Ineffective Assistance Claim for Misadvice of Immigration Consequences of Plea Sucessfully Raised by the Extraordinary Remedy of Writ of Error Coram Nobis
A writ of habeas corpus is the most recognized remedy for challenging an unlawful conviction when a person is in custody. But what about when a person is no longer in custody?
In 1954, the U.S. Supreme Court in United States v. Morgan recognized a “writ of error coram nobis” as an “extraordinary remedy” available to challenge an unlawful conviction when habeas corpus is unavailable because the convicted person is no longer “in custody” (a prerequisite to habeas corpus relief). To secure coram nobis relief, a person must demonstrate, as articulated by the courts, that (1) there are circumstances compelling such relief to achieve justice, (2) sound reasons must exist for having not sought habeas corpus relief when It was available, and (3) the person continues to suffer legal consequences from the unlawful conviction which may be remedied by the granting the relief.
Here’s an example of how coram nobis works in real life. The Second Circuit Court of Appeals in Kovacs v. United States handed down a favorable ruling on March 3, 2014 in a coram nobis case. As explained by the court, Stephen Kovacs is an Australian national who became a permanent resident of the United States in 1977. He became a successful businessman, founding International Bullion and Metal Brokers, Inc., an importer and distributor of gold and metal jewelry. The company was burglarized in 1991 with a loss of $250,000. The Hanover Insurance company sent a “public adjustor” named Eliot Zerring to assess the loss. The appeals court called Zerring “corrupt” because he “purportedly convinced” Kovacs to inflate the loss claim to $850,000. The claim was settled that same year. The two men split the ill-gotten gains: $400,000 for Kovacs and the rest for Zerring.
The Government subsequently learned of the fraud. In October 1996, Kovacs was indicted for wire fraud and conspiracy to commit wire fraud. He decided to plead guilty. He instructed his lawyer to negotiate a plea deal that would have no “immigration consequences.” His lawyer negotiated a deal with the Government that allowed Kovacs to plead guilty misprision of a felony—a violation of 18 U.S.C. § 4. The attorney advised Kovacs that such a plea would have no impact on his immigration status because he had discussed Kovacs immigration concerns with the Government before prosecutors agreed to the misprision of a felony charge.
Things don’t always go as expected in our imperfect justice system. On November 24, 1999, Kovacs pled guilty to a single count of misprision of a felony. The court allowed Kovac’s lawyer to present his immigration concerns at the plea hearing; in fact, the attorney sought to seal the minutes of the court so immigration officials “could not see them.” The sentencing judge was wary.
He informed Kovac’s lawyer that he could not extend any assurances concerning the defendant’s immigration status because that matter was not under his control. Kovac’s lawyer nonetheless pushed forward, telling the judge he had “researched it and we feel comfortable that it is not a deportable offense.” And, again, at the close of the plea hearing, Kovac’s lawyer informed the court that “misprision of a felony is not a deportable offense.” The court accepted Kovacs guilty plea.
At first things seem to be going okay for Kovacs. On December 17, 2001, he was sentenced to five-years’ probation and restitution in the amount of $600,000. The sentencing judge was clearly impressed with Kovacs who relinquished a viable defense based on the five-year statute of limitations with his guilty plea to the misprison of a felony charge. The judge was so impressed, in fact, that he granted a “downward departure” for “extraordinary acceptance of responsibility”—and because Kovacs paid off the full restitution by August 8, 2002, he terminated the defendant’s probation early.
Kovacs believed his legal troubles were behind him after he discharged from federal custody. But never assume anything when it comes to the Government and its law enforcement reach. Kovacs had been traveling around the globe until April 2009 when upon reentry he was questioned by immigration officials concerning his misprison a felony conviction. The officials informed him that the conviction was considered a “crime of moral turpitude” and instructed him to appear at a later scheduled immigration status interview. Kovacs immediately discussed the immigration issue with his lawyers, and while they all offered advice, none of them advised him to seek a “vacatur of his [misprison of a felony] conviction.”
Prior to the scheduled immigration interview, Kovacs returned to Australia on the advice of counsel where he remains. His wife and children, all U.S. citizens, stayed in the United States. This situation forced the Kovacs children to adjust their lives so they could “carry on the family business.”
Like most people, Kovacs had never heard of a writ error coram nobis, that is, until October 2011 at which time his counsel filed a petition for coram nobis relief. The attorney argued that Kovacs’ original counsel rendered ineffective assistance by giving “erroneous advice concerning the deportation consequences of pleading guilty to the [misprison of a felony], with the result that he is at risk of detention and deportation if he reenters the United States.”
The district court denied the petition, finding that Kovacs could not meet the prejudice component of Strickland v. Washington—the 1984 U.S. Supreme Court governing ineffective assistance claims. The district court did not rule on the Government’s two arguments: “that the petition was untimely, and that Kovacs could not show his lawyer’s advice was objectively unreasonable at the time the conviction became final.”
The Second Circuit began its analysis with the observation that a defendant has a Sixth Amendment right to counsel in the plea bargaining process and, thus, ineffective assistance of counsel is one ground upon which coram nobis relief can be granted. To establish an ineffective assistance claim under the Strickland mandate, a defendant must show (1) that counsel’s performance was objectively unreasonable and (2) that the deficient performance prejudiced the defense.
The district court hearing the coram nobis writ said the record clearly supported Kovacs claim that his lawyer had provided erroneous advice about the deportation issue. The Second Circuit agreed with this factual finding. This finding was then considered in light of the appeals court’s 2002 ruling in United States v. Couto which held that an affirmative misrepresentation of the deportation consequences of a guilty plea rendered a lawyers performance unreasonable. The problem was that Kovacs’ conviction became final in 2001, forcing the appeals court had to decide whether Couto retroactively applied.
The court had little trouble concluding that it did, pointing out that the case law supporting Couto had been in place as far back as the 1970s, long before Kovacs conviction became final. Therefore, at “the time Kovacs’ conviction became final, no reasonable jurist could find a defense counsel’s affirmative misadvice as to the immigration consequences of a guilty plea to be objectively reasonable. “
With the deficient performance component completely satisfied, the Second Circuit turned its attention to the prejudice component. To establish prejudice under Strickland, the Supreme Court said the individual “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
The appeals court found that Kovac’s lawyer’s erroneous deportation advice prejudiced Kovacs in two ways: 1) he could have negotiated a plea deal that did not impact his immigration and/or 2) he could have pressed the defense that the statute of limitation had run on the criminal conduct for which he had been charged.
Having found Kovacs had satisfied both components of the Strickland standard and was therefore entitled of a reversal of his conviction, the Second Circuit casually but appropriately rejected the Government’s argument that Kovacs’ coram nobis petition was untimely:
“Kovacs has supplied sufficient reasons to justify the delay. He avers that he has diligently pursued ways to reenter the country, but was unaware that a writ of coram nobis existed until October 2011—and contacted the Government soon thereafter. The Government is skeptical about the recent discovery of a writ so ‘ancient.’ When such a disputed of fact issue arises, we typically remand for a hearing. Under present circumstances, however, no hearing is needed because it is improbable that Kovacs (or whichever attorney he consulted) would have promptly thought about coram nobis, which is as arcane as it ancient. The writ is an ‘extraordinary remedy’ available only in rare cases…”
Our point is this: rare cases do arise, and when habeas corpus is no longer available, coram nobis just may be a viable remedy.