Williams v. United States

858 F.3d 708

Sunday WILLIAMS, Petitioner, Appellant,

v.UNITED STATES, Respondent, Appellee.

No. 16-2147

United States Court of Appeals, First Circuit.

June 8, 2017

Simone Bertollini, with whom Law Offices of Simone Bertollini, Cedar Grove, NJ, 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.

Before Lynch, Baldock,^* and Kayatta Circuit Judges.

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 "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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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, 35 S.Ct. 16, 59 L.Ed. 129 (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 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."

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, 106 S.Ct. 366, 88 L.Ed.2d 203 (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, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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, 130 S.Ct. 1473, Petitioner thus claims that his counsel's misadvice and lack of advice necessarily made his representation constitutionally inadequate.

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 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...