Opinion
07 Civ. 3727 (SHS), 98 Cr. 1484 (SHS).
November 15, 2007
OPINION AND ORDER
The ancient writ of error coram nobis is an extraordinary remedy which invokes the District Court's "power to vacate its judgment of conviction and sentence after the expiration of the full term of service." United States v. Morgan, 346 U.S. 502, 503, 74 S. Ct. 247, 98 L. Ed. 248 (1954); cf. United States v. Plumer, 27 F. Cas. 561, 573 (Clifford, Circuit Justice, C.C. D. Mass. 1859) (No. 16,056). Indeed, the U.S. Supreme Court has cautioned that the remedy is to be employed "only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511. The petition now before the Court presents such a case.
Petitioner Li Hua Qiao seeks a writ of error coram nobis vacating his 1999 conviction for mail fraud and conspiracy to commit mail fraud. He contends that his conviction was obtained in violation of his right to the effective assistance of counsel. In response, the United States of America urges the denial of Qiao's petition on the grounds that (1) the petition was filed after an unjustified delay and (2) Qiao suffered no prejudice from the representation he received in his criminal proceedings. Because this Court concludes that Qiao's petition is timely and his conviction was obtained in violation of his fundamental constitutional right to the effective assistance of counsel, Qiao's petition is granted.
I. BACKGROUND
In January 1999, Qiao pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. An employee of the Port Authority of New York and New Jersey named Hong had directed unearned real estate brokerage commissions to Qiao, a private real estate broker. (Plea Tr. dated Jan. 4, 1999 ("Plea Tr.") at 3.) Pursuant to that scheme, Hong would submit phony vouchers indicating that companies controlled by Qiao should be paid brokerage commissions for arranging leases that, in fact, did not involve any real estate broker at all. (Id. at 3-4.) Qiao then paid Hong a kickback — eighty percent of the proceeds — for submitting the fraudulent vouchers. (Id. at 4; Sentencing Tr. dated Sept. 24, 1999 ("Sentencing Tr.") at 5.) This scheme lasted from May 1994 to August 1998. (Plea Tr. at 17.)
Qiao then cooperated with the government, and his "full and complete" cooperation resulted in the guilty plea of Hong, who was at the center of this "wheel and spoke" conspiracy. (Sentencing Tr. at 8.) In advance of Qiao's sentencing, the government submitted a letter pursuant to section 5K1.1 of the U.S. Sentencing Guidelines, setting forth his "substantial assistance" to the government, describing Qiao as "fully cooperative," and characterizing his assistance as "highly valuable." (Id. at 12.)
At the sentencing hearing, Qiao's counsel stated that "if Mr. Qiao is incarcerated, he will automatically be taken from the prison and deported to China." (Id. at 11:23-25.) The Court then asked what "triggers that; home confinement does not but incarceration does?" (Id. at 12:1-2.) Defense counsel responded, "if [Qiao] is sentenced to prison, then deportation becomes automatic." (Id. at 12:5-6.) The Court pressed for clarification: "What I am asking is, is home confinement prison for purposes of that statute? I assume not." (Id. at 12:8-9.) Defense counsel answered, "The answer is not, your Honor." (Id. at 12:10.)
After hearing from the government, defense counsel, and Qiao, the Court stated:
[I]n light of the 5K letter, that is, your cooperation with the government, and really your criminal history as well, I mean, you have no involvement with the criminal justice system prior to now, and the fact that I think you are best off being a contributing member of society[,] I don't intend to sentence you to a term of incarceration. I don't think that would benefit anybody. I think you have learned your lesson.
My intention is to sentence you to two years of supervised release and I am going to make it a special condition of that that you serve four months on home confinement. That will enable you to be with your family. . . . That also will avoid any automatic deportation by the INS, because I think you can contribute to American society and I think your children and your family need you.
(Id. at 15:16-16:8.) The Court then sentenced Qiao to two years probation, which included four months of home confinement, and ordered him to pay restitution in the amount of $27,366. (Id. at 18-19.)
Less than one month after sentencing, Qiao made full restitution. (See 98 Cr. 1484, dkt # 21.)
Over five years later, the U.S. Department of Homeland Security ("DHS") initiated removal proceedings against Qiao when he returned to the United States after a trip abroad. In a Notice to Appear dated November 23, 2004, DHS alleged that as an "alien convicted of . . . a crime involving moral turpitude," Qiao was inadmissible pursuant to 8 U.S.C. § 1182. (Ex. A to Letter from Kenneth Allen Polite, Jr., Assistant U.S. Attorney, dated Oct. 5, 2007 ("Polite Letter").)
Qiao then applied for relief from removal pursuant to either 8 U.S.C. § 1229b(b), which authorizes the cancellation of removal, or 8 U.S.C. § 1182(h), which authorizes discretionary waiver of removal. (Ex. A to Reply Decl. of Thomas E. Moseley dated Oct. 29, 2007 ("Moseley Reply Decl.").) DHS opposed Qiao's application on the ground that he was "not eligible for Cancellation of Removal or a 212(h) [ 8 U.S.C. § 1182(h)] waiver because he was convicted of an aggravated felony." (Id.) According to DHS, Qiao's 1999 conviction constituted an "aggravated felony" pursuant to 8 U.S.C. § 1101(a)(43)(M)(i) because it "involve[d] fraud or deceit in which the loss to the victim or victims exceed[ed] $10,000." (Id.)
Unable to persuade the U.S. Immigration Court that his 1999 conviction did not deprive him of relief from removal, Qiao filed this petition to vacate his conviction and sentence. (Reply Decl. of Li Hua Qiao dated Oct. 29, 2007 ("Qiao Decl.") ¶ 3.) Qiao maintains that he entered his plea of guilty based on defense counsel's assurance that he would not be subject to automatic deportation so long as he received a non-custodial sentence. According to Qiao, this patently false advice amounts to ineffective assistance of counsel, and he insists that he would not have pleaded guilty had he known that his plea would provide the basis for automatic deportation.
II. DISCUSSION
A writ of error coram nobis "is an `extraordinary remedy' authorized under the All Writs Act, 28 U.S.C. § 1651(a), generally sought to review a criminal conviction where a motion under 28 U.S.C. § 2255 is unavailable because petitioner is no longer serving a sentence." Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 98 L. Ed. 248 (1954)).
Federal courts can grant coram nobis relief to petitioners who "demonstrate that 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (internal quotation marks omitted). When "reviewing a petition for the writ, a court must presume that the proceedings were correct, and the burden of showing otherwise rests on the petitioner." United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000).
It is not disputed that Qiao "continues to suffer legal consequences from his conviction" in the form of removal proceedings. See Swaby v. Ashcroft, 357 F.3d 156, 160 (2d Cir. 2004) ("[P]etitioner is no longer imprisoned, but he faces a lifetime bar from reentering the United States as a result of having been ordered removed after an aggravated felony conviction. He thereby suffers a `collateral consequence' [from his conviction]."). The first two elements, however, are disputed. With respect to whether circumstances compel granting Qiao's petition, respondent urges that Qiao suffered no prejudice from the representation he received in his criminal proceedings, and therefore was not deprived of the right to effective assistance of counsel. Respondent also maintains that Qiao has not justified his failure to seek appropriate earlier relief.
A. Qiao Was Denied the Effective Assistance of Counsel.
The Court turns first to the question of whether Qiao received ineffective assistance of counsel. In order to prove this claim, Qiao must show "that his attorney's performance fell below an objective standard of reasonableness, and . . . that there is a reasonable probability that but for counsel's error, the outcome would have been different." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (internal citation and quotation marks omitted). Respondent concedes that Qiao has satisfied the first prong of this test (Polite Letter at 6-7), but contests whether Qiao has demonstrated prejudice under the second prong. According to the government, even if Qiao had been advised of the actual consequences of his plea, he would nevertheless face removal. The government presumes that properly advised, Qiao would have "plead[ed] guilty to the exact same offenses, albeit to a loss amount of less than $10,000" and therefore would have faced removal pursuant to 8 U.S.C. § 1182(a)(2) — just as he does today — for having committed a crime of moral turpitude. (Polite Letter at 7.) On this basis, respondent contends that Qiao is "in no worse position as a result of his counsel's advice." (Id.)
The basis for this concession — which the Court deems well-advised — is defense counsel's erroneous advice, recorded in open court, that so long as Qiao was not sentenced to a term of imprisonment, he would not face automatic deportation. See United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002) ("[A]n affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable.").
This Court disagrees with that reasoning. As the government has framed the issue, whatever prejudice Qiao suffered as a result of his counsel's error can be measured by comparing the consequences of Qiao's actual plea with those of a hypothetical plea to the same offenses entailing a loss amount less than $10,000. Had Qiao pleaded guilty to respondent's hypothetical charges, however, he would not have committed an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(M)(i), and therefore that provision would not now bar Qiao's application for cancellation of removal or discretionary waiver. As respondent has framed the prejudice inquiry, then, Qiao was in fact prejudiced by his counsel's inaccurate advice: Qiao is now ineligible for cancellation of removal or discretionary waiver pursuant to 8 U.S.C. § 1101(a)(43)(M)(i), but he would not have been so barred had he entered a plea consistent with respondent's hypothetical.
Indeed, at the November 8, 2007 hearing on this petition, respondent's counsel stated that Qiao would now be eligible for discretionary relief from removal had his conviction involved a loss amount less than $10,000.
In addition, the record supports a finding of prejudice independently of respondent's framework. The Court credits Qiao's statement that he would not have entered a plea of guilty absent his defense counsel's assurance that a non-custodial sentence permitted him to avoid automatic deportation. (Verified Pet. ¶ 4.) This finding is based primarily on Qiao's strong ties to the United States. Specifically, Qiao is married to a U.S. citizen and himself became a lawful permanent resident of this country in 1992. (Id. ¶ 1.) In fact, Qiao passed a citizenship exam and was only days away from being naturalized when he was arrested. (Presentence Investigative Report dated Sept. 17, 1999 ("PSR") ¶ 87.) In addition, he and his wife have four children — aged 13, 15, 17, and 18 — all of whom were born in the United States, have lived only in the United States, and are U.S. citizens. (Verified Pet. ¶ 1; Sentencing Tr. at 11.) Furthermore, Qiao's younger brother, who is also his business partner, resides in New York as well. (PSR ¶ 80.)
This finding is further supported by the evidence demonstrating Qiao's concern that he preserve his eligibility for relief from removal despite a criminal conviction. The Probation Office's Presentence Investigative Report, for example, reflects Qiao's concern that he receive a non-custodial sentence, believing that "if he is incarcerated, he might be deported." (PSR ¶ 89.) Moreover, at the sentencing hearing, defense counsel forcefully articulated Qiao's concern that his conviction and sentence not preclude his ability to remain in the United States.
Accordingly, the Court believes that "there is a reasonable probability that but for counsel's error," Mayo, 13 F.3d at 533, Qiao would not have pleaded guilty to criminal conduct that would have constituted an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(M)(i) and thereby triggered automatic removal. In this fashion, Qiao has suffered prejudice resulting from his defense counsel's objectively unreasonable advice. The Court concludes, therefore, that Qiao's plea of guilty was made without the effective assistance of counsel.
B. Qiao's Petition Is Timely.
Regarding the timeliness of Qiao's petition, respondent contends that DHS's Notice to Appear dated November 23, 2004 alerted Qiao that he was subject to removal because of his 1999 conviction. Respondent presses Qiao to justify the two-and-a half-year delay between receiving that notice and filing this petition on May 11, 2007. Qiao responds that on advice of counsel, he challenged the removal proceedings administratively (Qiao Decl. ¶ 2), and he has submitted documentation of his efforts in 2005 and 2006 to obtain that relief (Ex. A-C to Moseley Reply Decl.). When those efforts proved fruitless, Qiao states that he obtained new counsel who recommended filing this petition. (Qiao Decl. ¶ 3.)
The Court finds these facts strikingly similar to those before the U.S. Court of Appeals for the Ninth Circuit in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). In that case, the Ninth Circuit granted a petition for a writ of error coram nobis setting aside a conviction by guilty plea on the ground that petitioner's counsel was constitutionally ineffective for misleading him about the immigration consequences of his conviction. Addressing the question of whether petitioner had "sound reasons" for not attacking his conviction earlier, the court noted that "[immigration] counsel advised him to challenge the INS's determination that [his] conviction was an aggravated felony under either 8 U.S.C. § 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R), as indicated in [petitioner's] first Notice to Appear." Id. at 1013.
The Ninth Circuit determined that petitioner's decision to challenge the INS's determination administratively rather than to collaterally attack the conviction was reasonable given immigration counsel's advice and "the fact that defense counsel had advised him [at the time of his plea] that there was little chance his conviction would cause him to be deported." Id. at 1013-14. In conclusion the court observed, "Although it may have been more prudent of [petitioner] to collaterally attack his conviction earlier, his course of action was reasonable. The law does not require [petitioner] to challenge his conviction at the earliest opportunity, it only requires [petitioner] to have sound reasons for not doing so." Id. at 1014. See also Yong Wong Park v. United States, 222 Fed. Appx. 82 (2d Cir. 2007) (summary order) (proceedings before Board of Immigration Appeals is sound reason for delayed filing of petition for writ of error coram nobis).
Similarly, this Court concludes that Qiao's decision to challenge his ineligibility for cancellation of removal or discretionary waiver administratively was reasonable in light of the legal advice he had received from both his criminal defense and immigration counsel. It therefore constitutes a "sound reason . . . for fail[ing] to seek appropriate earlier relief."Fleming, 146 F.3d at 90.
III. CONCLUSION
Qiao has shown that (1) his guilty plea was the product of the ineffective assistance of counsel and as such, should be set aside to "achieve justice"; (2) his administrative efforts challenging the designation of his 1999 conviction as an aggravated felony constitute "sound reasons . . . for [his] failure to seek appropriate earlier relief"; and (3) the removal proceedings brought by DHS against Qiao cause him "to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. at 90. Accordingly, Qiao's petition for a writ of error coram nobis is granted, and Qiao's conviction and sentence for mail fraud and conspiracy to commit mail fraud is hereby vacated.
SO ORDERED: