Williams v. United States , 858 F.3d 708 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2147
SUNDAY WILLIAMS,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Lynch, Baldock,* and Kayatta
Circuit Judges.
Simone Bertollini, with whom Law Offices of Simone
Bertollini was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.
June 8,, 2017
* Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. A little over sixteen years
ago, Petitioner Sunday Williams, a Nigerian citizen by birth,
attempted to secure his United States citizenship.
Unfortunately, the way he did so was less than ideal: in lieu
of utilizing any legal means at his disposal, he instead
submitted a false application for a United States passport
wherein he claimed that he was an American citizen hailing from
Brooklyn. Federal authorities caught him in the act and
eventually charged him with making a material false statement in
a matter within the jurisdiction of the United States government
in violation of 18 U.S.C. § 1001. Petitioner pleaded guilty,
and the district court sentenced him to three years' probation.
Now, nearly a decade after his probationary sentence
ended, Petitioner seeks a writ of error coram nobis—"a remedy of
last resort for the correction of fundamental errors of fact or
law," United States v. George, 676 F.3d 249, 253 (1st Cir.
2012)—that vacates or, at the very least, allows him to revise
the factual basis of his § 1001 conviction. Such a writ
obviously could not remedy the direct consequences of that
conviction (i.e., his already-completed sentence). Petitioner,
however, hopes it could remedy the collateral consequences he
still suffers to this day. Specifically, because the underlying
facts of his § 1001 guilty plea and conviction involved a false
claim of United States citizenship, Petitioner is now
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"ineligible to receive visas and ineligible to be admitted to
the United States." See 8 U.S.C. § 1182(a)(6)(C)(ii). Further,
no waiver or exception is available that could rescue him from
that status. See id. Petitioner is therefore not only
permanently barred from obtaining lawful permanent resident
status, see id., but also subject to deportation at any moment,
see id. § 1227(a)(3)(D). Vacating his conviction or revising
its underlying factual basis would thus leave open the
possibility that he could obtain a green card and remain in the
United States.
So what is the supposed fundamental error that would
justify granting Petitioner this "extraordinary" and "hen's-
teeth rare" writ? George, 676 F.3d at 253–54. In Petitioner's
opinion, it was the performance of his attorney, which he claims
was constitutionally deficient under Sixth Amendment standards,
during the proceedings for his long-since-passed conviction.
See generally Strickland v. Washington, 466 U.S. 668 (1984). To
be sure, such constitutionally deficient representation, if
true, can function as the rock upon which a petitioner can build
her coram nobis church. See United States v. Castro-Taveras,
841 F.3d 34, 36–37, 52–53 (1st Cir. 2016) (allowing a defendant
to premise his coram nobis petition on a Sixth Amendment
ineffective-assistance-of-counsel claim); Murray v. United
States, 704 F.3d 23, 28 (1st Cir. 2013) (noting that writs of
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coram nobis are "meant to correct errors 'of the most
fundamental character; that is, such as render[ ] the proceeding
itself irregular and invalid'" (alteration in original)
(emphasis added) (quoting United States v. Mayer, 235 U.S. 55,
69 (1914))).
To demonstrate his attorney's allegedly deficient
performance, Petitioner first points to his change-of-plea
hearing from July 29, 2004. As is relevant here, when
Petitioner walked into that hearing to plead guilty, he had not
yet been charged under § 1001; instead, he had been charged
under 18 U.S.C. § 1542 with the crime of passport fraud. And in
fact, Petitioner had filed motions to dismiss the passport fraud
indictment for improper venue and to transfer the case to the
Eastern District of New York, where Petitioner had actually made
his false citizenship claims and where he lived at the time,
from the District of New Hampshire, where his passport
application had been processed and where the indictment was
currently pending. The district court had initially denied both
motions but changed course at the hearing after recognizing that
our then-recent decision in United States v. Salinas, 373 F.3d
161 (1st Cir. 2004), mandated that venue did, in fact, lay in
the Eastern District of New York. And in light of that
recognition, the district court asked Petitioner whether he
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wished to waive venue and proceed with his guilty plea in the
District of New Hampshire.
After speaking with Petitioner, Petitioner's counsel
replied that Petitioner no longer wished to "go through with
this proceeding today" and wanted the case to be dismissed. In
response, however, the prosecutor requested that the district
court delay dismissing the case so that the United States could
file a superseding indictment instead charging Defendant with
making a material false statement in violation of § 1001. In
the government's view, this course of action was the most
practical and expeditious route, for venue over a § 1001
indictment would still lay in the District of New Hampshire.
Id. at 166–67.
Petitioner's counsel agreed with the government's new,
alternative suggestion. Without consulting anew with Petitioner
to see whether he wanted to proceed with the government's
suggested course of action or still hoped to have the case
dismissed, counsel stated that
[t]ime is important for [Petitioner] regarding
immigration, what's going to happen with that, so I
suppose we don't have an objection to a superseding
indictment.
Petitioner's counsel also observed that a superseding indictment
would "avoid [Petitioner] being re-arrested."
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Although Petitioner went along with his counsel's
conduct at the time and, as we noted above, eventually pleaded
guilty to the § 1001 charge, Petitioner now claims that his
"[c]ounsel sua sponte changed [his] plea by agreeing to allow
the government to file a superseding indictment—instead of
having the charge dismissed—without asking [him] or explaining
what that meant." Because a defendant is guaranteed effective
assistance of counsel during the "plea process," Hill v.
Lockhart, 474 U.S. 52, 57 (1985), Petitioner argues that such an
action clearly amounts to unreasonable conduct under the Sixth
Amendment.
But Petitioner does not stop there. He also claims on
appeal that his counsel both "fail[ed] to advise" and
"affirmatively misadvised" him of the immigration consequences
of pleading guilty to (initially) committing passport fraud
under § 1542 and (eventually) making false statements under
§ 1001. And since the Supreme Court held in Padilla v.
Kentucky, 559 U.S. 356 (2010), that the Sixth Amendment's
guarantee of effective assistance of counsel requires an
attorney for a criminal defendant to "inform her client whether
his [guilty] plea carries a risk of deportation," id. at 374,
Petitioner thus claims that his counsel's misadvice and lack of
advice necessarily made his representation constitutionally
inadequate.
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For example, Petitioner points to his counsel's
statement during the July 29, 2004 change-of-plea hearing that
"[t]ime is important for [Petitioner] regarding immigration."
He contends that this statement was affirmative misadvice about
the immigration consequences of pleading guilty because "[h]ow
the passage of time could positively or negatively affect
[Petitioner's] immigration status is difficult to understand."
Further, Petitioner averred under penalty of perjury that his
counsel "repeatedly told [him] that this was a criminal case and
that it had nothing to do with [his] immigration." And, of
course, lingering in the background is his counsel's alleged
omitted advice—i.e., that he and his counsel "did not discuss
anything about [Petitioner's] immigration, other than [their]
initial discussion where [his counsel] told [Petitioner] that
the criminal case had nothing to do with [his] immigration."
For his third and final allegation of his counsel's
ineffectiveness, Petitioner targets his second change-of-plea
hearing on October 14, 2004, during which he pleaded guilty to
the superseding § 1001 charge. In the course of pleading guilty
to that charge, Petitioner admitted that he made materially
false statements "in connection with an application for a United
States Passport" and "[i]n order to induce and secure the
issuance of a United States Passport." He now claims, however,
that his counsel should not have let him admit to such an
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underlying factual basis. Under Sixth Amendment standards,
Petitioner argues, an effective attorney would have instead
instructed him to only plead guilty to making materially false
statements in connection with and for the purpose of obtaining a
"travel document."
Petitioner asserts that the choice of which phrase to
use—"travel document" or "United States Passport"—is not merely
a matter of semantics. By pleading guilty to making a false
statement in connection with a U.S. Passport, he argues that his
counsel, for all intents and purposes, allowed him to "plead
guilty to facts establishing passport fraud even though the
charge was no longer pending, and the facts involving a passport
were not elements of the charge of making false statements."
And based on this de facto admission of passport fraud,
Petitioner claims that he unwittingly admitted he had made a
false claim of United States citizenship, which, as we noted
above, now forever precludes him from obtaining lawful permanent
resident status and subjects him to deportation at any moment.
See 8 U.S.C. §§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). If, however,
he had pleaded guilty to making a false statement in connection
with a travel document, Petitioner notes that he would not have
been admitting to a factual basis that implied a false claim of
citizenship. And since, in Petitioner's opinion, a reference to
a generic "travel document" would have been more than sufficient
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to meet the elements of a § 1001 charge, he claims that an
effective attorney should have known to use that less
destructive term.
The district court, which took the first shot at
Petitioner's coram nobis petition under the authority vested to
it by the All Writs Act, 28 U.S.C. § 1651(a), concluded that
none of Petitioner's three arguments for ineffective assistance
of counsel were meritorious. See George, 676 F.3d at 253 ("The
authority to grant coram nobis relief derives from the All Writs
Act, 28 U.S.C. § 1651(a), which empowers federal courts to
'issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.'"). It therefore denied him a writ of error
coram nobis. Petitioner accordingly appeals and asks us to do
what the district court would not.
Our jurisdiction arises under 28 U.S.C. § 1291.
Trenkler v. United States, 536 F.3d 85, 95 (1st Cir. 2008).
Further, "we afford de novo review to the district court's legal
conclusions and clear-error review to its findings of fact."
George, 676 F.3d at 256. Where, as here, the district court
"did not conduct an evidentiary hearing and denied the writ as a
matter of law," such a standard translates to plenary review.
Id. As always, we are also free to "affirm on any basis
apparent in the record," even if it would "require[] ruling on
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arguments not reached by the district court or even presented to
us on appeal." Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237
n.11 (1st Cir. 2013) (second quotation quoting Jordan v. U.S.
Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir. 2011)).
We note at the outset that Petitioner's case presents
one of the few instances where we could even consider granting a
writ of error coram nobis: "[I]n its modern form, [this writ] is
ordinarily available only to a criminal defendant who is no
longer in custody." Trenkler, 536 F.3d at 98. Petitioner
undoubtedly satisfies that prerequisite. But his eligibility
for this "remedy of last resort," George, 676 F.3d at 253,
hinges on more than the simple fact that he is no longer serving
his sentence. For one thing, he must "adequately explain his
failure to seek relief earlier through other means." Murray,
704 F.3d at 29. Further, he must also "show that he continues
to suffer a significant collateral consequence from the judgment
being challenged and that issuance of the writ will eliminate
this consequence." Id. Finally, and as we have alluded to
several times before, "he must demonstrate that the judgment
resulted from a fundamental error." Id. And even if Petitioner
satisfies this tripartite test, we "retain[] discretion to grant
or deny the writ." Id. at 29–30. Indeed, "[t]he Supreme Court
has always envisioned coram nobis as strong medicine, not
profligately to be dispensed," so we must issue this writ "only
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under circumstances compelling such action to achieve justice."
George, 676 F.3d at 254–55 (second quotation quoting United
States v. Morgan, 346 U.S. 502, 511 (1954)).
We assume for the purposes of argument that Petitioner
can adequately explain why he did not seek relief from his
§ 1001 conviction any earlier. We also have little trouble
concluding that Petitioner continues to suffer significant
collateral consequences from his § 1001 conviction and that a
writ of error coram nobis would remedy those consequences. As
Petitioner himself noted, he cannot obtain lawful permanent
resident status because the underlying facts of that conviction
involved a false claim of United States citizenship, and he is
therefore subject to deportation at any moment. See 8 U.S.C.
§§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). "Although we have not
explicitly set out what comprises a continuing collateral
consequence," we believe that, whatever the definition,
Petitioner's dilemma satisfies that requirement. George, 676
F.3d at 255–56; see also Murray, 704 F.3d at 29 n.6 (noting that
something "more than the mere fact of conviction is needed" to
prove a continuing collateral consequence). And of course,
vacating or revising the underlying factual basis of his
conviction via a writ of error coram nobis would alleviate that
problem.
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That leaves us to determine whether Petitioner's
§ 1001 conviction resulted from a fundamental error—i.e.,
whether his counsel was constitutionally ineffective under the
Sixth Amendment. To succeed on that argument, Petitioner must
first show that his counsel's "performance was deficient," and
he must then show that "the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687. The first requirement
necessitates a demonstration that "counsel made errors so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment," id., and in
reviewing such an allegation, we must "indulge a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance," Woods v. Donald, 135 S.
Ct. 1372, 1375 (2015) (quoting Strickland, 466 U.S. at 689).
Put differently, we will find deficiency only "where, given the
facts known [to counsel] at the time, counsel's choice was so
patently unreasonable that no competent attorney would have made
it." Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)
(internal quotation marks omitted).
The prejudice requirement, meanwhile, necessitates a
demonstration of "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Rossetti v. United States, 773 F.3d
322, 327 (1st Cir. 2014) (quoting Strickland, 466 U.S. at 694).
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Further, that probability "must be substantial, not just
conceivable," Rivera-Rivera v. United States, 827 F.3d 184, 187
(1st Cir. 2016) (quoting Hensley v. Roden, 755 F.3d 724, 736
(1st Cir. 2014)), or, stated differently, "a probability
sufficient to undermine confidence in the outcome," Mello v.
DiPaulo, 295 F.3d 137, 142 (1st Cir. 2002) (quoting Strickland,
466 U.S. at 694). "Hence, [Petitioner's] Sixth Amendment
claim[s] will fall short unless he can show a substantial
likelihood that he would have obtained a different outcome" on
his § 1001 charge. Rivera-Rivera, 827 F.3d at 187.
Petitioner's first allegation—that his counsel sua
sponte changed his plea by allowing the government to file a
superseding indictment without consulting him about it—fails for
two reasons. First, we do not believe that his counsel's
decision to allow the government to file a superseding
indictment was constitutionally deficient. Instead, we conclude
that it was a valid, reasoned decision meant to avoid further
delay. If Petitioner's counsel had fought the government's
decision to file a superseding indictment, the district court
indicated it simply would have dismissed the case without
prejudice, and the government indicated that it still would have
filed new charges under § 1001 in a brand new indictment. As a
practical matter, this would have been the exact same scenario
that Petitioner ended up facing: being charged under § 1001.
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The only difference is that, as Petitioner's counsel recognized,
the government would have had to re-arrest Petitioner, which
would have resulted in an unnecessary delay. Because
Petitioner's counsel saw the writing on the wall and agreed with
the government's request for a superseding indictment to avoid
this delay, we cannot say that this was a constitutionally
deficient choice even though counsel did not discuss the matter
with Petitioner.
Second, even if his counsel's decision was
constitutionally deficient, Petitioner cannot show that he
suffered any prejudice. Again, the result of the proceeding
would have been no different had his counsel not agreed with the
government's wish to file a superseding indictment: Petitioner
eventually would have been charged under § 1001 for making a
material false statement. Petitioner, however, argues that the
initial result of the proceeding would have been different
because the § 1542 charge for passport fraud would have been
dismissed. As such, he contends that if the government chose to
file a new charge under § 1001, he in turn could have filed a
new motion to transfer that charge to the Eastern District of
New York (an action he could not take once his attorney agreed
to a superseding indictment in the District of New Hampshire).
And if the district court granted that motion, Petitioner claims
it would have been easier for him to defend against the charge
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since he would have been in his hometown and with his family.
But Petitioner has provided no evidence or other compelling
information suggesting that the district court would have
granted any motion to transfer a new § 1001 charge to the
Eastern District of New York. In fact, the record before us
shows a strong likelihood that Petitioner still would have been
subjected to a § 1001 charge in the District of New Hampshire.
Thus, at most, the probability the district court would have
granted any such motion is merely conceivable, not substantial.
And even if the district court did grant his motion, there is no
evidence suggesting that he could have successfully defended
against a § 1001 prosecution in New York. We therefore cannot
say Petitioner suffered any prejudice.
Petitioner's second allegation of his counsel's
ineffectiveness—that his counsel failed to advise and
affirmatively misadvised him of the immigration consequences of
pleading guilty—also fails. For starters, under Chaidez v.
United States, 133 S. Ct. 1103 (2013), we cannot grant
Petitioner any relief for his claims insofar as they relate to
his counsel's alleged failure to advise. In Chaidez, the
Supreme Court expressly held that it had "announced a new rule
in Padilla," and for that reason "defendants whose convictions
became final prior to Padilla . . . cannot benefit from its
holding." Id. at 1113. Further, "the Supreme Court certainly
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decided that Padilla's new rule covers failure-to-advise
claims." Castro-Taveras, 841 F.3d at 43. Consequently,
Plaintiff, whose judgment was entered in 2005, cannot rely on
the 2010 Padilla decision to claim that his attorney was
constitutionally ineffective by failing to advise him of the
immigration consequences of pleading guilty.
The story is different for Petitioner's claims that
his attorney affirmatively misadvised him. Unlike failure-to-
advise claims, "Padilla's misadvice holding did not constitute a
new rule" and is therefore not barred retroactively under
Chaidez. Castro-Taveras, 841 F.3d at 51. Thus, as of 2005 when
judgment was entered, Petitioner's counsel could have been
constitutionally ineffective under Sixth Amendment standards if
he did, in fact, affirmatively misadvise Petitioner about the
immigration consequences of pleading guilty. Id. (holding that
at least as of 2003—two years before Petitioner's judgment of
conviction—affirmative-misadvice claims were "so embedded in the
fabric of the Sixth Amendment framework that 'all reasonable
jurists' would have agreed that Strickland applied to [those]
claims" (citation omitted) (quoting Lambrix v. Singletary, 520
U.S. 518, 528 (1997))).
But even though we theoretically could grant
Petitioner relief for his claims that his attorney misadvised
him about the immigration consequences of pleading guilty,
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Petitioner hits another snag: although he makes this misadvice
argument on appeal, he did not advance this same argument in his
original coram nobis petition. In fact, his petition alleged
only that his attorney failed to advise him of any immigration
consequences, and Petitioner sought to assert misadvice claims
only when the government moved to dismiss his petition on the
grounds that Padilla's holding on failure-to-advise claims was
not retroactive under Chaidez. We do not take kindly to parties
who "shift[] legal theories and s[eek] to re-characterize
[their] Complaint[s] in a way that might parry [the defendants']
blow[s]." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 85
(1st Cir. 2008). "The court, and the defendants, are entitled to
rely on the plain language and the structure of the complaint in
determining what claims are present there," and "the plaintiff
is not entitled to pursue 'every legal theory that a court may
some day find lurking in the penumbra of the record.'" Ruivo v.
Wells Fargo Bank, N.A., 766 F.3d 87, 91 (1st Cir. 2014) (quoting
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir.
1995)). "Otherwise, waiver looms." Snyder v. Collura, 812 F.3d
46, 51 (1st Cir. 2016).
Moreover, even if we generously assume that Petitioner
did not waive his affirmative-misadvice claims, Petitioner
suffered no prejudice from his attorney's alleged misadvice
because the district court itself informed Petitioner that he
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faced immigration consequences. For instance, at his first
change-of-plea hearing on July 29, 2004, while Petitioner was
still charged with passport fraud, the following exchange took
place:
THE COURT: Now, do you understand as a consequence of
this offense it is possible that you could be
deported?
[PETITIONER]: Yes, sir.
And at his second-change-of plea hearing on October 14, 2004,
where Petitioner pleaded guilty to making a material false
statement, a similar exchange occurred:
THE COURT: As a result of this conviction, do you
understand that you could face the possibility of
deportation?
[PETITIONER]: Yes, sir.
Given that the district court wisely took it upon itself to
inform Petitioner of the immigration consequences of pleading
guilty, we do not see a substantial likelihood that anything
different would have happened had Petitioner's counsel not
(allegedly) misadvised him.
Petitioner's third and final allegation of his
counsel's ineffectiveness—that his counsel should not have let
him plead guilty to facts establishing passport fraud—also
fails. For one thing, under § 1001, "the government is required
to prove not only that the defendant's statements were false,
but also that they were material," United States v. Arcadipane,
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41 F.3d 1, 7 (1st Cir. 1994), which means that "[t]he statement
must have 'a natural tendency to influence, or [be] capable of
influencing, the decision of the decisionmaking body to which it
was addressed,'" United States v. Gaudin, 515 U.S. 506, 509
(1995) (second alteration in original) (quoting Kungys v. United
States, 485 U.S. 759, 770 (1988)). As should be obvious, the
district court could not have determined whether Petitioner's
false statements had a tendency to influence a decision of the
U.S. State Department's National Passport Center if it had not
known he had, in fact, submitted a false application for a
United States Passport. Indeed, the district court could not
have gleaned this same information had Petitioner merely
admitted he had made false statements in order to obtain a
generic travel document. Even more, there is no persuasive
evidence that the prosecutor would have agreed to the amorphous
customization of the charge even had it been sought. We
therefore conclude that Petitioner's counsel was not
constitutionally ineffective by allowing him to plead guilty
under § 1001 to making material false statements in order to
obtain a U.S. Passport.
Accordingly, because Petitioner's counsel was not
constitutionally ineffective under the Sixth Amendment in any
way, Petitioner cannot establish that his conviction under
§ 1001 for making a material false statement arose from any
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fundamental error. We therefore deny him a writ of error coram
nobis on that ground alone. But we note that even if Petitioner
could satisfy our tripartite test for coram nobis relief, we
would exercise our discretion to deny him such a writ in any
event. "[W]hen a defendant seeks to vacate a guilty-plea
conviction by way of coram nobis, red flags accompany that
request" and "great caution is warranted." George, 676 F.3d at
257–58. And given that Petitioner entered a guilty plea in this
case, it "seems dubious that granting the writ w[ould] promote
the interests of justice." Id. at 260. Thus, no matter how he
slices it, Petitioner remains bound by his conviction.
***
"A Hail Mary pass in American football is a long
forward pass made in desperation at the end of a game, with only
a small chance of success. The writ of error coram nobis is its
criminal-law equivalent." George, 676 F.3d at 251. Petitioner
cannot satisfy this difficult standard. We therefore AFFIRM the
district court's denial of a writ of error coram nobis.
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