Kovacs v. United States, No. 13-209 (2d Cir. 2014)
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Petitioner, convicted of misprision of felony, sought a writ of error coram nobis on the ground that his lawyer rendered ineffective assistance by giving erroneous advice concerning deportation consequences of pleading guilty. On appeal, petitioner challenged the district court's denial of the petition. The court concluded that, at the time petitioner's conviction became final, no reasonable jurist could find a defense counsel's affirmative misadvice as to the immigration consequences of a guilty plea to be objectively reasonable. The court also concluded that petitioner has sufficiently shown that he could have negotiated a plea that would not have impaired his immigration status, and that even if he could not, he would have litigated an available defense. Consequently, the court found that petitioner has made a showing of prejudice based on his ability to negotiate an alternative plea. Petitioner established his claim of ineffective assistance of counsel and satisfied the requirements of coram nobis relief. Accordingly, the court reversed and remanded to the district court with instructions to issue the writ and vacate the conviction.
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13-0209 Kovacs v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: November 21, 2013 Decided: March 3, 2014) Docket No. 13-0209 - - - - - - - - - - - - - - - - - - - -x STEPHEN KOVACS, Petitioner-Appellant, - v.UNITED STATES OF AMERICA, Respondent-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: KEARSE, JACOBS, and PARKER, Circuit Judges. Appeal from a judgment of the United States District 30 Court for the Eastern District of New York, denying Stephen 31 Kovacs petition for a writ of error coram nobis to vacate 32 his 1999 guilty plea to misprision of felony. 33 and order the granting of the writ. 34 35 36 37 38 We reverse NICHOLAS A. GRAVANTE, JR. (Thomas Ling, on the brief), Boies, Schiller & Flexner LLP, New York, N.Y., for Appellant. 1 2 3 4 5 6 7 8 9 10 11 12 13 MICHAEL H. WARREN (Peter A. Norling, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee. The Opinion of the Court is filed by Judge JACOBS. KEARSE concurs except for Part I.B.1. Judge DENNIS JACOBS, Circuit Judge: Petitioner Stephen Kovacs appeals from a judgment of 14 the United States District Court for the Eastern District of 15 New York (Wexler, J.), denying his petition for a writ of 16 error coram nobis. 17 felony, in violation of 18 U.S.C. § 4, and seeks the writ on 18 the ground that his lawyer rendered ineffective assistance 19 by giving erroneous advice concerning the deportation 20 consequences of pleading guilty to that offense, with the 21 result that he is at risk of detention and deportation if he 22 reenters the United States. 23 petition without an evidentiary hearing. 24 that follow, we reverse and order the granting of the writ. Kovacs was convicted for misprision of The district court denied the For the reasons 25 26 27 28 BACKGROUND Stephen Kovacs is an Australian national who became a permanent resident of the United States in 1977. 2 While 1 here, Kovacs founded International Bullion and Metal 2 Brokers, Inc., an importer and distributor of gold and metal 3 jewelry. 4 burglary, Hanover Insurance Company dispatched a public 5 adjustor named Eliot Zerring to assess the loss. 6 who was corrupt, see Chubb & Son Inc. v. Kelleher, No. 92 CV 7 4484, 2010 WL 5978913 (E.D.N.Y. Oct. 22, 2010), purportedly 8 convinced Kovacs to inflate the claim to $850,000. 9 claim was submitted in September 1991 and paid later that After Kovacs company lost $250,000 in a 1991 10 month. 11 Zerring, The Zerring kept the rest. 12 Kovacs ultimately took $400,000 of the $850,000, and Kovacs was charged in October 1996 with wire fraud and 13 conspiracy to commit wire fraud, in violation of 18 U.S.C. 14 §§ 371 and 1343. 15 to negotiate a plea that would have no immigration 16 consequences. 17 misprision of felony, 18 U.S.C. § 4, would not impact his 18 immigration status. 19 immigration concerns to the Government, which agreed to the 20 misprision of felony charge. 21 Kovacs instructed his lawyer, Robert Fink, Fink advised Kovacs that a conviction for Fink allegedly conveyed these On November 24, 1999, Kovacs pled guilty to a single 22 count of misprision of felony. 23 were aired during the plea hearing. 3 Kovacs immigration concerns At the outset, Fink 1 sought to seal the minutes of the guilty plea so immigration 2 officials could not see them. 3 Kovacs that immigration consequences were not in its control 4 and that it would give no such assurance. 5 responded that he researched it and we feel comfortable 6 that this is not a deportable offense. 7 ECF No. 31 (transcript of plea proceeding). 8 conclusion of the proceeding, Fink again stated that 9 misprision of felony is not deportable. 10 11 The district court warned Fink, however, Special App. at 12, At the Id. at 16. The court accepted the plea. Kovacs was sentenced on December 17, 2001 to five 12 years probation and restitution of $600,000. 13 court granted a downward departure for extraordinary 14 acceptance of responsibility in view of Kovacs decision to 15 forgo an available defense based on the five-year statute of 16 limitations. 17 8, 2002. 18 terminate Kovacs probation early. 19 The district Kovacs paid the restitution in full by August In 2006, the district court granted a motion to Kovacs continued his regular international travel until 20 April 2009, when immigration officials questioned Kovacs 21 eligibility for reentry on the ground that misprision of 22 felony is considered a crime of moral turpitude. 23 point, immigration officials directed him to appear for an 4 At that 1 interview to evaluate his immigration status. Kovacs 2 discussed his options with his lawyers, but allegedly none 3 of them advised him to seek vacatur of his conviction. 4 Before his scheduled interview, on the advice of 5 counsel, Kovacs returned to Australia, where he currently 6 resides. 7 remain here. 8 lives to carry on the family business. 9 His wife and children, all United States citizens, Kovacs children have had to adjust their Kovacs alleges that, notwithstanding his efforts to 10 seek counsel earlier, he first became aware of the 11 possibility of coram nobis relief in October 2011. 12 that time, his counsel asked the Government to negotiate an 13 agreed-upon motion for a writ of error coram nobis. 14 Negotiations failed, and Kovacs submitted a petition for the 15 writ in May 2012. 16 the ground that Kovacs could not show prejudice within the 17 framework established by Strickland v. Washington, 466 U.S. 18 668 (1984). 19 grounds, it did not reach the merits of the Government s 20 other arguments: that the petition was untimely, and that 21 Kovacs could not show Fink s advice was objectively 22 unreasonable at the time the conviction became final. 23 Kovacs now appeals the denial of his petition. At about The district court denied the petition on Because the court denied the petition on those 5 1 2 DISCUSSION A writ of error coram nobis is an extraordinary 3 remedy, United States v. Morgan, 346 U.S. 502, 511 (1954), 4 typically available only when habeas relief is unwarranted 5 because the petitioner is no longer in custody. 6 Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). 7 We review the legal standards applied by the district court 8 de novo. 9 See Id. A petitioner seeking coram nobis relief must 10 demonstrate that 1) there are circumstances compelling such 11 action to achieve justice, 2) sound reasons exist for 12 failure to seek appropriate earlier relief, and 3) the 13 petitioner continues to suffer legal consequences from his 14 conviction that may be remedied by granting of the writ. 15 Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996) 16 (internal citations and quotation marks omitted). 17 no doubt that Kovacs likely ineligibility to reenter the 18 United States constitutes a continuing consequence of his 19 conviction. 20 misadvice warrants granting the writ, and whether the 21 petition was timely. There is The remaining questions are whether Fink s 22 6 1 2 I Defendants have a Sixth Amendment right to counsel, a 3 right that extends to the plea-bargaining process. Lafler 4 v. Cooper, 132 S. Ct. 1376, 1384 (2012). 5 assistance of counsel is one ground for granting a writ of 6 coram nobis. 7 406 (2d Cir. 2013). 8 entails a showing that: 1) the defense counsel s performance 9 was objectively unreasonable; and 2) the deficient Thus, ineffective See Chhabra v. United States, 720 F.3d 395, A claim of ineffective assistance 10 performance prejudiced the defense. Strickland, 466 U.S. 11 at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) 12 (holding Strickland test applies to guilty plea challenges); 13 Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011). 14 15 16 A The performance component of the Strickland test asks 17 whether a counsel s representation fell below an objective 18 standard of reasonableness. 19 A defense counsel s performance is unreasonable when it is 20 so deficient that it falls outside the wide range of 21 professionally competent assistance. Strickland, 466 U.S. at 688. 22 7 Id. at 690. 1 As the district court observed, there is no dispute 2 that Fink misadvised Kovacs regarding the immigration 3 consequences of his plea. 4 United States, No. 12-cv-02260, at 3 (E.D.N.Y. Jan. 2, 2013, 5 ECF No. 18). 6 repeated erroneous assurances by Fink that misprision of 7 felony was not a deportable offense. 8 States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), that an 9 affirmative misrepresentation of the deportation Memorandum and Order, Kovacs v. The transcript of the plea allocution reflects We held in United 10 consequences of a guilty plea falls outside this range of 11 professional competence. 12 year after Kovacs 2001 conviction became final. 13 had entered his plea after Couto was decided, there is 14 little doubt Fink s performance would be deemed 15 unreasonable. 16 17 However, Couto was decided the If Kovacs Kovacs seeks to apply Couto retroactively.1 The retroactive application of case law is governed by the rule set forth in Teague v. Lane, 489 U.S. 288 (1989), 1 Because the district court ruled Kovacs could not make a showing of prejudice, the court did not decide whether Couto retroactively applies. However, this issue has been argued by the parties and presents a pure question of law. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004) ( In general, we refrain from analyzing issues not decided below, but we have the authority to decide issues that were argued before but not reached by the district court. ). 8 1 which looks to a decision s novelty. 2 announces a new rule, a person whose conviction is already 3 final may not benefit from the decision in a habeas or 4 similar proceeding. 5 1103, 1107 (2013). 6 may a person avail herself of the decision on collateral 7 review. 8 was not dictated by precedent existing at the time the 9 defendant s conviction became final. Id. If a decision Chaidez v. United States, 133 S. Ct. Only if the Court applies a settled rule [A] case announces a new rule if the result Teague, 489 U.S. at 10 301 (emphasis in original). 11 apparent to all reasonable jurists. 12 at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 13 (1997)). 14 Such a holding must have been Chaidez, 133 S. Ct. We have little trouble concluding that, by the time 15 Kovacs conviction became final, the Couto rule was 16 indicated, and was awaiting an instance in which it would be 17 pronounced. 18 objectively unreasonable as far back as the 1970s2; our 19 decisions reflected this trend long before Kovacs Courts had concluded similar misadvice was 2 See, e.g., United States v. Briscoe, 432 F.2d 1351, 1353-54 (D.C. Cir. 1970); Downs-Morgan v. United States, 765 F.2d 1534, 1538-41 (11th Cir. 1985); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich. 1987); United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan. 1999). 9 1 conviction. See United States v. Santelises, 509 F.2d 703, 2 704 (2d Cir. 1975) (per curiam) ( Since [defense counsel] 3 does not aver that he made an affirmative misrepresentation, 4 [petitioner] fails to state a claim for ineffective 5 assistance of counsel. ); Michel v. United States, 507 F.2d 6 461, 465 (2d Cir. 1974) ( While recognizing that deportation 7 was a serious sanction, this court . . . [noted] that there 8 was before it no allegation of misleading by counsel. ); see 9 also United States v. Zilberov, 162 F.3d 1149, 1998 WL 10 634211, at *1 (2d Cir. 1998) (unpublished summary order) 11 ( [T]rial counsel s alleged warning of possible 12 deportation may have been inaccurate and, arguably, 13 objectively unreasonable. ). 14 The Government observes that these statements were 15 dicta, not holdings; but if there had been holdings, there 16 would be no occasion now to consider retroactivity. 17 did nothing more than apply the age-old principle that a 18 lawyer may not affirmatively mislead a client. Chaidez, 19 133 S. Ct. at 1119 (Sotomayor, J., dissenting). At the time 20 Kovacs conviction became final, no reasonable jurist could 21 find a defense counsel s affirmative misadvice as to the 22 immigration consequences of a guilty plea to be objectively 23 reasonable. 10 Couto 1 2 B Once a petitioner shows deficient performance of 3 defense counsel, the inquiry shifts to the prejudicial 4 effect of that performance. 5 petitioner must show that there is a reasonable probability 6 that, but for counsel s unprofessional errors, the result of 7 the proceeding would have been different. 8 probability is a probability sufficient to undermine 9 confidence in the outcome. To establish prejudice, a A reasonable Strickland, 466 U.S. at 694. 10 In determining whether a different outcome sufficiently 11 demonstrates prejudice, we must keep in mind that a 12 defendant has no right to be offered a plea, nor a federal 13 right that the judge accept it. 14 Ct. 1399, 1410 (2012) (internal citations omitted). 15 Missouri v. Frye, 132 S. Notwithstanding the prevalence of pleas in the criminal 16 justice system, see id. at 1407, the Supreme Court has not 17 often had occasion to consider Strickland prejudice in the 18 plea negotiation context. 19 474 U.S. 52, contends Kovacs can succeed only if he shows he 20 would have gone to trial absent his attorney s unreasonable 21 performance. 22 showing, he also argues that he can demonstrate prejudice by The Government, relying on Hill, While Kovacs contends he has made that 11 1 showing his ability to negotiate an alternative plea based 2 on the holding of Frye, 132 S. Ct. 1399. In Hill, the petitioner sought habeas relief to 3 4 challenge his guilty plea to first-degree murder. Hill, 474 5 U.S. at 54. 6 when he would become eligible for parole caused his plea to 7 be involuntary. 8 stated that prejudice is shown when there is a reasonable 9 probability that, but for the counsel s errors, he would not He alleged that his attorney s misadvice about See id. at 56. In that context, the Court 10 have pleaded guilty and would have insisted on going to 11 trial. 12 allege that he would have insisted on trial or that he 13 placed particular emphasis on his parole eligibility in 14 deciding to plea, the Court denied his petition. 15 60. 16 Id. at 59. Because the petitioner there did not Id. at Frye opened another avenue to showing prejudice in the 17 pretrial process. Frye s lawyer failed to tell him of a 18 proposed plea that would have resulted in a reduced 19 sentence. 20 argued that he would have accepted the better offer but for 21 his attorney s performance. 22 Frye if a petitioner can demonstrate a reasonable 132 S. Ct. at 1404-05. Id. 12 The plea lapsed and Frye Prejudice can arise under 1 probability [he] would have accepted the earlier plea offer 2 had [he] been afforded effective assistance of counsel. 3 Id. at 1409. 4 reasonable probability that the end result of the criminal 5 process would have been more favorable by reason of a plea 6 to a lesser charge or a sentence of less prison time. 7 Acknowledging that there is no right to a plea, the Court 8 also required a reasonable probability neither the 9 prosecution nor the trial court would have prevented the 10 11 In addition, a petitioner must show a offer from being accepted or implemented. Id. Id. at 1410. The Government contends that Frye is limited to lapsed 12 pleas and that Kovacs must satisfy the Hill standard. 13 disagree. 14 arose. 15 means for demonstrating prejudice arising from the deficient 16 performance of counsel during plea negotiations. 17 1409-10.3 18 applied in Hill or Frye; each case is a context-specific 19 application of Strickland directed at a particular instance 20 of unreasonable attorney performance. We Hill . . . applies in the context in which it Id. at 1409. Hill does not . . . provide the sole Id. at The proper focus is not on the specific test 3 See Hare v. United As the Supreme Court noted, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. Frye, 132 S. Ct. at 1407. 13 1 States, 688 F.3d 878, 879 (7th Cir. 2012) ( Both Hill and 2 Frye apply Strickland s inquiry . . . . (internal quotation 3 marks omitted); see also Lafler v. Cooper, 132 S. Ct. 1376 4 (2012) (developing different test for prejudice when 5 attorney misadvice leads to standing trial instead of 6 accepting a plea offer). 7 We conclude that a defense lawyer s incorrect advice 8 about the immigration consequences of a plea is prejudicial 9 if it is shown that, but for counsel s unprofessional 10 errors, there was a reasonable probability that the 11 petitioner could have negotiated a plea that did not impact 12 immigration status or that he would have litigated an 13 available defense.4 14 1005, 1017-18 (9th Cir. 2005) ( Kwan could have gone to 15 trial or renegotiated his plea agreement to avoid 16 deportation. ). 17 that he placed particular emphasis on [immigration 18 consequences] in deciding whether or not to plead guilty. 19 Id. at 1017 (internal quotation marks omitted). See United States v. Kwan, 407 F.3d The petitioner must clearly demonstrate 4 See also Sasonov v. United States, 575 F.Supp.2d 626, 639 (D.N.J. 2008) (immigration consequences may have been enough to . . . have allowed [petitioner] to negotiate a more favorable plea agreement with the Government. ); United States v. Shaw, No. Civ.A. 03-6759, 2004 WL 1858336, at *11 (E.D. Pa. 2004) ( Defendant could have negotiated with the government in such a way as to produce a sentence that would not have triggered the INA mandatory removal provisions. ). 14 1 Strickland prejudice focuses on the outcome of the 2 proceeding rather than a defendant s priorities or desires. 3 [B]ecause a defendant has no right to be offered a plea, 4 Frye, 132 S. Ct. at 1410, the ultimate outcome of a plea 5 negotiation depends on whether the government is willing to 6 agree to the plea the defendant is willing to enter. 7 prevail on that ground, a petitioner must therefore 8 demonstrate a reasonable probability that the prosecution 9 would have accepted, and the court would have approved, a To 10 deal that had no adverse effect on the petitioner s 11 immigration status. 12 neither the prosecution nor the trial court would have 13 prevented the offer from being accepted or implemented ); 14 Lafler, 132 S. Ct. at 1385 ( the prosecution would not have 15 withdrawn it in light of intervening circumstances ); United 16 States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) ( He 17 alleges no facts that would suggest that his attorney could 18 have successfully negotiated a plea agreement . . . . ) 19 (emphasis added). 20 Cf. id. ( reasonable probability We conclude 1) that Kovacs has sufficiently shown that 21 he could have negotiated a plea that would not have impaired 22 his immigration status, and 2) that even if he could not, he 15 1 would have litigated an available defense. Judge Kearse 2 would decide this appeal on the second ground only, under 3 Hill, and does not subscribe to our discussion of the first. 4 5 6 1 Kovacs has sustained the very considerable burden of 7 establishing prejudice under the principles reviewed above. 8 It is apparent from the transcript of the Rule 11 hearing 9 that Kovacs single-minded focus in the plea negotiations 10 was the risk of immigration consequences. 11 submitted by Fink stated that the misprision of felony 12 charge was settled on in the plea negotiation for the sole 13 reason that Fink believed it would not impair Kovacs 14 immigration status -a view Fink conveyed to the prosecution. 15 Kovacs has thus shown a reasonable probability that he could 16 have negotiated a plea with no effect on his immigration 17 status. 18 at contesting the applicable legal standard rather than the 19 factual premise: the reasonable probability that the 20 prosecution would have accepted a plea to an offense that 21 would have left Kovacs immigration status intact. The declaration The Government s arguments on appeal are directed 22 16 1 Consequently, we find that Kovacs has made a showing of 2 prejudice based on his ability to negotiate an alternative 3 plea. 4 5 2 6 Alternatively, Kovacs demonstrates prejudice under the 7 standards set forth in Hill. 8 would have litigated a meritorious statute of limitations 9 defense. Kovacs petition alleges he When a petitioner claims that he would have 10 pursued an affirmative defense but for his lawyer s 11 erroneous advice, the resolution of the prejudice inquiry 12 will depend largely on whether the affirmative defense 13 likely would have succeeded at trial. 5 14 59. 15 for extraordinary acceptance of responsibility on the basis 16 that he waived this potential meritorious defense, and the 17 district court granted it. 18 Kovacs awareness of the defense prior to the plea becoming 19 final. Hill, 474 U.S. at At sentencing, Kovacs requested a downward departure The request itself demonstrates See Fed. R. Crim. P. 11(d)(2). 5 More importantly, The Government argues that this language applies only when the unreasonable performance impairs the defense. This portion of Hill, though, merely provides examples of how its rule might apply, and does not suggest a limitation. See Hill, 474 U.S. at 59-60. 17 1 the district court s grant of Kovacs request in the course 2 of a conscientious and searching sentencing process 3 implicitly acknowledged that the defense had weight. 4 result, Kovacs has shown a reasonable probability that he 5 would have proceeded to trial. 6 As a The Government contests the merit of the defense, 7 citing a fax sent after Kovacs received the final payment in 8 his fraudulent scheme, a document that is not in the present 9 record. In any event, the question is not whether the 10 defense would ultimately have been successful. Rather, the 11 inquiry is whether the defense was viable and sufficiently 12 promising that Kovacs would have litigated the defense to 13 avoid immigration consequences. 14 or no fax) the defense was sufficient trouble for the 15 Government that Kovacs would have been foolish to forgo it 16 at trial or as a means of softening the Government s 17 position in plea bargaining. There is no doubt that (fax 18 19 20 II The Government urges affirmance on the ground that the 21 petition was untimely. 22 that issue; but we do, insofar as timeliness bears on 23 possible prejudice to the Government. The district court did not reach 18 1 No statute of limitations governs the filing of a coram 2 nobis petition. 3 time, the petitioner must demonstrate sound reasons for 4 any delay in seeking relief. 5 . is whether the petitioner is able to show justifiable 6 reasons for the delay. 7 See Foont, 93 F.3d at 79. Id. At the same The critical inquiry . . Id. at 80. Kovacs has supplied sufficient reasons to justify the 8 delay. 9 reenter the country, but was unaware that a writ of coram He avers that he has diligently pursued ways to 10 nobis existed until October 2011--and contacted the 11 Government soon thereafter. 12 about the recent discovery of a writ so ancient. 13 346 U.S. at 506. 14 we typically remand for a hearing. 15 circumstances, however, no hearing is needed because it is 16 improbable that Kovacs (or whatever attorney he consulted) 17 would have promptly thought about coram nobis, which is as 18 arcane as it is ancient. 19 remedy available only in rare cases. 20 the Government does not suggest any tactical reason Kovacs 21 would have delayed pursuit of the writ until 2011 if he had 22 learned of it earlier. 23 of the petition insufficiently accounts for Kovacs efforts The Government is skeptical Morgan, When such a disputed issue of fact arises, Under present The writ is an extraordinary Id. at 511. Further, Lastly, the focus on the filing date 19 1 to negotiate for an agreed-upon motion in 2011. 2 that Kovacs petition was timely. We conclude 3 4 For these reasons, Kovacs has established his claim of 5 ineffective assistance of counsel and satisfies the 6 requirements for coram nobis relief. 7 and remand to the district court with instructions to issue 8 the writ and vacate Kovacs conviction. 20 Therefore, we reverse
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