Opinion
No. 1:97-CR-94.
August 4, 2011
OPINION ORDER
This matter is before the court on Christopher Reid's Motion for the writ of coram nobis to Vacate and Set Aside Plea and Conviction (doc. 48), the Government's Response in Opposition to Reid's Motion (doc. 53), and Reid's Reply to Government's Response (doc. 54). For the following reasons, the Court GRANTS Reid's Motion (doc. 48).
I. Background
Christopher Reid, a citizen of Jamaica, arrived in the United States on November 24, 1992 as a "Lawful Permanent Resident" (doc. 48). In April 1997, Reid was employed as a full-time bank teller at the Carrousel Branch of the Provident Bank in Cincinnati, Ohio (doc. 14). During this time, bank customers made deposits of cash into their accounts, which were processed by Reid (Id.). After reviewing account statements, the customers learned that the deposits had not been credited to the accounts and notified the Carrousel Branch (Id.). The Carrousel Branch reviewed the deposit slips that the customers presented and credited the deposits to the accounts (Id.). When questioned about the missing deposits, Reid denied that he took the cash (Id.). On April 22, 1997, Reid's employment with the Carrousel Branch was terminated (Id.).
On November 5, 1997 the Southern District of Ohio returned an Indictment against Reid, charging him with eight counts of Bank Embezzlement in violation of 18 U.S.C. § 656 (doc. 1). The Indictment alleged that from April 3, 1997 to April 14, 1997, Reid knowingly embezzled money on eight separate occasions amounting to a total loss of $21,173.17 (Id.).
On April 14, 1998, Reid and his then-attorney Kenneth L. Lawson appeared before the Court for Reid's plea hearing (doc. 48). Prior to the hearing, Mr. Lawson advised Reid that he would be exposed to deportation if he was convicted at trial but would not face deportation consequences if he entered the plea (Id.). Mr. Lawson also told Reid that his family would face deportation if he was convicted at trial (Id.). Reid entered the plea and was convicted of Count One in the Indictment (Id.). Reid was sentenced to 60 days in jail followed by 60 days in a community treatment center and three years of supervised release, and he was ordered to pay restitution (Id.). Because Reid was not a citizen of the United States at the time of his plea and conviction, he was subject to deportation proceedings as an alien convicted of a crime of moral turpitude within five years of entry into the United States under 8 U.S.C. § 1227(a)(2)(A)(i) and as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) (doc. 53). On July 27, 1999, Reid was charged with violating U.S.C. § 1227(a)(2)(A)(iii), and immigration proceedings were opened against him (Id.). The immigration case was closed by the Immigration Court on October 11, 2001 and was reopened on March 26, 2010 (Id.). On July 27, 2010, Reid was charged with violating 8 U.S.C. § 1227(a)(2)(A)(i), committing a crime of moral turpitude within five years of entering the United States (Id.). Reid has served his sentence from the embezzlement conviction, and his immigration case is currently pending before the Immigration Court (Id.). Reid now seeks a writ of coram nobis that would vacate his embezzlement plea and conviction. The Government opposes that request, and the matter is ripe for the Court's review.
II. Reid's Motion
Reid requests that this Court grant the writ of coram nobis pursuant to the All Writs Act 28 U.S.C. § 1651 and vacate his plea and conviction accordingly. Reid contends that Mr. Lawson advised him incorrectly that entering the plea would protect him from deportation, and therefore he was prejudiced by not being advised of the deportation consequences of his plea (doc. 48). Reid states that the understanding that he would not be subject to immigration proceedings if he entered the plea was the critical factor in his decision to enter the plea rather than go to trial (Id.). Reid relies on Padilla v. Kentucky for the proposition that, as a matter of law, counsel must inform a client when his plea carries a risk of deportation. (Id., citing Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010)).
Reid asserts that he qualifies for the writ of coram nobis and that he has satisfied all three requirements: there was an error in fact that was unknown to him at the time his plea was entered, and the error was of a fundamentally unjust character which would have altered his decision to waive his right to a trial had it been known (doc. 48). Because Reid is no longer in custody, relief under 28 U.S.C. § 2255 is not available to him, and there are no other remedies available to challenge his conviction (Id.). Additionally, he asserts that his petition is timely as he did not know until 2010 that the conviction would affect his immigration status (Id.).
Reid adds that Mr. Lawson's prior representation was fundamentally ineffective and unjust and therefore warrants thewrit of coram nobis because he received ineffective assistance of counsel (Id., citing Strickland v. Washington, 466 U.S. 668 (1984)). He maintains that he meets both prongs of the Strickland test: that the legal counsel provided by Mr. Lawson fell below the objective standard of reasonableness and that he was prejudiced by counsel's advice (Id.). Had Mr. Lawson informed Reid correctly about the immigration consequences of the plea, Reid contends that he would have explored other options for resolution of the case (Id.).
III. Government's Response
The government responds that Reid does not qualify for a writ of coram nobis because the doctrine of laches precludes his coram nobis petition (doc. 53). The Sixth Circuit has held that coram nobis petitions should be brought as soon as possible to avoid prejudice to the government. (Id., citing Blanton v. United States, 94 F.3d 227, 231 (6th Cir 1996)). The government argues that Reid knew that deportation proceedings had opened against him in 1999, and he failed to seek earlier relief at that time in the form of a Motion to Vacate under 28 U.S.C. § 2255, barring his current petition for coram nobis under § 1651 (Id.).
Additionally, the government contends that the Supreme Court inPadilla created a new rule that is not retroactive to cases made final before it was decided unless it falls under two narrow exceptions set forth in the Teague Supreme Court decision (Id., citing Teague v. Lane, 489 U.S. 288, 310 (1989)). The government argues that Padilla created a new rule because the rule was not dictated by existing precedent at the time that Reid's conviction became final, and a reasonable jurist could have reached a different conclusion in the case (Id.). The government asserts that the Teague exceptions do not provide relief for Reid, as the rule in Padilla does not fall under the exceptions (Id.).
Lastly, the government opposes Reid's argument that he was prejudiced by his counsel's advice (Id.). More specifically, the government asserts that Reid has not demonstrated a reasonable probability that, but for counsel's errors, there would have been another result (Id., citing Strickland, 466 U.S. at 694). The government contends that because Reid was facing severe consequences if he lost at trial, he would have made the decision to enter the plea even if he was correctly advised of the deportation consequences by counsel, and therefore he is not able to demonstrate prejudice under the Strickland test (Id.).
IV. Discussion
A. The Writ of Coram Nobis
The Court finds Reid's position that he qualifies for the writ of coram nobis to be well-taken. The writ of coram nobis is available when relief under 28 U.S.C. § 2255 is unavailable, and Reid must show: (1) an error in fact; (2) unknown at the time of trial; and (3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding had it been known. United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). The Court finds that Reid has satisfied each of these prongs. Reid has shown through his affidavit that he was concerned primarily with the possibility of deportation and would have chosen to go to trial rather than to accept the plea had he known that the plea would result in deportation proceedings against him. Thus, the third prong of the writ standard is met. As to the first and second, Mr. Lawson's woefully incorrect advice was clearly an error in fact unknown to Reid at the time he entered his plea.
The Court rejects the government's argument that the doctrine of laches bars Reid's petition for coram nobis. While Reid was aware of the deportation proceedings against him in 1999, he defended himself in those proceedings, and his case was closed shortly after. Following the proceedings, the Immigration Court dismissed the original charge of removal against Reid. Reid had reason to believe that the removal proceedings had terminated and that there was no need to seek relief under § 2255. When Reid's case was re-opened in 2010, he took immediate action to file for relief. The Court thus finds Reid's petition for coram nobis to have been filed in a timely manner.
B. Padilla applies retroactively
The Court agrees with Reid's position that the Supreme Court inPadilla did not create a new rule, and thus the rule should be applied retroactively to Reid's plea. Generally, a rule can be considered new when it breaks new ground and is not dictated by existing precedent at the time of the conviction. Teague, 489 U.S. at 310. The language of the Padilla opinion clearly demonstrates that a new rule was not created. In Padilla, Justice Stevens stated:
It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.Padilla, 130 S.Ct. at 1485.
The Third Circuit recently became the first Court of Appeals to address the issue of whether Padilla can be applied retroactively. The Court held that Padilla did not create a new rule on a finding that Padilla was a mere extension of the rule created in Strickland and Hill:
Padilla is set within the confines of Strickland and Hill, as it concerns what advice an attorney must give to a criminal defendant at the plea stage . . . accordingly, a court's disposition of each individual factual scenario arising under the long-established Strickland standard is not in each instance a "new rule" but rather a new application of an "old rule" in a manner dictated by precedent.United States v. Orocio, No. 10-1231, 2011 U.S. App. LEXIS 13214, at *19-20, 23 (3rd Cir. June 29, 2011).
The Court finds persuasive the rationale and analysis of the Third Circuit in Orocio. Padilla did not create a new rule; it merely applied the existing Strickland analysis to a different set of facts originating from an ineffective assistance of counsel claim. Therefore, the Court need not address the Teague exceptions as the Court finds that the Padilla rule can properly be applied retroactively to Reid's plea.
C. Strickland
Finally, the Court finds that Reid has demonstrated that bothStrickland prongs are satisfied. The Supreme Court in Strickland established a two-part test for demonstrating ineffective assistance of counsel. Strickland, 488 U.S. at 687. In order to succeed on a claim of ineffective assistance of counsel, Reid must first show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. Additionally, Reid must demonstrate a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Court finds that Mr. Lawson's legal assistance fell below an objective standard of reasonableness. Mr. Lawson failed Reid in his duty to assist Reid and led him to believe he would not face deportation if he accepted the plea agreement. A reasonable attorney would not have made such erroneous promises, but rather would have properly researched the issue and accurately advised his client.
As to the second Strickland prong, in order to prevail on the claim of prejudice, Reid must show that if he had been advised correctly by counsel that entering a plea would carry a risk of deportation, he would not have chosen to enter the plea but rather would have taken his chances at trial. Strickland, 466 U.S. at 694; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985). The government argues that the large disparity between Reid's sentence as a result of the plea conviction and the sentence he would have received had he been convicted at trial necessarily means that Reid can't show prejudice (doc. 53). The government contends that Reid would not have decided to go to trial because he was risking conviction on all eight counts in the indictment with a maximum sentence of thirty years in prison (Id.). In contrast, by pleading to only one count, he received only 60 days in prison (doc. 48).
The Court is unpersuaded by the government's argument here. Reid was informed by Mr. Lawson that entering the plea would protect him from deportation consequences, while conviction at trial would be certain to subject Reid and his family to deportation. Until the discussion regarding the deportation consequences, Reid was prepared to go to trial despite the severe prison sentence that was at stake. The Court finds that Reid's primary concern was the effect of his criminal charges on his immigration status rather than the length of any potential prison sentence. Therefore, he was directly prejudiced when he entered the plea after being informed incorrectly of the deportation consequences. Had Reid been informed that entering a plea would still subject him to deportation proceedings, he likely would have assessed his options differently and may have decided to stand before a jury of his peers rather than to enter the plea and subject himself to deportation proceedings. Because Reid has shown a reasonable probability that he would not have chosen to enter the plea had he been instructed correctly by counsel, he has demonstrated the requisite prejudice for a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 694.
V. Conclusion
In conclusion, counsel's failure to advise Reid of the deportation consequences was a "fundamentally unjust" error that clearly prejudiced Reid when he accepted the plea. Reid has shown through his affidavit and statements prior to his plea hearing that his intent from the beginning was to go to trial to avoid deportation consequences, and thus has shown a reasonable probability that he would not have entered the plea had Mr. Lawson correctly informed him that it would result in deportation proceedings against him. Reid thus satisfies the criteria for the issuance of the writ of coram nobis.
For the foregoing reasons, the Court GRANTS Reid's Motion for the writ of coram nobis to Vacate and Set Aside plea and conviction and, pursuant to 28 U.S.C. § 1651, hereby ISSUES such writ.
SO ORDERED.