United States District Court, D. New Hampshire
MEMORANDUM ORDER DENYING PETITION FOR WRIT OF ERROR CORAM NOBIS Opinion No. 2014 DNH 253.
JOSEPH N. LAPLANTE, District Judge.
Escolastico Suero was indicted in this court on charges of conspiracy to possess with the intent to distribute, and to import, cocaine. See 21 U.S.C. §§ 841, 846, 952, 963. This conspiracy resulted in the death of one of its participants from ingesting packets of cocaine in an attempt to smuggle them into the United States from the Dominican Republic. With the assistance of counsel, Suero eventually pled guilty to one count of misprision of felony, see 18 U.S.C. § 4, for concealing the conspiracy. Based upon this plea, this court sentenced Suero to 15 months' imprisonment and one year of supervised release.
After completing that sentence, Suero sought to vacate his conviction by filing a petition with this court for a writ of error coram nobis. Suero - a lawful permanent resident, but not a naturalized citizen, of the United States - claims that his guilty plea resulted from erroneous advice from his own attorney, and a misrepresentation by the prosecution, as to what Suero calls the "immigration consequences" of the conviction. Specifically, Suero says, he recently learned that his conviction for misprision of felony has made him ineligible to re-enter the United States should he voluntarily leave (which he had been planning to do to visit his family living abroad), even though the prosecutor and defense counsel had told Suero that pleading to misprision would not "cause immigration problems." After a hearing, the court denies Suero's petition, for the reasons explained fully below.
Applicable legal standard
"Coram nobis is an ancient writ that was originally intended to allow courts to correct technical errors in their past judgments." Murray v. United States, 704 F.3d 23, 28 (1st Cir. 2013). While, "under the All Writs Act, 28 U.S.C. § 1651, federal courts are authorized to issue writs of error coram nobis to correct criminal judgments, ... coram nobis is an extraordinary remedy, which is available only under circumstances compelling such action to achieve justice." Id . (quotation marks omitted). The petitioner bears the burden of proving his entitlement to a writ of error coram nobis. See United States v. George, 676 F.3d 249, 255 (1st Cir. 2012). To qualify for the writ, a petitioner must (1) "adequately explain his failure to seek relief earlier through other means"; (2) "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"; and (3) "demonstrate that the judgment resulted from a fundamental error." Murray, 704 F.3d at 29 (footnote omitted).
The United States does not question that Suero has satisfied the first two elements of this test. But the United States maintains that Suero cannot show that his guilty plea, and the ensuing judgment of conviction, resulted from error of any kind, particularly an error that can be used to collaterally attack the conviction through a petition for a writ of error coram nobis.
The United States argues that Suero's claim necessarily relies on the rule of Padilla v. Kentucky, 559 U.S. 356, 374 (2010), that "counsel must inform [his] client whether his plea carries a risk of deportation" in order to satisfy the Sixth Amendment's guarantee of effective assistance of counsel. But, the argument continues, because Padilla was not decided until after Suero's conviction became final, his claim is barred by Teague v. Lane, 489 U.S. 288, 310 (1989). In any event, the United States maintains that Suero received effective assistance of counsel as contemplated by Padilla, since his attorney correctly advised him that a guilty plea to misprision of felony would not render Suero deportable. The United States further argues that, because that is also what the prosecutor told Suero (through counsel), his claim that his plea resulted from a misrepresentation likewise fails. As explained fully below, this court denies Suero's petition because he has failed to convincingly demonstrate that either his criminal defense attorney or the prosecutor misstated the "immigration consequences" of pleading guilty to misprision of felony. The court therefore need not, and does not, reach the United States' retroactivity argument.
In his effort to carry his burden of proving his entitlement to coram nobis relief, Suero has come forward with three pieces of evidence: (1) a letter from the prosecutor to Suero's defense attorney offering to resolve the conspiracy charges through a plea to misprision of felony; (2) an affidavit from the defense attorney; and (3) an affidavit from Suero himself. These materials, however, fail to convincingly establish that either the prosecutor or defense counsel told Suero, prior to the entry of his guilty plea to misprision of felony, that the resulting conviction would leave him free to re-enter the United States should he choose to leave the country voluntarily (as he claims to be unable to do now). Instead, this court takes Suero's submissions to show that the prosecutor told defense counsel - accurately - that "misprision is not a deportable offense, " and that defense counsel simply relayed that assurance to Suero.
Acknowledging "the concerns [Suero] has with regard to deportation, " the prosecutor's letter to defense counsel states that the prosecutor had discussed those concerns with officers of Immigration and Customs Enforcement, and that in those discussions the prosecutor had "been told that misprision is not a deportable offense. Accordingly, if concerns about deportation are [Suero's] paramount concern, then this resolution should allay his fears on this issue" - by offering a plea to misprision of felony. The letter does not mention any other possible collateral consequence of such a plea, and does not use the phrases "immigration consequences" or "immigration concerns."
Defense counsel states in his affidavit that the prosecution "represented in its letter that it tendered this offer [i.e., a plea to misprision of felony] in order to assuage [Suero's] immigration concerns" and that, "[i]n advising [Suero], [counsel] relied on the [prosecution's] representation that conviction of misprision of a felony would not carry immigration consequences" (emphases added). As just noted, however, the letter does not employ the terms "immigration concerns" or "immigration consequences, " and the only such "concern" or "consequence" it mentioned was deportation (which the prosecution said would not follow from the plea). Yet defense counsel's affidavit goes on to state that "[a]s a result" of the prosecution's "representation, " he "advised [Suero] that his conviction for misprision of felony would not carry immigration consequences." Employing similar terminology, Suero's affidavit states that the prosecution "offered a deal which they said would not cause immigration problems, " i.e., a plea to misprision of felony, which defense counsel advised Suero "would not be an immigration problem for [him]."
Read literally, of course, the phrases "immigration problems, " "immigration concerns, " and "immigration consequences" could conceivably encompass a broad range of difficulties, including the one Suero says he now faces as a result of his plea to misprision of felony, i.e., the inability to re-enter the United States if he elects to leave. But Suero's submissions leave this court with considerable doubt as to whether defense counsel ever actually used one of those phrases in explaining the plea offer to Suero. Again, defense counsel attests that his advice to Suero was based on the prosecution's "representation, " but that representation, on its face, was simply that "misprision is not a deportable offense" - not that it was free of any "immigration consequences."
While it is logically possible that, in advising Suero, defense counsel erroneously used the broader phrase "immigration consequences" to relay the prosecution's narrower representation, one would have expected defense counsel to be forthcoming about such an error if it indeed occurred (at least in light of his apparent willingness to submit an affidavit in support of Suero's argument that his plea resulted from counsel's ineffective assistance). Instead, it appears that counsel's affidavit was written to elide the difference between "deportation" and "immigration consequences, " just as it appears that Suero's affidavit was written to elide the difference between "deportation" and "immigration problems."
In any event, regardless of whether defense counsel used the phrases "immigration consequences" or "immigration problems" in relaying the prosecution's representation to Suero, there is no evidence - including Suero's own affidavit - that he understood either of those terms to encompass the difficulty he now faces. While Suero states in his affidavit that he "want[s] nothing more than to visit [his] family in the Dominican Republic, " he never claims to have communicated this desire to defense counsel at any point before deciding to plead guilty to misprision. Suero's affidavit says only that he "informed [defense counsel] that [Suero's] immigration status was the most important thing" and that he ...