United States v. Kroytor

• Decision Date: 14 October 2020
• Docket Number: No. 19-16459,19-16459
• Citation: 977 F.3d 957
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yuly KROYTOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

977 F.3d 957

UNITED STATES of America, Plaintiff-Appellee,

v.Yuly KROYTOR, Defendant-Appellant.

No. 19-16459

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2020 San Francisco, California

Filed October 14, 2020

Benjamin Lee Coleman (argued), Coleman & Balogh LLP, San Diego, California; Davina T. Chen, Glendale, California; for Defendant-Appellant.

Matthew G. Morris (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

Before: Eric D. Miller and Danielle J. Hunsaker, Circuit Judges, and Patrick J. Schiltz,^* District Judge.

HUNSAKER, Circuit Judge:

Yuly Kroytor, a lawful permanent resident from Canada, pleaded guilty to health care fraud and was convicted in 2005. The government seeks to remove Kroytor from the United States because his conviction is an aggravated felony. Over many years, Kroytor tried to overcome the immigration consequences of his conviction by hiring numerous attorneys who gave him varying and often erroneous advice that he followed. In 2016, more than ten years after his conviction, Kroytor filed a petition for a writ of error coram nobis, seeking to withdraw his guilty plea because his criminal defense attorney who represented him at sentencing provided ineffective assistance of counsel by misadvising him that he could not withdraw his plea but could prevent immigration officials from finding out about his conviction and thereby avoid removal. We conclude that Kroytor is not entitled to coram nobis relief because, after learning that the only way he could avoid removal was to challenge his conviction, he waited two years, without a valid reason, before filing his petition for writ of error coram nobis. Specifically, we hold that uncertainty or ambiguity in the law is not itself a valid reason to delay seeking coram nobis relief.

I. BACKGROUND

A. Kroytor's conviction

Kroytor became a lawful permanent resident of the United States in 1995, and within five years he owned a medical-supply company. In August 2003, a grand jury indicted Kroytor for health care fraud and aiding and abetting the same in violation of 18 U.S.C. §§ 1347(a)(1),(2). Kroytor's defense attorney knew he was a noncitizen and nonetheless urged him to plead guilty without advising him that a conviction could have adverse immigration consequences. Kroytor learned for the first time at his plea colloquy that his conviction could result in his being removed from the United States.

After his plea but before his sentencing, Kroytor hired defense attorney Daniel Behesnilian. Kroytor asked Behesnilian how his conviction would affect his immigration status and whether he would be removed. Behesnilian told Kroytor that it was too late to change his guilty plea but that he could keep immigration authorities from finding out about his conviction if he paid his restitution before sentencing and was not sentenced to jail time. According to Behesnilian, this would allow Kroytor to avoid any adverse immigration consequences from his conviction, including removal. Kroytor paid his restitution before sentencing and was sentenced to probation with no jail time, which he completed without incident.

B. Kroytor's immigration proceedings

In 2007, Kroytor learned that Behesnilian gave him erroneous advice. As Kroytor returned to the United States from a trip to Canada, authorities questioned him about his conviction and told him it made him inadmissible to the United States. Although he was allowed to return to his home in California, Kroytor soon received a removal notice.

Thereafter, Kroytor hired a series of attorneys to represent him in his immigration proceedings. Behesnilian referred Kroytor to an immigration attorney who did nothing on Kroytor's case for a year. In 2009, Behesnilian referred Kroytor to a second immigration attorney who sought to obtain immigration relief for Kroytor based on his family relationships. In early 2014, Kroytor became concerned about his second immigration attorney's representation and consulted a third immigration attorney who told him, for the first time, that his conviction was an aggravated felony that required mandatory removal, and the only way to avoid removal was to have his conviction vacated. Shortly thereafter, a fourth immigration attorney confirmed Kroytor's removal was "virtually certain" unless his conviction was vacated.

C. Kwan, Padilla, and Chaidez

After Kroytor's conviction became final, we decided United States v. Kwan , which held that affirmatively misadvising a client about his conviction's immigration consequences could provide a basis for an ineffective assistance of counsel claim. 407 F.3d 1005, 1015 (9th Cir. 2005), abrogated by Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We did not overturn our earlier-adopted 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. at 374, 130 S.Ct. 1473 ) (emphasis added).

Five years later, in Padilla v. Kentucky , the Supreme Court went further than we did in Kwan and held that defense counsel's failure to inform a client about his conviction's potential immigration consequences constitutes ineffective assistance of counsel. 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 [ineffective assistance of counsel] claim." United States v. Chan , 792 F.3d 1151, 1154 (9th Cir. 2015) (citing Chaidez v. United States , 568 U.S. 342, 350 & n.7, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) ).

In 2013, approximately one year before Kroytor learned that the only way he could avoid removal was by vacating his conviction, the Supreme Court held in Chaidez v. United States that, "under the principles set out in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)," Padilla announced a new rule that did not apply retroactively. 568 U.S. at 344, 133 S.Ct. 1103. It was not clear, however, whether Chaidez ’s holding regarding Padilla ’s non-retroactivity under Teague covered both failure-to-advise claims and affirmative-misadvice claims. See United States v. Bonilla , 637 F.3d 980, 983–84 (9th Cir. 2011) (characterizing Padilla as deciding that both misadvice and failure-to-advise claims constitute ineffective assistance of counsel but not deciding retroactivity).

D. Kroytor's coram nobis proceedings

After learning in mid-2014 that he would not be able to solve his problem through immigration proceedings, Kroytor retained Clyde Blackmon to investigate whether he had grounds to challenge his conviction. Blackmon did not immediately file a coram nobis petition because, in light of the Supreme Court's decision in Chaidez , he was uncertain whether the rule we announced in Kwan —that affirmative misadvice about the immigration consequences of a criminal conviction constitutes ineffective assistance of counsel—applied retroactively to convictions like Kroytor's that were final before Kwan . Approximately a year after Kroytor consulted with Blackmon, we held that the Kwan rule does apply retroactively, resolving this uncertainty. Chan , 792 F.3d at 1155.

In May 2016, ten months after we decided Chan and two years after Kroytor learned his only chance to avoid removal was vacating his conviction, Kroytor filed a petition for a writ of error coram nobis in the district court. He sought to withdraw his guilty plea because his defense counsel affirmatively misadvised him that the only way he could avoid the immigration consequences arising from his conviction was to take steps to prevent the immigration authorities from finding out about the conviction.¹ Kroytor claimed that, had he known his conviction meant certain removal, he would have asked to withdraw his plea before sentencing and either negotiated a different plea or gone to trial.

The district court concluded that Kroytor was not entitled to coram nobis relief because his delay in filing his petition was not justified. Kroytor timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we review the district court's denial of coram nobis de novo, Kwan , 407 F.3d at 1011.

II. DISCUSSION

A. Writ of error coram nobis

A 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." Id. (internal quotation marks and citation omitted). The writ aids "those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Id. at 1009–10 (internal quotation marks and citation omitted). Coram nobis is an "extraordinary remedy" available "only under circumstances compelling such action to achieve justice." United States v. Morgan , 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954). To qualify for this "extraordinary remedy," the petitioner must establish four requirements: (1) the unavailability of a "more usual remedy;" (2) valid reasons for the delay in challenging the conviction; (3) adverse consequences from the conviction sufficient to satisfy Article III's case-and-controversy requirement; and (4) an "error ... of the most fundamental character." Kwan , 407 F.3d at 1011.

Here, the district court dismissed Kroytor's petition under—and the parties focus their dispute on—the second factor: whether valid reasons exist for Kroytor's delay in challenging his conviction. A coram nobis petition is not subject to a specific limitations period. Id. at 1012. However, petitioners are...