There have not been many decisions from the D.C. Circuit in recent months – criminal or otherwise. But a rare reversal in an unusual coram nobis proceeding is worth mentioning as we swing into those grey winter months.
In an opinion remarkable for its turnaround – announced only 45 days after oral argument – the Circuit concluded that Kerry Newman, a permanent resident alien since 1980, had established one viable ground on which to claim that his defense counsel might have rendered ineffective assistance by providing erroneous advice at sentencing about the potential consequences of a guilty plea to a felony offense. United States v. Newman, _ F.3d _, 2015 U.S. App. LEXIS 1988 (D.C. Cir., Oct. 2, 2015).
Speaking for the panel, Judge Tatel noted that defense counsel failed to say anything about these concerns while negotiating a plea to a wire fraud charge and even through the plea in 2001. Defense counsel finally awoke to this issue eleven months later at sentencing, only to offer an on-the-record inaccurate review of immigration law.
Several years later, after Newman completed his sentence, he was apprehended by the authorities and charged as inadmissible to remain in the U.S., based on the wire fraud conviction being a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(1). Immigration counsel advised him that as if this weren’t bad enough, based on the loss amount established by the plea, he was considered an alien convicted of an aggravated felony under 8 U.S.C. § 1127(a)(2)(A)(iii). Based on her advice, Newman consented to deportation.
In 2010, armed with the intervening decision in Padilla v. Kentucky, 559 U.S. 356 (2010), Newman sought a writ of coram nobis. Newman claimed that his defense counsel had provided ineffective assistance by failing to inform him of, and then affirmatively misleading him about, the potential consequences of his conviction. However, the Government countered that the more recent decision in Chaidez v. United States, 133 S. Ct. 1103 (2013), which limited Padilla to defendants whose convictions became final after Padilla, foreclosed relief for Newman, whose case became final in 2002. And in any event, the Government maintained, Newman could not establish the necessary showing of prejudice required under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on an ineffective assistance claim.
Newman responded that defense counsel had failed to “negotiate an effective plea bargain” by neglecting to research and consider the immigration consequences. In addition, he claimed that irrespective of Chaidez, defense counsel had a constitutional duty to refrain from providing erroneous advice prior to and during sentencing, which duty predated Padilla.
The Circuit agreed with the district court that Newman’s first argument was a non-starter. Judge Tatel observed it made no sense to claim that a defense lawyer had a duty to research the immigration consequences of pleading guilty while negotiating a plea if no duty existed prior to Padilla to advise a client of those implications.
Newman’s second theory, on the other hand, found a more receptive audience. The Circuit noted that the Government didn’t dispute that at the time of Newman’s conviction, a lawyer’s erroneous immigration advice could form the basis of an ineffective assistance claim. Turning to the more thorny issue of prejudice, the Court of Appeals disagreed with the Government’s claim – erroneously credited by the district court – that “the damage was already done” because defense counsel’s mistaken statements occurred after the plea had been accepted. On that basis, the Circuit found an error of law, for “nothing about the temporal relationship between Newman’s plea and his attorney’s inaccurate advice categorically bars Newman from establishing prejudice. Pointing to Rule 11(d)(2)(B), F. R. Crim. P., Judge Tatel pointed out that Newman could have withdrawn his plea prior to sentencing for any “fair and just reason.”
Finding that the ultimate question of prejudice could not be determined conclusively one way or the other on the record, the Circuit reversed the proceeding and remanded it to the district court for further consideration. While suggesting that Newman’s pleading guilty after the district court had warned him there might be immigration consequences possibly weakened his claim to relief, the appellate panel twice took pains to note that the district court had denied Newman’s claim “reluctantly,” which intimated that perhaps it saw the question as a close one.
A tip of the hat goes to Rion Latimore, a Cincinnati immigration lawyer who represented Mr. Newman before the district court and the Circuit.