United States v. Kwame Dwumaah

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2455
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UNITED STATES OF AMERICA

v.

KWAME DWUMAAH,
a/k/a Simon Dwumaah

KWAME DWUMAAH,
Appellant

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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-05-cr-00157-001)
District Judge: Honorable Christopher C. Conner
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Argued June 10, 2014

Before: AMBRO, GREENBERG, and BARRY, Circuit Judges

(Opinion filed: June 30, 2014)

Jennings F. Durand, Esquire
Julia Chapman, Esquire (Argued)
Dechert LLP
2929 Arch Street
Cira Center, 18th Floor
Philadelphia, PA 19104

David A. Kotler, Esquire
Dechert LLP
902 Carnegie Center, Suite 500
Princeton, NJ 08540

Counsel for Appellant

Peter J. Smith
United States Attorney
Stephen R. Cerutti, II, Esquire (Argued)
Kim D. Daniel, Esquire
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Counsel for Appellee
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OPINION
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AMBRO, Circuit Judge

Kwame Dwumaah pled guilty to theft of public monies under 18 U.S.C. § 641.

He was subsequently found removable under 8 U.S.C. § 1227(a)(3)(D)(i) for falsely

claiming U.S. citizenship. Dwumaah now seeks a writ of error coram nobis to vacate his

conviction on the ground that he was misadvised of the immigration consequences of his

plea. The District Court ultimately denied the writ. Dwumaah appeals.1 We affirm.

I. Background

Dwumaah, a native of Ghana, initially entered the United States on a non-

immigrant visa in 1989 and remained in the country after the visa expired. He later

married a U.S. citizen and subsequently became a conditional permanent resident in

1
The District Court had jurisdiction under 28 U.S.C. § 1651(a) and 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291. Dwumaah is represented on appeal by pro
bono counsel from the Dechert firm. We express our appreciation for undertaking that
representation and its professionalism in doing so.
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1999. The Department of Homeland Security (“DHS”) determined Dwumaah’s marriage

to be fraudulent in June 2004 and later that year began removal proceedings under 8

U.S.C. § 1227(a)(1)(D) (“Termination of conditional permanent residence”).

In April 2005, Dwumaah was indicted for twenty-eight counts of fraud under

various statutes. The primary allegation of the indictment was that he had improperly

acquired over $75,000 in federal student aid by using a false name and Social Security

number and misrepresenting his immigration status.

Under a plea agreement, Dwumaah pled guilty to a single count of theft of public

monies in August 2005. At the time, he was represented by John Abom in the criminal

proceeding and Wayne Sachs in the immigration proceeding. As later found by the

District Court, Abom and Sachs worked together to arrange a plea bargain that would

avoid aggravated felon status under 8 U.S.C. § 1227(a)(2)(A)(iii), which would render

Dwumaah automatically removable. In recommending the plea, Abom told Dwumaah he

might still face removal if the crime were classified as a crime of moral turpitude under

8 U.S.C. § 1227(a)(2)(A)(i). At the time, Abom was apparently not aware of 8 U.S.C.

§ 1227(a)(3)(D)(i), under which a person can be subject to removal for falsely claiming

U.S. citizenship. Dwumaah was sentenced to five months’ imprisonment and one year

supervised release and ordered to pay $75,192 in restitution.

DHS subsequently amended the Notice to Appear in the removal proceedings to

include § 1227(a)(3)(D)(i). An Immigration Judge eventually determined Dwumaah’s

marriage was not fraudulent but found him removable based on a false claim of U.S.

citizenship (for which no formal conviction is necessary). Dwumaah subsequently

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pursued unsuccessful collateral attacks on his conviction before filing a pro se petition

for a writ of error coram nobis in September 2011. In this petition, he argued that he

would not have pled guilty had he been properly informed of the removal consequences

of his plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010). In February 2013,

the District Court granted the writ and vacated Dwumaah’s conviction in reliance on

United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), which held that Padilla applied

retroactively.

Nineteen days later, the Supreme Court held in Chaidez v. United States, 133

S. Ct. 1103 (2013), that Padilla did not apply retroactively, thus abrogating Orocio. The

Government moved to reconsider the grant of the writ based on Chaidez. Dwumaah,

through counsel, opposed the motion. The District Court granted the motion and, on

reconsideration, denied the writ of error coram nobis. Dwumaah now appeals that denial.

II. Analysis

In appeals from the denial of a writ of error coram nobis, “[w]e review the District

Court’s legal conclusions de novo and its factual findings for clear error.” Mendoza v.

United States, 690 F.3d 157, 159 (3d Cir. 2012). A district court has the power, under

appropriate circumstances, to grant a writ of error coram nobis and vacate a conviction,

see United States v. Morgan, 346 U.S. 502, 511(1954), but the writ “is an extraordinary

remedy, and a court’s jurisdiction to grant relief is of limited scope.” United States v.

Stoneman, 870 F.2d 102, 106 (3d Cir. 1989). Indeed, “it is difficult to conceive of a

situation in a federal criminal case today where [a writ of error coram nobis ] would be

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necessary or appropriate.” Carlisle v. United States, 517 U.S. 416, 429 (1996) (alteration

in original) (quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).

From the governing cases, one can discern five requirements a movant must meet

to receive coram nobis relief from a federal conviction. First, he or she must no longer

be in custody and therefore not be eligible for alternative remedies such as habeas

corpus. Chaidez, 133 S. Ct. at 1106 n.1. Second, he or she must nonetheless suffer

continuing consequences of his or her conviction. United States v. Osser, 864 F.2d 1056,

1059 (3d Cir. 1988) (citing Morgan, 346 U.S. at 512-13). Third, “coram nobis relief is

limited to correct[ing] errors ‘of the most fundamental character.’” Id. (quoting Morgan,

346 U.S. at 512). Fourth, there must have been no remedy for the defect available at trial.

Stoneman, 870 F.2d at 106 (citing Morgan, 346 U.S. at 512). Finally, the petitioner must

show that “‘sound reasons’ exist for failing to seek relief earlier.” Id.

The parties effectively agree that the first two elements are satisfied. Dwumaah is

no longer in custody and thus is ineligible for habeas relief. See United States v.

Baptiste, 223 F.3d 188, 189 (3d Cir. 2000). The District Court concluded that the

possibility of removal was a sufficient continuing consequence of conviction, and the

Government has not challenged that conclusion.

The dispute here centers on whether Dwumaah has shown a fundamental error in

his trial, in particular ineffective assistance of counsel. It is well established in our

caselaw that ineffective assistance of counsel is a fundamental error for purposes of a writ

of error coram nobis. See, e.g., United States v. Rad-O-Lite of Philadelphia, Inc., 612

F.2d 740, 744 (3d Cir. 1979) (“[P]ersons not held in custody can attack a conviction for

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fundamental defects, such as ineffective assistance of counsel. The mechanism is a

motion in the form of the common-law writ of error coram nobis.” (citing cases)).

Dwumaah argues that the District Court erred because it failed to recognize the

distinction between failure to advise and affirmative misadvice as to immigration

consequences. While Chaidez precludes an ineffectiveness claim based on the former,

Dwumaah contends that affirmative misadvice was recognized as ineffective assistance

prior to Padilla and that he deserves relief on this basis. He essentially argues that it was

affirmative misadvice for Abom to inform him that, under the plea, removal was a mere

possibility under the moral turpitude provision when in fact removal was essentially

certain under the false claim of citizenship provision.

We do not get to the merits of his claim because Dwumaah waived this argument.

In United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), we held “that for parties to

preserve an argument for appeal, they must have raised the same argument in the District

Court—merely raising an issue that encompasses the appellate argument is not enough.”

Id. at 337 (emphases in original). In reaching this conclusion, we clarified our use of

terminology: “an issue can be broader in scope than an argument in that an issue may be

addressed by multiple arguments, which are the most basic building blocks of legal

reasoning.” Id. “[T]he crucial question regarding waiver is whether [the appellant]

presented the argument with sufficient specificity to alert the district court.” Brennan v.

Norton, 350 F.3d 399, 418 (3d Cir. 2003) (quoting Keenan v. City of Philadelphia, 983

F.2d 459, 471 (3d Cir.1993)).

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 Although Dwumaah has repeatedly raised the issue of ineffective assistance, he

raises for the first time on appeal the argument of ineffective assistance on the basis of

affirmative misadvice. His pro se petition contains a single-sentence assertion that he

was affirmatively misadvised, without any supporting legal argumentation, based on a

factual allegation the District Court specifically rejected. This is insufficient to alert the

District Court. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.

2009) (“A fleeting reference or vague allusion to an issue will not suffice to preserve it

for appeal . . . .”). Dwumaah’s subsequent counseled filings before the District Court do

not argue that he was affirmatively misadvised.2 There are no references in his filings

prior to this appeal to a non-Padilla based protection against affirmative misadvice, even

in his (counseled) opposition to the Government’s post-Chaidez motion for

reconsideration. The District Court therefore never had the opportunity to consider the

affirmative misadvice theory of ineffective assistance of counsel because Dwumaah

never presented it to that Court. As such, this argument is waived.3

On appeal, Dwumaah has presented no other arguments for ineffective assistance

of counsel. As a result, he has not shown a fundamental error at trial, a prerequisite to a

2
After it granted an evidentiary hearing on the basis of Dwumaah’s pro se petition, the
District Court appointed a solo practitioner to represent Dwumaah in the coram nobis
proceedings. This attorney remained as counsel until he made an unopposed motion to
withdraw two days after the District Court order granting reconsideration and denying the
writ.
3
Dwumaah argues in the alternative that we ought to exercise our discretion to reach the
waived argument. See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005). We decline
to do so.
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writ of error coram nobis, and thus cannot establish a right to relief. It is therefore

unnecessary for us to address the remaining requirements for the writ. Thus we affirm.

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