Pilla v. United States of America, No. 1:2009cv02370 - Document 3 (N.D. Ohio 2010)

Court Description: Memorandum Opinion that as a result of the Court's consideration and rulings on five scenarios, the Court finds that there is no basis on which to grant the petition for corum norbis and the Court will publish a judgment entry ruling for the government on the petitioner's petition for a writ of corum nobis. Consequently, the Court finds, under the foregoing analysis, that the petitioner is not entitled to the writ of corum nobis and will publish an entry granting judgment to the government with Appendix I and II attached. Signed by Judge David D. Dowd, Jr. on 8/20/2010. (M,De)

Download PDF

Pilla v. United States of America Doc. 3 DOWD, J. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Ramini Sri Pilla, Petitioner-Defendant, v. United States of America, Respondent-Plaintiff. ) ) ) ) ) ) ) ) ) ) CASE NO. 1:07 CR 228 (Civil Case No. 1:08 CV 31) MEMORANDUM OPINION Dockets.Justia.com (1:07 CR 228 and 1:08 CV 31) Index I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The Delayed Plea of Guilty to the Information C. The Petitioner’s Plea of Guilty to the Information Without Admitting to the Allegations in Paragraph 3(1) in the Information and the Court’s Commentary . 4 D. A Review of the Transcript of the Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 1. The Factual Basis Stated by AUSA Rowland in Support of the Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. The Court’s Relevant Questions to the Defendant Regarding her Anticipated Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 3. The Sentencing Computation as Discussed During the Guilty Plea Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4. The Deportation Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E. The Petitioner’s Acceptance of Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . .21 F. The Court’s Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 G. The Petitioner’s Habeas Corpus Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 II. The Petition for Corum Nobis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 III. Summary of the Government’s Opposition to the Corum Nobis Petition . . . . . . . . . . . . 26 IV. The Court’s Fact Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 V. A Review of the Case Law Involving the Writ of Corum Nobis and Guilty Pleas in the Context of Potential Deportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 i (1:07 CR 228 and 1:08 CV 31) VI. Does the Decision in Padilla v. Kentucky Constitute a New Rule In the Context of Teague v. Lane As Claimed by the Government? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 VII. If the Court Assumes the Teachings of Padilla v. Kentucky Apply to the Advice Given by the Petitioner’s Trial Counsel, Did the Instructions of Steven Bell Regarding the Issue of Possible Deportation Conform to the Teachings of Padilla v. Kentucky? . . . . 41 VIIII. Did the Advice of Attorney Robert Brown to the Petitioner Concerning the Subject of Deportation Comply with the Teachings of Padilla v. Kentucky? . . . . . . . . . . . . . . . 44 IX. If the Court Finds that Steven Bell, Pursuant to the Teachings of Padilla v. Kentucky, Discharged His Obligation to Provide Competent Advice To His Client By Recommendation that She Consultt with Attorney Robert Brown With Respect to Deportation Issues, and Assuming that the Advice of Attorney Robert Brown,Failed to Comply with the Teachings of Padilla v. Kentucky, is the Petitioner Entitled to a Writ of Corum Nobis Because the Ineffective Assistance of her Civil Lawyer, Robert Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 X. If it is Determined, After Consideration of the Totality of the Circumstances that the Petitioner’s Right to the Effective Assistance of Counsel in the Context of Strickland v. Washington and the Teachings of Padilla v. Kentucky was Violated, Has the Petitioner Established the Second Prong of Strickland v. Washington, i.e., Prejudice? . . . . . . . . . .45 XI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 ii (1:07 CR 228 and 1:08 CV 31) I. Introduction Presently pending before the Court is the petitioner-defendant, Ramini Sri Pilla’s (hereafter “petitioner”) verified petition for a writ of corum nobis filed on September 4, 2009 following her conviction and sentence for a violation of 18 U.S.C. § 1001. Doc. 49. Initially, a review of the history of the criminal case is appropriate. A. The Information On April 16, 2007, in criminal case number 1:07 CR 228, an Information charging a violation of 18 U.S.C. § 1001 was filed against the petitioner.1 The Information stated in its 1 18 U.S.C. Section 1001 states in relevant part as follows: (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the Unite States, knowingly and willfully -(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years. 1 (1:07 CR 228 and 1:08 CV 31) entirety as follows: COUNT 1 (FRAUDULENT AND FALSE STATEMENTS IN VIOLATION OF TITLE 18, UNITED STATES CODE, SECTIONS 1001 AND 2) General Allegations 1. At all times material herein, RAMINI SRI PILLA, defendant herein, was employed by Case Western Reserve University (“CWRU”) in Cleveland, Ohio as an Assistant Professor in the Department of Statistics. 2. At all times material herein, the Federal Bureau of Investigation (“FBI”), an agency of the Executive Branch of the Government of the United States, had the authority to investigate hate crimes committed in violation of Title 18, United States Code, Section 245. 3. From on or about December 19, 2006 to on or about February 28, 2007, in the Northern District of Ohio and elsewhere, Defendant perpetrated a hoax on CWRU and the FBI by knowingly and willfully making the following material false statements to agents of the Federal Bureau of Investigation (“FBI”) alleging that, because of her ethnic origin and her gender, she had been the victim of a series of hate crimes. (1) On or about January 23, 2007, Defendant reported to the FBI that on August 28, 2006, November 16, 2006, and January 16, 2007, she had received threatening hate mail in her office at CWRU. When asked by an FBI agent who might have sent her the letters, she named three possible suspects, all of whom were CWRU employees. She further stated that the suspects were motivated in part by her race 2 (1:07 CR 228 and 1:08 CV 31) and gender. (2) On or about February 24, 2007, Defendant reported to the FBI that earlier in the day she had discovered a fourth threatening hate letter on the floor of her office at CWRU. (3) On or about February 28, 2007, Defendant, when being interviewed by an FBI agent about the above letters, stated that she believed the senders of the hate mail described above were retaliating against her for (1) making a complaint to a CWRU hotline alleging discrimination and (2) filing a complaint with the Equal Employment Opportunity Commission against CWRU alleging discrimination. 4. At the time Defendant made the statements described above, she knew they were false in that she had prepared the threatening hate mail herself and had delivered the letters to herself. 5. The false statements described above had the following affects: (1) The FBI expended resources to investigate the crimes reported by Defendant at a cost of approximately $5,830.00. (2) CWRU expended police department, management and in house legal resources responding to Defendant’s complaints at a cost of approximately $74,975.00. (3) CWRU retained outside counsel, at a cost of approximately $4,445.00 to defend CWRU against a complaint Defendant filed in Cuyahoga County Common Pleas Court on or about January 25, 2007 seeking a temporary restraining order and injunctive relief and alleging that CWRU had not “taken every reasonable action necessary to protect her life, health, 3 (1:07 CR 228 and 1:08 CV 31) and safety” in response to the threatening letters she claimed to have received. and (4) The Cuyahoga County Common Pleas Court expended resources in connection with the lawsuit described in paragraph (3) above at a cost of approximately $235.06. All in violation of Title 18 United States Code, Sections 1001 and 2. B. The Delayed Plea of Guilty to the Information It has been the Court’s experience where the defendant has agreed to be prosecuted by way of an Information that the defendant normally enters a plea of guilty on the day of the arraignment. However, such a practice was not followed in this case. The defendant was arraigned on May 1, 2007 and entered a plea of not guilty. The Court scheduled the trial for June 25, 2007. Subsequently, the defendant moved to continue the trial. Doc. 7. The Court granted the motion and rescheduled the trial for September 4, 2007. During this period of time, the Court was advised that the defendant would stand a better chance of avoiding deportation if her anticipated plea of guilty was entered after she had a green card for a period of five years. Hence, the delay. Eventually, the defendant entered a plea of guilty to the Information on August 13, 2007. C. The Petitioner’s Plea of Guilty to the Information Without Admitting to the Allegations in Paragraph 3(1) in the Information and the Court’s Commentary The petitioner entered a plea of guilty on August 13, 2007 after the following initial colloquy as follows: THE COURT: The Court calls the case United States of America versus Ramini Sri Pilla, Case Number 1:07CR228. This case began with the filing of an information. The defendant 4 (1:07 CR 228 and 1:08 CV 31) waived her right to require this case be presented to the Grand Jury. And since that time there has been some hesitation, I guess would be the best way I could describe the defendant’s decision, as to whether she wished to enter a plea of guilty to this information or go to trial. And because of what the Court viewed as indecision on her part, the Court did schedule the case for trial, I believe, in September, if I recall. And I have now been informed that it’s the present intention of the defendant to plead guilty to the information with respect to subsections 2 and 3 of paragraph 3 in the information, but not to subparagraph 1, if I understood what Mr. Bell told me at side-bar. Is that an accurate description? MS. ROWLAND: That’s my understanding, you Honor. The Court then engaged counsel for the government in further discussion concerning the nature of the anticipated guilty plea in the following discussion: THE COURT: Well, I guess the difficulty I have with that is that paragraph 2 -- subparagraph 2 under 3 appears to relate to subparagraph 1, because subparagraph 1 talks about receiving hate mail at her office. And it goes on to say: When asked by the FBI agent who might have sent her the letters, she named three possible suspects, all of whom were CWRU employees. If you eliminate that paragraph, then I don’t understand what paragraph 2 means because it says: On or about February 24, 2007 defendant reported to the FBI earlier in the day that she had discovered a fourth threatening hate letter on the floor of her office at CWRU. That doesn’t make any sense if you don’t have paragraph 1 in there. So I’m puzzled, frankly. MS. ROWLAND: Well, you Honor, the conversations with defense counsel have indicated that Dr. Pilla is willing to admit that she made the false statements on two separate occasions 5 (1:07 CR 228 and 1:08 CV 31) regarding the fourth letter that she reported to the FBI, but she is not willing to admit that she made the false statement on January 23 about the first three letters. And in my view, since she will be prepared to make a factual basis that comports with a violation of Title 18 Section 1001 regarding the statements she made to the FBI on February 24 and February 28, that it will be sufficient for the Court to find the defendant guilty of this count once she gives her factual basis -- or once I give the factual basis. THE COURT: And then if the Court accepts that plea, then I gather, based on the latest decision of the Sixth Circuit, it would be improper for me to consider subparagraph 1. MS. ROWLAND: Well, in the government’s view, at sentencing we would be prepared to present evidence about all of the relevant conduct for the Court’s consideration because that would go into the history and characteristics of the defendant and the seriousness of the offense, which in the government’s view -THE COURT: Well, I just got reversed, as you probably know, in a published opinion where I sentenced the defendant within the guidelines but indicated I was going to consider a letter that was sent to me in confidence, a summary of which I gave to defense counsel. And the Sixth Circuit, in its infinite wisdom, decided I was wrong and sent the case back for resentencing. I’m now supposed to eliminate from my mind what I read in that disclosure that I summarized but did not make available to counsel for the defendant or the defendant. Now, your position is I don’t have to eliminate from my memory what’s in paragraph 1 even though the defendant’s not going to plead guilty to it? MS. ROWLAND: I think they will contest it at the sentencing as part of her history and characteristics. THE COURT: information? Why should I accept a plea to the 6 (1:07 CR 228 and 1:08 CV 31) MS. ROWLAND: Because she is going to make a factual basis that would constitute an offense. And I think the law is -THE COURT: But you are not willing to strike paragraph 1 from the information? MS. ROWLAND: Well, I could, but it would have no legal impact because I think at sentencing I would still be entitled to present evidence about the total course of conduct and all the relevant conduct. That’s distinguished from the situation in your case because in this case the defense has had full access to all the information on which the government will rely. THE COURT: Yeah, I think you’re right. Yeah, that’s the difference. Okay. I’ll proceed. D. A Review of the Transcript of the Guilty Plea 1. The factual basis stated by AUSA Rowland in support of the defendant’s guilty plea. The government did not present a signed plea agreement in advance of the defendant’s plea of guilty because the parties were unable to agree on the amount of restitution. Thus, there was no written plea agreement. The Court requested a factual basis which was then submitted by AUSA Rowland and as follows:2 THE COURT: Now, finally, I’m required to find that there is a factual basis for your plea of guilty. And I would like the government to elaborate on the factual basis, if they might, please. MS. ROWLAND: Your Honor, by way of background, I would state that during the period of time that’s charged in the information, Dr. Pilla was in a series of ongoing disputes with Case Western Reserve University regarding her employment. 2 Doc. 20, p. 32, line 2 through pg. 39, line 16. 7 (1:07 CR 228 and 1:08 CV 31) She had a number of complaints about the circumstances of her work and had filed a complaint with the EEOC and also on the university’s hotline. As I stated, at sentencing the government would be prepared to prove, and if we had gone to trial the government would have proven, that beginning on August 28, Dr. Pilla started reporting to the Case Western Reserve police receiving hate mail in her office at Case Western Reserve. We would be prepared to prove that she was motivated to place this first note herself and report it by a desire to have her position moved from the Department of Statistics to the Department of Biology which she believed to be a more conducive work environment for her. She then placed a second note on November 16, or at least she reported it to the Case Western Reserve police on that date. I won’t describe the notes in detail, but this one indicated: You don’t belong in the department. Be gone or else face dire consequence. She reported to the Case Western Reserve police that this made her feel afraid and that she did not want to disappear. Shortly after this second note on November 16, unbeknownst to Dr. Pilla, the Case Western Reserve police installed a camera in the hallway outside of her office. Also, in the early fall of 2006, Dr. Pilla began confiding in a close friend of hers in New Mexico about the notes that she had been receiving and complained to him that the police were not taking them seriously. The friend of hers happened to have a professional relationship with an FBI analyst in New Mexico and took it upon himself to contact that person and report her situation. There followed a series of e-mails between this FBI analyst in New Mexico, Dr. Pilla’s friend there, and Dr. Pilla herself. 8 (1:07 CR 228 and 1:08 CV 31) And on January 5 -- and also it generated a referral to the Cleveland office of the FBI. On January 5, of 2007, Dr. Pilla sent an e-mail to the analyst in New Mexico saying that she had not yet received a call from anybody in the Cleveland FBI. I’m not sure if they’re pursuing it, she states. Then on January 11, 2007, the analyst in New Mexico sent an email to Dr. Pilla stating that she had just gotten off the phone with an agent from the Cleveland office. They would be happy to look into the problems you have been experiencing. And she said she was going to follow up with another e-mail to Cleveland. Then five days later after that e-mail, she reported to the FBI and to the Case Western Reserve police -- excuse me. She replied to -she reported to the Case Western Reserve police not yet the FBI, that she had received a third threatening note in her office. This note accused her of being a plagiarist, which in fact had been an issue, an ongoing issue at Case Western Reserve. She had been accused of plagiarism. And it went on with some rather vitriolic language. On January 23, Dr. Pilla had her first meeting with the FBI, Special Agent Ryan Pierrot, and at trial we would have proved that she reported that she had received the three prior notes that I discussed on August 28, November 16 and January 16. When asked who would have sent her the letters, she named three possible suspects, all of whom were her colleagues at Case Western Reserve. And she believed that these people were motivated in part by her race and by her gender. On January 25, she caused a complaint for a temporary restraining order and injunctive relief to be filed in Cuyahoga County Common Pleas Court alleging that the university had not taken every reasonable action necessary to protect her life, health and safety. On January 28, Dr. Pilla sent an e-mail to the FBI analyst in New 9 (1:07 CR 228 and 1:08 CV 31) Mexico stating that the Cleveland FBI office had contacted her and thanking her for arranging for the interview. She greatly appreciates it and hopes that the matter will be investigated. On February 8, she had a meeting with Special Agent Pierrot at her own office indicating that she had researched handwriting analysis. She stated to the FBI that she had researched handwriting analysis on the Internet and learned that it was hard to decipher handwriting when it was prepared slowly and when a person writes a word by lifting his or her hand up after writing each letter of the word. And she demonstrated this with a piece of paper on her desk. It should be noted that the first two notes were written in that manner. On February 24, around midday, Dr. Pilla left a voice mail message for Special Agent Pierrot stating that she had received another note in her office. She sounded very distraught on the telephone. Later that day Special Agent Pierrot had a telephone conversation with Dr. Pilla about the fourth note. They made arrangements to talk in person on February 28, four days later, Dr. Pilla coming down to the offices of the FBI. The interview started out with her providing agents with copies of various documents concerning her disputes with the university including her hotline complaint. She related several of her complaints about the university, including that she had filed complaints with the National Science Foundation Office of Inspector General and had attended an EEOC mediation in July of 2006, just a month before the first note. She told the agents that her filing of these complaints had made someone angry, quote/unquote. The agent asked Dr. Pilla when she had last been at Yost 338, her office, where the fourth note had been delivered under the door, and she said that it had been on February 2, several weeks before. And she said she returned to that office for the first time on 10 (1:07 CR 228 and 1:08 CV 31) February 24 and had found the fourth note. She repeated that she believed her complaints against the university related to the notes. Thereafter, Dr. Pilla was confronted with the fact that the camera in the hall had caught her placing the fourth note under the door on February 21, even though she had said she hadn’t been there since February 2. She admitted that she had slid each one of the notes under her office door and that she did it because she was under so much stress and she wanted to be out of the statistics department. She had been informed in August 2006, prior to the first note, that she had no future at Case. She was also informed in August that she was being accused of plagiarism. This is all by her own report to the FBI on that date, August -- or February 24. She wrote the first note, she said, because she had thought Case would get her out of the statistics department and into the biology department. She could not recall if she wrote the first note at home or in the office. She said she possibly fabricated the second note at home and it was prompted by several incidents. This was the note in November, November 16. The incidents that prompted her to place the second note were that she did not have access to her grants and was not getting paid, that whenever she asked someone to do something for her it did not get done, that she had spent a lot of time prepping to teach a course in the spring term to find out she could not teach the course while at the same time another professor had an easier time getting his course approved. She worried that these events would affect her NSF award, and that all of these events culminated in her writing the second note. She said she wrote the third note in January of 2007 on her home computer after one of her colleagues told a mathematician that she had plagiarized four pages of a paper. 11 (1:07 CR 228 and 1:08 CV 31) She said she created the fourth note in February, just a few days before, because she had tried to recruit a post-doc student using her NSF career award. Because she was on a terminal contact, Dr. Pilla could not recruit Ph.D. students and attempted to use her funds to recruit a post-doc. She stated she wrote the series of letters to portray the reality of her situation so people in the outside world could see the hostile work environment in which she was trying to work. The agents asked her to sign a written statement on the 24th, but she declined to do that. But she did say she was sorry for what she did. Later that day Dr. Pilla attended a dinner for a fellow faculty member, and after that dinner she confided to him that she had confessed to the FBI that she had written all the notes. And later that night she also called her friend in New Mexico and admitted to him that she had admitted to Special Agent Pierrot that she had placed all four notes. She also left a voice mail message for Special Agent Pierrot stating that after a good night’s sleep she would sign the statement and answer any further questions. Your Honor, the government would also prove at sentencing that the FBI, Case Western Reserve, and the Cuyahoga County Common Pleas Court all expended resources in response to her complaint in the amounts that you went over when you went over the information. THE COURT: The Court finds that there is a factual basis to support a plea of guilty to the information with the understanding that the allegations in subparagraph 1 under paragraph 3 will be stricken. 2. The Court’s relevant questions to the petitioner regarding her anticipated guilty plea. As is the Court’s custom, it inquired of the defendant, prior to her offering a plea of 12 (1:07 CR 228 and 1:08 CV 31) guilty, as follows:3 THE COURT: Now, the main thing I want you to carry away with here is that if you do decide to plead guilty to this information, there is no guarantee as to what my sentence will be. Do you understand that? THE DEFENDANT: Yes, your Honor. THE COURT: Has anybody promised you what my sentence will be if you plead guilty? THE DEFENDANT: No, your Honor. THE COURT: Mr. Bell is allowed to speculate or predict what he thinks I might do. He might decide to do that; he might decide not to do that. I’ve known Mr. Bell for many years and he is an excellent lawyer. And for all I know, he has what I call the book on me as far as a judge is concerned and feels he is comfortable in predicting what I might do. But as long as you understand it’s a prediction and not a guarantee, he can predict all he wants to. Do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: Okay. Now, again, I want to go back. If you do plead guilty here today, will your plea of guilty be voluntary on your part? THE DEFENDANT: Yes, your Honor. THE COURT: Will it be an exercise of your own free will? THE DEFENDANT: Yes, your Honor. 3 Doc. 20, p. 30, line through p. 31, line 10. 13 (1:07 CR 228 and 1:08 CV 31) THE COURT: plead guilty? Has anybody forced or threatened you to THE DEFENDANT: No, your, Honor. 3. The sentencing computation as discussed during the change of plea hearing. Consistent with the Court’s custom, the transcript of the change of plea hearing reveals the following discussion regarding the sentencing consequences.4 THE COURT: All right. Now I want to talk now about the sentencing consequences of your plea of guilty. And bear in mind I still haven’t asked you for your plea. We haven’t reached that point yet. But as I understand from reading this, the maximum sentence that could be imposed in this case is five years imprisonment. Am I correct on that? MS. ROWLAND: Yes, your Honor. THE COURT: And supervised release would be for what period, do you know? Two years? Three years? MS. ROWLAND: Two years, your Honor, minimum; maximum of three years. And a $250,000 fine. THE COURT: All right. Now, that’s the maximum sentence that the Court can impose. When I say maximum, that’s the most the Court can impose. Do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: Now, would you please give the defendant a copy of the sentencing table. 4 Doc. 20, p. 22, line 11 through p. 30, line 11. 14 (1:07 CR 228 and 1:08 CV 31) And do you have a copy for me because I don’t have one up here. Now, it’s going to take me awhile to talk about the sentencing consequence if you in fact plead guilty or are found guilty, and it’s pretty complicated. And even though you have a Ph.D., it may be that you will have trouble following my explanation. And I will not feel troubled if you say, Judge, I don’t understand. Fair enough? THE DEFENDANT: Yes, your Honor. THE COURT: Okay. Now, in 1987, I guess, or ‘88, I forget now, the Congress of the United States decided we should have sentencing guidelines in every criminal case where there was a conviction. And as a consequence of that, the Court has to make two determinations with respect to any defendant who pleads guilty or is found guilty. And those determinations are, first, what’s the offense level? And if you look at the table, you’ll see it’s got the phrase Offense Level at the top, and it goes all the way down from 1 all the way down to 43. Do you see that? THE DEFENDANT: Yes, your Honor. THE COURT: History Category? Do you see across the top it has Criminal THE DEFENDANT: Yes, your Honor. THE COURT: And it has Criminal History Points, and that relates to the defendant’s record of convictions, if any. For instance, even if you have no conviction you are a Criminal History Category I, which always seemed to me to be a pretty stupid statement, but that’s the way they worked it out. So in any event I have to make those two determinations: What’s the offense level and what’s the criminal history category. 15 (1:07 CR 228 and 1:08 CV 31) Do you understand that? THE DEFENDANT: Yes, your Honor. THE COURT: Okay. Now, do a hypo for me. Assume that I have to sentence somebody today -- Mr. Bell, don’t even help her. I want her to do this on her own -- that has an offense level of 20. Have you got that, 20? THE DEFENDANT: Yes. THE COURT: And a Criminal History Category of Roman numeral III. Where does that person fit on the table? THE DEFENDANT: Zone C, and 41 to 51. THE COURT: That’s right. You passed. Do you know what the numbers stand for? THE DEFENDANT: I would assume that’s the points that would be allocated to the -THE COURT: No, no. What do the -- 41 to 51, what do those numbers stand for? THE DEFENDANT: That’s what I’m assuming those are probably attached -- that would determine the sentencing. THE COURT: Sentencing Table? Well, no. Look up here. See where it says THE DEFENDANT: Oh sorry. THE COURT: In terms of months? THE DEFENDANT: Yes, yes. Okay. THE COURT: It’s not years. It’s months. So what that would tell me is in that particular make-believe situation, I could sentence that defendant to as many as 51 months or as few as 41 months. 16 (1:07 CR 228 and 1:08 CV 31) THE DEFENDANT: Yes. THE COURT: Or anywhere in between. THE DEFENDANT: Yes. THE COURT: But, before I would do that, I would have to decide whether or not the government was entitled to an upward departure or the defendant was entitled to a downward departure. Departure means that the Court’s going to pick a period of time outside the guideline range. And if the government picks a number above 51, and say the Court decides 60 months, that would be called an upward departure. And in that event, the defendant, even if he or she agreed that I calculated the guidelines correctly, could challenge that upward departure on appeal. Well, the same applies the other way. If I say to this 41 - to 51month defendant, well, 41 months is just too much time, I’m going to make it 24 months, that would be a downward departure. And in that event, the government has the right to appeal and challenge the downward departure. You think it’s complicated enough, but it even gets worse. But before we do that, I want to ask counsel if they have any suggestion or guidance as to what they think the offense level would be here for the defendant if she enters a plea of guilty to this information. MS. ROWLAND: Your Honor, based on the cost of this offense to the victims in this case, we would be recommending a sentence in the range of 12 to 18 months at a level 13. THE COURT: Okay. So your belief is -- and that would be after giving the defendant credit for acceptance of responsibility? MS. ROWLAND: responsibility. No. That would be before acceptance of THE COURT: All right. The reason I asked the question about acceptance of responsibility is that the Court has to consider 17 (1:07 CR 228 and 1:08 CV 31) whether the defendant should be given credit for acceptance of responsibility by the plea of guilty. And if the court decides that and grants a two-level reduction for acceptance of responsibility, if I understand what Ms. Rowland said, it would be 8 to 14 months assuming you’re a Criminal History Category I. MS. ROWLAND: I’m sorry, you Honor. I’m sorry to correct my statement. I did misstate. The level 13 would be after acceptance of responsibility. THE COURT: All right. All right. So acceptance of responsibility would wind up at a 12- to 18-month sentence assuming she’s a Criminal History Category I. MS. ROWLAND: Correct. THE COURT: And is there any indication that either counsel knows about that the defendant has a criminal record that would put her above Criminal History Category I? MS. ROWLAND: your Honor. MR. BELL: We are not aware of any criminal history, Nor am I, your Honor. THE COURT: All right. Do you understand that if you do plead guilty, I’ll order a presentence report. And even though counsel have predicted for me what they believe the Criminal History Category will be, if the presentence report comes back with a different number, I have to follow that if I think it’s been established. Do you understand? THE DEFENDANT: Yes. Attorney Bell told me. THE COURT: For instance, just to give you an example, let’s say they come back and say, oops, the defendant has three criminal history points. She is now in the category of 15 to 21 18 (1:07 CR 228 and 1:08 CV 31) months as opposed to 12 to 18 month? Do you see and understand that? THE DEFENDANT: Yes, your Honor. THE COURT: Now, I’m not making any kind of a final decision today on what the offense level is. I have to wait until I get the presentence report and hear any objections that counsel has as to what that final offense level should be. Do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: There is no agreement that requires the Court to find that. But I’m still not through with the complexity of the situation. About two years ago now, the Supreme Court in what some might call a mind-boggling decision, decided that the mandatory guidelines are unconstitutional. But then another group of five justices decided that they were advisory, not mandatory as they had been before. They went on to say the Judge has to determine what that advisory guideline range is, and then the Court should consider the sentencing factors under 18 United States Code Section 3553(a). And I have to confess, I wasn’t even aware of those sentencing factors until that decision came down. Now, in every case I’m required to consider those sentencing factors, and I have the power now to vary above the guideline range or vary below the guideline range after I’ve considered those factors. Do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: Now, there is no agreement here, there is no 19 (1:07 CR 228 and 1:08 CV 31) agreement whatsoever, so the government has the right to argue to me that I should vary above the advisory guidelines, the high number, which, with the calculations here that the government and your counsel have suggested, I would have the power to vary above 18 months. But if I were to do that, I would have to give you advanced notice that I was considering varying above 18 months. Do you understand so far? THE DEFENDANT: Yes, your Honor. THE COURT: By the same token, Mr. Bell has the opportunity to suggest to me that I should vary below the 12 months and make an argument consistent with that proposal. And if he does that, then I have an obligation to consider that also. Do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: Now, the main thing I want you to carry away with here is that if you do decide to plead guilty to this information, there is no guarantee as to what my sentence will be. Do you understand that? THE DEFENDANT: Yes, your Honor. 4. The deportation issue During the sentencing hearing, the following colloquy took place regarding the possibility of deportation:5 MS. ROWLAND: Your Honor, one matter, although not 5 Doc. 20, p. 39, line 20 through p. 40. 20 (1:07 CR 228 and 1:08 CV 31) legally required, that you might want to go into is whether she understands the consequences of her plea as it might affect her immigration status. THE COURT: Well, it was my recollection earlier in the case that there was the hope that if the defendant were to enter a plea of guilty, it would be after she had been in the United States for a period of five years with a green card, and we’ve now moved past that, have we not? MR. BELL: We are, your Honor. THE COURT: I don’t, frankly, purport to be an expert on immigration or for that matter deportation. I’ve sat enough at circuit courts to know that they’re overwhelmed with deportation issues, but I in no way would hold myself out as an expert on it other than to say to the defendant that if you plead guilty to the information, you may be subject to deportation. And beyond that, I am unable to give you any specific information. Do you understand? THE DEFENDANT: Yes, your Honor. MR. BELL: Your Honor, just for the record, the defendant has secured immigration counsel to be representing her, and she’s had the opportunity to consult with him prior to today’s proceedings. (Emphasis added). THE COURT: Very well. E. The Petitioner’s Acceptance of Responsibility The petitioner’s acceptance of responsibility is set forth in paragraph 53 of the presentence report and indicates as follows: On September 13, 2007, the defendant provided the following written statement in regard to her offense: “I accept full responsibility for my actions. I have entered a plea 21 (1:07 CR 228 and 1:08 CV 31) of guilty to making false statements to the FBI concerning the placement of a threatening note in my office at Case Western Reserve University. This threatening note was placed in my office on February 24, 2007. I was interviewed by the FBI about this note on February 28, 2007. My guilty plea concerns this February 24 note and my statements made to the FBI on February 28. “I was the under the care of a mental health professionals [sic] during the fall of 2006. I remain under such care today. I have been diagnosed with Major Depressive Disorder, recurrent, Severe with Psychotic Features (DMS 296.34) and Anxiety Disorder (DSM 300.)). “Early in 2007, I was prescribed a medication (Klonopin) by my psychiatrist. I had this prescription filled on January 24, 2007, and continued taking this medication until March 1, 2007. This medication caused me to suffer lapses in memory and judgement [sic]. I was under the influence of this medication at the time I was interviewed by the FBI on February 28, 2007. “Soon after my meeting with the FBI on February 28, 2007, I was admitted to the psychiatric unit of Lutheran Hospital. I had suffered a nearly complete mental breakdown. Since being discharged from Lutheran Hospital, I have stopped taking the prescription medication described above, and I am feeling much better. “I appreciate deeply all the efforts made by the FBI to help me, and I am extremely apologetic to Special Agent Ryan Pierrot for my actions. This crime has cost me my reputation, my job, my savings and my career. I face uncertainty as to whether I will be allowed to remain living in the Untied States. I have hurt deeply many persons at Case Western Reserve University who had tried to advance my career as a scientist. I apologize to Dean Cyrus Taylor, Professor Joseph Koonce and to all others at CWRU whom I have hurt. “I have never before been in any type of legal trouble. I can promise all who may read this that I am deeply sorry for my actions, and that I will never again be involved in a criminal case.” 22 (1:07 CR 228 and 1:08 CV 31) F. The Court’s Sentence The Court conducted a lengthy sentencing hearing during which the Court considered the specific offense characteristic as to the amount of the loss created by the conduct of the defendant. The presentence report had calculated the loss in excess of $70,000 which would have resulted in a determination that the final offense level, after deducting two levels for acceptance of responsibility, would have been 12. However, after conducting the lengthy sentencing hearing, the Court calculated the loss to be the sum of $66,240.39, which resulted in the final offense level being calculated as 10 rather than 12, providing for a sentencing range in Zone B of six to 12 months under the Advisory Sentencing Guidelines. As indicated in the Court’s Memorandum Opinion analyzing the sentencing factors, Dean Taylor of the College of Arts and Sciences for CWRU advocated a prison sentence. Counsel for the government argued for a prison sentence at the half-way range of six to 12 months, and counsel for the defendant requested a sentence of probation, accompanied by house arrest for six months. The Court imposed a sentence of six months confinement with supervised release for a period of two years as well as an order of restitution with $60,175 being paid to CWRU, $5,830.31 being paid to the FBI and $235.08 to the Common Pleas Court of Cuyahoga County. G. The Petitioner’s Habeas Corpus Action On January 4, 2008, the petitioner filed a motion to vacate her sentence under the provisions of 28 U.S.C. § 2255 and also moved for a stay of her sentence. Docs. 33 and 34. The Court ordered the petitioner’s sentence stayed. Doc. 35. Also on January 4, 2008, Steven D. Bell, the petitioner’s retained counsel, moved to withdraw as counsel and the Court 23 (1:07 CR 228 and 1:08 CV 31) approved Mr. Bell’s withdrawal. Doc. 37. On January 10, 2008, counsel for the government filed a motion to dismiss the petitioner’s application under the provisions of 28 U.S.C. § 2255. Doc. 38. Eventually, on February 27, 2008, the Court denied the petitioner’s application under § 2255 and also declined to issue a certificate of appealability. The petitioner was ordered to selfsurrender on Monday, March 10, 2008. (Doc. 42, 43). On February 29, 2008, the petitioner moved for a bond pending appeal (Doc. 45), the Court denied the motion for bond pending appeal, and modified the petitioner’s self-surrender date from March 10, 2008 to March 17, 2008. Doc. 47. II. The Petition for Corum Nobis On September 4, 2009, the verified petition for corum nobis was filed. Doc. 49. Thereafter, the government filed a motion to dismiss the petition for corum nobis. Doc. 51. Discovery ensued. Depositions were taken of the petitioner, Attorney Steven Bell and Attorney Robert Brown. The deposition of the petitioner has been filed (Doc. 65); the deposition of Attorney Bell has been filed (Doc. 67) and the deposition of Attorney Robert Brown (Doc. 68) has been filed. On April 9, 2010, a supplemental memorandum in support of the petition for a writ of corum nobis was filed. Doc. 72. On July 22, 2010, counsel for the government filed an additional response in opposition to the petition. Doc. 76. The verified petition for a writ of corum nobis pursuant to 28 U.S.C. § 1651(a) was filed on September 4, 2009 and listed two grounds in support of the petition: 24 (1:07 CR 228 and 1:08 CV 31) A. PETITIONER WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, RENDERING HER GUILTY PLEA UNKNOWING AND INVOLUNTARY. (1) Counsel failed to correctly advise Petitioner, prior to her guilty plea, of the collateral effects of her guilty plea on her immigration status. (2) Counsel failed to object to the inclusion of damages allegedly suffered by Case Western Reserve University as part of the Court’s sentencing in terms of restitution, without requesting that the Court distinguish between the loss that was specifically tied to the count to which the Petitioner plead, versus amounts of loss, such as that allegedly suffered by Case Western Reserve University, which are either based upon counts to which the Petitioner did not plead or upon general conduct. The petitioner, through counsel, filed a supplemental memorandum in support of the petition for corum nobis on April 9, 2009. Doc. 72. In support of the petition, counsel advanced additional propositions including: 1. Petitioner is not required to prove actual innocence. 2. Petitioner is innocent of the charge for which she was convicted and of all other charges she was facing. 3. Petitioner is eligible to seek relief through a writ of corum nobis and her claims are not moot as a result of her removal. 4. Petitioner is entitled to relief sought in her petition by reason the ineffective assistance of counsel. 5. The petition for relief is supported by the recent decision of the Supreme Court in Padilla v. Kentucky. 25 (1:07 CR 228 and 1:08 CV 31) III. Summary of the Government’s Opposition to the Corum Nobis Petition The government has filed a thorough opposition to the petition numbering 51 pages and following the three depositions of the defendant, the defendant’s criminal trial counsel, Steven Bell, and the defendant’s immigration counsel, Robert Brown. The government offers three basic oppositions to the petition as follows: 1. Prior to her guilty plea, the defendant was advised of the risk of deportation by her criminal defense attorney, her immigration attorney and by the court. 2. The defendant has not established prejudice from the alleged mis-advice her immigration attorney provided prior to her guilty plea. 3. The writ is not available to a petitioner such as Ramini Pilla who is on supervised release.6 IV. The Court’s Fact Findings Before engaging in an analysis of corum nobis jurisprudence, the Court is of the view that specific fact findings by the Court are necessary as a basis for applying established corum nobis precedent. The Court finds the following facts to have been established: 1. The petitioner confessed to the FBI on February 28, 2007 her role in the attempted hoax after she was told she was seen placing two notes under the door to her office which notes supported the claim of a harassment.7 6 The petitioner has returned to her native country of India and is obviously not on any supervised release supervision. 7 See attached hereto Appendix I identified as Exhibit A in the government’s brief and constituting the FBI 302 dated 2/28/07. 26 (1:07 CR 228 and 1:08 CV 31) 2. Shortly after confessing to the FBI, the petitioner contacted Attorney Steven Bell within 48 hours to represent her in anticipated criminal charges.8 3. Steven Bell recalls calling Attorney Robert Brown’s office on the next day after he first met with the petitioner and requesting assistance in helping the petitioner through the immigration questions which were matters that Attorney Bell did not feel competent to handle.9 4. Mr. Robert Brown, the lawyer who the petitioner consulted regarding the deportation issues, specializes in immigration and was employed previously as an acting regional director for the U.S. Immigration Naturalization Service. 5. Steven Bell recalls on April 13, 2007 a lengthy telephone conversation with Attorney Brown, and later that day, sent Brown a copy of the Bill of Information that was going to be filed and indicated that the subject of conversations with Attorney Brown were the immigration consequences if the petitioner were to enter a plea of guilty to the Bill of Information. 6. The petitioner went to the office of Attorney Robert Brown on June 18, 2007 and, according to Mr. Brown, at the insistence of Attorney Steven Bell, that she retain an immigration attorney because she may be facing removal charges. See Brown Depo. Doc. 68, at page 16. 7. After the Information was filed on April 16, 2007, a delay ensued with respect to disposition of the Information so as to provide the petitioner with the fact that she had had her green card issued five years before her guilty plea. 8 See Steven Bell deposition, Doc. 67 at p. 9. 9 See Steven Bell deposition, Doc. 67 at p. 10. 27 (1:07 CR 228 and 1:08 CV 31) 8. Attorney Robert Brown indicated that he advised Steven Bell to at all costs avoid an aggravated felony guilty plea. See Doc. 68 at page 35. 9. The petitioner’s guilty plea was taken by the Court on August 13, 2007. 10. During the taking of the guilty plea, the petitioner indicated she had not been promised what the sentence would be, that her guilty plea was an exercise of her own free will and that no one had threatened or forced her to plead guilty. 11. During the taking of the guilty plea, the deportation issue was raised by the government leading to inquiry by the Court and during which Steven Bell, the petitioner’s counsel, advised the Court that the petitioner had secured immigration counsel and that she had the opportunity to consult with him prior to the proceedings. The petitioner offered no objection to the representation of Mr. Bell. 12. The petitioner provided a written statement acknowledging her guilt and which stated in part as follows: “... I appreciate deeply all the efforts made by the FBI to help me and I am extremely apologetic to Special Agent Ryan Pierrot for my actions. This crime has cost me my reputation, my job, my savings and my career. I face uncertainty as to whether I will be allowed to remain living in the United States. I have hurt deeply many persons at Case Western Reserve University who had tried to advance my career as a scientist....” (Emphasis added). 13. The petitioner had no realistic chance of being acquitted at trial. The government had evidence demonstrating that the petitioner was videotaped placing two of the four notes under her office door. When subsequently interviewed by two FBI agents on February 28, 2007, in a non-custodial setting, she confessed to placing all four notes, giving significant details about 28 (1:07 CR 228 and 1:08 CV 31) how and why she created and placed each note, as indicated in Appendix I, attached hereto. 14. The petitioner’s statement of actual innocence (Doc. 53-1) is unsigned, but if it were to be signed by the petitioner, it lacks credibility with respect to the petitioner’s claim of “actual innocence.” 15. Had the petitioner gone to trial, it is the Court’s finding that she had no rational defense, would have been convicted and would have faced a longer term of incarceration because she would have been denied acceptance of responsibility resulting in a higher guideline range. 16. The deposition of testimony of Steven Bell demonstrates that Mr. Bell examined various possible defenses and concluded none was reasonable and informed the petitioner that he would only take the petitioner before the Court and allow her to plead guilty if she told Mr. Bell that she was guilty. Eventually, the petitioner told Mr. Bell on the day of the guilty plea that she was guilty and would plead guilty. Then, after her plea of guilty, she reverted to the position that she was not guilty. 17. Mr. Bell’s testimony supports the proposition that the petitioner was advised that her admission of guilt had the possibility of increasing her chances of avoiding deportation. 18. During the sentencing hearing, it was the goal of Mr. Bell representing the petitioner to obtain a judicial determination that the amount of loss was below $70,000, so as to reduce by two levels the total offense level, and Mr. Bell succeeded in the effort when the Court determined that the loss was less than $70,000, contrary to the position of the government. 19. The parties entered into a stipulation to the effect that Mr. Brown billed the 29 (1:07 CR 228 and 1:08 CV 31) petitioner for services rendered prior to her guilty plea demonstrating that the petitioner and. Mr. Brown consulted regarding the deportation possibilities in connection with her criminal case. The text of the stipulation follows: (Doc. 77) The parties hereby stipulate that the Defendant, Dr. Ramani [sic] Pilla, was billed for services by Attorney Robert Brown, in a bill dated sometime in December of 2007 which, at least in part, covered services rendered by Attorney Brown to Dr. Pilla in the within matter which were performed by Robert Brown prior to Dr. Pilla’s plea and sentencing hearings. 20. The petitioner has an impressive curriculum vitae numbering 13 pages, a copy of which was attached to the Court’s Sentencing Memorandum and Opinion and a copy of which is attached hereto as Appendix II. 21. During the lengthy deposition of the petitioner taken in connection with these proceedings on November 17, 2009, and numbering 147 pages, the petitioner’s testimony was inconsistent with and contrary to the representations made by the petitioner when interviewed by the FBI on February 28, 2007 and attached hereto as Appendix I. 22. The deposition taken of Steven Bell reflects careful consideration given by Mr. Bell to all possible defenses in support of the petitioner and his belief that none of the defenses would be credible, thereby supporting his advice to her that her best opportunity to remain in the country and avoid deportation was to admit her guilt, if, in fact, she was guilty.10 V. A Review of the Case Law Involving the Writ of Corum Nobis and Guilty Pleas in the Context of Potential Deportation 10 See the deposition of Steven Bell taken on December 3, 2009 and filed as Doc. 67 on January 21, 2010. 30 (1:07 CR 228 and 1:08 CV 31) In the case of United States v. Morgan, 346 U.S. 542 (1954), the majority recognized a proceeding in the nature of corum nobis, and concluded concluded that under the All-Writs section of 28 U.S.C. § 1651(a), the federal district court had the power to issue the writ of corum nobis, and in the process, had the power to vacate its judgment of conviction and sentence because the convicted person was entitled to show that his federal conviction was invalid. Against the background of United States v. Morgan, the petitioner relies upon the decision in United States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999) where the district court determined that the petitioner was prejudiced by counsel’s deficient performance with respect to a deportation issue and granted the petition after concluding: In Petitioner’s case, the fact that he was provided false information by defense counsel regarding his plea agreement constitutes a legal infirmity in his conviction. He agreed to plead guilty with the understanding based on the representation of counsel that the JRAD would protect him against deportation. Counsel’s mistake of law and neglect in failing to read and understand the statute constitutes ineffective assistance of counsel and is a legal basis upon which the writ should issue. Counsel for the petitioner argues that because of the nature of the crime charged and the amount of restitution alleged in the Information and subsequently determined by the Court to be in excess of $10,000, it was a foregone conclusion that the petitioner would be deported. In so arguing, counsel for the petitioner relies upon the proposition that when an alien, such as the petitioner, is convicted of an aggravated felony at any time after the alien is admitted to this country, the alien is deportable as required under 8 U.S.C. § 1227(a)(2)(A)(iii) based on a 31 (1:07 CR 228 and 1:08 CV 31) conviction for an aggravated felony.11 Continuing, counsel for the petitioner relies upon the provisions of 8 U.S.C. § 1101(A)(43)(M)(i) for the definition of an aggravated felony to include an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000.12 The guilty plea was entered by the petitioner prior to the major decision of the Supreme Court of the United States in Padilla v. Kentucky, 130 S.Ct. 1473 (2010) which now stands for the proposition that defense counsel in a criminal case has a constitutional obligation to inform the client of the potential immigration consequences of a guilty plea. In Padilla, the defense counsel incorrectly advised the defendant prior to the entry of his guilty plea that the defendant did not have to worry about his immigration status because of the length of time he had been a resident in the United States. The Supreme Court remanded the case to the state court to consider whether the defendant could demonstrate prejudice as that was an unresolved issue for the state court. Prior to the Padilla decision in Abdel-Karim A. El-Nobani v., United States of America, 11 8 U.S.C. Section 1227(a)(2)(A)(iii) provides as follows: (2) Criminal offenses. (A) General Crimes ... (iii) Aggravated felony. Any alien who is convicted of an aggravated felony at any time after admission is deportable. 12 8 U.S.C. Section 1101 entitled “Definitions” at (A)(43)(M)(i) provides: 43. The term “aggravated felony” means (M) An offense that -(i) involves fraud or deceit of which the loss to the victim or victims exceeds $10,000... 32 (1:07 CR 228 and 1:08 CV 31) 287 F.3d 417, (6th Cir. 2002), Judge Robert Bell, writing for the circuit, opined: [t]he automatic nature of the deportation proceeding does not necessarily make deportation a direct consequence of the guilty plea. A collateral consequence is one that “remains beyond the control and responsibility of the district court in which the conviction was entered.” United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000). While this court has not specifically addressed whether deportation consequences are a direct or collateral consequence of a plea, it is clear that deportation is not within the control and responsibility of a district court, and hence, deportation is collateral to a conviction....” (Emphasis added). Against the background of El-Nobani, counsel for the government contends that the decision in Padilla, due to the prior decision of the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989), forecloses application of the teachings of Padilla to the case at hand. Consequently, the government contends that the petitioner is not entitled to relief based on the collateral consequences of her guilty plea. Initially, a review of the Padilla decision is appropriate. Padilla, an alien who had lived in the United States for more than 40 years and served in the United States Army, faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Pennsylvania. Padilla claimed in a post-conviction proceeding that his counsel not only failed to advise him of the consequence of his conviction because it was a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i), but also told him “he did not have to worry about his immigration status since he had been in the country so long.” In the majority decision written by Justice John Paul Stevens, he set forth the proposition that a defense counsel has a duty to advise the client of the immigration consequences of a criminal conviction. 33 (1:07 CR 228 and 1:08 CV 31) The Stevens decision states in part as follows: ... We granted certiorari, 555 U.S. , 129 S. Ct. 1317, 173 L. Ed. 2d 582 (2009) to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address. *** The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fond Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S. Ct. 374, 92 L. Ed. 433 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes. *** We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740, 13 S. Ct. 1016, 37 L. Ed. 905 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2-7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the 34 (1:07 CR 228 and 1:08 CV 31) deportation context. United States v. Russell, 686 F.2d 35, 38, 222 U.S. App. D.C. 313 (CADC 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 U.S., at 322, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”). Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim. *** We too have previously recognized that ‘“[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”’ St. Cyr, 533 U.S., at 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (quoting 3 Criminal Defense Techniques §§ 60A.2[2] (1999)). Likewise, we have recognized that “preserving the possibility of discretionary relief from deportation under § 212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr, 533 U.S., at 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347. We expected that counsel who were unaware of the discretionary relief measures would “follo[w] the advice of numerous practice guides” to advise themselves of the importance of this particular form of discretionary relief. Ibid, N. 50. In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or 35 (1:07 CR 228 and 1:08 CV 31) regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. *** It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the “mercies of incompetent counsel.” Richardson, 397 U.S., at 771, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. 36 (1:07 CR 228 and 1:08 CV 31) Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communs., Inc. v. FCC, 535 U.S. 467, 530, 122 S. Ct. 1646, 152 L. Ed. 2d 701 (2002). Justice Alito, in a concurring opinion, declared in part as follows: The Court’s new approach is particularly problematic because providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task. See R. McWhirter, ABA, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers 128 (2d ed. 2006) (hereinafter ABA Guidebook) (“Because of the increased complexity of aggravated felony law, this edition devotes a new [30-page] chapter to the subject”); id, § 5.2, at 146 (stating that the aggravated felony list at 8 U.S.C. § 1101(a)(43) is not clear with respect to several of the listed categories, that “the term ‘aggravated felonies’ can include misdemeanors,” and that the determination of whether a crime is an “aggravated felony” is made “even more difficult” because “several agencies and courts interpret the statute,” including Immigration and Customs Enforcement, the Board of Immigration Appeals (BIA), and Federal Circuit and district courts considering immigration law, the terms ‘conviction,’ ‘moral turpitude,’ and ‘single scheme of criminal misconduct’ are terms of art”); id. § 4.67, at 130 (“[T]he term ‘moral turpitude’ evades precise definition”). Defense counsel who consults a guidebook on whether a particular crime is an “aggravated felony’ will often find that the answer is 37 (1:07 CR 228 and 1:08 CV 31) not ‘easily ascertained.” For example, the ABA Guidebook answers the question “Does simple possession count as an aggravated felony?” as follows: “Yes, at least in the Ninth Circuit.” § 5.35, at 160 (emphasis added). After a dizzying paragraph that attempts to explain the evolution of the Ninth Circuit’s view, the ABA Guidebook continues: “Adding to the confusion, however, is that the Ninth Circuit has conflicting opinions depending on the context on whether simply drug possession constitutes an aggravated felony under 8 U.SC. § 101(a)(43).” Id., § 5.35, at 161 (citing cases distinguishing between whether a simply possession offense is an aggravated felony “for immigration purposes” or for “sentencing purposes”). The ABA Guidebook then proceeds to explain that “attempted possession,” id., § 5.36, at 161 (emphasis added), of a controlled substance is an aggravated felony, while “[c]onviction under the federal accessory after the fact statute is probably not an aggravated felony, but a conviction for accessory after the fact to the manufacture of methamphetamine is an aggravated felony,” id, § 537, at 161 (emphasis added). Conspiracy or attempt to commit drug trafficking are aggravated felonies, but “[s]olicitation is not a drug-trafficking offense because a generic solicitation offense is not an offense related to a controlled substance and therefore not an aggravated felony.” Id., § 5.41, at 162. *** First, it will not always be easy to tell whether a particular statutory provisions is “succinct, clear, and explicit.” How can an attorney who lacks general immigration law expertise be sure that a seemingly clear statutory provision actually means what it seems to say when read in isolation? What if the application of the provision to a particular case is not clear but a cursory examination of case law or administrative decisions would provide a definitive answer? See Immigration Law and Crimes § 2:1, at 2-2 (“Unfortunately, a practitioner or respondent cannot tell easily whether a conviction is for a removable offense .... [T]he cautious practitioner or apprehensive respondent will not know conclusively the future immigration consequences of a guilty plea”). Second, if defense counsel must provide advice regarding only one 38 (1:07 CR 228 and 1:08 CV 31) of the many collateral consequences of a criminal conviction, many defendants are likely to be misled. To take just one example, a conviction for a particular offense may render an alien excludable but not removed. If an alien charged with such an offense is advised only that pleading guilty to such an offense will not result in removal, the alien may be induced to enter a guilty plea without realizing that a consequence of the plea is that the alien will be unable to reenter the United States if the alien returns to his or her home country for any reason, such as to visit an elderly parent or to attend a funeral. See ABA Guidebook §4.14, at 111 (“Often the alien is both excludable and removable. At times, however, the lists are different. Thus, the oddity of an alien that is inadmissable but not deportable. This alien should not leave the United States because the government will not let him back in” (emphasis in original)). Incomplete legal advice may be worse than no advice at all because it may mislead and may dissuade the client from seeking advice from a more knowledgeable source. *** In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client’s determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel’s duty to assist the client. Instead, an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject. VI. Does the Decision in Padilla v. Kentucky Constitute A New Rule In the Context of Teague v. Lane as Claimed by the Government? Teague v. Lane, 489 U.S. 288 (1989) presents the issue of whether a ruling by the 39 (1:07 CR 228 and 1:08 CV 31) Supreme Court with respect to issues in the context of criminal prosecutions have retroactive consequences. Teague teaches that if the pronouncement of the court constitutes a new rule and is not given retroactive application by the Supreme Court as to other cases, the pronouncement of the Supreme Court does not have application to other cases, especially where the action before the district court involves a collateral proceeding such as an action in habeas corpus, and in the Court’s view, an application for a writ of corum nobis. Padilla v. Kentucky with respect to the issue of retroactivity, has been the subject of a number of recent district court decisions and the district courts have disagreed on the issue of retroactivity. For instance, see United States v. Chaidez, - F. Supp. 2d - (2010 WL 3184150 (N.D. Ill.); United States v. Hubenig, 2010 WL 2650625 (E.D. Cal.); Michael Haddad v. United States, 2101 WL 2884645 (E.D. Mich.); Mamadou Gacko v. United States of America, 2010 WL 2076020 (E.D. N. Y.); and United States v. Wilmar Obonaga, 2010 WL 2629748 (E.D. N.Y). Without describing the ruling of each of the district courts on the issue of retroactivity of Padilla v. Kentucky, the decisions reached contrary conclusions. The Court, after considering the briefs of the petitioner and the government, and after reading the case law that preceded the Supreme Court’s announcement in Padilla v. Kentucky, as well as the text of the decision in Padilla v. Kentucky, is of the view, and so declares for the purpose of this decision, that Padilla v. Kentucky announced a new rule of law. Consequently, the new instructions of the Supreme Court requiring counsel to advise non-citizen defendants of the risk of deportation, if convicted, does not apply to this case as the plea of guilty was entered prior to the decision in Padilla v. Kentucky. 40 (1:07 CR 228 and 1:08 CV 31) If the Court is correct in that determination, then the petitioner is not entitled to relief. However, the Court will continue with other potential scenarios against the background of the possibility that a higher court, i.e. the Sixth Circuit or the Supreme Court, might well disagree with this Court’s analysis of the new rule application. VII. If the Court Assumes the Teachings of Padilla v. Kentucky Apply to the Advice Given by the Petitioner’s Trial Counsel, Did the Instructions of Steven Bell Regarding the Issue of Possible Deportation Conformto the Teachings of Padilla v. Kentucky? Initially, the Court turns to a reexamination of Justice Stevens’ decision in Padilla where he stated, in part, as follows: ... We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. A review of Justice Stevens’ decision sheds little light on whether petitioner’s trial counsel, Steven Bell, satisfied the teachings of Padilla by directing his client to an apparent expert on immigration law prior to the entry of the guilty plea. Again, the Court turns to the teachings of Justice Stevens where he states, in part, as follows: Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was 41 (1:07 CR 228 and 1:08 CV 31) presumptively mandatory, and his counsel’s advice was incorrect. (Emphasis added). Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. (Emphasis added). Early on in his representation of the petitioner, Steven Bell, without the guidance of Padilla v. Kentucky, nevertheless, directed the petitioner to consult with a lawyer apparently versed in immigration law. See fact findings 3, 4, 5 and 6. After considering the interplay between the commentary of Justice Stevens and Justice Alito, the Court finds it difficult to determine whether the representation of the petitioner by Steven Bell on the issue of deportation meets the teachings of Padilla as expressed by Justice Stevens. The interplay between Justice Stevens’ commentary concerning obvious deportation consequences, and Justice Alito’s concern that immigration law presents situations in which the deportation consequence of a particular plea are unclear or uncertain, presents new issues for district courts attempting to analyze the responsibility of defense counsel in a potential deportation situation. If one assumes, consistent with the petitioner’s argument, that the interplay between 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(A)(43)(M)(i) considered in 42 (1:07 CR 228 and 1:08 CV 31) light of the allegations in the Information with a allegation of the losses in excess of $10,000, made it clearly obvious that the petitioner would be deported if convicted of the charge in the Information, and that such interplay of the above-two sections should have made it obvious to petitioner’s trial counsel, Steven Bell, as reflected in Justice Stevens’ reliance on the obvious nature of a pending criminal charge to the affect, that the petitioner would be deported if she entered a plea of guilty, then the performance of Steven Bell constitutes a violation of the teachings in Padilla v. Kentucky, assuming that that decision did not establish a new rule of law. In the Court’s view, it is a close call with respect to the conduct of Steven Bell and whether it violated the subsequent teachings of Padilla, assuming its application to this case. The Court recognizes that Steven Bell, from the outset, placed the petitioner in contact with an immigration lawyer in view that his understanding of immigration law was not a subject with which he was familiar, and thus, his advice to the petitioner that she consult with Attorney Robert Brown arguably satisfied his Strickland v. Washington requirement that he provide his client, the petitioner, with effective representation. It is apparent that Steven Bell did not engage in a study of the two applicable statutory provisions mandating deportation. As the Court is of the view, as subsequently discussed, that the petitioner is unable to show prejudice, it is not necessary for the Court to decide whether Steven Bell’s advice satisfied the teachings of Padilla v. Kentucky. VIII. Did the Advice of Attorney Robert Brown to the Petitioner Concerning the Subject of Deportation Comply With The Teachings of Padilla v. Kentucky? The Court is of the view, and so declares, that petitioner’s civil attorney, Robert Brown, 43 (1:07 CR 228 and 1:08 CV 31) having been advised of the nature of the allegations in the proposed Information and given his expertise in immigration law, should have come to the conclusion, after considering the allegations in the proposed Information and the interplay between 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(A)(43)(M)(i) and the allegations in the Information, that if the petitioner elected to enter a plea of guilty, she would have been subject to deportation. The question that remains, and which the Court next addresses, is the consequence of Attorney Brown’s advice. IX. If The Court Finds That Steven Bell, Pursuant to the Teachings of Padilla v. Kentucky, Discharged His Obligation to Provide Competent Advice to His Client By Recommending That She Consult with Attorney Robert Brown With Respect to Deportation Issues, and Assuming that the Advice of Attorney Robert Brown Failed to Comply with the Teachings of Padilla v. Kentucky, Is The Petitioner Entitled to a Writ of Corum Nobis Because of the Ineffective Assistance of Her Civil Lawyer, Robert Brown? The Court finds nothing in the teachings of Padilla v. Kentucky that support relief to the petitioner by way of the granting of a writ of corum nobis based on advice from her civil lawyer. The Court finds no authority for the proposition that a defendant’s right to competent counsel, when charged with criminal conduct, extends to advice provided by a lawyer who is not directly involved in the client’s defense. 44 (1:07 CR 228 and 1:08 CV 31) X. If It is Determined, After Consideration of the Totality of the Circumstances That the Petitioner’s Right to the Effective Assistance of Counsel In the Context of Strickland v. Washington and the Teachings of Padilla v. Kentucky Was Violated, Has The Petitioner Established The Second Prong of Strickland v. Washington, i.e., Prejudice? The Court agrees with counsel for the government that the teachings of Hill v. Lockhart. 474, U.S.C. 474, U.S. 52 (1985) apply. Hill teaches that to demonstrate prejudice, a defendant must show that “counsel constitutionally affected the outcome of the plea process” and that such a competently counseled defendant “would not have pleaded guilty and would have insisted in going to trial.” The prejudice inquiry is an objective one, asking whether, if given competent advice about the chances of prevailing in a trial, “a rational defendant [would have] insist[ed] on going to trial.” See, e.g., Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (citing Hill). Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) teaches: The Strickland approach applies in the context of a guilty plea, and the Supreme Court has clarified the contours of the “prejudice” standard for a situation when there is no trial. In Hill v. Lckhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court held that, in the plea context, counsel’s deficient performance is prejudicial only if “there is a reasonable probability that, for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill 474 U.S. 59, 106 S.Ct. 366. This is an objective inquiry, see Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988), and dependant on the likely outcome of a trial had the defendant not pleaded guilty. Hill, 474 U.S. at 59-60, 106 S.Ct. 366. (Emphasis added). After considering the totality of the circumstances and specifically fact finding number 13, the Court finds that the defendant is unable to support the second prejudice prong of 45 (1:07 CR 228 and 1:08 CV 31) Strickland v. Washington, and thus is unable to establish prejudice assuming that the advice of counsel, be it either the advice of Steven Bell or Robert Brown, or a combination thereof, denied her the effective assistance of counsel with respect to the issue of deportation. XI. Conclusion The Court’s specific rulings, which support the denial of a writ of corum nobis, in separate scenarios, follow: 1. The decision in Padilla v. Kentucky announces a new rule. It is not applicable to the case at hand, and thus, the petitioner is not entitled to relief. 2. However, if the decision in Padilla v. Kentucky applies, it applies only to advice by the lawyer representing the defendant in the criminal case, but not to advice given by a civil lawyer holding himself out as an expert in immigration law. 3. If Padilla v. Kentucky applies, and it is determined that the advice by Attorney Brown failed to connect the applicability of the two statutes 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(A)(43)(M)(i) and was therefore inadequate in the context of Padilla v. Kentucky, the teachings of Padilla v. Kentucky do not benefit the petitioner because the mandate of Padilla v. Kentucky does not extend to advice received from a lawyer not directly charged with the defense of the petitioner-defendant. 4. If Padilla v. Kentucky applies, and although it is a close call, the Court is of the view that the advice given by Attorney Steven Bell to seek out the advice of an attorney specializing in immigration law satisfied the dictate of Padilla v. Kentucky. So holding, the Court finds that a lawyer specializing in criminal law and not in immigration law should not be 46 (1:07 CR 228 and 1:08 CV 31) held to a standard which requires the criminal lawyer to understand the interplay between 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(A)(43)(M)(i). If one were to determine that petitioner’s criminal lawyer, Steven Bell, independently of any advice from an immigration lawyer, by an independent study of the two inter-related statutes against the background of the allegations in the Information, should have recognized that the petitioner’s plea of guilty would subject her to deportation, then the issue of prejudice, as herein after discussed, would become relevant. 5. If Padilla v. Kentucky applies, and is applicable to a collateral proceeding such as a petition for a writ of corum norbis, and the petitioner’s criminal lawyer is bound by the advice from the immigration lawyer, and the failure to anticipate the application of the interplay between the two sections of immigration law, 8 U.S.C. §1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(M)(i) as reasonably applied to the charge set forth in the Information, thus satisfying the first requirement of a Strickland v. Washington analysis, and after considering the entire record, in this case, the petitioner has failed to establish the prejudice requirement of Strickland. As a result of the Court’s consideration and rulings on the above-described five scenarios, the Court finds that there is no basis on which to grant the petition for corum norbis and the Court will publish a judgment entry ruling for the government on the petitioner’s petition for a writ of corum nobis. Consequently, the Court finds, under the foregoing analysis, that the petitioner is not 47 (1:07 CR 228 and 1:08 CV 31) entitled to the writ of corum nobis and will publish an entry granting judgment to the government. IT IS SO ORDERED. August 20, 2010 Date /s/ David D. Dowd, Jr. David D. Dowd, Jr. U.S. District Judge 48 ('" (' FD-302 (Rev.l0-6-95) APPENDIX I -l- l' t" FEDERAL BUREAU OF INVESTIGATION Date transcription 03 / OI / 2OO7 of RÀMANÏ s' PILLA (Previously interviewed) was interviewed. at the cl-eveland Division oi the Fedäral eureau oi investigation. After- being advised of the identities of the i-nterviàwing agents and Èhe nature of the interview, prLLA provided the forlowing information: prLLA provided interviewing agents copies of various documents. rncLuded with the docu*.ñt"'r." a copy of a complaint -irr. PILLA made because she felt discriminated aga:-nsEi complaint was made to a hotline maintained. by a compañy independent from SASE WESTERNRESERVE UNTVERSTTY (CWRU) The c-ompiainr . ;;; againsr .JAIYA}üG SUN, .JOSEPH SEDRÄNSK, WOJBORWOYCZYÑSKI, .TEMESALEXA}IDER, and I4ARK TURNER. The complaínt was made anonymously, but when PILLA asked for a coPy, she was told she needèa to iåentify herself . The copy r¡/as sent to her email at the university even though she explicitly asked that trre àãpy ue sent to her home address. when she found out the status'ðr rre, -ãmpiaint, she was t"J9 they saw no discrimination. prLLA has pilãã ãt-sturr she has collected over the years at her home. prLLA got a job offer rr, from another university. -2-_09!, Dean srl,As rAyLoR set up ã meet].ng to discuss the offer she received with the provoèt MARK runwen. rnstead of getting a counter offer, PILLA.was given a terminaL conÈraci.--TuRNER said urge you to leave quickly.,' 'r prlr,A_also complained to the Nationar. science Foundation'!s rnspeótor Generar's office. JoE KooNCE and . ( provost TAYLOR told theN S F ) and Deputy provost that prLLA made this complaint. Then, she was told to'contaãt the oepãit*"r.t of Education, but was tor-d they wourd not deal with hei compraint. prLLA attended EEoc mediation in .Tuly, 2006. After that meeting, she noticed that someone had been in her office because her air conditioning had been shut off. prLLA told someone angry.rl 338 prior Investigation on agents ,,me filing complaints made v{hen asked again when the last time prLLA v/ent to yost to Saturday, February 24, 2007, PILLA responded February 02/28/2007 ' F i r# 4 4 8 - C V - 7 2 8 3 7 e SA RYAN .J. interviewing - at Cleveland, Ohio r l l II Date dictated PIERR This documentcontainsneitherrecommendations nor conclusions the FBL It is the property of the FBI of and is loanedto your agency; it and its contents not to be distributed are outsideyour agency. EXHIBIT A FD-302a (Rev.l0-6-95) r.. / 448-CV-72837 continuation of orFD-302 RAMANT s . prLLA ,on 02 / 2g / 2oo7 ,pase 2 2, 2007, was the last day she went to that office. She remembers the date because that waè the date the camera was installed in her office. she returned to the office February 2+, 2007, and. found the fourth threatening note. she went to hãr oifice åtiaight from the airport. she had been at a job interview at the univeisity of south carolina. on_her way back from the aiiport, prLLA left a voj'ce mail for KooNCE. At some point, she atäo ca]Ied Dean TAyLoR and asked him how is it possible to work under these circumstances. she is very stressed and wants to quit, but iiury rorr"s-rrrät she does - since she filed her complairìts_ thä univ.r"ity, things have gotten hrorse and pil,la beliãves "gái"ri- it rel_ates to the notres. X ' ') when prLLA was confronted about the notes, she admitted that she created the notes and slid each one under her own office door' When shown surveilLance photos from February 21-, 2007, showed PTIJLA sliding the last nät" under her door, prLLA admitted that it was her. when asked why she wrote threatening notes to herself, PrLr'A said she has been under so much stress ãnd she wanted to be out of the statistics Department. Before returning to cwnu in August, 2006, KooNcE told PILLA not to come back and that there was no future for her at. CWRU. Right af ter PII-,LA returned from srAr'IFoRD uNrvERsrry in August , 2006, KooNcE told rrer à ;;;i;, faculty accused her of being a plagiarist, l¿ã*u"rs of the -her-from statistics Department excruãed ..r.ryirrittg ãããt.oy.a her career. There i: t9 way PrLLA can get piomotion ".rã and tenure. PILLA wanted peace of mind änd to be ouË or'irre statistics Department, so-sþe wrote the first note. she thought-ii-õwnu became aware of the note, she would get orri--ãr the statistics Department. PILLA could not recalI ir srre wiãte the note aE home or at her office at cwRU. she used the word. ubit.h', because some of the senior faculty really hate her and someone said she was a bitch and did not deserve tenure. The ãåy-=rtã p"t the note under her door was probably not the same day shå ã"iiãra KooNcÈ iã =."porr ir. )l i , ',,,-"' The second note_was possibly fabricated at prLLA's home. rt was prompted by several incidents. prLLA did not have access to her grants or statements and was not getting paid. ürlhenever she asked someone to do something for her] it díd'-not prLLA get done. had also spent a Lot of ã-"pri-ng course to f ind. -time-pfepping'for out, even though she had worked so frãrA, sfie äãufd not teach the course' At the same time, another professor, PETER THoMAs, had a a ( FD-302a (Rev,l0-6-95) 448-CV-72837 continuarion of FD-302 of RAMANI S. PILLA ,on 02 / 2g / 2OO7 , pase _3 much easier tiTg getting his course approved. prLLA worried about these events effecting ñer NSF award."the-department eliminated her from everything, lncluding service aurieÀi benefit;;-;;;""rces. Additionally, graduate studenËs came to know úrr"t, prLLA was terminated in 2005 - These events culminated in prLLA writing the second note. The third note was made using text editor on prLLA's Apple computer at home. PILLA made thís r,oi.-åttur woyczyNsKr told a mathematician, MARY BARCLAY (phonetic) that prLLA plagiarized four pages of SUN's paper. PILLA created the last note after she tried to post-doc student using her NSF career Award. Because of termi-naL -contract, PILLA coul-d not recruit phD students. attempted to use her grant funds to get a post-doc. The sent a letter to NSF saying it was pÍr,r,a,s fault she did phÐ students. recruit 1 recruit a her she uni-versity not PrLLA did not plan or think things through before making and pranting the letters. There was no biõ *."t.r plan. she just did it. she wanted to portray the reality oi-ñ". situati_on, so people on the outside cóuId säe the hostiie environment she was working in. PILLA acknowl-edged that she fil_ed a sealed anon)¡mous complaint against CI/'IRU in court because of the letters. prLLA said her attorney DENTSE KNECHTwanted to do this. KNECHT did not know PrLr'A wrote the letters prLLA denied that her herself. civil_ law her to make and plant the letters. 9-!1t against cwRU motivated KNECHTbegan representing prl.,r,A in May, 2006-. ïn ,Ju]y, 2005, srlAs TAYLoR recommended PILLA get an attom.y. Her first-áútãr"ãi ,"" AIIDREWiuARGoLrs (phonetic) . He handledcommuniåati.ng with cwRU attorneys regarding her terminal contract and not b.i";-a;eãlea fairly with respect to tenure. PILLA switched attorneys before her EEoc mediation because KNECHThad more expertise in discrimination cases. PrLLA was asked by interviewing agents to sign a written statement' After the statement was aratËeal-piii,a decÍinea io sign prLLA said she is sorry itfor what she did. , wil] The documents provided to interviewing agents be mainrained in thä 1A sectiån ot the case fire. by prLï,A APPENDIX II

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.