Williams v. United States

United States Court of Appeals
For the First Circuit

No. 16-2147

SUNDAY WILLIAMS,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Lynch, Baldock,* and Kayatta
Circuit Judges.

Simone Bertollini, with whom Law Offices of Simone
Bertollini was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.

June 8,, 2017

* Of the Tenth Circuit, sitting by designation.
 BALDOCK, Circuit Judge. A little over sixteen years

ago, Petitioner Sunday Williams, a Nigerian citizen by birth,

attempted to secure his United States citizenship.

Unfortunately, the way he did so was less than ideal: in lieu

of utilizing any legal means at his disposal, he instead

submitted a false application for a United States passport

wherein he claimed that he was an American citizen hailing from

Brooklyn. Federal authorities caught him in the act and

eventually charged him with making a material false statement in

a matter within the jurisdiction of the United States government

in violation of 18 U.S.C. § 1001. Petitioner pleaded guilty,

and the district court sentenced him to three years' probation.

Now, nearly a decade after his probationary sentence

ended, Petitioner seeks a writ of error coram nobis—"a remedy of

last resort for the correction of fundamental errors of fact or

law," United States v. George, 676 F.3d 249, 253 (1st Cir.

2012)—that vacates or, at the very least, allows him to revise

the factual basis of his § 1001 conviction. Such a writ

obviously could not remedy the direct consequences of that

conviction (i.e., his already-completed sentence). Petitioner,

however, hopes it could remedy the collateral consequences he

still suffers to this day. Specifically, because the underlying

facts of his § 1001 guilty plea and conviction involved a false

claim of United States citizenship, Petitioner is now

- 2 -
"ineligible to receive visas and ineligible to be admitted to

the United States." See 8 U.S.C. § 1182(a)(6)(C)(ii). Further,

no waiver or exception is available that could rescue him from

that status. See id. Petitioner is therefore not only

permanently barred from obtaining lawful permanent resident

status, see id., but also subject to deportation at any moment,

see id. § 1227(a)(3)(D). Vacating his conviction or revising

its underlying factual basis would thus leave open the

possibility that he could obtain a green card and remain in the

United States.

So what is the supposed fundamental error that would

justify granting Petitioner this "extraordinary" and "hen's-

teeth rare" writ? George, 676 F.3d at 253–54. In Petitioner's

opinion, it was the performance of his attorney, which he claims

was constitutionally deficient under Sixth Amendment standards,

during the proceedings for his long-since-passed conviction.

See generally Strickland v. Washington, 466 U.S. 668 (1984). To

be sure, such constitutionally deficient representation, if

true, can function as the rock upon which a petitioner can build

her coram nobis church. See United States v. Castro-Taveras,

841 F.3d 34, 36–37, 52–53 (1st Cir. 2016) (allowing a defendant

to premise his coram nobis petition on a Sixth Amendment

ineffective-assistance-of-counsel claim); Murray v. United

States, 704 F.3d 23, 28 (1st Cir. 2013) (noting that writs of

- 3 -
coram nobis are "meant to correct errors 'of the most

fundamental character; that is, such as render[ ] the proceeding

itself irregular and invalid'" (alteration in original)

(emphasis added) (quoting United States v. Mayer, 235 U.S. 55,

69 (1914))).

To demonstrate his attorney's allegedly deficient

performance, Petitioner first points to his change-of-plea

hearing from July 29, 2004. As is relevant here, when

Petitioner walked into that hearing to plead guilty, he had not

yet been charged under § 1001; instead, he had been charged

under 18 U.S.C. § 1542 with the crime of passport fraud. And in

fact, Petitioner had filed motions to dismiss the passport fraud

indictment for improper venue and to transfer the case to the

Eastern District of New York, where Petitioner had actually made

his false citizenship claims and where he lived at the time,

from the District of New Hampshire, where his passport

application had been processed and where the indictment was

currently pending. The district court had initially denied both

motions but changed course at the hearing after recognizing that

our then-recent decision in United States v. Salinas, 373 F.3d

161 (1st Cir. 2004), mandated that venue did, in fact, lay in

the Eastern District of New York. And in light of that

recognition, the district court asked Petitioner whether he

- 4 -
wished to waive venue and proceed with his guilty plea in the

District of New Hampshire.

After speaking with Petitioner, Petitioner's counsel

replied that Petitioner no longer wished to "go through with

this proceeding today" and wanted the case to be dismissed. In

response, however, the prosecutor requested that the district

court delay dismissing the case so that the United States could

file a superseding indictment instead charging Defendant with

making a material false statement in violation of § 1001. In

the government's view, this course of action was the most

practical and expeditious route, for venue over a § 1001

indictment would still lay in the District of New Hampshire.

Id. at 166–67.

Petitioner's counsel agreed with the government's new,

alternative suggestion. Without consulting anew with Petitioner

to see whether he wanted to proceed with the government's

suggested course of action or still hoped to have the case

dismissed, counsel stated that

[t]ime is important for [Petitioner] regarding
immigration, what's going to happen with that, so I
suppose we don't have an objection to a superseding
indictment.

Petitioner's counsel also observed that a superseding indictment

would "avoid [Petitioner] being re-arrested."

- 5 -
 Although Petitioner went along with his counsel's

conduct at the time and, as we noted above, eventually pleaded

guilty to the § 1001 charge, Petitioner now claims that his

"[c]ounsel sua sponte changed [his] plea by agreeing to allow

the government to file a superseding indictment—instead of

having the charge dismissed—without asking [him] or explaining

what that meant." Because a defendant is guaranteed effective

assistance of counsel during the "plea process," Hill v.

Lockhart, 474 U.S. 52, 57 (1985), Petitioner argues that such an

action clearly amounts to unreasonable conduct under the Sixth

Amendment.

But Petitioner does not stop there. He also claims on

appeal that his counsel both "fail[ed] to advise" and

"affirmatively misadvised" him of the immigration consequences

of pleading guilty to (initially) committing passport fraud

under § 1542 and (eventually) making false statements under

§ 1001. And since the Supreme Court held in Padilla v.

Kentucky, 559 U.S. 356 (2010), that the Sixth Amendment's

guarantee of effective assistance of counsel requires an

attorney for a criminal defendant to "inform her client whether

his [guilty] plea carries a risk of deportation," id. at 374,

Petitioner thus claims that his counsel's misadvice and lack of

advice necessarily made his representation constitutionally

inadequate.

- 6 -
 For example, Petitioner points to his counsel's

statement during the July 29, 2004 change-of-plea hearing that

"[t]ime is important for [Petitioner] regarding immigration."

He contends that this statement was affirmative misadvice about

the immigration consequences of pleading guilty because "[h]ow

the passage of time could positively or negatively affect

[Petitioner's] immigration status is difficult to understand."

Further, Petitioner averred under penalty of perjury that his

counsel "repeatedly told [him] that this was a criminal case and

that it had nothing to do with [his] immigration." And, of

course, lingering in the background is his counsel's alleged

omitted advice—i.e., that he and his counsel "did not discuss

anything about [Petitioner's] immigration, other than [their]

initial discussion where [his counsel] told [Petitioner] that

the criminal case had nothing to do with [his] immigration."

For his third and final allegation of his counsel's

ineffectiveness, Petitioner targets his second change-of-plea

hearing on October 14, 2004, during which he pleaded guilty to

the superseding § 1001 charge. In the course of pleading guilty

to that charge, Petitioner admitted that he made materially

false statements "in connection with an application for a United

States Passport" and "[i]n order to induce and secure the

issuance of a United States Passport." He now claims, however,

that his counsel should not have let him admit to such an

- 7 -
underlying factual basis. Under Sixth Amendment standards,

Petitioner argues, an effective attorney would have instead

instructed him to only plead guilty to making materially false

statements in connection with and for the purpose of obtaining a

"travel document."

Petitioner asserts that the choice of which phrase to

use—"travel document" or "United States Passport"—is not merely

a matter of semantics. By pleading guilty to making a false

statement in connection with a U.S. Passport, he argues that his

counsel, for all intents and purposes, allowed him to "plead

guilty to facts establishing passport fraud even though the

charge was no longer pending, and the facts involving a passport

were not elements of the charge of making false statements."

And based on this de facto admission of passport fraud,

Petitioner claims that he unwittingly admitted he had made a

false claim of United States citizenship, which, as we noted

above, now forever precludes him from obtaining lawful permanent

resident status and subjects him to deportation at any moment.

See 8 U.S.C. §§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). If, however,

he had pleaded guilty to making a false statement in connection

with a travel document, Petitioner notes that he would not have

been admitting to a factual basis that implied a false claim of

citizenship. And since, in Petitioner's opinion, a reference to

a generic "travel document" would have been more than sufficient

- 8 -
to meet the elements of a § 1001 charge, he claims that an

effective attorney should have known to use that less

destructive term.

The district court, which took the first shot at

Petitioner's coram nobis petition under the authority vested to

it by the All Writs Act, 28 U.S.C. § 1651(a), concluded that

none of Petitioner's three arguments for ineffective assistance

of counsel were meritorious. See George, 676 F.3d at 253 ("The

authority to grant coram nobis relief derives from the All Writs

Act, 28 U.S.C. § 1651(a), which empowers federal courts to

'issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law.'"). It therefore denied him a writ of error

coram nobis. Petitioner accordingly appeals and asks us to do

what the district court would not.

Our jurisdiction arises under 28 U.S.C. § 1291.

Trenkler v. United States, 536 F.3d 85, 95 (1st Cir. 2008).

Further, "we afford de novo review to the district court's legal

conclusions and clear-error review to its findings of fact."

George, 676 F.3d at 256. Where, as here, the district court

"did not conduct an evidentiary hearing and denied the writ as a

matter of law," such a standard translates to plenary review.

Id. As always, we are also free to "affirm on any basis

apparent in the record," even if it would "require[] ruling on

- 9 -
arguments not reached by the district court or even presented to

us on appeal." Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237

n.11 (1st Cir. 2013) (second quotation quoting Jordan v. U.S.

Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir. 2011)).

We note at the outset that Petitioner's case presents

one of the few instances where we could even consider granting a

writ of error coram nobis: "[I]n its modern form, [this writ] is

ordinarily available only to a criminal defendant who is no

longer in custody." Trenkler, 536 F.3d at 98. Petitioner

undoubtedly satisfies that prerequisite. But his eligibility

for this "remedy of last resort," George, 676 F.3d at 253,

hinges on more than the simple fact that he is no longer serving

his sentence. For one thing, he must "adequately explain his

failure to seek relief earlier through other means." Murray,

704 F.3d at 29. Further, he must also "show that he continues

to suffer a significant collateral consequence from the judgment

being challenged and that issuance of the writ will eliminate

this consequence." Id. Finally, and as we have alluded to

several times before, "he must demonstrate that the judgment

resulted from a fundamental error." Id. And even if Petitioner

satisfies this tripartite test, we "retain[] discretion to grant

or deny the writ." Id. at 29–30. Indeed, "[t]he Supreme Court

has always envisioned coram nobis as strong medicine, not

profligately to be dispensed," so we must issue this writ "only

- 10 -
under circumstances compelling such action to achieve justice."

George, 676 F.3d at 254–55 (second quotation quoting United

States v. Morgan, 346 U.S. 502, 511 (1954)).

We assume for the purposes of argument that Petitioner

can adequately explain why he did not seek relief from his

§ 1001 conviction any earlier. We also have little trouble

concluding that Petitioner continues to suffer significant

collateral consequences from his § 1001 conviction and that a

writ of error coram nobis would remedy those consequences. As

Petitioner himself noted, he cannot obtain lawful permanent

resident status because the underlying facts of that conviction

involved a false claim of United States citizenship, and he is

therefore subject to deportation at any moment. See 8 U.S.C.

§§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). "Although we have not

explicitly set out what comprises a continuing collateral

consequence," we believe that, whatever the definition,

Petitioner's dilemma satisfies that requirement. George, 676

F.3d at 255–56; see also Murray, 704 F.3d at 29 n.6 (noting that

something "more than the mere fact of conviction is needed" to

prove a continuing collateral consequence). And of course,

vacating or revising the underlying factual basis of his

conviction via a writ of error coram nobis would alleviate that

problem.

- 11 -
 That leaves us to determine whether Petitioner's

§ 1001 conviction resulted from a fundamental error—i.e.,

whether his counsel was constitutionally ineffective under the

Sixth Amendment. To succeed on that argument, Petitioner must

first show that his counsel's "performance was deficient," and

he must then show that "the deficient performance prejudiced the

defense." Strickland, 466 U.S. at 687. The first requirement

necessitates a demonstration that "counsel made errors so

serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," id., and in

reviewing such an allegation, we must "indulge a strong

presumption that counsel's conduct falls within the wide range

of reasonable professional assistance," Woods v. Donald, 135 S.

Ct. 1372, 1375 (2015) (quoting Strickland, 466 U.S. at 689).

Put differently, we will find deficiency only "where, given the

facts known [to counsel] at the time, counsel's choice was so

patently unreasonable that no competent attorney would have made

it." Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)

(internal quotation marks omitted).

The prejudice requirement, meanwhile, necessitates a

demonstration of "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Rossetti v. United States, 773 F.3d

322, 327 (1st Cir. 2014) (quoting Strickland, 466 U.S. at 694).

- 12 -
Further, that probability "must be substantial, not just

conceivable," Rivera-Rivera v. United States, 827 F.3d 184, 187

(1st Cir. 2016) (quoting Hensley v. Roden, 755 F.3d 724, 736

(1st Cir. 2014)), or, stated differently, "a probability

sufficient to undermine confidence in the outcome," Mello v.

DiPaulo, 295 F.3d 137, 142 (1st Cir. 2002) (quoting Strickland,

466 U.S. at 694). "Hence, [Petitioner's] Sixth Amendment

claim[s] will fall short unless he can show a substantial

likelihood that he would have obtained a different outcome" on

his § 1001 charge. Rivera-Rivera, 827 F.3d at 187.

Petitioner's first allegation—that his counsel sua

sponte changed his plea by allowing the government to file a

superseding indictment without consulting him about it—fails for

two reasons. First, we do not believe that his counsel's

decision to allow the government to file a superseding

indictment was constitutionally deficient. Instead, we conclude

that it was a valid, reasoned decision meant to avoid further

delay. If Petitioner's counsel had fought the government's

decision to file a superseding indictment, the district court

indicated it simply would have dismissed the case without

prejudice, and the government indicated that it still would have

filed new charges under § 1001 in a brand new indictment. As a

practical matter, this would have been the exact same scenario

that Petitioner ended up facing: being charged under § 1001.

- 13 -
The only difference is that, as Petitioner's counsel recognized,

the government would have had to re-arrest Petitioner, which

would have resulted in an unnecessary delay. Because

Petitioner's counsel saw the writing on the wall and agreed with

the government's request for a superseding indictment to avoid

this delay, we cannot say that this was a constitutionally

deficient choice even though counsel did not discuss the matter

with Petitioner.

Second, even if his counsel's decision was

constitutionally deficient, Petitioner cannot show that he

suffered any prejudice. Again, the result of the proceeding

would have been no different had his counsel not agreed with the

government's wish to file a superseding indictment: Petitioner

eventually would have been charged under § 1001 for making a

material false statement. Petitioner, however, argues that the

initial result of the proceeding would have been different

because the § 1542 charge for passport fraud would have been

dismissed. As such, he contends that if the government chose to

file a new charge under § 1001, he in turn could have filed a

new motion to transfer that charge to the Eastern District of

New York (an action he could not take once his attorney agreed

to a superseding indictment in the District of New Hampshire).

And if the district court granted that motion, Petitioner claims

it would have been easier for him to defend against the charge

- 14 -
since he would have been in his hometown and with his family.

But Petitioner has provided no evidence or other compelling

information suggesting that the district court would have

granted any motion to transfer a new § 1001 charge to the

Eastern District of New York. In fact, the record before us

shows a strong likelihood that Petitioner still would have been

subjected to a § 1001 charge in the District of New Hampshire.

Thus, at most, the probability the district court would have

granted any such motion is merely conceivable, not substantial.

And even if the district court did grant his motion, there is no

evidence suggesting that he could have successfully defended

against a § 1001 prosecution in New York. We therefore cannot

say Petitioner suffered any prejudice.

Petitioner's second allegation of his counsel's

ineffectiveness—that his counsel failed to advise and

affirmatively misadvised him of the immigration consequences of

pleading guilty—also fails. For starters, under Chaidez v.

United States, 133 S. Ct. 1103 (2013), we cannot grant

Petitioner any relief for his claims insofar as they relate to

his counsel's alleged failure to advise. In Chaidez, the

Supreme Court expressly held that it had "announced a new rule

in Padilla," and for that reason "defendants whose convictions

became final prior to Padilla . . . cannot benefit from its

holding." Id. at 1113. Further, "the Supreme Court certainly

- 15 -
decided that Padilla's new rule covers failure-to-advise

claims." Castro-Taveras, 841 F.3d at 43. Consequently,

Plaintiff, whose judgment was entered in 2005, cannot rely on

the 2010 Padilla decision to claim that his attorney was

constitutionally ineffective by failing to advise him of the

immigration consequences of pleading guilty.

The story is different for Petitioner's claims that

his attorney affirmatively misadvised him. Unlike failure-to-

advise claims, "Padilla's misadvice holding did not constitute a

new rule" and is therefore not barred retroactively under

Chaidez. Castro-Taveras, 841 F.3d at 51. Thus, as of 2005 when

judgment was entered, Petitioner's counsel could have been

constitutionally ineffective under Sixth Amendment standards if

he did, in fact, affirmatively misadvise Petitioner about the

immigration consequences of pleading guilty. Id. (holding that

at least as of 2003—two years before Petitioner's judgment of

conviction—affirmative-misadvice claims were "so embedded in the

fabric of the Sixth Amendment framework that 'all reasonable

jurists' would have agreed that Strickland applied to [those]

claims" (citation omitted) (quoting Lambrix v. Singletary, 520

U.S. 518, 528 (1997))).

But even though we theoretically could grant

Petitioner relief for his claims that his attorney misadvised

him about the immigration consequences of pleading guilty,

- 16 -
Petitioner hits another snag: although he makes this misadvice

argument on appeal, he did not advance this same argument in his

original coram nobis petition. In fact, his petition alleged

only that his attorney failed to advise him of any immigration

consequences, and Petitioner sought to assert misadvice claims

only when the government moved to dismiss his petition on the

grounds that Padilla's holding on failure-to-advise claims was

not retroactive under Chaidez. We do not take kindly to parties

who "shift[] legal theories and s[eek] to re-characterize

[their] Complaint[s] in a way that might parry [the defendants']

blow[s]." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 85

(1st Cir. 2008). "The court, and the defendants, are entitled to

rely on the plain language and the structure of the complaint in

determining what claims are present there," and "the plaintiff

is not entitled to pursue 'every legal theory that a court may

some day find lurking in the penumbra of the record.'" Ruivo v.

Wells Fargo Bank, N.A., 766 F.3d 87, 91 (1st Cir. 2014) (quoting

Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir.

1995)). "Otherwise, waiver looms." Snyder v. Collura, 812 F.3d

46, 51 (1st Cir. 2016).

Moreover, even if we generously assume that Petitioner

did not waive his affirmative-misadvice claims, Petitioner

suffered no prejudice from his attorney's alleged misadvice

because the district court itself informed Petitioner that he

- 17 -
faced immigration consequences. For instance, at his first

change-of-plea hearing on July 29, 2004, while Petitioner was

still charged with passport fraud, the following exchange took

place:

THE COURT: Now, do you understand as a consequence of
this offense it is possible that you could be
deported?

[PETITIONER]: Yes, sir.

And at his second-change-of plea hearing on October 14, 2004,

where Petitioner pleaded guilty to making a material false

statement, a similar exchange occurred:

THE COURT: As a result of this conviction, do you
understand that you could face the possibility of
deportation?

[PETITIONER]: Yes, sir.

Given that the district court wisely took it upon itself to

inform Petitioner of the immigration consequences of pleading

guilty, we do not see a substantial likelihood that anything

different would have happened had Petitioner's counsel not

(allegedly) misadvised him.

Petitioner's third and final allegation of his

counsel's ineffectiveness—that his counsel should not have let

him plead guilty to facts establishing passport fraud—also

fails. For one thing, under § 1001, "the government is required

to prove not only that the defendant's statements were false,

but also that they were material," United States v. Arcadipane,

- 18 -
41 F.3d 1, 7 (1st Cir. 1994), which means that "[t]he statement

must have 'a natural tendency to influence, or [be] capable of

influencing, the decision of the decisionmaking body to which it

was addressed,'" United States v. Gaudin, 515 U.S. 506, 509

(1995) (second alteration in original) (quoting Kungys v. United

States, 485 U.S. 759, 770 (1988)). As should be obvious, the

district court could not have determined whether Petitioner's

false statements had a tendency to influence a decision of the

U.S. State Department's National Passport Center if it had not

known he had, in fact, submitted a false application for a

United States Passport. Indeed, the district court could not

have gleaned this same information had Petitioner merely

admitted he had made false statements in order to obtain a

generic travel document. Even more, there is no persuasive

evidence that the prosecutor would have agreed to the amorphous

customization of the charge even had it been sought. We

therefore conclude that Petitioner's counsel was not

constitutionally ineffective by allowing him to plead guilty

under § 1001 to making material false statements in order to

obtain a U.S. Passport.

Accordingly, because Petitioner's counsel was not

constitutionally ineffective under the Sixth Amendment in any

way, Petitioner cannot establish that his conviction under

§ 1001 for making a material false statement arose from any

- 19 -
fundamental error. We therefore deny him a writ of error coram

nobis on that ground alone. But we note that even if Petitioner

could satisfy our tripartite test for coram nobis relief, we

would exercise our discretion to deny him such a writ in any

event. "[W]hen a defendant seeks to vacate a guilty-plea

conviction by way of coram nobis, red flags accompany that

request" and "great caution is warranted." George, 676 F.3d at

257–58. And given that Petitioner entered a guilty plea in this

case, it "seems dubious that granting the writ w[ould] promote

the interests of justice." Id. at 260. Thus, no matter how he

slices it, Petitioner remains bound by his conviction.

***

"A Hail Mary pass in American football is a long

forward pass made in desperation at the end of a game, with only

a small chance of success. The writ of error coram nobis is its

criminal-law equivalent." George, 676 F.3d at 251. Petitioner

cannot satisfy this difficult standard. We therefore AFFIRM the

district court's denial of a writ of error coram nobis.

- 20 -