United States v. Ruben Delhorno , 915 F.3d 449 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1707
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBEN DELHORNO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-CR-46 — J.P. Stadtmueller, Judge.
____________________
ARGUED OCTOBER 23, 2018 — DECIDED FEBRUARY 8, 2019
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. Defendant-appellant Ruben Del-
horno filed a petition for a writ of coram nobis, a rare form of
collateral attack on a criminal judgment. This ancient com-
mon-law remedy is available to correct errors of fact and law
in criminal cases, but only when: “(1) the error alleged is ‘of
the most fundamental character’ as to render the criminal con-
viction ‘invalid’; (2) there are ‘sound reasons’ for the defend-
ant’s ‘failure to seek earlier relief’; and (3) ‘the defendant
2 No. 18-1707
continues to suffer from his conviction even though he is out
of custody.’” United States v. Wilkozek, 822 F.3d 364, 368 (7th
Cir. 2016), citing United States v. Sloan, 505 F.3d 685, 697 (7th
Cir. 2007), and United States v. Keane, 852 F.2d 199, 203 (7th
Cir. 1988). Delhorno fails the second requirement. He cannot
offer “sound reasons” for failing to seek earlier relief through
a direct appeal or habeas corpus petition. We therefore affirm
the district court’s decision denying Delhorno’s writ of coram
nobis.
I. Factual and Procedural Background
Delhorno, age 42, was born in Mexico but came to the
United States with his parents when he was just three years
old. He was living in the United States as a lawful permanent
resident. (He could have applied for citizenship but never
did.) In 2011, Delhorno was pulled over for speeding. While
the officer was writing a speeding ticket, another officer ar-
rived with his drug-detection canine. The dog sniffed the ve-
hicle and alerted to the presence of drugs. Another officer at
the scene had been instructed in the installation of “trap”
compartments in vehicles and noticed that Delhorno’s vehicle
contained unusual wiring. The officers discovered four kilo-
grams of cocaine in a trap compartment in Delhorno’s vehicle.
Delhorno was indicted by a grand jury in the Eastern Dis-
trict of Wisconsin for one count of possessing cocaine with in-
tent to distribute in violation of 21 U.S.C. §§ 841(a)(1) &
841(b)(1)(B). Delhorno pleaded guilty to the indictment on
January 26, 2012. At the change of plea hearing, Delhorno
stated that he was born in Mexico and was a permanent resi-
dent of the United States. However, there was no discussion
about the immigration consequences of his guilty plea, even
though the hearing took place more than a year after the
No. 18-1707 3
Supreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010),
that a criminal defense lawyer provided ineffective assistance
of counsel by failing to advise his client that his guilty plea
would subject him to automatic deportation.
Following the change of plea hearing, the United States
Probation Office prepared a presentence report that included
this passage:
49. Mr. Delhorno explains he was born in Mex-
ico, but came with his parents to the United
States when he was three years old. His family
settled in Chicago Heights, Illinois. Mr. Del-
horno notes his parents came to the United
States illegally, seeking better opportunities for
themselves and their children. In 1988, his par-
ents were able to take advantage of an amnesty
program and were granted legal residency sta-
tus. Mr. Delhorno notes at that time he also was
granted legal resident status. He acknowledges
at the age of 18, he could have applied for citi-
zenship, but he has not done so. Mr. Delhorno
understood all his friends were born in the
United States so he never thought of himself dif-
ferently, so he did not pursue citizenship. Mr.
Delhorno understands this may present problems for
him, but he is trying to make arrangements to remain
in the United States.
50. Bureau of Immigrations and Customs En-
forcement confirmed Mr. Delhorno was granted
legal permanent resident status on 4/29/89. At
this time, the defendant is not under investigation
4 No. 18-1707
for deportation, but upon entry of judgement, the
matter will be investigated.
Presentence Report ¶¶ 49–50 (emphasis added).
Delhorno was sentenced on October 5, 2012. His lawyer
told the judge that Delhorno was seeking a “visa to remain in
the United States because he is a resident alien and never
sought citizenship[.]” Delhorno’s Sentencing Guideline range
was 78 to 97 months in prison. He was sentenced to 60 months
in prison, followed by a supervised release term of four years.
The court entered the written judgment and commitment or-
der that same day. Delhorno never filed a direct appeal or a
habeas corpus petition.
On February 26, 2015, while Delhorno was in prison, he
filed a motion to modify his term of imprisonment pursuant
to 18 U.S.C. § 3582(c)(2), based on a retroactive change to the
Sentencing Guidelines. After briefing, this motion was de-
nied. On May 26, 2016, Delhorno filed an amended motion to
modify his term of imprisonment pursuant to § 3582, which
was also denied.
On approximately May 1, 2017, Delhorno completed his
prison sentence and was transferred to the custody of the U.S.
Immigration and Customs Enforcement (“ICE”) for removal
procedures. On October 13, 2017, Delhorno filed his petition
for a writ of coram nobis. In the petition and attached affida-
vit, Delhorno argued that he received ineffective assistance of
counsel in his criminal case because his lawyer failed to ad-
vise him that pleading guilty subjected him to mandatory de-
portation. He contended that if he had known this, he would
never have pleaded guilty. Delhorno referenced and included
the transcript from his change of plea hearing which shows
No. 18-1707 5
that the court also failed to address the immigration conse-
quences of his guilty plea. In support of his arguments, he
cited Lee v. United States, 137 S. Ct. 1958 (2017), Padilla v. Ken-
tucky, 559 U.S. 356 (2010), and Hill v. Lockhart, 474 U.S. 52, 59
(1985).
The government responded, stating that it believed the
record needed to be developed further through a hearing be-
fore the court ruled on the petition. The district court disa-
greed and denied Delhorno’s petition without a hearing. Del-
horno argues on appeal that this was a mistake. We review
the district court’s decision to deny an evidentiary hearing for
an abuse of discretion. See Blanton v. United States, 94 F.3d 227,
235 (6th Cir. 1996), citing Green v. United States, 65 F.3d 546,
548 (6th Cir. 1995); see also United States v. Fuller, 86 F.3d 105,
107 (7th Cir. 1996) (judge “had no duty to conduct an eviden-
tiary hearing if, by analogy to summary judgment, he could
determine on the basis of affidavits, depositions, or other doc-
umentary materials of evidentiary quality that there was no
genuinely contestable issue of fact”). As we explain below, the
record here provided a sufficient basis to deny the petition
without a hearing, so the district court acted within its discre-
tion in denying a hearing.
Delhorno filed a timely notice of appeal on April 2, 2018.
He also filed a motion in the Eleventh Circuit for a stay of re-
moval. That motion was denied on May 27, 2018, and Del-
horno was deported to Mexico.
II. Analysis
The writ of coram nobis is a means for a collateral attack
on a criminal conviction alleging errors of law or fact that af-
fect the fundamental character of the conviction, including
6 No. 18-1707
inadequate counsel. Chaidez v. United States, 568 U.S. 342(2013). It is similar to a habeas corpus petition and affords the
same type of relief, United States v. Bonansinga, 855 F.2d 476,
478 (7th Cir. 1988), but it is available only when a defendant
is no longer in custody and thus can no longer take advantage
of habeas corpus relief. Stanbridge v. Scott, 791 F.3d 715, 720
n.3 (7th Cir. 2015). According to the Supreme Court, the writ
of coram nobis is to be used only in “extraordinary cases pre-
senting circumstances compelling its use to achieve justice,”
where alternative remedies are not available. United States v.
Denedo, 556 U.S. 904, 911 (2009), citing United States v. Morgan,
346 U.S. 502, 511 (1954) (internal quotation marks omitted).
We have explained that a successful coram nobis petition
must satisfy three prongs: “(1) the error alleged is ‘of the most
fundamental character’ as to render the criminal conviction
‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘fail-
ure to seek earlier relief’; and (3) ‘the defendant continues to
suffer from his conviction even though he is out of custody.’”
United States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016).
In reviewing a district court’s denial of a writ of coram
nobis without a hearing, this court conducts a de novo analysis
of the legal conclusions and a factual review for clear error. Id.We consider the three factors in a different order here than set
forth above. We conclude that Delhorno continues to suffer
from his conviction, but he likely cannot demonstrate funda-
mental error, and he certainly cannot justify his failure to seek
earlier relief. We affirm the denial of his petition for a writ of
coram nobis.
No. 18-1707 7
1. Continued Suffering
First, we have no doubt that Delhorno continues to suffer
from his conviction even though he is out of custody. We have
explained that coram nobis is
a postconviction remedy, equivalent to habeas
corpus or (for persons convicted in federal
court) section 2255, for petitioners who have
served their sentences and so cannot invoke ei-
ther of those remedies but who as a result of
having been convicted are laboring under some
serious civil disability that they’d like to elimi-
nate by setting aside their conviction—and re-
moval from the United States is serious, civil,
and a consequence of the petitioner’s convic-
tion.
Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013); see
also Martignoni v. United States, No. 10 Civ. 6671 JFK, 2011 WL
4834217, at *12 (S.D.N.Y. Oct. 12, 2011) (“Deportation is clearly
a legal consequence of conviction sufficient to warrant coram
nobis relief where all other requirements are satisfied[.]”). Del-
horno is no longer in prison and is not on supervised release,
so a writ of coram nobis is an appropriate means to challenge
the immigration consequences of his conviction. See Clarke,
703 F.3d at 1101–02 (defendant on supervised release is in cus-
tody for purposes of habeas corpus and therefore cannot seek
a writ of coram nobis).
Delhorno has been deported from the country where he
lived since he was three years old, back to a country where he
likely has minimal ties. His children and fiancée live in the
United States, and he will not be able to return unless his
8 No. 18-1707
conviction is vacated. This is a significant additional penalty
that followed his term of imprisonment. These continuing ef-
fects satisfy this prong of the coram nobis analysis.
2. Fundamental Error
To secure a writ of coram nobis, the error in the defend-
ant’s criminal conviction must be “of the most fundamental
character” so as to render the conviction “invalid.” Wilkozek,
822 F.3d at 368. Delhorno attempts to satisfy this prong
through a claim for ineffective assistance of counsel pursuant
to Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To do
this, he must demonstrate that counsel’s performance was ob-
jectively unreasonable and that the deficient performance
prejudiced the defense. Id. While we do not base our decision
on a failure to meet this prong of the coram nobis analysis
without a hearing, it is very unlikely Delhorno could demon-
strate that he was prejudiced.
In Padilla v. Kentucky, the Supreme Court held that crimi-
nal defense attorneys must inform non-citizen clients of the
risks of deportation arising from guilty pleas. 559 U.S. 356,
366–68 (2010); see also Chaidez v. United States, 568 U.S. 342,
345–47 (2013) (concluding that Padilla adopted a new rule and
was not retroactive). Delhorno’s guilty plea and sentencing
occurred more than a year after Padilla was issued, and we are
troubled that apparently neither his counsel, the prosecutor,
nor the court raised the issue of the mandatory immigration
consequences with him.1
1Delhorno’s lawyer alluded to these consequences at the sentencing
hearing when he explained that Delhorno was seeking a visa to remain in
the United States. There does not appear to have been any discussion of
mandatory deportation as a result of the conviction.
No. 18-1707 9
We are not convinced, however, that this apparently defi-
cient performance prejudiced Delhorno, as required for relief
under Strickland. Delhorno must show “there is a reasonable
probability that, but for counsel’s errors, [he] would not have
pled guilty and would have insisted on going to trial.” United
States v. Reeves, 695 F.3d 637, 639 (7th Cir. 2012), quoting Bethel
v. United States, 458 F.3d 711, 716 (7th Cir. 2006); see also Lee
v. United States, 137 S. Ct. 1958, 1965 (2017). The evidence
against Delhorno was very strong: he was stopped while driv-
ing with four kilograms of cocaine hidden in a trap compart-
ment. Delhorno himself showed the officers how to operate
the trap. Delhorno concedes that success at trial was a “long
shot.” Given the likelihood of conviction at trial and a poten-
tially longer prison sentence, coupled with the fact that Del-
horno was at least aware of the immigration issues, we find it
unlikely that Delhorno would have proceeded to trial if he
had been given proper Padilla warnings.
We are unpersuaded by Delhorno’s comparison of his sit-
uation to that in Lee v. United States, a case in which the Su-
preme Court found that the defendant established a reason-
able probability that he would not have pleaded guilty if he
had known of the immigration consequences. 137 S. Ct. 1958,
1969 (2017). In Lee, before the defendant pleaded guilty to an
aggravated felony, he had asked his attorney multiple times
whether he would be deported. Id. at 1967–68. His attorney
affirmatively told him that he would not be deported. Id. at
1963. Lee also specifically told the sentencing judge that de-
portation would affect his decision to plead guilty. Id. at 1968.
After discovering that he would be deported, Lee immedi-
ately filed a § 2255 motion. Id. at 1963. Both Lee and his attor-
ney testified at the subsequent hearing that he would not have
pleaded guilty if he had known he would be deported. Id.
10 No. 18-1707
In contrast, Delhorno has produced no contemporaneous
evidence showing that he would not have pleaded guilty. His
protests appear to be more in the category of “post hoc asser-
tions from a defendant about how he would have pleaded but
for his attorney’s deficiencies.” Id. at 1967. These do not weigh
in favor of upsetting Delhorno’s guilty plea through a writ of
coram nobis. Id. Despite our skepticism, though, the district
court denied Delhorno’s request for a hearing to present his
argument and evidence. If this prong were dispositive, it
might be necessary to remand for a hearing. Delhorno fails to
satisfy the final prong, however, so we need not reach a firm
conclusion on whether a hearing was necessary on the merits.
3. Sound Reasons for Delay
We agree with the district court that Delhorno failed to
take any steps regarding his immigration status until he filed
this coram nobis petition, five years after he was sentenced.
As noted, a person seeking a writ of coram nobis must offer
sound reasons for his failure to seek relief earlier. Wilkozek,
822 F.3d at 368. Delhorno has failed to justify his delay, and
on this ground we affirm the denial of his petition.
Based on his presentence report, which was filed in April
2012 in advance of his October 2012 sentencing, Delhorno
knew or should have known that his conviction could lead to
his deportation. The report said that Delhorno knew his non-
citizenship could present problems for him and that he was
“trying to make arrangements to remain in the United States.”
The report also said that ICE would investigate his case for
deportation following the entry of judgment. With this
knowledge, Delhorno went ahead and pleaded guilty. At his
sentencing hearing, his lawyer explained to the court that Del-
horno was seeking a visa because he was a resident alien and
No. 18-1707 11
had never sought citizenship. Also, as the district court noted,
Delhorno would have likely discovered this immigration is-
sue when he was classified as a “deportable alien” by the Fed-
eral Bureau of Prisons when he was taken into custody.2
At the time when he knew or should have known about
his immigration issues, Delhorno had multiple avenues for re-
lief. He could have filed a direct appeal. He also could have
filed a habeas corpus petition under 28 U.S.C. § 2255. He did
neither. The statute of limitations for a habeas corpus petition
would have run from “the date on which the facts supporting
the claim or claims presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4)
(emphasis added). A reasonably diligent defendant would
have discovered the immigration issues by reviewing the
presentence report, paying attention at the sentencing hear-
ing, and noticing his BOP classification. Delhorno had an en-
tire year—until October 2013—to file a habeas petition.
Delhorno has offered no justification for failing to seek ear-
lier relief through less extraordinary channels. The record
shows conclusively that he knew or should have known about
his immigration issues before, during, and after his
2 We assume for purposes of this appeal that no one ever told Del-
horno that he would certainly be deported (i.e., that he was subject to man-
datory deportation). At oral argument in this appeal, Delhorno’s counsel
explained that Delhorno may have pleaded guilty knowing there were im-
migration issues but with the understanding that there could be avenues
for him to continue living in the United States through some sort of visa.
We do not believe the distinction between a warning of mandatory depor-
tation as opposed to likely deportation matters for our present purposes.
Delhorno was clearly aware that there were immigration consequences to
his guilty plea. He chose to go ahead with his plea and did not raise any
challenges for five years.
12 No. 18-1707
sentencing. Delhorno’s five-year delay in addressing this is-
sue was unreasonable and prevents the federal courts from
granting relief through the extraordinary form of a writ of co-
ram nobis. The district court’s denial of Delhorno’s petition is
AFFIRMED.