Lorna Clarke v. United States , 703 F.3d 1098 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1728
L ORNA C LARKE,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 7404—John W. Darrah, Judge.
A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 9, 2013
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. This appeal from the denial of
a motion under 28 U.S.C. § 2255 to vacate the peti-
tioner’s conviction involves the duty of a criminal
defense lawyer to advise a client who is not
an American citizen that her conviction may result in
removal, and requires us to consider the conditions
under which the breach of such a duty can be rectified
in a postconviction proceeding.
2 No. 12-1728
A coworker in a Wal-Mart accounting office had per-
suaded the petitioner to join in a scheme to defraud
their employer. The scheme netted the pair more than
$250,000, of which the petitioner’s share was, she ad-
mitted to the government, $50,000, though she was per-
mitted to plead guilty, in April 2008, to just a single
count in the indictment: a count that charged a
fraudulent act that caused a loss to Wal-Mart of $8,000.
She was sentenced two years later to 14 months in
prison to be followed by two years of supervised
release and to pay restitution to Wal-Mart, jointly and
severally with her codefendant, of $262,000. She
did not appeal.
Although a lawful permanent resident of the United
States at the time of her conviction and sentence, the
petitioner was not a U.S. citizen. The Immigration and
Naturalization Act makes an alien who is “convicted
of an aggravated felony at any time after admis-
sion . . . deportable,” 8 U.S.C. § 1227(a)(2)(A)(iii), and
defines “aggravated felony” to include among other
offenses “an offense that involves fraud or deceit in
which the loss to the victim or victims exceeds
$10,000.” § 1101(a)(43)(M)(i). The loss to the victim, Wal-
Mart, was much greater. And since it was caused by
“an overarching fraudulent scheme that encompassed
the individual counts in the indictment,” Knutsen v.
Gonzales, 429 F.3d 733, 737 (7th Cir. 2005), the petitioner’s
being allowed to plead to a single count involving only
an $8000 loss was not inconsistent with her having com-
mitted an offense that resulted in a loss of more
than $10,000. Nijhawan v. Holder, 557 U.S. 29 (2009); Marti-
No. 12-1728 3
nez v. Mukasey, 508 F.3d 255, 260 (5th Cir. 2007); Khalayleh
v. INS, 287 F.3d 978, 980 (10th Cir. 2002). She thus
was convicted of an aggravated felony within the
meaning of the immigration law. It’s true that the
passage we just quoted from our opinion in Knutsen
was describing rather than endorsing the holding in
the Khalayleh case. But that was before the Supreme
Court in Nijhawan laid the issue to rest.
Removal proceedings were instituted in August 2011,
two months after the petitioner completed her prison
sentence. In October she filed her section 2255 motion
asking that her conviction be set aside (so that she could
either negotiate a different plea or go to trial) on the
ground that neither the judge nor her lawyer had
advised her that she could be removed if convicted.
Her lawyer had told her there might be “immigration
consequences” if she pleaded guilty and thus was con-
victed, but he had not specified those consequences.
Also in October an immigration judge ordered her re-
moved to Jamaica, her country of origin, and the order
has been executed.
Section 2255(f)(1) provides that the one-year statute
of limitations for filing a section 2255 motion ordinarily
begins to run on “the date on which the judgment of
conviction becomes final.” But section 2255(f)(4) allows
it to begin to run later, namely on “the date on which
the facts supporting the claim or claims presented [by
the motion] could have been discovered through the
exercise of due diligence.” Section 2255(f)(4) is thus
effectively a tolling statute.
4 No. 12-1728
A lawyer’s failure to advise his client concerning a
critical consequence of conviction can be a “fact” support-
ing a claim of ineffective assistance of counsel. See
Owens v. Boyd, 235 F.3d 356, 359-60 (7th Cir. 2000); cf.
Johnson v. United States, 544 U.S. 295, 304-05 (2005). But
in this case it was a fact that could have been “discovered
through the exercise of due diligence” well within a
year after the petitioner’s guilty plea in August 2008,
and it was not until October 2011 that she filed her
section 2255 motion. When the lawyer had “mentioned
possible immigration consequences” to her before she
pleaded guilty, this placed her on notice that she might
be removed. She knew she was not a citizen. (Improbable
as it may seem, we can imagine a case in which a de-
fendant reasonably but mistakenly believed herself to be
a citizen and therefore immune from removal unless she
was a naturalized citizen who had done something ex-
posing her to denaturalization. But that is not this
case.) What other “immigration consequences” would
conviction of a criminal offense be likely to have for her?
Her conviction did not become final until she was
sentenced, however, and the sentence did not become
final until the deadline for filing a notice of appeal
expired, and that was in May 2010. Although she had
notice of her removability before then, a section 2255
motion is a motion to set aside the sentence, see section
2255(a), so the one-year statute of limitations does not
begin to run until the defendant is sentenced and the
deadline for appeal expires. See, besides the Johnson
and Owens cases cited above, Allen v. Hardy, 478 U.S.
255, 258 n. 1 (1986), and Moshier v. United States, 402 F.3d
No. 12-1728 5
116, 118 (2d Cir. 2005). Still, the petitioner was sentenced
(and the deadline for appeal expired) more than a
year before she filed her motion. And because the sen-
tence was irrelevant to the possibility of removal—it is
the conviction of an aggravated felony rather than the
sentence that makes the defendant removable—the date
of her guilty plea was the date on which her duty of
diligent inquiry arose. See Alaka v. Attorney General, 456
F.3d 88, 107 (3d Cir. 2006). She had loads of time to dis-
cover the possible immigration consequences of her plea
of guilty.
The dependence of the statute of limitations on the
petitioner’s exercise of due diligence is equivalent to a
rule of “inquiry notice,” see, e.g., Doe v. St. Francis
School District, 694 F.3d 869, 872 (7th Cir. 2012); Nicholson
v. Pulte Homes Corp., 690 F.3d 819, 826 (7th Cir. 2012);
Ford v. Gonzalez, 683 F.3d 1230, 1236 (9th Cir. 2012), and the
petitioner acquired such notice when her lawyer told
her that her pleading guilty might have “immigration
consequences.” That was an ominous warning, and if she
didn’t understand it she could have asked her lawyer
what those consequences might be and if he didn’t know
the answer he presumably would have inquired. He
could have asked the probation service, since the
presentence investigation report stated that a “felony
conviction may make her amenable to removal pro-
ceedings.” Apparently the petitioner asked no one what
“immigration consequences” she would be facing were
she convicted. In all likelihood she didn’t think it
necessary to ask because she knew full well what they
would be. But all that matters is that she was not diligent
6 No. 12-1728
in trying to discover what they would be. There is no
suggestion that she has any difficulties with the English
language that might have impeded discovery. She had
lived in the United States for many years, and anyway
English is the official language of Jamaica, though not
all Jamaicans are fluent in it.
This case is not like Padilla v. Kentucky, 130 S. Ct. 1473(2010), where the defendant’s lawyer told the defendant
not to worry—he wouldn’t be removed if he pleaded
guilty to a drug offense, and therefore he pleaded guilty to
it, though the immigration law was clear, as in this
case (actually clearer), that he would be deported. See
8 U.S.C. § 1227(a)(2)(B)(i). Our petitioner’s lawyer did
not mislead her, as Padilla’s lawyer misled Padilla;
and while the lawyer could have been more precise,
he said enough to put her on notice, and that defeats
her postconviction challenge.
True, the statute of limitations in section 2255 is just
that—a statute of limitations, not a jurisdictional limita-
tion, and so it can be tolled. Nolan v. United States, 358
F.3d 480, 483-84 (7th Cir. 2004); Ramos-Martinez v. United
States, 638 F.3d 315, 323-24 (1st Cir. 2011); Holland v.
Florida, 130 S. Ct. 2549, 2562-63 (2010). There are two
principal tolling doctrines. One is equitable estoppel,
which comes into play “if the defendant takes active
steps to prevent the plaintiff from suing in time, as by
promising not to plead the statute of limitations” as a
defense. Cada v. Baxter Healthcare Corp., 520 F.2d 446, 450-
51 (7th Cir. 1990). It has no application to this case.
The other doctrine is “equitable tolling. It permits a
No. 12-1728 7
plaintiff to avoid the bar of the statute of limitations
if despite all due diligence he is unable to obtain vital in-
formation bearing on the existence of his claim.” Id. at
451 (emphasis added); see also Ramos-Martinez v. United
States, supra, 638 F.3d at 323-24. The petitioner cannot
avail herself of equitable tolling because she flunked
diligence. Nor is any other tolling doctrine available to her.
And if her lawyer did render ineffective assistance,
there was no harm done and so there is no injustice as
a result of enforcing the statute of limitations against
her. For she had no defense to the charge of fraud. Had
she stood trial she would have been convicted and in
all likelihood received a heavier sentence (she received
a very light sentence)—and her status as a removable
immigrant would not have been affected because the
conviction would have been of an aggravated felony, as
her guilty plea was.
As a detail, we note the futility of her alternative charac-
terization of her petition as one seeking coram nobis.
That is a postconviction remedy, equivalent to habeas
corpus or (for persons convicted in federal court) section
2255, for petitioners who have served their sentences
and so cannot invoke either of those remedies but who
as a result of having been convicted are laboring
under some serious civil disability that they’d like to
eliminate by setting aside their conviction—and removal
from the United States is serious, civil, and a con-
sequence of the petitioner’s conviction. But when she
filed her petition, she was under supervised release, and
so section 2255 was available to (and of course invoked
8 No. 12-1728
by) her, because supervised release is classified as a form
of custody. E.g., Virsnieks v. Smith, 521 F.3d 707, 717-18 (7th
Cir. 2008); Kusay v. United States, 62 F.3d 192, 193 (7th Cir.
1995); cf. Jones v. Cunningham, 371 U.S. 236, 242-43 (1963).
Coram nobis was therefore unavailable to her. Godoski v.
United States, 304 F.3d 761, 763 (7th Cir. 2002); United States
v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000) (per curiam);
United States v. Brown, 117 F.3d 471, 474-75 (11th Cir.
1997). For “where a statute specifically addresses the
particular issue at hand, it is that authority, and not the
All Writs Act, that is controlling. Although that Act
empowers federal courts to fashion extraordinary
remedies when the need arises, it does not authorize
them to issue ad hoc writs whenever compliance with
statutory procedures appears inconvenient or less ap-
propriate.” Pennsylvania Bureau of Correction v. United
States Marshals Service, 474 U.S. 34, 43 (1985). There is
no coram nobis statute parallel to section 2255, so by
invoking coram nobis the petitioner is impermissibly
trying to avoid the one-year statute of limitations in
that section.
A FFIRMED.
1-9-13