US v. Mora-Gomez

• Decision Date: 15 February 1995
• Docket Number: Crim. A. No. 90-107-A,90-315-M.
• Parties: UNITED STATES of America v. Rafael MORA-GOMEZ, Defendant/Petitioner.
• Court: U.S. District Court — Eastern District of Virginia

875 F. Supp. 1208

UNITED STATES of America v. Rafael MORA-GOMEZ, Defendant/Petitioner.

Crim. A. Nos. 90-107-A, 90-315-M.

United States District Court, E.D. Virginia.

February 15, 1995.

Helen F. Fahey, U.S. Atty., Jay Apperson, Asst. U.S. Atty., Alexandria, VA, for U.S.

Paul Gussendorf, Washington, DC, for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

This matter comes before the Court on defendant's petition for writ of error coram nobis.¹ At issue is petitioner's contention that his guilty plea to a drug trafficking crime should be set aside because he received ineffective assistance of counsel when his lawyer wrongly advised him on the law. For the reasons stated, the petition must be denied.

I.

Petitioner is a citizen and native of Cuba who came to this country in 1961. On April 2, 1990, he pled guilty to a one count criminal information charging him with conspiracy to possess with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 846. Petitioner alleges that, prior to his plea, his counsel assured him that he "need not worry about any possibility of being deported, that he counsel would arrange with the judge that petitioner would not be deported because of petitioner's guilty plea." Affidavit of Rafael Mora-Gomez, at p. 2.

Petitioner was sentenced June 8, 1990. Under the Sentencing Guidelines, his total offense level was 22 and his criminal history score was in category I, resulting in a sentencing range of 41 to 51 months. See United States Sentencing Guidelines ("U.S.S.G.") § 5A. A statutory mandatory minimum sentence of 5 years trumped the guidelines range in the absence of a downward departure. See 21 U.S.C. § 841(b)(1)(B). In this case, the government moved for a downward departure under U.S.S.G. § 5K1.1 based on petitioner's substantial assistance to authorities. The motion was granted and petitioner's offense level was reduced to 10, resulting in a new sentencing range of 6 to 12 months. The Court sentenced petitioner, inter alia, to 6 months imprisonment and 2 years supervised release. At the conclusion of the sentencing hearing, petitioner's counsel informed the Court that petitioner would be seeking a judicial recommendation against deportation.² The Court noted that such recommendations were subject to jurisdictional time limitations and required notice to the INS. Petitioner's counsel responded that he was aware of these requirements, and would comply.

Petitioner, by counsel, subsequently filed a motion for a judicial recommendation against deportation or exclusion pursuant to 8 U.S.C. § 1251(b). The government opposed the motion on the ground that the statute did not permit a judicial recommendation against deportation where, as here, a defendant was convicted of a drug offense. In particular, the government pointed out that 8 U.S.C. § 1251(a) lists a number of grounds for deportation which applied to petitioner, including conviction of a crime involving moral turpitude, § 1251(a)(4), and conviction of a drug possession or trafficking offense, § 1251(a)(11). Further, the government correctly noted, the statute expressly provided that a judicial recommendation against deportation was then only available to an alien charged with deportation pursuant to § 1251(a)(4), but was not available to an alien charged under § 1251(a)(11). 8 U.S.C. § 1251(b)(1)-(2). Petitioner's motion for a recommendation was heard on July 6, 1990, at which time petitioner's counsel indicated that he had not received the government's memorandum, and was unprepared to argue whether the statute authorized a recommendation in petitioner's case. Because it was clear on the statute's face that a recommendation was not available under the statute, the Court denied petitioner's motion.³

On February 23, 1991, petitioner completed his 6 month sentence and was released to an INS detainer. He was then detained by the INS for over 11 months. During that period, petitioner's former counsel withdrew. On May 1, 1991, through his present counsel, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his indefinite detention without bail or opportunity for review violated federal statute and Due Process. By order of January 6, 1992, the habeas petition was denied as moot, because Congress had amended the statute in 1991 to allow the Attorney General to release a person in petitioner's circumstances who demonstrates that he "is not a threat to the community" and "is likely to appear before any scheduled hearings." See 8 U.S.C. § 1252(a)(2)(B). Pursuant to this provision, petitioner has now been released from INS detention, but is still subject to a deportation order triggered by his conviction. To avoid deportation or further immigration detention, petitioner attacks his conviction by way of a writ of error coram nobis.⁴

II.

A writ of error coram nobis is a remedy intended to achieve justice when "errors of the most fundamental character" have occurred in a criminal proceeding. United States v. Morgan, 346 U.S. 502, 511-12, 74 S.Ct. 247, 252-53, 98 L.Ed. 248 (1954) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129 (1914)). To obtain coram nobis relief, petitioner must show (i) that his conviction or sentence involved an error of the most fundamental character, (ii) that it is probable that a different result would have occurred if not for the error, (iii) that adverse consequences continue to flow from the conviction such that a case or controversy exists within the meaning of Article III, (iv) that a more usual remedy is not presently available to correct the error, and (v) that sound reasons exist for not challenging the error earlier, such as by direct appeal or § 2255 motion. Scates v. United States, 914 F.2d 249, 1990 WL 135863, 1991 U.S.App. LEXIS 16,754 (4th Cir. Sept. 21, 1990) (unpublished), cert. denied, 500 U.S. 919, 111 S.Ct. 2020, 114 L.Ed.2d 106 (1991); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).⁵ Each requirement is separately considered.

1.

To obtain coram nobis relief, petitioner must first establish that a fundamental error occurred at some point in his criminal proceeding. Morgan, 346 U.S. at 512, 74 S.Ct. at 253. Such a fundamental error occurs where a defendant receives ineffective assistance of counsel in violation of the Sixth Amendment. See Morgan, 346 U.S. at 511-12, 74 S.Ct. at 252-53 (finding coram nobis lies to remedy Sixth Amendment error); Moody v. United States, 874 F.2d 1575, 1577-78 (11th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990). To prove ineffective assistance, petitioner must show (i) that his attorney's performance was, in light of all circumstances, unreasonable under prevailing professional norms, and (ii) that there is a reasonable probability that, but for counsel's errors, a different result would have obtained. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

The government contends that the customary Strickland analysis is displaced here by a per se rule that faulty legal advice concerning the immigration and deportation consequences of a guilty plea never constitutes ineffective assistance. The alleged rule arises from the fact that deportation is a collateral, rather than direct, consequence of a guilty plea or conviction.⁶ It is well established that the Constitution does not require defense counsel to inform an accused person of the collateral consequences of his guilty plea, and therefore that ineffective assistance does not occur where counsel fails to tell the defendant that his plea may or will result in deportation. See United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989); United States v. Quin, 836 F.2d 654, 655 (1st Cir.1988); United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir.1985).⁷ Similarly, a defendant is not entitled to withdraw his plea merely because he was not informed by the court or his counsel that his plea would result in deportation. See United States v. Russell, 686 F.2d 35, 38-39 (D.C.Cir.1982); Garcia-Trigo v. United States, 671 F.2d 147, 150 (5th Cir.1982); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Nunez Cordero v. United States, 533 F.2d 723, 726 (1st Cir. 1976); Michel v. United States, 507 F.2d 461, 464-66 (2d Cir.1974).

Yet, petitioner does not merely claim that his counsel failed to inform him about the consequences of his plea. Rather, he alleges that prior to his plea, his counsel told him that he would receive a judicial recommendation against deportation and therefore that his guilty plea would not result in deportation. This statement, if made, was plainly erroneous. Thus, petitioner draws a distinction between an attorney's passive failure to mention the deportation consequences of a plea, which it is clear cannot constitute ineffective assistance, and his counsel's affirmative misstatement of the consequences, which he contends does amount to ineffective assistance.

It is unsettled in this circuit whether the distinction drawn by petitioner is a meaningful one. The Fourth Circuit has twice discussed whether affirmative misstatements concerning the deportation consequences of a plea may constitute ineffective assistance. In both instances, the court has avoided deciding the question because it found that there was no affirmative misstatement, only an omission of advice. See United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir.1988).

Yet, petitioner's argument is strongly supported by the Fourth Circuit's closely analogous decision in Strader v. Garrison, 611 F.2d 61 (4th Cir.1979). There, Strader complained that he received ineffective assistance of counsel because he was wrongly advised by his lawyer...