty plea. In support of his arguments, he cited Lee v. United States , ––– U.S. ––––, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017), Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

The government responded, stating that it believed the record needed to be developed further through a hearing before the court ruled on the petition. The district court disagreed and denied Delhorno’s petition without a hearing. Delhorno argues on appeal that this was a mistake. We review the district court’s decision to deny an evidentiary hearing for an abuse of discretion. See Blanton v. United States , 94 F.3d 227, 235 (6th Cir. 1996), citing Green v. United States , 65 F.3d 546, 548 (6th Cir. 1995) ; see also United States v. Fuller , 86 F.3d 105, 107 (7th Cir. 1996) (judge "had no duty to conduct an evidentiary hearing if, by analogy to summary judgment, he could determine on the basis of affidavits, depositions, or other documentary materials of evidentiary quality that there was no genuinely contestable issue of fact"). As we explain below, the record here provided a sufficient basis to deny the petition without a hearing, so the district court acted within its discretion in denying a hearing.

Delhorno filed a timely notice of appeal on April 2, 2018. He also filed a motion in the Eleventh Circuit for a stay of removal. That motion was denied on May 27, 2018, and Delhorno was deported to Mexico.

II. Analysis

The writ of coram nobis is a means for a collateral attack on a criminal conviction alleging errors of law or fact that affect the fundamental character of the conviction, including inadequate counsel. Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). It is similar to a habeas corpus petition and affords the same type of relief, United States v. Bonansinga , 855 F.2d 476, 478 (7th Cir. 1988), but it is available only when a defendant is no longer in custody and thus can no longer take advantage of habeas corpus relief. Stanbridge v. Scott , 791 F.3d 715, 720 n.3 (7th Cir. 2015). According to the Supreme Court, the writ of coram nobis is to be used only in "extraordinary cases presenting circumstances compelling its use to achieve justice," where alternative remedies are not available. United States v. Denedo , 556 U.S. 904, 911, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009), citing United States v. Morgan , 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (internal quotation marks omitted). We have explained that a successful coram nobis petition must satisfy three prongs: "(1) the error alleged is ‘of the most fundamental character’ as to render the criminal conviction ‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) ‘the defendant continues to suffer from his conviction even though he is out of custody.’ " United States v. Wilkozek , 822 F.3d 364, 368 (7th Cir. 2016).

In reviewing a district court’s denial of a writ of coram nobis without a hearing, this court conducts a de novo analysis of the legal conclusions and a factual review for clear error. Id. We consider the three factors in a different order here than set forth above. We conclude that Delhorno continues to suffer from his conviction, but he likely cannot demonstrate fundamental error, and he certainly cannot justify his failure to seek earlier relief. We affirm the denial of his petition for a writ of coram nobis.

1. Continued Suffering

First, we have no doubt that Delhorno continues to suffer from his conviction even though he is out of custody. We have explained that coram nobis is

a postconviction remedy, equivalent to habeas corpus or (for persons convicted in federal court) section 2255, for petitioners who have served their sentences and so cannot invoke either of those remedies but who as a result of having been convicted are laboring under some serious civil disability that they’d like to eliminate by setting aside their conviction—and removal from

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