United States v. Castro

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

____________________

No. 92-2909

____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

MARVIN CASTRO,
Defendant-Appellant.

____________________________________________

Appeal from the United States District Court
for the Southern District of Texas
______________________________________________
(July 11, 1994)

Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,*
District Judge.

KAUFMAN, District Judge:

Petitioner appeals from the denial of his motion for a writ of

coram nobis which he seeks, contending that when he pleaded guilty

to a felony conviction, his counsel's failure to advise him of the

availability of a Judicial Recommendation Against Deportation

("JRAD") constituted ineffective assistance of counsel. We

reverse.

FACTS

Petitioner, Marvin Castro, is a citizen of Honduras. In 1984,

while attending college in Texas, Castro and several of his co-

defendants pleaded guilty to conspiracy to transport stolen trucks

*
District Judge of the District of Maryland, sitting by
designation.
from Texas to Louisiana in violation of 18 U.S.C. §§ 371, 2312, and

2313. The district court sentenced Castro to a four year sentence,

with six months' imprisonment and three and one-half years

suspended and five years supervised probation. At the time of

sentencing, neither of Castro's two attorneys ever informed Castro

of, or requested from the Court, a JRAD pursuant to 8 U.S.C. §

1251,1 which would permit the district court to exercise its

1
At the time of Castro's sentencing, 8 U.S.C. § 1251
provided that:
(a) General classes
Any alien in the United States . . . shall,
upon the order of the Attorney General, be
deported who --
. . . .
(4) is convicted of a crime involving moral
turpitude committed within five years after
entry and either sentenced to confinement or
confined therefore in a prison or corrective
institution, for a year or more . . . ;
. . . .
(b) Nonapplicability of subsection (a)(4)
The provisions of subsection (a)(4) of this
section respecting the deportation of an
alien convicted of a crime or crimes shall
not apply . . . if the court sentencing such
alien for such crime shall make, at the time
of first imposing judgment or passing
sentence, or within thirty days thereafter, a
recommendation to the Attorney General that
such alien not be deported, due notice having
been given prior to making such
recommendation to representatives of the
interested State, the Service, and
prosecution authorities, who shall be granted
an opportunity to make representations in the
matter.
The Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,
5050 (1990), repealed 8 U.S.C. § 1251(b) as of November 29, 1990,
and therefore, the JRAD is no longer available.
Convictions for transporting and/or receiving stolen
property with knowledge that such property is stolen constitute
crimes of "moral turpitude." See 3 Gordon and Mailman,
Immigration Law and Procedure § 71.05[1][d]; see also Palma v.
INS, 318 F.2d 645, 649 (6th Cir. 1963), cert. denied, 375 U.S.

2
discretion at the time of sentencing or thirty days thereafter to

order that Castro not be deported or excluded from the United

States on account of his conviction.2

Castro served his sentence and never directly or collaterally

attacked his guilty plea. Subsequently, Castro married a resident

alien and became the father of a child born in the United States.

Sometime after this, Castro was apparently deported.3 Seeking to

return to this country and rejoin his family, Castro sought a writ

of coram nobis in the district court below, asserting that he would

have not pleaded guilty if he had known that he would not be

958 (1963). Convictions under 18 U.S.C. §§ 2312, 2313, to which
Castro pleaded guilty, require knowledge that the vehicles
transported or received are stolen.
2
The JRAD also prevents use of a conviction to exclude
an alien from entering this country. See Santos v. Kolb, 880
F.2d 941, 942 n.1&2 (7th Cir. 1989), cert. denied, 493 U.S. 1095
(1990); United States v. Sanchez-Guzman, 744 F. Supp. 997, 999-
1000 n.5 (E.D. Wash. 1990).
3
In an affidavit, Castro claims he was deported after he
served his sentence. However, Castro has never provided
documentation of any Immigration and Naturalization Service
("INS") action taken against him. To obtain a writ of coram
nobis, the petitioner must "demonstrate that he is suffering
civil disabilities as a consequence of the criminal
conviction[]." United States v. Marcello, 876 F.2d 1147, 1154
(5th Cir. 1989). The district court concluded that Castro's
failure to provide such documentation meant that Castro had
failed to satisfy the condition precedent for collateral relief.
However, Castro has stated in an affidavit that he was deported,
and there is no evidence proffered by the government to the
contrary, nor does the government assert that Castro was not
deported. Moreover, further lack of documentation from Castro
would appear to be irrelevant in the light of the fact that it is
undisputed that Castro is presently outside the United States,
and is therefore excludable under 8 U.S.C. § 1182(a)(2)(A)(i)
which provides that an alien is excludable if that alien has been
"convicted of . . . (I) a crime involving moral turpitude." As
noted in footnote 2 supra, a JRAD would prevent Castro's
conviction from being a ground for exclusion.

3
allowed to live in the United States and that he would have

requested a JRAD from the sentencing judge had he known about the

availability of such possible relief. The district court denied

Castro's said quest for relief, concluding that Castro's claim was

procedurally barred under the cause and prejudice standard

applicable in connection with 28 U.S.C. § 2255, and that in any

event, Castro's claim fails on the merits. The district court

reasoned that because a sentencing judge has absolute discretion to

grant a JRAD, Castro could never show that he would receive a JRAD

if one was requested and thus, could not demonstrate prejudice

resulting from his counsel's failure to utilize the JRAD route.

Castro appeals from that denial, contending that he has been denied

effective assistance of counsel because his counsel never informed

Castro of the availability of JRAD relief.4

DISCUSSION

The writ of coram nobis is an "extraordinary remedy," United

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

petitioner no longer in custody who seeks to vacate his conviction

in circumstances where "the petitioner can demonstrate that he is

suffering civil disabilities as a consequence of the criminal

convictions and that the challenged error is of sufficient

magnitude to justify the extraordinary relief." United States v.

Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989) (citations omitted).

4
In this Court, Castro has dropped the argument made by
him before the district court that failure to advise him of the
collateral consequences of his guilty plea, ie., deportation,
constituted ineffective assistance of counsel.

4
The remedy of coram nobis "should issue to correct only errors

which result in a complete miscarriage of justice." Id. (citing

Morgan, at 512).

In United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992),

we noted that the standard for coram nobis relief was more

"demanding" than the cause and prejudice standard for habeas corpus

relief under 28 U.S.C. § 2255. Without setting a more specific

standard for coram nobis relief, we stated that, "[u]nder Morgan,

if Drobny could prevail on his ineffective assistance of counsel

claim, he would be entitled to relief even under the rigorous

standards of coram nobis." Id. Thus, if Castro succeeds on his

claim for ineffective assistance of counsel, then under the law of

this circuit, he is entitled to coram nobis relief.5

To demonstrate ineffective assistance of counsel, a criminal

5
The government urges us to apply the cause and
prejudice standard applied in § 2255 cases pursuant to United
States v. Frady, 456 U.S. 152, 167-68 (1982) ("Under this
standard, to obtain collateral relief based on trial errors to
which no contemporaneous objection was made, a convicted
defendant must show both (1) `cause' excusing his double
procedural default, and (2) `actual prejudice' resulting from the
errors of which he complains."). Castro urges us to adopt the
Ninth Circuit's standard for coram nobis set forth in United
States v. Walgren, 885 F.2d 1417 (9th Cir. 1989), which provides
for coram nobis relief if the petitioner can demonstrate:
"`(1) a more usual remedy is not available;
(2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences
exist from the conviction sufficient to
satisfy the case or controversy requirement
of Article III; and (4) the error is of the
most fundamental character.'"
Id. at 1420 (citing Hirabayashi v. United States, 828 F.2d 591,
604 (9th Cir. 1987)). However, in the light of our ruling in
Drobny, we simply proceed under the standard enunciated in that
case.

5
defendant must demonstrate both that his counsel's representation

was deficient and that he was prejudiced by counsel's deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).

"The proper standard for attorney performance is an objective

standard of reasonableness under prevailing professional norms."

Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990), cert. denied,

498 U.S. 1033 (1991). "To show prejudice, [the defendant] `must

show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different.'" Id., at 584 (quoting Strickland, 466 U.S. at 694).

Relying on United States v. Gavilan, 761 F.2d 226 (5th Cir.

1985), the government argues that Castro's lawyers were not

ineffective. In Gavilan, we held that counsel's failure to advise

an alien charged with possession of marijuana that his guilty plea

could result in deportation did not make the guilty plea defective.

Id. at 228-29. Subsequently, in United States v. Banda, 1 F.3d

354, 356 (5th Cir. 1993), we held that failure to inform a client

of the possibility of deportation did not establish ineffective

assistance of counsel in violation of the Sixth Amendment. As we

noted in Banda, our holding in that case is supported by other

Circuits which have addressed the issue. See Banda, 1 F.3d at 356

(citing cases which have so held).

However, Castro is not contending in this appeal that he would

have changed his guilty plea if he had known that deportation was

a collateral consequence of that plea; nor is he arguing in this

Court that his counsel's failure to advise him of that consequence

6
violated the Sixth Amendment's guarantee of effective assistance of

counsel.6 Rather, Castro contends in this Court that his counsel

was ineffective for failing to advise him of the availability of a

JRAD or to request the same from the sentencing court. A

deprivation of an opportunity to have a sentencing court exercise

its discretion in a defendant's favor can constitute ineffective

assistance of counsel. See United States v. Golden, 854 F.2d 31,

32 (3rd Cir. 1988) (ineffective assistance of counsel may be

established where defense counsel failed timely to file a motion

for reduction of sentence).

That principle formed the basis of the Second Circuit's

decision in Janvier v. United States, 793 F.2d 449 (2nd Cir. 1986),

in which the Second Circuit faced the precise issue raised in the

within appeal. In Janvier, a jury found Janvier, a Haitian

citizen, guilty of possession of counterfeit United States

currency. Immediately upon his release from prison, Janvier was

released into the custody of the INS for deportation. Janvier's

counsel did not know of JRAD relief at the time of sentencing and

thus never advised his client before or during sentencing of the

possibility of such relief, or requested it from the sentencing

court. In a § 2255 petition, Janvier argued that he had been

denied effective assistance of counsel. The district court,

however, did not reach that issue, determining instead that any

alleged ineffective assistance occurred at a time other than a

critical stage of a criminal proceeding and that therefore, the

6
See footnote 4 supra.

7
Sixth Amendment protection did not apply.

The Second Circuit reversed, holding that a request for a

JRAD, "is part of the sentencing process, a critical stage of the

prosecution to which the Sixth Amendment safeguards are

applicable," rather than part of the civil deportation proceedings

to which the protection against ineffective assistance of counsel

does not apply. Id. at 455. Judge Kearse, writing for a unanimous

Court, was persuaded by the following factors: (1) only the

sentencing court had the power to grant JRAD relief; (2) the

sentencing judge's determination was binding on the Attorney

General, and was thus part of a sentencing judge's imposition of

penalty; and (3) the thirty day time period within which a

determination might be made is "strictly linked to the time of the

first imposition of a valid sentence." Id. at 452. Judge Kearse

examined the legislative history in great detail, concluding that

Congress adopted the thirty day JRAD provision in order to make the

JRAD part of sentencing.

The First Circuit, in a 2-1 decision, rejected the conclusion

of the Second Circuit in Janvier, holding instead that the JRAD is

"substantively a part of civil deportation measures." United

States v. Bodre, 948 F.2d 28, 35 (1st Cir. 1991), cert. denied, 112

S. Ct. 1487 (1992).7 In so doing, Judge Hill of the Eleventh

Circuit, sitting by designation, stated that although the JRAD is

7
In Bodre, plaintiff's contentions were stated in the
context of whether Congress's repeal of JRAD relief could be
given retrospective application without violating ex post facto
principles. Id. at 30.

8
procedurally part of the sentencing process, the "substantive

effect of a JRAD was on the alien's deportability status and not

upon the sentence imposed," id. at 34, and that "to the extent the

Second Circuit's opinion in Janvier held that the JRAD was

substantively within the scope of criminal sentencing, we

respectfully disagree." Id. at 35. In dissent, Judge Bownes,

after acknowledging that "deportation proceedings are civil in

nature," stated that "[t]he question should not focus on the nature

of a deportation proceeding. . . . [but] on the nature of a JRAD

proceeding." Id. at 37. The Ninth Circuit, in United States v.

Shaibu, 957 F.2d 662 (9th Cir. 1992), held that a JRAD ruling is a

final appealable decision. Id. at 664. In so doing, Judge T.G.

Nelson, writing for a unanimous panel, followed the reasoning of

Janvier, noting that "[s]ince the right to request a JRAD is

triggered by the conviction, and must be presented to and acted

upon by the sentencing court within a short time of the imposition

of sentence, and is binding upon the Attorney General, the JRAD

proceeding is a part of the sentencing process." Id. at 664. Like

the Ninth Circuit, we adopt the extensive and persuasive analysis

of Judge Kearse's opinion in Janvier and hold that Sixth Amendment

protections apply to requests for a JRAD.8 The JRAD is far too

8
In Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989), cert.
denied, 493 U.S. 1059 (1990), counsel failed to advise his alien
client about the deportation consequences of his guilty plea,
failed to seek a JRAD, and later stated that "[a]t the sentencing
process, it did not occur to me that deportation is an almost
inevitable consequence for a noncitizen who is convicted, or who
makes an admission of a felony." Id. at 942. However, the Court
discussed only the cases holding that ineffective assistance of
counsel is not established by counsel's failure to warn of the

9
inextricably linked to the traditional sentencing process to

require that an attorney be held to constitutional standards for

some other parts of the sentencing proceeding and not to the JRAD

part. In any event, we note further that in this Circuit it has

not been foreclosed that an alien may have a constitutional claim

for ineffective assistance of counsel which arises in deportation

proceedings. Miranda-Lores v. INS, 17 F.3d 84, 85 n.1 (5th Cir.

1994) ("assum[ing] without deciding," that an alien may have a due

process claim for ineffective assistance of counsel which occurs at

deportation proceedings) (citing Ogbemudia v. INS, 988 F.2d 595,

598 (5th Cir. 1993)).

After determining that a request for a JRAD is part of the

criminal sentencing process, the court in Janvier remanded the case

to the district court to determine whether Janvier was deprived of

effective assistance of counsel.9 On remand, the district court

concluded that while failure of counsel to inform a client of JRAD

relief does not constitute per se ineffective assistance of

counsel, Janvier had met the Strickland standard. Janvier v.

collateral consequences of a guilty plea. The Court did not cite
to Janvier, nor did it zero in on, and petitioner apparently did
not press, the argument that petitioner was prejudiced by his
counsel's failure to ask the sentencing court to exercise its
discretion on petitioner's behalf through a JRAD.
9
We note that the Second Circuit also adheres to the
well-settled rule that failure of counsel to advise of the
deportation consequences of a guilty plea does not constitute
ineffective assistance of counsel. See United States v.
Santelises, 509 F.2d 703, 704 (2d Cir. 1975); see also Banda, 1
F.3d at 356 (listing the Second Circuit as having adopted that
view).

10
United States, 659 F. Supp. 827 (N.D.N.Y. 1987).10 The district

court first determined that counsel's failure to advise Janvier of

JRAD relief was inadequate because it "was not a strategic choice,"

id. at 829, and counsel did not know of or investigate the

deportation consequences of petitioner's convictions. "Such a

failure to investigate the applicable law of a case cannot be

considered adequate under prevailing norms of professional

competency." Id. at 829. The court then concluded that Janvier

had shown direct prejudice because "no hearing was requested and no

recommendation sought." Id.

The record in this case shows that Castro may well be able to

make a similar showing of inadequacy of counsel and prejudice if

his motion for writ of coram nobis is considered under the Janvier

standard. As in Janvier, it appears that Castro's two attorneys

were not aware, prior to completion of the sentencing process, of

the deportation consequences of his plea or of the availability of

a JRAD. Further, without the request for a JRAD, the sentencing

court was deprived of an opportunity to exercise its discretion in

Castro's favor.

Further, Castro can show, pursuant to the Strickland standard,

that there is a reasonable probability that, had it been made, his

JRAD request might have succeeded. Under Strickland, the defendant

10
The district court noted that a per se rule would not
be advisable because "circumstances may justify an attorney, who
is aware of the deportation consequences of conviction and
sentencing, in not requesting such a hearing and recommendation."
Id. at 828 n.1 (citing Janvier, 793 F.2d at 455 (Bartels, J.
concurring)). We agree and remand with that approach in mind.

11
"must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different." 466 U.S. at 694. In Burley v. Cabana, 818

F.2d 414 (5th Cir. 1987), this Court held that "counsel's failure

to inform the state trial court of sentencing alternatives

constituted ineffective assistance of counsel." Id. at 415. In

Burley, the sentencing judge had been unaware of his sentencing

options and this Court concluded that "there is a reasonable

probability that the trial court would not have imposed a life

sentence had it known" of those options. Id. at 418.

Similarly, in this case, the sentencing judge was apparently

unaware of the availability of JRAD relief. Further, there are

several factors in this case which would support the grant of a

JRAD. As noted earlier, Castro has an American wife and an

American child. Moreover, at Castro's sentencing, the government

stated that, "We would note for the court, as stated in the pre-

sentence investigation, that Mr. Castro . . . [was] in the second

tier of the conspiracy and that [his] involvement[] [was] minimal."

Subsequently, the sentencing judge sentenced Castro "to the custody

of the Attorney General of the United States or his authorized

representative for a period of four years. However, I am going to

split that sentence, that would be six months to serve, the

remainder to be suspended. And you will be placed on probation for

a period of five years." Although the government points out in its

brief that the sentencing judge did not apply the Youth Corrections

Act to Castro, a review of the transcript reveals that the

12
sentencing judge declined to use that Act because Castro "would not

benefit from sentencing under that Act." (Emphasis added). There

is no suggestion whatsoever in the transcript that the sentencing

judge did not apply that Act because the judge felt Castro was

undeserving of a more lenient punishment. Rather, the opposite

appears true. Given the government's concession that Castro was a

minor player in the conspiracy, the sentencing judge's apparent

leniency in sentencing Castro, and Castro's extremely strong ties

to the United States, Castro has adequately demonstrated a level of

actual prejudice to satisfy the standards enunciated in Strickland

and Burley.

Our recent case of Miranda-Lores v. INS, 17 F.3d 84 (5th Cir.

1994), is not to the contrary. In that case, a Cuban national with

permanent resident status in the United States appealed an order of

deportation against him based on his conviction for cocaine

distribution. At the deportation proceedings, aided by counsel,

petitioner conceded his deportability, and further, announced his

intention to seek § 212(c) relief, 8 U.S.C. § 1182(c), a form of

relief from deportation available in the discretion of the Attorney

General. By the time of the final hearing before the Immigration

Judge, however, petitioner had not filed an application for §

212(c) relief, and instead, had abandoned any claim along those

lines. Petitioner then appealed the Immigration Judge's decision,

claiming that his counsel was ineffective for failing to seek

§212(c) relief. We affirmed the Board's rejection of that appeal,

because petitioner could not show he was prejudiced by his

13
counsel's actions. Id. at 85.

Unlike the within case, there was no allegation in Miranda-

Lores that counsel did not inform his client of the availability of

discretionary relief; rather, counsel as well as the Immigration

Judge in Miranda-Lores raised the option of discretionary relief

which petitioner then rejected. Because Miranda-Lores knew about

§ 212(c) relief, the only means by which he could demonstrate

prejudice would be to show that if the § 212(c) application had

been filed, he would have been entitled to relief. However,

Miranda-Lores never alleged any facts that would have supported the

discretionary grant of relief, and thus, he could not meet the

prejudice burden. In contrast, in the within case, as far as the

record herein reveals, no one connected with the case -- the court,

or petitioner, or petitioners' counsel -- ever considered the

option of discretionary JRAD relief. Thus, Castro need not show

that he would have received said relief, but only that had such

relief been requested, the court would have had the opportunity to

exercise its discretion either to grant or to deny it and that

there is a reasonably probability that the judge would have granted

such relief. As the district court noted, Castro cannot probably

in this appeal prove conclusively that he would have been granted

JRAD relief by the district court if he had requested the same,

since such grant lies within the discretion of the district court.

To require such a showing would eviscerate part of the Sixth

Amendment's guarantee of effective assistance of counsel.

Attorneys would simply be unaccountable for their failure to seek

14
any form of discretionary relief, regardless of the extreme

consequences which could accompany such failure. It is

unquestioned that Castro, if he desired, was entitled to have the

sentencing court consider a JRAD. It is also apparent that there

is a reasonable probability that such relief would have been

granted if a request had been made. Accordingly, prejudice in this

case arises from the failure of counsel to seek a JRAD, if indeed

there was such a failure, and from the reasonable probability that

Castro would have received the JRAD. Accordingly, we remand to the

district court to determine if Castro's counsel rendered

ineffective assistance under Strickland standards, as they should

be applied in this case in accordance with this opinion, and if so,

whether JRAD relief should be granted or denied.

REVERSED AND REMANDED.

15