Kovacs v. United States , 744 F.3d 44 ( 2014 )

13-0209
Kovacs v. United States
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2013
6
7
8 (Argued: November 21, 2013 Decided: March 3, 2014)
9
10 Docket No. 13-0209
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 STEPHEN KOVACS,
15
16 Petitioner-Appellant,
17
18 - v.-
19
20 UNITED STATES OF AMERICA,
21
22 Respondent-Appellee.
23
24 - - - - - - - - - - - - - - - - - - - -x
25
26 Before: KEARSE, JACOBS, and PARKER, Circuit
27 Judges.
28
29 Appeal from a judgment of the United States District
30 Court for the Eastern District of New York, denying Stephen
31 Kovacs’ petition for a writ of error coram nobis to vacate
32 his 1999 guilty plea to misprision of felony. We reverse
33 and order the granting of the writ.
34 NICHOLAS A. GRAVANTE, JR.
35 (Thomas Ling, on the brief),
36 Boies, Schiller & Flexner LLP,
37 New York, N.Y., for
38 Appellant.
1 MICHAEL H. WARREN (Peter A.
2 Norling, on the brief), for
3 Loretta E. Lynch, United States
4 Attorney for the Eastern
5 District of New York, Brooklyn,
6 N.Y., for Appellee.
7
8 The Opinion of the Court is filed by Judge JACOBS. Judge
9 KEARSE concurs except for Part I.B.1.
10
11 DENNIS JACOBS, Circuit Judge:
12
13 Petitioner Stephen Kovacs appeals from a judgment of
14 the United States District Court for the Eastern District of
15 New York (Wexler, J.), denying his petition for a writ of
16 error coram nobis. Kovacs was convicted for misprision of
17 felony, in violation of 18 U.S.C. § 4, and seeks the writ on
18 the ground that his lawyer rendered ineffective assistance
19 by giving erroneous advice concerning the deportation
20 consequences of pleading guilty to that offense, with the
21 result that he is at risk of detention and deportation if he
22 reenters the United States. The district court denied the
23 petition without an evidentiary hearing. For the reasons
24 that follow, we reverse and order the granting of the writ.
25
26 BACKGROUND
27 Stephen Kovacs is an Australian national who became a
28 permanent resident of the United States in 1977. While
2
1 here, Kovacs founded International Bullion and Metal
2 Brokers, Inc., an importer and distributor of gold and metal
3 jewelry. After Kovacs’ company lost $250,000 in a 1991
4 burglary, Hanover Insurance Company dispatched a public
5 adjustor named Eliot Zerring to assess the loss. Zerring,
6 who was corrupt, see Chubb & Son Inc. v. Kelleher, No. 92 CV
7 4484, 2010 WL 5978913 (E.D.N.Y. Oct. 22, 2010), purportedly
8 convinced Kovacs to inflate the claim to $850,000. The
9 claim was submitted in September 1991 and paid later that
10 month. Kovacs ultimately took $400,000 of the $850,000, and
11 Zerring kept the rest.
12 Kovacs was charged in October 1996 with wire fraud and
13 conspiracy to commit wire fraud, in violation of 18 U.S.C.
14 §§ 371 and 1343. Kovacs instructed his lawyer, Robert Fink,
15 to negotiate a plea that would have no immigration
16 consequences. Fink advised Kovacs that a conviction for
17 misprision of felony, 18 U.S.C. § 4, would not impact his
18 immigration status. Fink allegedly conveyed these
19 immigration concerns to the Government, which agreed to the
20 misprision of felony charge.
21 On November 24, 1999, Kovacs pled guilty to a single
22 count of misprision of felony. Kovacs’ immigration concerns
23 were aired during the plea hearing. At the outset, Fink
3
1 sought to seal the minutes of the guilty plea so immigration
2 officials could not see them. The district court warned
3 Kovacs that immigration consequences were not in its control
4 and that it would give no such assurance. Fink, however,
5 responded that he “researched it and we feel comfortable
6 that this is not a deportable offense.” Special App. at 12,
7 ECF No. 31 (transcript of plea proceeding). At the
8 conclusion of the proceeding, Fink again stated that
9 “misprision of felony is not deportable.” Id. at 16. The
10 court accepted the plea.
11 Kovacs was sentenced on December 17, 2001 to five
12 years’ probation and restitution of $600,000. The district
13 court granted a downward departure for extraordinary
14 acceptance of responsibility in view of Kovacs’ decision to
15 forgo an available defense based on the five-year statute of
16 limitations. Kovacs paid the restitution in full by August
17 8, 2002. In 2006, the district court granted a motion to
18 terminate Kovacs’ probation early.
19 Kovacs continued his regular international travel until
20 April 2009, when immigration officials questioned Kovacs’
21 eligibility for reentry on the ground that misprision of
22 felony is considered a crime of moral turpitude. At that
23 point, immigration officials directed him to appear for an
4
1 interview to evaluate his immigration status. Kovacs
2 discussed his options with his lawyers, but allegedly none
3 of them advised him to seek vacatur of his conviction.
4 Before his scheduled interview, on the advice of
5 counsel, Kovacs returned to Australia, where he currently
6 resides. His wife and children, all United States citizens,
7 remain here. Kovacs’ children have had to adjust their
8 lives to carry on the family business.
9 Kovacs alleges that, notwithstanding his efforts to
10 seek counsel earlier, he first became aware of the
11 possibility of coram nobis relief in October 2011. At about
12 that time, his counsel asked the Government to negotiate an
13 agreed-upon motion for a writ of error coram nobis.
14 Negotiations failed, and Kovacs submitted a petition for the
15 writ in May 2012. The district court denied the petition on
16 the ground that Kovacs could not show prejudice within the
17 framework established by Strickland v. Washington, 466 U.S.
18 668 (1984). Because the court denied the petition on those
19 grounds, it did not reach the merits of the Government’s
20 other arguments: that the petition was untimely, and that
21 Kovacs could not show Fink’s advice was objectively
22 unreasonable at the time the conviction became final.
23 Kovacs now appeals the denial of his petition.
5
1 DISCUSSION
2 A writ of error coram nobis is an “extraordinary
3 remedy,” United States v. Morgan, 346 U.S. 502, 511 (1954),
4 typically available only when habeas relief is unwarranted
5 because the petitioner is no longer in custody. See
6 Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).
7 We review the legal standards applied by the district court
8 de novo. Id.9 A petitioner seeking coram nobis relief “must
10 demonstrate that 1) there are circumstances compelling such
11 action to achieve justice, 2) sound reasons exist for
12 failure to seek appropriate earlier relief, and 3) the
13 petitioner continues to suffer legal consequences from his
14 conviction that may be remedied by granting of the writ.”
15 Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)
16 (internal citations and quotation marks omitted). There is
17 no doubt that Kovacs’ likely ineligibility to reenter the
18 United States constitutes a continuing consequence of his
19 conviction. The remaining questions are whether Fink’s
20 misadvice warrants granting the writ, and whether the
21 petition was timely.
22
6
1 I
2 “Defendants have a Sixth Amendment right to counsel, a
3 right that extends to the plea-bargaining process.” Lafler
4 v. Cooper, 132 S. Ct. 1376, 1384 (2012). Thus, ineffective
5 assistance of counsel is one ground for granting a writ of
6 coram nobis. See Chhabra v. United States, 720 F.3d 395,
7 406 (2d Cir. 2013). A claim of ineffective assistance
8 entails a showing that: 1) the defense counsel’s performance
9 was objectively unreasonable; and 2) the deficient
10 performance prejudiced the defense. Strickland, 466 U.S.
11 at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 58 (1985)
12 (holding Strickland test applies to guilty plea challenges);
13 Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011).
14
15 A
16 The performance component of the Strickland test asks
17 whether a “counsel’s representation fell below an objective
18 standard of reasonableness.” Strickland, 466 U.S. at 688.
19 A defense counsel’s performance is unreasonable when it is
20 so deficient that it falls outside the “wide range of
21 professionally competent assistance.” Id. at 690.
22
7
1 As the district court observed, “there is no dispute
2 that Fink misadvised Kovacs regarding the immigration
3 consequences of his plea.” Memorandum and Order, Kovacs v.
4 United States, No. 12-cv-02260, at 3 (E.D.N.Y. Jan. 2, 2013,
5 ECF No. 18). The transcript of the plea allocution reflects
6 repeated erroneous assurances by Fink that misprision of
7 felony was not a deportable offense. We held in United
8 States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), that an
9 affirmative misrepresentation of the deportation
10 consequences of a guilty plea falls outside this range of
11 professional competence. However, Couto was decided the
12 year after Kovacs’ 2001 conviction became final. If Kovacs
13 had entered his plea after Couto was decided, there is
14 little doubt Fink’s performance would be deemed
15 unreasonable. Kovacs seeks to apply Couto retroactively.1
16 The retroactive application of case law is governed by
17 the rule set forth in Teague v. Lane, 489 U.S. 288 (1989),
1
Because the district court ruled Kovacs could not
make a showing of prejudice, the court did not decide
whether Couto retroactively applies. However, this issue
has been argued by the parties and presents a pure question
of law. See Hartford Courant Co. v. Pellegrino, 380 F.3d
83, 90 (2d Cir. 2004) (“In general, we refrain from
analyzing issues not decided below, but we have the
authority to decide issues that were argued before but not
reached by the district court.”).
8
1 which looks to a decision’s novelty. If a decision
2 announces a new rule, “a person whose conviction is already
3 final may not benefit from the decision in a habeas or
4 similar proceeding.” Chaidez v. United States, 133 S. Ct.
5 1103, 1107 (2013). Only if the Court applies a settled rule
6 “may a person avail herself of the decision on collateral
7 review.” Id. “[A] case announces a new rule if the result
8 was not dictated by precedent existing at the time the
9 defendant’s conviction became final.” Teague, 489 U.S. at10 301 (emphasis in original). Such a holding must have been
11 “apparent to all reasonable jurists.” Chaidez, 133 S. Ct.
12 at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28
13 (1997)).
14 We have little trouble concluding that, by the time
15 Kovacs’ conviction became final, the Couto rule was
16 indicated, and was awaiting an instance in which it would be
17 pronounced. Courts had concluded similar misadvice was
18 objectively unreasonable as far back as the 1970s2; our
19 decisions reflected this trend long before Kovacs’
2
See, e.g., United States v. Briscoe, 432 F.2d 1351,
1353-54 (D.C. Cir. 1970); Downs-Morgan v. United States, 765
F.2d 1534, 1538-41 (11th Cir. 1985); United States v.
Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich. 1987);
United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173
(D. Kan. 1999).
9
1 conviction. See United States v. Santelises, 509 F.2d 703,
2 704 (2d Cir. 1975) (per curiam) (“Since [defense counsel]
3 does not aver that he made an affirmative misrepresentation,
4 [petitioner] fails to state a claim for ineffective
5 assistance of counsel.”); Michel v. United States, 507 F.2d
6 461, 465 (2d Cir. 1974) (“While recognizing that deportation
7 was a serious sanction, this court . . . [noted] that there
8 was before it no allegation of misleading by counsel.”); see
9 also United States v. Zilberov, 162 F.3d 1149, 1998 WL
10 634211, at *1 (2d Cir. 1998) (unpublished summary order)
11 (“[T]rial counsel’s alleged warning of ‘possible’
12 deportation may have been inaccurate and, arguably,
13 objectively unreasonable.”).
14 The Government observes that these statements were
15 dicta, not holdings; but if there had been holdings, there
16 would be no occasion now to consider retroactivity. Couto
17 did nothing more than apply the “age-old principle that a
18 lawyer may not affirmatively mislead a client.” Chaidez,
19 133 S. Ct. at 1119 (Sotomayor, J., dissenting). At the time
20 Kovacs’ conviction became final, no reasonable jurist could
21 find a defense counsel’s affirmative misadvice as to the
22 immigration consequences of a guilty plea to be objectively
23 reasonable.
10
1 B
2 Once a petitioner shows deficient performance of
3 defense counsel, the inquiry shifts to the prejudicial
4 effect of that performance. To establish prejudice, a
5 petitioner “must show that there is a reasonable probability
6 that, but for counsel’s unprofessional errors, the result of
7 the proceeding would have been different. A reasonable
8 probability is a probability sufficient to undermine
9 confidence in the outcome.” Strickland, 466 U.S. at 694.
10 In determining whether a different outcome sufficiently
11 demonstrates prejudice, we must keep in mind that “a
12 defendant has no right to be offered a plea, nor a federal
13 right that the judge accept it.” Missouri v. Frye, 132 S.
14 Ct. 1399, 1410 (2012) (internal citations omitted).
15 Notwithstanding the prevalence of pleas in the criminal
16 justice system, see id. at 1407, the Supreme Court has not
17 often had occasion to consider Strickland prejudice in the
18 plea negotiation context. The Government, relying on Hill,
19 474 U.S. 52, contends Kovacs can succeed only if he shows he
20 would have gone to trial absent his attorney’s unreasonable
21 performance. While Kovacs contends he has made that
22 showing, he also argues that he can demonstrate prejudice by
11
1 showing his ability to negotiate an alternative plea based
2 on the holding of Frye, 132 S. Ct. 1399.
3 In Hill, the petitioner sought habeas relief to
4 challenge his guilty plea to first-degree murder. Hill, 474
5 U.S. at 54. He alleged that his attorney’s misadvice about
6 when he would become eligible for parole caused his plea to
7 be involuntary. See id. at 56. In that context, the Court
8 stated that prejudice is shown when “there is a reasonable
9 probability that, but for the counsel’s errors, he would not
10 have pleaded guilty and would have insisted on going to
11 trial.” Id. at 59. Because the petitioner there did not
12 allege that he would have insisted on trial or that he
13 placed “particular emphasis on his parole eligibility in
14 deciding” to plea, the Court denied his petition. Id. at
15 60.
16 Frye opened another avenue to showing prejudice in the
17 pretrial process. Frye’s lawyer failed to tell him of a
18 proposed plea that would have resulted in a reduced
19 sentence. 132 S. Ct. at 1404-05. The plea lapsed and Frye
20 argued that he would have accepted the better offer but for
21 his attorney’s performance. Id. Prejudice can arise under
22 Frye if a petitioner can “demonstrate a reasonable
12
1 probability [he] would have accepted the earlier plea offer
2 had [he] been afforded effective assistance of counsel.”
3 Id. at 1409. In addition, a petitioner must show “a
4 reasonable probability that the end result of the criminal
5 process would have been more favorable by reason of a plea
6 to a lesser charge or a sentence of less prison time.” Id.
7 Acknowledging that there is no right to a plea, the Court
8 also required “a reasonable probability neither the
9 prosecution nor the trial court would have prevented the
10 offer from being accepted or implemented.” Id. at 1410.
11 The Government contends that Frye is limited to lapsed
12 pleas and that Kovacs must satisfy the Hill standard. We
13 disagree. “Hill . . . applies in the context in which it
14 arose.” Id. at 1409. “Hill does not . . . provide the sole
15 means for demonstrating prejudice arising from the deficient
16 performance of counsel during plea negotiations.” Id. at
17 1409-10.3 The proper focus is not on the specific test
18 applied in Hill or Frye; each case is a context-specific
19 application of Strickland directed at a particular instance
20 of unreasonable attorney performance. See Hare v. United
3
As the Supreme Court noted, “it is insufficient
simply to point to the guarantee of a fair trial as a
backstop that inoculates any errors in the pretrial
process.” Frye, 132 S. Ct. at 1407.
13
1 States, 688 F.3d 878, 879 (7th Cir. 2012) (“Both Hill and
2 Frye apply Strickland’s inquiry . . . .” (internal quotation
3 marks omitted); see also Lafler v. Cooper, 132 S. Ct. 13764 (2012) (developing different test for prejudice when
5 attorney misadvice leads to standing trial instead of
6 accepting a plea offer).
7 We conclude that a defense lawyer’s incorrect advice
8 about the immigration consequences of a plea is prejudicial
9 if it is shown that, but for counsel’s unprofessional
10 errors, there was a reasonable probability that the
11 petitioner could have negotiated a plea that did not impact
12 immigration status or that he would have litigated an
13 available defense.4 See United States v. Kwan, 407 F.3d
14 1005, 1017-18 (9th Cir. 2005) (“Kwan could have gone to
15 trial or renegotiated his plea agreement to avoid
16 deportation.”). The petitioner must clearly demonstrate
17 “that he placed particular emphasis on [immigration
18 consequences] in deciding whether or not to plead guilty.”
19 Id. at 1017 (internal quotation marks omitted).
4
See also Sasonov v. United States, 575 F.Supp.2d 626,
639 (D.N.J. 2008) (immigration consequences “may have been
enough to . . . have allowed [petitioner] to negotiate a
more favorable plea agreement with the Government.”); United
States v. Shaw, No. Civ.A. 03-6759, 2004 WL 1858336, at *11
(E.D. Pa. 2004) (“Defendant could have negotiated with the
government in such a way as to produce a sentence that would
not have triggered the INA mandatory removal provisions.”).
14
1 Strickland prejudice focuses on the outcome of the
2 proceeding rather than a defendant’s priorities or desires.
3 “[B]ecause a defendant has no right to be offered a plea,”
4 Frye, 132 S. Ct. at 1410, the ultimate outcome of a plea
5 negotiation depends on whether the government is willing to
6 agree to the plea the defendant is willing to enter. To
7 prevail on that ground, a petitioner must therefore
8 demonstrate a reasonable probability that the prosecution
9 would have accepted, and the court would have approved, a
10 deal that had no adverse effect on the petitioner’s
11 immigration status. Cf. id. (“reasonable probability
12 neither the prosecution nor the trial court would have
13 prevented the offer from being accepted or implemented”);
14 Lafler, 132 S. Ct. at 1385 (“the prosecution would not have
15 withdrawn it in light of intervening circumstances”); United
16 States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (“He
17 alleges no facts that would suggest that his attorney could
18 have successfully negotiated a plea agreement . . . .”)
19 (emphasis added).
20 We conclude 1) that Kovacs has sufficiently shown that
21 he could have negotiated a plea that would not have impaired
22 his immigration status, and 2) that even if he could not, he
15
1 would have litigated an available defense. Judge Kearse
2 would decide this appeal on the second ground only, under
3 Hill, and does not subscribe to our discussion of the first.
4
5 1
6 Kovacs has sustained the very considerable burden of
7 establishing prejudice under the principles reviewed above.
8 It is apparent from the transcript of the Rule 11 hearing
9 that Kovacs’ single-minded focus in the plea negotiations
10 was the risk of immigration consequences. The declaration
11 submitted by Fink stated that the misprision of felony
12 charge was settled on in the plea negotiation for the sole
13 reason that Fink believed it would not impair Kovacs’
14 immigration status–-a view Fink conveyed to the prosecution.
15 Kovacs has thus shown a reasonable probability that he could
16 have negotiated a plea with no effect on his immigration
17 status. The Government’s arguments on appeal are directed
18 at contesting the applicable legal standard rather than the
19 factual premise: the reasonable probability that the
20 prosecution would have accepted a plea to an offense that
21 would have left Kovacs’ immigration status intact.
22
16
1 Consequently, we find that Kovacs has made a showing of
2 prejudice based on his ability to negotiate an alternative
3 plea.
4
5 2
6 Alternatively, Kovacs demonstrates prejudice under the
7 standards set forth in Hill. Kovacs’ petition alleges he
8 would have litigated a meritorious statute of limitations
9 defense. When a petitioner claims that he would have
10 pursued an affirmative defense but for his lawyer’s
11 erroneous advice, “the resolution of the ‘prejudice’ inquiry
12 will depend largely on whether the affirmative defense
13 likely would have succeeded at trial.”5 Hill, 474 U.S. at
14 59. At sentencing, Kovacs requested a downward departure
15 for extraordinary acceptance of responsibility on the basis
16 that he waived this potential meritorious defense, and the
17 district court granted it. The request itself demonstrates
18 Kovacs’ awareness of the defense prior to the plea becoming
19 final. See Fed. R. Crim. P. 11(d)(2). More importantly,
5
The Government argues that this language applies only
when the unreasonable performance impairs the defense. This
portion of Hill, though, merely provides examples of how its
rule might apply, and does not suggest a limitation. See
Hill, 474 U.S. at 59-60.
17
1 the district court’s grant of Kovacs’ request in the course
2 of a conscientious and searching sentencing process
3 implicitly acknowledged that the defense had weight. As a
4 result, Kovacs has shown a reasonable probability that he
5 would have proceeded to trial.
6 The Government contests the merit of the defense,
7 citing a fax sent after Kovacs received the final payment in
8 his fraudulent scheme, a document that is not in the present
9 record. In any event, the question is not whether the
10 defense would ultimately have been successful. Rather, the
11 inquiry is whether the defense was viable and sufficiently
12 promising that Kovacs would have litigated the defense to
13 avoid immigration consequences. There is no doubt that (fax
14 or no fax) the defense was sufficient trouble for the
15 Government that Kovacs would have been foolish to forgo it
16 at trial or as a means of softening the Government’s
17 position in plea bargaining.
18
19 II
20 The Government urges affirmance on the ground that the
21 petition was untimely. The district court did not reach
22 that issue; but we do, insofar as timeliness bears on
23 possible prejudice to the Government.
18
1 No statute of limitations governs the filing of a coram
2 nobis petition. See Foont, 93 F.3d at 79. At the same
3 time, the petitioner must demonstrate “sound reasons” for
4 any delay in seeking relief. Id. “The critical inquiry . .
5 . is whether the petitioner is able to show justifiable
6 reasons for the delay.” Id. at 80.
7 Kovacs has supplied sufficient reasons to justify the
8 delay. He avers that he has diligently pursued ways to
9 reenter the country, but was unaware that a writ of coram
10 nobis existed until October 2011--and contacted the
11 Government soon thereafter. The Government is skeptical
12 about the recent discovery of a writ so “ancient.” Morgan,
13 346 U.S. at 506. When such a disputed issue of fact arises,
14 we typically remand for a hearing. Under present
15 circumstances, however, no hearing is needed because it is
16 improbable that Kovacs (or whatever attorney he consulted)
17 would have promptly thought about coram nobis, which is as
18 arcane as it is ancient. The writ is an “extraordinary
19 remedy” available only in rare cases. Id. at 511. Further,
20 the Government does not suggest any tactical reason Kovacs
21 would have delayed pursuit of the writ until 2011 if he had
22 learned of it earlier. Lastly, the focus on the filing date
23 of the petition insufficiently accounts for Kovacs’ efforts
19
1 to negotiate for an agreed-upon motion in 2011. We conclude
2 that Kovacs’ petition was timely.
3
4 For these reasons, Kovacs has established his claim of
5 ineffective assistance of counsel and satisfies the
6 requirements for coram nobis relief. Therefore, we reverse
7 and remand to the district court with instructions to issue
8 the writ and vacate Kovacs’ conviction.
20