Opinion
Case No. 08-CR-30180-NJR-1
07-18-2017
UNITED STATES OF AMERICA, Plaintiff, v. SALVADOR PEREZ, Defendant.
MEMORANDUM AND ORDER ROSENSTENGEL, District Judge :
This matter is currently before the Court on the Petition for a Writ of Error Coram Nobis filed by Defendant Salvador Perez on April 13, 2017 (Doc. 96). Perez has completed his sentence of incarceration and term of supervised release for his 2009 conviction for distributing cocaine, but the conviction carries an additional consequence: he is subject to deportation at any moment. Perez filed this petition in an effort vacate his conviction and avoid deportation. For the reasons set forth below, the petition is denied.
RELEVANT BACKGROUND
Salvador Perez first came to the United States from Mexico as a teenager in 1977, and he obtained status as a permanent legal resident in 1990 (Doc. 41). On August 20, 2008, Perez was indicted on four counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and he was arrested two weeks later (Docs. 1, 15). At the time of Perez's indictment and arrest, he was suffering from major medical problems. He had polycystic kidney disease and was in end-stage renal failure (Doc. 41). He was receiving dialysis three times a week and was on a short list for a kidney transplant (Docs. 13, 41). He also was diagnosed with a leaking heart valve (Doc. 41). Perez's wife was also in dire condition. She had suffered a stroke several years earlier, which rendered her a bedridden quadriplegic with limited ability to communicate, and she required round-the-clock care (Doc. 41). Two of Perez's three children also had serious medical issues (Docs. 13, 41).
Perez initially entered a not guilty plea on all counts (Doc. 12). He was appointed counsel and released on bond pending trial (Docs. 8, 9, 12, 10). Several months later, retained counsel James M. Stern entered his appearance for Perez, and appointed counsel was granted leave to withdraw (Docs. 29, 30). On June 16, 2009, Perez pleaded guilty to all four counts of the indictment (Docs. 39, 40). Prior to sentencing, a Presentence Investigation Report ("PSR") was completed (Doc. 41). Consistent with the plea agreement, the PSR recommended a sentencing guideline range of 57 to 71 months (Doc. 41). No objections to the PSR were filed. Instead, Mr. Stern filed a request for a variance below the advisory guidelines range (Doc. 42). On September 21, 2009, District Judge G. Patrick Murphy sentenced Perez substantially below the guidelines range to a term of 15 months' imprisonment followed by three years of supervised release.
Judge Murphy retired in December 2013. The criminal case was transferred to the undersigned when Perez filed this Petition For A Writ Of Error Coram Nobis.
Perez did not attempt to appeal his conviction or his sentence to the Seventh Circuit Court of Appeals. On September 21, 2010, however, Perez filed a motion to vacate, set aside, or correct sentence under § 2255. Perez v. United States, SDIL Case No. 10-cv-729-GPM (Doc. 1). The § 2255 motion was filed by new counsel, who had been retained by Perez's now deceased grandfather (Doc. 96). In the petition, counsel discussed the March 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court held that criminal defense attorneys have a responsibility under the Sixth Amendment to inform their clients whether a guilty plea carries with it a risk of deportation, and the failure to do so renders the attorneys' performance constitutionally ineffective. Id. Counsel then contended that Perez was denied effective assistance because his former attorney, James Stern, failed to advise him that his criminal conviction would result in his deportation to Mexico. SDIL Case No. 10-cv-729-GPM (Doc. 1). Specifically, Perez claimed it was not until his sentencing that he learned the immigration consequences of his guilty plea from the judge. Id. Counsel then contended that had Perez known his guilty plea would subject him to deportation, he would have taken his case to trial or attempted to negotiate a plea agreement that would not have resulted in automatic removal. Id.
Perez's § 2255 motion was denied on December 30, 2010. SDIL Case No. 10-cv-729-GPM (Doc. 4). Judge Murphy essentially rejected out of hand Perez's assertion that he was not informed about the possibility of deportation until sentencing and that he would not have pleaded guilty had he been informed of that consequence. Specifically, Judge Murphy noted that Perez's guilty plea was not accepted, and he was not adjudicated guilty, until the sentencing hearing. Id. at p. 4. Prior to that, however, the PSR was issued and it "clearly reflect[ed] the possibility of deportation." Id. The sentencing memorandum filed by Mr. Stern also mentioned "possible removal activity." Id. And "[m]ost importantly, Perez's possible deportation was the primary issue at sentencing." Id. Consequently, Judge Murphy found that Perez was not "truly . . . surprised at sentencing by the possibility of deportation" but even if he had been, "he had ample opportunity to say so. . . . Still, Perez did not question the possibility of deportation. He failed to complain about the issue until he filed this motion under § 2255." Id. In other words, Perez could have moved to withdraw his guilty plea prior to the sentencing hearing, or he could have asked Judge Murphy not to accept his guilty plea at the hearing, but he chose to continue with the sentencing hearing rather than raise the issue of deportation. Judge Murphy concluded that "Perez understood the gravity of the options presented at sentencing and was not denied effective assistance of counsel." Id.
The transcript from the sentencing hearing reflects that the word "deport" (or some variation thereof) was said twelve times during the hearing, including once by Mr. Perez himself during his allocution (Doc. 87). Numerous other references to Perez's removal were also made without using the word "deport" (see Doc. 87). For example, Mr. Stern asked the Court to "let [Perez] stay with his family, let the—immigration decides to initiate removal let him deal with that" (Doc. 87). As another example, Judge Murphy said, "Now what I sentence him for, whatever it is, immigration is going to take him and they're going to send him back to Mexico, soon" (Doc. 87). Judge Murphy also made numerous references to Perez "going back to Mexico" and the medical care that he was unlikely to receive there (see Doc. 87).
Shortly after his § 2255 motion was denied, Perez was released from custody and began serving his three-year term of supervised release, which terminated on January 4, 2013 (Doc. 96). Perez's attorney did not appeal the denial of his § 2255 petition, and Perez did not attempt to do so pro se (Id.). Perez now claims that his habeas efforts stalled because he had scant contact with the attorney retained by his grandfather, and he was unaware of how to proceed (Id.). Additionally, following his release from custody, his time and energy were spent dealing with his critical health situation and caring for his family (Id.).
Immigration and Customs Enforcement ("ICE") commenced removal proceedings against Mr. Perez following his release from custody, and an immigration judge ordered his removal from the United States (Doc. 96). He was, however, granted a temporary stay of removal by ICE (Id.). Perez retained counsel in early 2016, but he was advised to avoid seeking post-conviction relief given that his stay of removal had been repeatedly continued (Id.). But recent changes in federal deportation policies have made Perez fear that he will be removed from the United States at any time (Id.).
Consequently, on April 13, 2017, Perez filed a coram nobis petition in an attempt to have his conviction set aside so that the outstanding order of removal can be vacated (Doc. 96). Perez fears that deportation is tantamount to a death sentence for him due to the lack of medical resources in Mexico (Id.). Although Perez received a kidney transplant, his health is still very poor (Id.). He still has polycystic kidney disease along with a leaking heart valve, uncontrolled hypertension, and congestive heart failure (Id.). He sees his doctor every fifteen days and is hospitalized approximately three or four times a month (Id.). Perez is also very worried about the effect this deportation will have on his wife, who will be forced to rely solely on their children, who are also afflicted with serious medical conditions (Id.).
Perez contends that he is entitled to coram nobis relief because he received ineffective assistance of counsel during the criminal proceedings (Doc. 96). Specifically, Perez contends that his counsel failed to accurately advise him of the immigration consequences of his guilty plea and also failed to negotiate a plea agreement to avoid or minimize the risk of removal (Id.).
LEGAL STANDARD
A petition for a writ of coram nobis is a collateral attack on the constitutionality of a criminal judgment and is of the same general character, and provides the same general relief, as a motion for a writ of habeas corpus under 28 U.S.C. § 2255. United States v. Bonansinga, 855 F.2d 476, 478 (7th Cir. 1988); United States v. Hedman, 655 F.2d 813, 814 (7th Cir. 1981). The difference is that a coram nobis petition is used when the person has fully served his or her sentence and is no longer "in custody" and therefore cannot seek habeas relief under § 2255. Stanbridge v. Scott, 791 F.3d 715, 721 n.3 (7th Cir. 2015) (citing Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)).
As with a writ of habeas corpus, a writ of coram nobis is an "extraordinary remedy" to be used only when required to "achieve justice." United States v. Denedo, 556 U.S. 904, 911 (2009); United States v. Morgan, 346 U.S. 502, 511 (1954). Coram nobis relief is available where: "(1) the error alleged is 'of the most fundamental character' as to render the criminal conviction 'invalid'; (2) there are 'sound reasons' for the defendant's 'failure to seek earlier relief'; and (3) 'the defendant continues to suffer from his conviction even though he is out of custody.'" United States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016) (citing United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007)).
DISCUSSION
Perez contends that his conviction should be vacated because his attorney failed to accurately advise him that his conviction rendered him subject to deportation and failed to negotiate a plea agreement that avoided deportation (Doc. 96). The Court disagrees.
The first problem with Perez's claims is that they were, or could have been, raised through a § 2255 petition. In fact, the claim that his attorney failed to advise him that his criminal conviction rendered him subject to deportation to Mexico is identical to the claim that was previously litigated in Perez's § 2255 motion and was decided against him. The latter claim that his attorney failed to negotiate a plea agreement that avoided deportation is simply an offshoot of the first and, while it was not explicitly raised in his § 2255 motion, there is no question that it could have been. A coram nobis petition cannot be used to relitigate issues or to reach issues that could have been previously raised but were not.
See United States v. Tarango, 670 F. App'x 981 (10th Cir. 2016) ("A writ of coram nobis may not be used to litigate issues that were or could have been raised on direct appeal or through collateral litigation, including a 28 U.S.C. § 2255 motion."); United States v. Ridings, 569 F. App'x 73, 75 (3d Cir. 2014) ("Coram nobis is available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon . . . . because Ridings's claims amount to hardly more than regurgitation of the claims he has already presented in his § 2255 petition . . . or claims that he reasonably could have raised in that petition, it cannot be said that he has made the necessary showing of a 'complete miscarriage of justice.'") (internal quotation marks and citations omitted); Glinsey v. United States, 345 F. App'x 914, 915 (5th Cir. 2009) (affirming defendant was not entitled to coram nobis relief because his "claims either already have been raised, should have been raised previously, or are not errors 'of the most fundamental character' as necessary to support a request for coram nobis relief." (quoting United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998))); United States v. Taylor, 122 F. App'x 891, 892 (9th Cir. 2005) (affirming denial of coram nobis petition based on claim of ineffective assistance because the claim "already has been litigated in a motion to vacate the sentence under 28 U.S.C. § 2255."); Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (explaining the writ of coram nobis "may issue only when the error involves a matter of fact of the most fundamental character which has not been put in issue or passed upon and which renders the proceeding itself irregular and invalid.") (emphasis added) (internal quotation marks and citation omitted); Klein v. United States, 880 F.2d 250, 253 n.1 (10th Cir. 1989) ("[C]oram nobis relief is not available to litigate issues already litigated; it is reserved for claims which have yet to receive their first disposition."); United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988) ("The writ of error coram nobis is limited to defects that sap the proceeding of any validity. It was and is not a device to relitigate issues fully ventilated at the time of the conviction."); Willis v. United States, 654 F.2d 23, 24 (8th Cir. 1981) (affirming appellant could not use a coram nobis petition to relitigate an issue already decided against him in a § 2255 proceeding "[i]n the absence of credible new evidence or a change of law"); United States v. Castillo, No. 2:00 CR 168, 2012 WL 2880573, at *1 (N.D. Ind. July 13, 2012) ("Claims that could have been raised in a direct appeal or through a prior collateral attack are outside the scope of the writ.") (citing United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988)); Blumeyer v. United States, No. 4:16-CV-00573-JCH, 2016 WL 4944111, at *2 (E.D. Mo. Sept. 16, 2016) ("A writ of error coram nobis cannot be used to relitigate issues already reviewed during prior post-conviction proceedings").
But even if the Court were able to reconsider Perez's ineffective assistance claim, he has not shown that he is entitled to relief on the merits of this claim. The deprivation of effective counsel is an "obvious example" of a fundamental error that can render a criminal conviction invalid and support coram nobis relief. United States v. Wilkozek, 822 F.3d 364, 369 (7th Cir. 2016). To prevail on a claim of ineffective assistance of counsel, Perez must show that his counsel's performance was deficient and that he was prejudiced by that performance, meaning that there is a reasonable probability that, but for counsel's errors, Perez would not have pled guilty and would have insisted on going to trial. United States v. Reeves, 695 F.3d 637, 639 (7th Cir. 2012) (quoting Bethel v. United States, 458 F.3d 711, 716 (7th Cir. 2006)).
Perez cannot demonstrate that his counsel's performance was deficient. At the time of Perez's conviction and sentencing in September 2009, Seventh Circuit jurisprudence dictated that the Sixth Amendment did not require attorneys to inform their clients about the immigration consequences of pleading guilty; therefore, an attorney's failure to advise his client of these consequences did not amount to constitutionally deficient assistance. And if counsel was not required to advise Perez of the immigration consequences of pleading guilty, then it stands to reason that counsel was also not required to attempt to negotiate a plea deal that avoided deportation. See United States v. Newman, 805 F.3d 1143, 1146-47 (D.C. Cir. 2015) ("Simply put, it makes no sense to suggest that although defense attorneys had no duty to advise their clients about the immigration consequences of pleading guilty prior to Padilla, they nonetheless had a duty to research those consequences and take them into account when negotiating a plea deal.")
See Chaidez v. United States, 568 U.S. 342, 350 (2013) (noting that ten federal appellate courts, including the Seventh Circuit, were unanimous prePadilla that "'counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never' a violation of the Sixth Amendment. . . . [A]ccordingly, advice about matters like deportation, which are 'not a part of or enmeshed in the criminal proceeding,' does not fall within the Amendment's scope.") (quoting United States v. George, 869 F.2d 333, 337 (7th Cir. 1989)). Accord Chavarria v. United States, 739 F.3d 360, 363 (7th Cir. 2014) ("[R]egardless of how egregious the failure of counsel was if it dealt with immigration consequences, prePadilla, both the Sixth Amendment and the Strickland test were irrelevant."); George, 869 F.2d at 338 ("[W]e decline to hold as a matter of law that counsel's failure to inform a client as to the immigration consequences which may result from a guilty plea, without more, is 'outside the wide range of professionally competent assistance.'" (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)); Jimenez v. United States, 154 F. App'x 540, 541 (7th Cir. 2005) ("[W]e have concluded that the possible immigration consequences of a guilty plea are 'collateral aspects of the prosecution' not covered by the Sixth Amendment, and thus the failure to advise her of this consequence does not amount to ineffective assistance of counsel.").
Things changed, however, when the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), in March 2010, and "imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas." Chavarria v. United States, 739 F.3d 360, 361 (7th Cir. 2014) (citing Chaidez v. United States, 568 U.S. 342, 353 (2013)). But because Padilla was decided after Perez's conviction became final, it can only serve as a basis for his coram nobis petition if it is retroactively applicable to cases on collateral review. Unfortunately for Perez, the Supreme Court decided that Padilla does not apply retroactively. Chaidez, 568 U.S. at 344. Thus, Perez cannot benefit from its holding and cannot establish that his counsel's performance was deficient. Id.
While the undersigned sympathizes with Perez's predicament, the medical problems he and his family face, and the extreme emotional distress that the uncertainty of his future undoubtedly causes, his coram nobis petition simply does not provide any basis for vacating his sentence.
CONCLUSION
For the reasons set forth above, the Petition For Writ Of Error Coram Nobis (Doc. 96) is DENIED.
IT IS SO ORDERED.
DATED: July 18, 2017
/s/ _________
NANCY J. ROSENSTENGEL
United States District Judge