Ravidath Ragbir v. United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1282
_____________
RAVIDATH RAGBIR,
Appellant
v.
UNITED STATES OF AMERICA
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-17-cv-01256
District Judge: The Honorable Kevin McNulty
Argued October 30, 2019
Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS,
Circuit Judges
(Filed: February 10, 2020)
Alina Das
Amy Joseph [ARGUED]
Jessica Rofe
Daniela Ugaz [ARGUED]
Washington Square Legal Services, Inc.
Immigrant Rights Clinic
245 Sullivan Street
5th Floor
New York, NY 10012
R. Scott Thompson
Wollmuth Maher & Deutsch
500 Fifth Avenue
12th Floor
New York, NY 10110
Counsel for Appellant
Mark E. Coyne [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
Lawrence S. Lustberg
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Amici Immigrant Defense Project and
National Immigration Project of the National Lawyers
Guild in Support of Appellant
________________
OPINION
________________
SMITH, Chief Judge.
Ravidath Ragbir, a green card holder from Trinidad and
Tobago, was convicted of mortgage fraud in 2000. Because
the loss attributable to the fraud exceeds $10,000, the
Department of Homeland Security seeks to remove Ragbir to
his native country. To avoid the immigration consequences
collateral to his conviction, Ragbir filed a petition for a writ of
error coram nobis, seeking either a new trial or resentencing.
Because Ragbir fails to meet the requirements for issuance of
the writ, we will affirm the District Court’s denial of the
petition.
I
2
A. District of New Jersey Felony Conviction
Ragbir came to the United States as a lawful permanent
resident in 1994, and by the late 1990s, he worked in sales at
Household Finance Corporation (“HFC”). At HFC, Ragbir
was responsible for soliciting mortgage applications,
conducting initial reviews, and referring appropriate
applications to the company’s underwriter. A real estate
broker going by the name of Robert Taylor—whose actual
name was Robert Kosch—recruited individuals to submit
fraudulent mortgage applications, which Ragbir preliminarily
approved. After HFC had disbursed large sums of money,
company investigators and the police began questioning
various employees, including Ragbir, about the fraudulent
applications.
Ragbir and four others were eventually indicted on six
counts of wire fraud and one count of conspiracy to commit
wire fraud under 18 U.S.C. §§ 371, 1343. The indictment
alleged that Ragbir accepted and preliminarily approved
fraudulent applications from individuals that Kosch hired to
pose as loan applicants. Attorney Patricia Lee represented
Ragbir in the criminal proceedings, and before trial, he raised
with her his concerns about the immigration consequences of
a conviction. Attorney Lee advised Ragbir that a conviction
could result in deportation, but Ragbir mistakenly gathered that
a conviction alone would make him deportable.
At his November 2000 trial, the government presented
Ragbir’s confession to the police. Although defense counsel
challenged the accuracy of the transcribed confession, the jury
found Ragbir guilty on all counts. The jury was not required,
however, to make a loss determination, so that issue was
addressed at sentencing. Defense counsel and the government
vigorously disputed the dollar figure, but the two sides
eventually reached an agreement that the actual loss was
between $350,000 and $500,000. 1 Attorney Lee counseled
1
The government’s initial loss calculation was over $1 million,
which Attorney Lee challenged in various ways: she objected
to the draft presentence report; looked for analysis of title
searches, appraisals, deeds, defects in title, and whether HFC
could recover the properties; attempted to persuade the
government that the loss calculation should exclude bargained-
3
Ragbir to waive his right to a hearing at which the prosecution
and the defense could present evidence about what sentence is
appropriate and to stipulate to the agreed-upon range. Ragbir
agreed to the stipulation, believing that his convictions alone
made him deportable; the amount of loss, in his view, was
irrelevant. 2 The District Court adopted the stipulation,
sentencing Ragbir to thirty months’ imprisonment, three years’
supervised release, and $350,001 in restitution.
Ragbir appealed, and the service of his sentence was
delayed pending the appeal. Ragbir’s appellate counsel,
Anthony Fusco, asserted a variety of claims—among them,
that Ragbir’s confession was involuntary and the evidence at
trial was insufficient to find Ragbir guilty. This Court affirmed
Ragbir’s convictions and sentence, United States v. Ragbir, 38
for interest; and opposed HFC’s efforts to increase the loss
amount by including investigation fees and costs of potential
foreclosures. After several months of negotiations, the parties
agreed that only HFC’s actual loss—the shortfall after
accounting for payments and collateral—could count for
purposes of sentencing.
Of the eighteen transactions involved in this case,
Ragbir asserts that only eight loans, five indicted and three
unindicted, can be properly attributed to him. HFC had
disbursed $557,697.31 on these eight loans. But it may have
had no enforceable security interest in certain properties
pledged as collateral. For example, the nominal borrowers for
three of the fraudulent disbursements never authorized the
loans taken out in their names. HFC disbursed approximately
$290,000 for these three loans, and the record shows that it
recovered only $7,250. Moreover, one loan was based on a
forged deed, so HFC could not foreclose on the mortgaged
property to recover its $103,000 expenditure.
Despite defense counsel’s efforts, the government
sought a dollar loss exceeding $800,000. It took considerable
negotiation before the government agreed to a stipulation of
around $350,000, and the trial court stated that there was no
doubt the loss could exceed that amount. Looking solely at the
five indicted loans, the District Court concluded that the actual
loss was $426,048.03.
2
A crime of fraud or deceit causing a loss exceeding $10,000
may qualify as an aggravated felony, triggering potential
immigration consequences. 8 U.S.C. § 1101(a)(43)(M)(i).
4
F. App’x 788 (3d Cir. 2002), and the United States Supreme
Court denied certiorari. Ragbir v. United States, 537 U.S. 1089(2002). Ragbir never sought relief under § 2255.
Ragbir began serving his sentence in February 2004.
While imprisoned, he consulted with a lawyer about seeking
post-conviction relief but was told that nothing could be done.
Ragbir’s supervised release began in May 2006 and concluded
on May 22, 2009.
B. Immigration Related Proceedings
Upon completion of his prison sentence in May 2006,
Ragbir was placed in immigration custody while the
Department of Homeland Security (“DHS”) commenced
removal proceedings. It was during those proceedings that
Ragbir learned that his stipulation to a loss of more than
$10,000, rather than his convictions themselves, was what
made him deportable. Ragbir’s immigration counsel, David
Kim, recognized the significance of the loss stipulation and
represented to the Immigration Judge (“IJ”) that a criminal
defense attorney would be hired to attempt to vacate the
underlying convictions. Despite this representation, Ragbir did
not pursue a collateral attack. On August 7, 2006, the IJ held
that Ragbir’s convictions constituted aggravated felonies and
ordered him removed from the United States.
On review, the Board of Immigration Appeals (“BIA”)
affirmed the IJ’s order. Ragbir sought review of the decision,
and in February 2008, DHS placed Ragbir on supervised
release pending resolution of his petition. The Second Circuit
upheld the BIA’s decision in 2010, Ragbir v. Holder, 389 F.
App’x 80 (2d Cir. 2010), and the Supreme Court denied
certiorari. Ragbir v. Holder, 565 U.S. 816 (2011).
Later that year, Ragbir married an American citizen.
Together, they applied for an immigrant visa based on their
marriage and received approval in November 2011. The
following month, DHS granted Ragbir a stay of removal.
Ragbir filed a motion to reopen the proceedings before the BIA
based on his having an immigrant visa and the Supreme
Court’s decision in Skilling v. United States, 561 U.S. 358(2010) (narrowing honest services fraud). On May 15, 2012,
the BIA denied the motion, stating that the issues surrounding
Ragbir’s conviction were properly the subject of the federal
5
courts. Ragbir filed a petition for review which was
unsuccessful. Ragbir v. Lynch, 640 F. App’x 105 (2d Cir.
2016).
DHS eventually elected not to renew its discretionary
stay of removal, and on January 11, 2018, Ragbir was taken
into immigration custody. Ragbir then challenged his
detention under 28 U.S.C. § 2241 in the United States District
Court for the Southern District of New York, which granted his
habeas petition and ordered him released. Ragbir v. Sessions,
No. 18-cv-236, 2018 WL 623557 (S.D.N.Y. Jan. 29, 2018).
On March 23, 2018, the United States District Court for the
District of New Jersey entered a stay of removal. The Second
Circuit likewise stayed removal. See Ragbir v. Homan, 923
F.3d 53 (2d Cir. 2019).
C. Coram Nobis Proceedings
After the BIA denied Ragbir’s motion to reopen the
proceedings in May 2012, he filed a petition seeking a writ of
error coram nobis in the United States District Court for the
District of New Jersey on November 30, 2012. In that petition,
Ragbir asserted that his conviction should be overturned
because jury instructions given at his trial were erroneous in
light of later Supreme Court rulings—Skilling (2010)
(narrowing honest-services fraud) and Global-Tech
Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011) (clarifying
willful blindness). He also claimed ineffective assistance of
counsel based on Attorney Lee’s (1) failure to explain that the
loss attributed to his conviction would have immigration
consequences and (2) advice to forego a sentencing hearing.
Ragbir and the government decided to work toward an
amicable settlement. Aware of these efforts, the District Court
administratively terminated the matter without prejudice on
May 30, 2013.
The parties’ negotiations failed. That led Ragbir to file
an amended coram nobis petition in February 2015. This
amended petition included three new allegations: trial counsel
was ineffective because she failed to (1) sufficiently
investigate and negotiate the loss amount and (2) retain a
linguistics expert to challenge the authenticity of Ragbir’s
confession, and appellate counsel was ineffective because he
(3) failed to assert that the willful blindness jury instruction
6
was erroneous. Based on further discussions, the parties
submitted a joint stipulation to voluntarily dismiss the action
without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) to
allow Ragbir to pursue a presidential pardon. The District
Court granted the agreed-upon relief on March 3, 2016.
Like the settlement talks, Ragbir’s attempt to secure a
pardon was unsuccessful. He renewed his coram nobis petition
on February 22, 2017. After briefing concluded, the District
Court held an evidentiary hearing on May 4, 2018 and denied
coram nobis on January 25, 2019. Five days later, Ragbir filed
this appeal. Ragbir asked the District Court to stay the IJ’s
removal order pending the disposition of this appeal. The
District Court denied the request, but it extended an earlier
stay, thereby allowing Ragbir to make an emergency
application to this Court. We denied the emergency stay
application because Ragbir failed to show that he was likely to
succeed on the merits. Nonetheless, the Second Circuit stay
remains in effect. See Ragbir v. Homan, 923 F.3d 53.
On appeal, Ragbir asserts that the District Court erred
in denying his petition for a writ of error coram nobis. He
claims, inter alia, (1) ineffective assistance of trial counsel due
to affirmative misadvice on the immigration consequences of
stipulating to a deportable loss amount; (2) ineffective
assistance of trial counsel for failure to investigate, negotiate,
and properly calculate the attributable loss; (3) ineffective
assistance of trial counsel for not introducing expert testimony;
(4) an erroneous willful blindness jury instruction permitted
the finder of fact to convict Ragbir of non-criminal conduct;
and (5) the “scheme or artifice to defraud” jury instruction,
which Ragbir characterizes as “dishonesty type language,” was
unconstitutionally vague, allowing the jury to inappropriately
convict him based on lawful activity.
II
This Court has jurisdiction to review the District
Court’s denial of coram nobis pursuant to 28 U.S.C. § 1291.
Based on the standards articulated in United States v. Orocio,
legal questions receive de novo review while clear error review
applies to factual findings. 645 F.3d 630, 635 (3d Cir. 2011),
abrogated on other grounds by Chaidez v. United States, 568
U.S. 342 (2013).
III
7
At common law, appeals were not always a matter of
right. 3 A factual error that was unknown at the time of trial
and that would have resulted in a different outcome did not
give rise to a remedy until the mid-sixteenth century. 4 By
then, 5 the judiciary had fashioned the writs of quae coram
nobis resident (“let the record remain before us”) and quae
coram vobis resident (“let the record remain before you”), 6
which were intended to correct the occasional injustice
stemming from factual errors in the Court of King’s Bench and
the Court of Common Pleas, respectively. 7
Coram nobis was seldom used, despite its availability in
both civil and criminal cases. 8 Such rare invocation of the writ
resulted, in part, from the requirement that the challenged
judgment be erroneous in fact and not in law. 9 Moreover, only
3
ELI FRANK, CORAM NOBIS: COMMON LAW, FEDERAL,
STATUTORY, WITH FORMS 1 (1953).
4
Stanley H. Fuld, The Writ of Error Coram Nobis, 117 N.Y.
L.J., June 5, 1947, at 2212.
5
Just how coram nobis came to be is unclear. See id. (noting
a 1553 reference in FitzHerbert’s Natura Brevium).
6
“The writs of error coram nobis and error coram vobis
differed from ordinary common law writs of error. An ordinary
writ of error removed a judgment from an inferior court to a
superior one for review and correction of errors of law or fact.
Coram nobis and coram vobis, in contrast, directed the court
that rendered the judgment to correct its own error.” Brendan
W. Randall, United States v. Cooper: The Writ of Error Coram
Nobis and the Morgan Footnote Paradox, 74 MINN. L. REV.
1063, 1066 n.20 (1990); see also W.W. Thorton, Coram Nobis
Et Coram Vobis, 5 IND. L.J. 603, 605 (1930).
7
“The English common law distinction between coram nobis
and coram vobis reflects the procedural nature of the English
judicial system as opposed to the substantive nature of the
writs. Most American courts have shown little concern for this
technical distinction and have used the terms interchangeably.”
Randall, supra note 6, at 1067 n.22; see also Abraham L.
Freedman, The Writ of Error Coram Nobis, 3 TEMP. L. Q. 365,
367-68 (1929). Freedman was a member of this Court from
1964 through 1971.
8
See Freedman, supra note 7, at 374; Randall, supra note 6, at
1066.
9
FRANK, supra note 3, at 3.
8
“certain facts which affect[ed] the validity and regularity of the
legal decision itself” justified issuance of the writ. 10 By the
nineteenth century, the writ of error coram nobis “was hoary
with age and even obsolete.” 11 Blackstone makes no mention
of it in his Commentaries, 12 and Holdsworth devotes
approximately five lines to the subject. 13 American courts,
however, breathed new life into this “hoary” writ.
Coram nobis migrated to the United States with the
common law, but it developed a more expansive reach than in
England. 14 Although the writ was still available for correcting
factual errors that lie outside the record—in both federal and
state courts as well as both civil and criminal matters—many
courts imported new grounds from equity.15 Still, the writ’s
utility diminished over time. Other remedies, such as a motion
for a new trial or habeas corpus, supplanted it. 16 Some states
abandoned coram nobis altogether through statutory schemes
10
Freedman, supra note 7, at 367. Examples include coverture
and the death of a party before judgment. See id. at 390-92.
11
Anderson v. Buchanan, 168 S.W.2d 48, 55 (Ky. 1943).
12
See 3 WILLIAM BLACKSTONE, COMMENTARIES *406
(Thomas M. Cooley ed., 3rd ed. 1884); see also Pickett’s Heirs
v. Legerwood, 32 U.S. 144, 147 (1833); Fuld, supra note 4;
Morgan Prickett, The Writ of Error Coram Nobis in California,
30 SANTA CLARA L. REV. 1, 6 n.18 (1990).
13
See 1 WILLIAM SEARLE HOLDSWORTH, A HISTORY OF
ENGLISH LAW 224 (3d ed. 1922).
14
See Daniel F. Piar, Using Coram Nobis to Attack Wrongful
Convictions: A New Look at an Ancient Writ, 30 N. KY. L. REV.
505, 507 (2003).
15
See, e.g., Sanders v. State, 85 Ind. 318 (1882); see also Fuld,
supra note 4; Piar, supra note 14.
16
See Piar, supra note 14, at 508-09.
9
for post-conviction litigation, 17 and the Federal Rules of Civil
Procedure expressly abolished it in 1948. 18
As the scope of coram nobis narrowed, some began to
question its continued applicability to criminal convictions in
federal courts. The Supreme Court reserved judgment on the
issue, 19 and over time, the courts of appeals became divided. 20
The 1946 promulgation of Rule 35 of the Federal Rules of
Criminal Procedure, allowing a district court to correct an
illegal sentence at any time, and the enactment of 28 U.S.C.
§ 2255 in 1948 further undermined the usefulness of coram
nobis. 21
The writ of error coram nobis was moribund—at least
in the federal courts—until the Supreme Court revived and
refashioned it in 1954. See United States v. Morgan, 346 U.S.
502 (1954). In Morgan, the Court held that (1) Rule 60(b) did
not abolish coram nobis in criminal contexts, (2) Rule 35 did
not render the writ unnecessary, and (3) section 2255 did not
replace coram nobis. Id. at 505 n.4, 505-06, 510-11. Instead,
the Supreme Court stated that the continuing vitality of coram
nobis was grounded in the All Writs Act of 1789. Id. at 506.
The Court also broadened the scope of coram nobis relief
beyond that of curing factual errors: the writ’s function was to
correct errors of the most “fundamental character.” Id. at 511-
12. Coram nobis became a collateral remedy to correct
fundamental errors, whether factual or legal. 22
Although the modern contours of coram nobis are
broader than at common law, the writ is still limited to
17
See, e.g., Dewey v. Smith, 230 N.W. 180, 180-81 (Mich.
1930) (coram vobis had become obsolete due to statutory
methods of correcting errors); Boyd v. Smyth, 205 N.W. 522,
523-24 (Iowa 1925) (coram nobis was abolished when omitted
in revised statute); State v. Hayslip, 107 N.E. 335 (Ohio 1914)
(finding that common law writs and pleas are defined by
statute).
18
Fed. R. Civ. P. 60(b) (1946) (effective Mar. 19, 1948).
19
See United States v. Mayer, 235 U.S. 55, 69 (1914).
20
See Randall, supra note 6, at 1067 n.26.
21
See id. at 1067-68.
22
David Wolitz, The Stigma of Conviction: Coram Nobis, Civil
Disabilities, and the Right to Clear One’s Name, 2009 BYU L.
REV. 1277, 1286-87 (2009).
10
“‘extraordinary’ cases presenting circumstances compelling its
use ‘to achieve justice.’” United States v. Denedo, 556 U.S.
904, 910-11 (2009) (quoting Morgan, 346 U.S. at 510). Coram
nobis may not issue if alternative remedies, such as habeas
corpus, are available. Denedo, 556 U.S. at 911; United States
v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011). 28 U.S.C. § 2255provides a means to vacate, set aside, or correct a conviction,
yet it does not apply if a defendant is no longer in custody. As
a residual and interstitial remedy, coram nobis can fill that gap.
It provides a means to challenge a federal conviction where a
party who is no longer in custody for purposes of § 2255 faces
continuing consequences as a result of being convicted.
Rhines, 640 F.3d at 71; United States v. Baptiste, 223 F.3d 188,
189 (3d Cir. 2000); Chaidez, 568 U.S. at 345 n.1; United States
v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989).
“[T]he standard for obtaining [coram nobis] is more
stringent than that applicable on direct appeal or in habeas
corpus” in recognition of judicial interests in finality and
efficiency. Rhines, 640 F.3d at 71; Stoneman, 870 F.2d at 106.
Accordingly, coram nobis relief is limited and seeks out error
of the most fundamental character—the kind that renders the
proceeding itself irregular and invalid. Mayer, 235 U.S. at 69;
see also Morgan, 346 U.S. at 511 (“[R]eview should be
allowed through this extraordinary remedy only under
circumstances compelling such action to achieve justice.”);
Stoneman, 870 F.2d at 106 (“The error must go to the
jurisdiction of the trial court, thus rendering the trial itself
invalid.”). “An error which could be remedied by a new trial,
such as an error in jury instructions, does not normally come
within the writ,” Stoneman, 870 F.2d at 106 (citing Mayer, 235
U.S. at 69 and United States v. Gross, 614 F.2d 365, 368 (3d
Cir. 1980)), and it is presumed that the prior proceedings were
properly conducted. The petitioner has the burden to show
otherwise. Morgan, 346 U.S. at 512; United States v. Cariola,
323 F.2d 180, 184 (3d Cir. 1963). This means that “it is
difficult to conceive of a situation in a federal criminal case
today where [a writ of coram nobis] would be necessary or
appropriate.” Carlisle v. United States, 517 U.S. 416, 429
(1996) (alteration in original) (internal quotation marks and
citations omitted).
A distillation of our caselaw establishes five
prerequisites for coram nobis relief: the petitioner (1) is no
11
longer in custody; (2) suffers continuing consequences from
the purportedly invalid conviction; (3) provides sound reasons
for failing to seek relief earlier; (4) had no available remedy at
the time of trial; and (5) asserted error(s) of a fundamental kind.
See Mendoza v. United States, 690 F.3d 157, 159 (3d Cir.
2012); Orocio, 645 F.3d at 634 n.4; Rhines, 640 F.3d at 71;
Stoneman, 870 F.2d at 105-06. The government concedes that
the first two conditions are satisfied. The last three
requirements are, however, in dispute.
A. Sound Reasons for Delay
Coram nobis reflects the tension that so often exists
between finality and equity. While the writ has no rigid time
limit, our caselaw emphasizes that “[the] ‘sound reason’
standard is even stricter than that used to evaluate § 2255
petitions” because habeas is generally the exclusive means to
collaterally challenge a federal conviction or sentence. 23 See
Mendoza, 690 F.3d at 159.
A defendant seeking to avoid the collateral
consequences of a conviction cannot postpone seeking relief
until it appears that a collateral consequence is imminent. Still,
coram nobis is a “remedy of last resort.” Fleming v. United
States, 146 F.3d 88, 89-90 (2d Cir. 1998). Consistent with
these principles, a petitioner is not required to “challenge his
conviction at the earliest opportunity”; the writ “only requires
[a petitioner] to have sound reasons for not doing so.” United
States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005).
Yet the more time that elapses between a party’s
conviction and his petition for coram nobis, the less likely it
becomes that sound reasons exist. We have previously found
delays of less than five years untimely. See, e.g., Mendoza,
690 F.3d at 159-60 (four-year delay in bringing ineffective
assistance of counsel claim was unjustified, even though
immigration law was unsettled). Legal ambiguity is also not a
sound reason for delay. Id. at 160. It may be that the diligent
pursuit of administrative remedies qualifies as a sound reason,
but we have yet to address that question. See Kwan, 407 F.3d
at 1013-14; Kovacs v. United States, 744 F.3d 44, 54 (2d Cir.
23
We do not address whether the failure to pursue § 2255 relief
constitutes a procedural default barring coram nobis relief.
12
2014). Given the nature of coram nobis, we must adapt the
principle of timeliness to the facts before us.
B. No Available Remedy at the Time of Trial
We have not previously elaborated on the requirement
that there was no available remedy at the time of trial, but we
can say that it focuses on whether a party was unable to make
certain arguments at trial or on direct appeal. See Mendoza,
690 F.3d at 159; Stoneman, 870 F.2d at 106.
C. Fundamental Error
The fifth prerequisite is two-pronged: there must be an
error, and the error must be fundamental. The identification
and assertion of “error” is sine qua non of all appellate
adjudication, but “fundamental error,” within the context of
coram nobis, is unique. The term “fundamental” refers to
“defect[s] which inherently result[] in a complete miscarriage
of justice.” 24 United States v. Woods, 986 F.2d 669, 676 (3d
Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 346
(1974)). Errors that can be remedied through a new trial do not
usually fall within the writ. Rhines, 640 F.3d at 71. Instead,
the defects must completely undermine the jurisdiction of the
court, rendering the trial itself invalid. Id. Coram nobis is
therefore generally inappropriate when an alternative remedy
is available. Id.Because a new trial can correct faulty jury instructions,
such errors will not typically qualify as fundamental. Id.However, instructions that result in a conviction on a charge
based on activity that is lawful are fundamentally erroneous.
See Stoneman, 870 F.2d at 105, 107-08; United States v.
McClelland, 941 F.2d 999, 1002-03 (9th Cir. 1991); United
States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988).
Stoneman, a case where the jury heard both correct and
incorrect instructions, held that “[a]n error in the jury
instructions—when a valid conviction could have been had
under different instructions . . .—is not the sort of fundamental
defect that produces a complete miscarriage of justice.” 870
F.2d at 108 (alteration in original) (quoting United States v.
Keane, 852 F.2d 199, 205 (7th Cir. 1988)). Ineffective
assistance of counsel, by contrast, is normally considered
24
As coram nobis affords an additional layer of review, the
standard for relief may be higher than for other remedies.
13
“fundamental.” See United States v. Rad–O–Lite of Phila.,
Inc., 612 F.2d 740, 744 (3d Cir. 1979) (The writ is available to
“persons not held in custody [to] attack a conviction for
fundamental defects, such as ineffective assistance of
counsel.”).
IV
On appeal, Ragbir offers numerous reasons why he
waited nearly ten years 25 before seeking a writ of coram
nobis: 26 while incarcerated, a criminal defense attorney told
him that nothing could be done to challenge his conviction; he
did not discover his trial attorney’s purported errors until 2006;
after being taken into immigration custody, he focused on
challenging his removal rather than his conviction; he was
exhausting his administrative remedies; his jury instruction
arguments were unavailable until after 2010’s Skilling decision
and 2011’s Global-Tech ruling; his ineffective assistance of
counsel claims were not ripe until after Padilla v. Kentucky in
2010 and Lafler v. Cooper and Missouri v. Frye in 2012; and
he promptly filed a coram nobis petition after being informed
that challenges to his criminal conviction could not be heard
administratively. None of these reasons excuse Ragbir’s delay.
First, this Court does not apply a timeliness standard for
coram nobis that is forgiving of delay and dilatoriness. See
Mendoza, 690 F.3d at 159. Though Ragbir claims he was
unaware of the immigration consequences of his sentencing
stipulation until 2006, from that time forward he knew that the
underlying conviction needed to be challenged. Yet he waited
another six years before taking any action to collaterally
challenge his conviction. During those six years, Ragbir chose
to pursue administrative remedies rather than coram nobis
relief. He offers no acceptable explanation for why he did not
seek both forms of relief concurrently. Furthermore, Ragbir’s
pursuit of administrative remedies cannot constitute a sound
reason for delay since the immigration relief he seeks is
25
Ten years passed from direct appeal in 2002 until his first
coram nobis petition in 2012.
26
The government’s timeliness argument does not rely on the
five years (2012–17) that elapsed between Ragbir’s first coram
nobis petition and the current iteration.
14
dependent upon a successful collateral challenge to his
underlying conviction. 27
Second, Ragbir mistakenly believes that his jury instruction
arguments were unavailable until 2010 and 2011. 28 He admits
that, at the time of his trial, caselaw already existed addressing
willful blindness and “dishonesty type language.” He claims,
however, that our precedent was ambiguous before Skilling and
Global-Tech. That claim is unavailing: we have rejected the
27
Ragbir asked the BIA to assess the validity of his conviction,
but it refused, stating that the issues surrounding his conviction
needed to be raised in the federal courts. In re Ravidath
Lawrence Ragbir, No. A044 248 862 (B.I.A. May 15, 2012).
28
As to appellate counsel’s failure to raise willful blindness on
appeal, Ragbir’s opening brief addresses the issue in a single
footnote. Footnote seven states in its entirety:
In 2002, appellate counsel failed to object to the
improper willful blindness jury instruction,
despite trial counsel’s preservation of this claim,
and despite Mr. Ragbir’s insistence that his
attorney look into the issue of the jury
instructions. JA125 ¶ 10; JA345.
We have previously considered one-sentence footnotes
insufficient to preserve an issue on appeal. See, e.g., McBride
v. Superintendent, SCI Houtzdale, 687 F.3d 92, 95 n.5 (3d Cir.
2012) (“[Petitioner] only references this colloquy in a footnote
in his opening brief, and therefore has failed even to adequately
raise the issue before us.”); United States v. DeMichael, 461
F.3d 414, 417 (3d Cir. 2006) (“An issue is waived unless a
party raises it in its opening brief, and for those purposes a
passing reference to an issue will not suffice to bring that issue
before this court.” (citation omitted)).
Footnote seven also references two parts of the joint
appendix. J.A. 125 ¶ 10 includes a statement from Ragbir’s
coram nobis affidavit asserting that appellate counsel failed to
litigate the issue of willful blindness without providing an
explanation for this failure. J.A. 345 is a copy of Ragbir’s
direct appeal brief, containing no arguments addressing willful
blindness. Absent from footnote seven is any assertion of
ineffective assistance of appellate counsel. Any
ineffectiveness claim regarding appellate counsel is therefore
waived.
15
notion that ambiguity in the law justifies “a delay in filing a
coram nobis petition.” 29 Mendoza, 690 F.3d at 160. What
matters is whether a claim can be reasonably raised.
29
Even if legal ambiguity constituted a sound reason for delay,
we do not perceive any opacity in our caselaw. Ragbir argues
that our caselaw prevented him from addressing willful
blindness at trial or on appeal because (1) Global-Tech was not
decided until 2011 and (2) this Circuit did not previously
recognize the distinction between subjective and objective
knowledge that Global-Tech articulates. We disagree.
Global-Tech did not promulgate a new test; rather, it
stated already settled law. 563 U.S. at 769 n.9 (citing United
States v. Stadtmauer, 620 F.3d 238, 257 (3d Cir. 2010)).
Although Stadtmauer was decided ten years after Ragbir’s
trial, it cites two examples of Third Circuit precedent
accurately describing the “subjective awareness” element of
willful blindness before Ragbir’s direct appeal. See, e.g.,
United States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000);
United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985)
(indicating that a willful blindness charge must “make clear
that the defendant himself was subjectively aware of the high
probability of the fact in question, and not merely that a
reasonable man would have been aware of the probability”).
The “deliberate avoidance” prong was also clear law
within this Circuit by 1995. See United States v. Hayden, 64
F.3d 126, 133 & n.11 (3d Cir. 1995) (finding that knowledge
can be imputed where a defendant deliberately avoided
learning a fact but not where a defendant was “merely
negligent or reckless in failing to realize the unlawfulness of
his actions”); see also Wert-Ruiz, 228 F.3d at 255. We perceive
no ambiguity in our caselaw. Yet even if a lack of clarity
existed, Ragbir could have reasonably argued at trial or on
appeal that the willful blindness instruction was erroneous.
Ragbir also asserts that he was unable to bring his
scheme or artifice to defraud claim prior to 2010’s Skilling
decision, which narrowed honest-services fraud. However,
Skilling is inapposite because Ragbir was not convicted under
an honest-services fraud theory. And even if he had been,
Skilling would not be determinative. Ragbir acknowledges that
at the time of his trial and appeal caselaw existed criticizing
“dishonesty type language.” See, e.g., United States v.
Panarella, 277 F.3d 678, 698 (3d Cir. 2002). As a result,
16
Third, Ragbir could have brought his ineffective
assistance of counsel claims at least six years earlier.
Counsel’s alleged failures to adequately investigate the loss 30
and obtain expert testimony 31 were actionable by 2006, if not
on direct appeal. Ragbir could have also raised his affirmative
misadvice argument by 2006. 32 Lafler and Frye do not justify
Ragbir could have reasonably asserted that the scheme or
artifice to defraud instruction was flawed. Whether our
caselaw was still evolving is of no moment: if a claim can be
reasonably made, then legal ambiguity is not a sound reason
for delay.
30
See Strickland v. Washington, 466 U.S. 668, 690-91 (1984)
(finding “counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary”).
31
See, e.g., Jacobs v. Horn, 395 F.3d 92, 109 (3d Cir. 2005)
(evaluating claim of ineffective assistance of counsel for
failure to introduce expert testimony); Raley v. Ylst, 470 F.3d
792, 799-801 (9th Cir. 2006) (addressing whether failure to
present expert testimony constituted ineffective assistance of
counsel); Horsley v. Alabama, 45 F.3d 1486, 1493-96 (11th
Cir. 1995) (determining that failure to present expert
psychological witness did not amount to ineffective assistance
of counsel); Spencer v. Murray, 18 F.3d 229, 231-36 (4th Cir.
1994) (discussing whether failure to secure expert witness was
ineffective assistance of counsel); Bruns v. Thalacker, 973
F.2d 625, 628-29 (8th Cir. 1992) (examining whether lack of
expert testimony constituted ineffective assistance of counsel);
St. Louis v. Carroll, 429 F. Supp. 2d 701, 710-11 (D. Del.
2006) (holding that failure to obtain expert testimony was not
ineffective assistance of counsel); Venezia v. United States,
884 F. Supp. 919, 923-24 (D.N.J. 1995) (reviewing claim of
ineffective assistance of counsel for failure to present expert
testimony).
32
Several cases would have supported a pre-Padilla misadvice
claim. See, e.g., Kwan, 407 F.3d 1005; United States v. Couto,
311 F.3d 179 (2d Cir. 2002); Downs-Morgan v. United States,
765 F.2d 1534 (11th Cir. 1985); United States v. Shaw, No. 03-
6759, 2004 WL 1858336 (E.D. Pa. Aug. 11, 2004); United
States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999).
17
Ragbir’s delay since they adopted previously established law. 33
Thus, sufficient caselaw already existed such that Ragbir could
have reasonably brought his ineffective assistance of counsel
claims much earlier. Mendoza, 690 F.3d at 160.
Fourth, the allegedly vague “scheme or artifice to
defraud” instruction was fair game on direct appeal or soon
afterward. 34 In United States v. Panarella, we acknowledged
that the breadth of the term “fraud” in federal statutes may raise
concerns regarding “notice of criminality.” 277 F.3d at 698.
We also observed, in United States v. Leahy, the increasing
criticism in the courts of the formulation of fraud in federal
statutes. 445 F.3d 634, 649-51 (3d Cir. 2006) (citing
Panarella, 277 F.3d at 698; Matter of EDC, Inc., 930 F.2d
1275, 1281 (7th Cir. 1991); United States v. Holzer, 816 F.2d
304, 309 (7th Cir. 1987)). Based on this caselaw, we conclude
there was no sound reason for failing to raise this issue in 2002
or 2006.
Fifth, considerations of finality, judicial efficiency, and
potential prejudice towards the government—if a new trial or
re-sentencing is ordered—also counsel against concluding
there were sound reasons for delay. 35 After examining our
caselaw and the record before us, we conclude that Ragbir had
the ability to bring all his claims at least six years before his
33
Lafler v. Cooper, 566 U.S. 156, 164 (2012) (citing United
States v. Rodriguez Rodriguez, 929 F.2d 747, 753 n.1 (1st Cir.
1991) (per curiam); United States v. Gordon, 156 F.3d 376,
380-381 (2d Cir. 1998) (per curiam); United States v. Day, 969
F.2d 39, 43-45 (3d Cir. 1992); Beckham v. Wainwright, 639
F.2d 262, 267 (5th Cir. 1981); Julian v. Bartley, 495 F.3d 487,
498-500 (7th Cir. 2007); Wanatee v. Ault, 259 F.3d 700, 703-
704 (8th Cir. 2001); Nunes v. Mueller, 350 F.3d 1045, 1052-
1053 (9th Cir. 2003); Williams v. Jones, 571 F.3d 1086, 1094-
1095 (10th Cir. 2009) (per curiam); United States v. Gaviria,
116 F.3d 1498, 1512-1514 (D.C. Cir. 1997) (per curiam)).
34
Contrary to Ragbir’s assertion, there was a remedy available
for his vagueness claims on direct review. See Panarella, 277
F.3d at 698.
35
Ragbir, who has already served his sentence, does not
address how a new trial or resentencing, which could
theoretically result in an increased penalty, would comport
with the double jeopardy clause.
18
2012 petition for coram nobis. He provides no sound reason
for his delay.
V
Coram nobis is an extraordinary remedy, available only
when all its conditions have been met. 36 Ragbir’s claims fail
to satisfy at least one necessary requirement. 37 Accordingly,
we will affirm the District Court’s denial of the petition.
36
In some circumstances, overlap may exist between the coram
nobis elements of “sound reasons for delay” and “no available
remedy at the time of trial.” While Ragbir lacks “sound
reasons” for his delay, many of his claims also fail to satisfy
the “no available remedy at the time of trial” requirement.
The lack of expert testimony at trial could have been
raised on appeal. See supra note 31. Similarly, Ragbir’s
vagueness claim could likely have been brought on direct
review. See Panarella, 277 F.3d at 698. We have also already
concluded that Ragbir’s willful blindness and scheme or
artifice to defraud claims were available at the time of trial. See
supra note 29.
37
In addition to a lack of “sound reasons for delay,” we fail to
see any claim that constitutes a “fundamental error.”
19