IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA : Civil Action
: No.
v. :
ANGEL CHIRINO : Criminal
: No. 81-104 “K”
MEMORANDUM IN SUPPORT OF MOTION FOR WRIT OF CORAM NOBIS TO VACATE AND SET ASIDE PLEA AND CONVICTION
I. Background
On August 26, 1981, Angel Chirino, an alien seeking political asylum from Cuba, pled guilty before this Court to 21:846 Conspiracy to Possess with Intent to Distribute Cocaine Marijuana (a Schedule I Narcotic Drug Controlled Substance) and was sentenced to five (5) years imprisonment.
Petitioner avers that his counsel, the Honorable Stephen H. Rosen, did not admonish Petitioner of the immigrations consequences surrounding his guilty plea. Additionally, Petitioner swears that he was never advised by anyone prior to the guilty plea of the immigration consequences of said plea and had he been so advised he would have gone to trial as opposed to entering a plea of guilty. Exhibit A.
II. Writ of Coram Nobis seems to be the appropriate vehicle
A person who is still in custody, but who did not file a timely habeas petition, may still have a coram nobis remedy under 28 U.S.C. section 1651, the All-Writs Act. A petition for a writ of coram nobis does not have a filing deadline. The writ of coram nobis is limited to “extraordinary” cases that present compelling circumstances “to achieve justice” where no other remedies are available. United States v. Morgan, 346 U.S. 502, 510-511 (1954); Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996); United States v. Castro, 26 F.3d 557, 559 n. 3, 561 n. 8 (5th Cir.1994).
In United States v. Denado, 129 S.Ct. 2213 (2009), a veteran of the Armed Forces filed a coram nobis petition after DHS initiated removal proceedings against him for a court-martial conviction that had been final for eight years. At the time the petitioner sought a writ of coram nobis, he was neither serving in the military nor in custody. The Court assumed for purposes of deciding the jurisdictional question presented that a defense counsel’s representation was ineffective.
Additionally, in a case similar to the instant case, the United States Fifth Circuit Court of Appeal held that ineffective assistance of counsel, if proven, can be grounds for coram nobis relief. See Castro, 26 F.3d at 559-60 (reversing denial of coram nobis petition and remanding for determination of whether counsel rendered ineffective assistance by failing to advise Castro of the availability of a judicial recommendationagainst deportation or to request same from the sentencing court).
Accordingly, the writ of coram nobis seems to be the appropriate vehicle with which to raise the instant claim.
In order to prevail, Chirino must show: (1) an error in fact; (2) unknown at the time of the plea; and (3) of fundamentally unjust character which probably would have altered the outcome of the challenged proceeding had it been known. United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). This Honorable Court should find that Chirino has satisfied all of these prongs. Chirino has shown through affidavit that he was never advised that his plea would result in deportation proceedings against him. Thus, the third prong of the writ standard is met. As to the first and second, Mr. Chirino was never advised of the immigration consequences; as such, it was a fact he was not aware of at the time. Further, had he known of the immigration consequences he would have not pled guilty.
PADILLA V. KENTUCKY
Petitioner asserts that counsel rendered ineffective assistance of counsel for failure to admonish the Petitioner of the immigration consequences of the guilty plea. In Padilla v. Kentucky, 130 S.Ct. 1473, 1482 (2010), the Court held that the right to effective counsel as interpreted in Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985), required advice about deportation that would be “responsible under the prevailing professional norms.” Further, the failure to provide any advice about deportation may be as unreasonable as faulty advice when the immigration consequences are clear. Id. The duty of counsel to admonish his client about the collateral consequences of his plea is required by the Sixth Amendment. Id.
In Padilla, the Court also remarked that the distinction between direct and collateral consequences was developed in the line of cases that defined the due process requirements for a knowing plea of guilty, and that “we have never applied a direct/collateral distinction to a Sixth Amendment claim.” Id. Instead, the Court explained that “deportation is intimately related to the criminal process”, which makes it “uniquely difficult to classify either as a direct or a collateral consequence.” Because that “distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation . . . advice regarding deportation in not categorically removed from the ambit of the Sixth Amendment right to counsel.” Padilla, 133 S.Ct. at 1481-82. Petitioner contends that his attorney violated his express duty under the Sixth Amendment to warn him of the collateral consequences of his plea.
Federal law provides that non-citizens convicted of designated crimes may be deported from the country, barred from returning, and denied the opportunity to become United States citizens. In Padilla, the United States Supreme Court reversed, deciding that the Sixth Amendment guarantee of effective counsel does include competent advice about the immigration consequences of a guilty plea. Although Padilla himself had received misleading advice, the Court did not limit its holding to affirmative misrepresentations. Instead, the Court held that the right to effective counsel, as interpreted in Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, requires advice about deportation that would be “reasonable under prevailing professional norms.” Padilla v. Kentucky, 130 S.Ct. at 1481-82.
RETROACTIVITY PRINCIPALS
A case announces a new rule if the result was not dictated by precedent at the time the defendant’s conviction became final. Teague v. Lane, 489 U.S. 288, 301 (1989). Subsequent decisions evince a broad definition of “new,” including at times all decisions that resolve any issue susceptible to debate among reasonable minds. O’Dell v. Netherland, 521 U.S. 151, 160 (1997). Nevertheless, the justices have also stated that “the standard for determining when a case established a new rule is objective, and the mere existence of conflicting authority does not necessarily mean a rule is new.” Williams v. Taylor, 529 U.S. 362, 390-392 (2000). There exists a line of authority that emphasizes that a specific application of rules of general applicability, particularly the rule in Strickland, does not result in new rules. Id.
Because the Supreme Court in Padilla had no need to discuss retroactivity, the issue remains open. Petitioner notes that the decision inPadilla clearly effected a complete change in legal thinking regarding the duty of counsel (to advise of collateral consequences). People v. Kabre, 905 N.Y.S. 2d 886, 893 (NY Crim. Ct. 2010) (finding Padilla is a new rule because the court’s observation in INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001) that competent counsel would offer immigration advice as appropriate was mere dicta and almost no other jurisdiction had so held, and because unlike Williams, Padilla mandated an unpredictable change in the scope of counsel’s representation); Williams v. Taylor, 529 U.S. 362, 390-392 (2000) (Strickland “provides sufficient guidance for resolving virtually all ineffective assistance of counsel claims” unless fundamental fairness is an overriding consideration.”).
In Padilla, the Court clearly applied Strickland, finding deficiency solely with reference to “prevailing professional norms.” Accordingly, lower courts appropriately characterized the decision as applying “a well established rule of law in a new way based on the specific facts of a particular case.” United States v. Hubenig ___ Fed. 3d _____(2010) WL2650625, at 35-8. The court in Padilla relied on an unqualified application of the well-known standard that it had first announced in Strickland in 1984, and applied to guilty pleas in Hill in 1985.
In Padilla, Justice Stevens stated:
It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.
Padilla, 130 S. Ct. at 1485.
The Third Circuit recently became the first Court of Appeals to address the issue of whether Padilla can be applied retroactively. The Court held that Padilla did not create a new rule on a finding that Padilla was a mere extension of the rule created in Strickland and Hill:
Padilla is set within the confines of Strickland and Hill, as it concerns what advice an attorney must give to a criminal defendant at the plea stage. . . accordingly, a court’s disposition of each individual factual scenario arising under the long-established Strickland standard is not in each instance a “new rule” but rather a new application of an “old rule” in a manner dictated by precedent.
United States v. Orocio, 645 F.3d 630, at 19-20, 23 (3d Cir. 6/29/11).
In Orocio, the court reasoned that because Padilla involved an application of an “old rule” it need not address the Teague exceptions. Id.Padilla merely reiterates that no short hand version or alternative test, such as one that distinguishes between collateral and direct consequences of conviction, can serve as a substitute. In other words, Padilla is like other Strickland progeny that applies retroactively. Williams v. Taylor, at p. 391 (reversing the Supreme Court of Virginia who erroneously concluded that the Strickland standard had been altered, and observing that the case-by-case evaluation of Strickland claims is itself “an old, well-established rule of law.”)
STRICKLAND V. WASHINGTON
The Supreme Court in Strickland established a two-part test for demonstrating ineffective assistance of counsel. Strickland, 488 U.S. at 687. In order to succeed on a claim of ineffective assistance of counsel, it must be shown that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. Additionally, it must be demonstrated that there is a reasonable probability that “but for counsel’s unprofessional error, the result of the proceeding would have been different.” Id. at 694.
In the instant case, Mr. Rosen’s legal assistance fell below an objective standard of reasonableness. Mr. Rosen failed Mr. Chirino in his duty to assist and let Mr. Chirino plead guilty having never informed him of the immigration consequences of said plea. A reasonable attorney would have advised his client regarding the immigration consequences of the plea.
As to the second prong of Strickland, had Mr. Chirino been advised of the possible deportation, he would not have chosen to enter the plea but rather would have taken his chances at trial. See Strickland, 466 U.S. at 694; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985).
CONCLUSION
In the instant case Padilla mandates deportation admonishments. Under the facts of this case sub judice, Counsel was ineffective for failing to admonish Petitioner of the possible immigration consequences prior to his plea in federal court. Counsel’s failure to advise Mr. Chirino was “fundamentally unjust” error that clearly prejudiced Mr. Chirino when he accepted the plea.
Respectfully submitted,
/s/ Julie C. Tizzard
Julie C. Tizzard
Counsel for Angel Chirino
LA Bar Roll No. 26132
700 Camp Street, Ste 101
New Orleans, Louisiana 70130
Phone: (504) 529-3774
Fax: (504) 529-3776
