Post-Conviction Relief for Immigrants

 

As the Ninth Circuit has summarized:

 

a petitioner must show the following to qualify for coram nobis relief: (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.[171]

 

These four criteria are described in more detail as follows:

 

(1)       The fact that the defendant is no longer in actual or constructive custody in regard to the offense of conviction renders the “more usual remedy” — a motion for habeas corpus relief under 28 U.S.C. § 2255 — “not available.”[172]

 

A petitioner still in “custody,” even if only through supervised release, cannot utilize coram nobis because habeas corpus relief is available.  This is true even if the AEDPA statute of limitations has run and habeas corpus relief is thereby precluded.[173]  In such a circumstance, the petitioner should simply wait to file a coram nobis petition until custody has expired and habeas jurisdiction has ceased to exist.

 

(2)       It is often the case that the conviction was not attacked earlier because the defendant did not receive competent legal advice at the time of the conviction, and had no hint either of its defective nature or its drastic, hidden consequences until he retained new counsel after being detained and placed in removal proceedings, only shortly before the petition was filed.[174]

 

To gain relief in coram nobis, a petitioner must also show an absence of delay, i.e., that there are valid reasons why petitioner did not attack the conviction earlier.[175]  There is no requirement that the government must have been prejudiced by the delay, as is normally the case with respect to the defense of laches.  Rather, in this context, courts dismiss belated coram nobis petitions upon a finding of inexcusable delay.

 

(3)       In most cases, the controversy is certainly not “moot.”  While there is a real question as to whether having a felony conviction on one record can ever be considered to be a matter without adverse consequences,[176] it is sufficient that the collateral consequences for the defendant’s immigration status render it a “live case or controversy that is likely to be redressed by a favorable judicial decision.”[177]  See § 5.38, supra.

 

(4)       There must have been “error of a fundamental nature” in the judgment of conviction.

 

It is important to ensure these requirements can be met before filing a coram nobis petition in federal court.[178]

 

Any ground of fundamental error, resulting in legal invalidity of the conviction, can be raised by coram nobis petition.  For example, a recent case validated the petition as a vehicle by which to raise the following errors: (1) ineffective assistance of counsel for (a) failure to move for suppression of

unconstitutionally seized evidence, (b) failure to move for severance, (c)

failure to advise against self-incrimination, (d) failure to advise of

deportation as a consequence of conviction, (e) failure to request a

judicial recommendation against deportation; and (2) violation of the Vienna

Convention.[179]  The court stated: “The writ of error coram nobis ‘will issue only to correct errors resulting in a complete miscarriage of justice.’”[180]

 

[171] Hirabayashi, 828 F.2d at 604 (footnote omitted); but see United States v. Tucor Intern., Inc., 189 F.3d 834 (9th Cir. 1999) (upholding the propriety of coram nobis relief without even examining the first three criteria). 

[172] United States v. Morgan, 346 U.S. at 503, 511-12 (1954).

[173] Matus-Leva v. United States, 287 F.3d 758 (9th Cir. 2002).

[174] See United States v. Morgan, 346 U.S. at 511-12 (1954); Kyle v. United States, 263 F.2d at 661.  In Morgan, the petitioner pled guilty to a federal crime and served the resulting sentence.  It was not until 12 years later, when he was charged with a state crime and faced an enhanced sentence as a result of his prior federal conviction, that Morgan sought to challenge the federal conviction on the ground that he had been denied the right to counsel. Id. at 503-04, 514.  The Supreme Court held that the delay was sufficiently explained by the fact that “he was nineteen, without knowledge of law, and not advised as to his rights.”  Id. at 511-12.

[175] United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253 (1954); United States v. Darnell, 716 F.2d 479, 481 n. 5 (7th Cir.1983) (coram nobis petitioner must show “sound reasons” for failure to appeal, analogous to “cause and prejudice” showing required of habeas corpus petitioners), cert. denied, 465 U.S. 1083 (1984).

[176] See Hirabayashi, 828 F.2d at 605-06, discussing Sibron v. New York, 392 U.S. 40, 55-57 (1968).

[177] United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003).

[178] Matus-Leva v. United States, 287 F.3d 758 (9th Cir. April 11, 2002) (coram nobis unavailable to challenge prior conviction on grounds defendant was juvenile since defendant still in custody at time of challenge.  Failure to meet any single coram nobis requirement is fatal.  Does not matter that that defendant missed AEDPA’s one year time limit, and thus could not file habeas petition).

[179] United States v. Esogbue, ___ F.3d ___, 2004 WL 73353 (5th Cir. January 16, 2004).

[180] Ibid., citing Jimenez, 91 F.3d at 768 (footnote omitted). Ineffective assistance of counsel, if proven, can be grounds for coram nobis relief.  See U.S. v. Castro, 26 F.3d 557, 559-60 (5th Cir. 1994) (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 recommendation against deportation or to request same from the sentencing court).