Kester Obomighie v. United States , 480 F. App'x 227 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6214
KESTER IGEMHOKHAI OBOMIGHIE,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen Lipton Hollander, District Judge.
(1:11-cv-00746-ELH)
Submitted: April 16, 2012 Decided: May 10, 2012
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kester Igemhokhai Obomighie, Appellant Pro Se. Richard Charles
Kay, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kester Igemhokhai Obomighie appeals a district court
order denying his petition for a writ of error coram nobis.
Obomighie was seeking to have his 1993 conviction for credit
card fraud vacated in light of the ruling announced in
Padilla v. Kentucky, 130 S. Ct. 1473 (2010). We affirm.
The denial of a writ of error coram nobis is reviewed
de novo. See Pilla v. United States, 668 F.3d 368, 372 (6th
Cir. 2012). In order to be entitled to relief, a petitioner
must show that: (1) “a more usual remedy is unavailable;”
(2) “valid reasons exist for not attacking his conviction
earlier;” (3) “adverse consequences flow from the conviction so
that there exists a case or controversy;” and (4) “the error is
of the most fundamental character.” Hirabayashi v. United
States, 828 F.2d 591, 604 (9th Cir. 1987).
We have reviewed the record and deny relief on two
grounds. Obomighie failed to show counsel was ineffective
because counsel could not have predicted that the offense would
later be classified as an aggravated felony. Furthermore, it is
clear from the transcript of the proceedings before the
immigration judge that Obomighie was aware prior to his guilty
plea that a conviction for credit card fraud could have some
immigration consequences. In addition, we note that Obomighie
has failed to show he was prejudiced by counsel’s conduct or
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that he will be free of any adverse consequences if the
conviction is vacated. After Obomighie was found removable as a
result of the credit card fraud conviction, the parties
stipulated to administrative closure. The case was recalendared
by the Department of Homeland Security after Obomighie was
convicted of assault. The immigration judge found the offense
was an aggravated felony and ordered that Obomighie be removed
on that basis. Thus, even if Obomighie’s credit card fraud
conviction is vacated, the order of removal would still be in
effect because he is still removable as a result of the assault
conviction.
Accordingly, while we grant Obomighie’s motion for
leave to proceed in forma pauperis, we affirm the district
court’s order. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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