United States v. Marie Louis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12501 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 16, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:89-cr-06122-UNA-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIE LOUIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 16, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Marie Louis, a foreign national and former federal prisoner, appeals the
district court’s denial of her petition for a writ of error coram nobis, filed pursuant
to the All Writs Act, 28 U.S.C. § 1651. Relying on the Supreme Court’s then-
recent decision in Padilla v. Kentucky, 559 U.S. , 130 S. Ct. 1473 (2010), Louis
sought to vacate her 1990 federal drug-trafficking conviction based on her trial
attorney’s alleged failure to advise her of the deportation consequences of
pleading guilty. After conducting a hearing concerning Louis’s plea and counsel’s
conduct at the time, the district court found that Louis failed to present sound
reasons for not seeking relief earlier, failed to demonstrate that her attorney did
not adequately advise her of the immigration consequences of pleading guilty, and
failed to establish that she suffered any prejudice as a result of counsel’s alleged
error.
Louis now appeals, arguing that the district court abused its discretion by
denying her coram nobis petition because Padilla applies retroactively to cases on
collateral review and her former attorney failed to advise her that a guilty plea
would automatically subject her to deportation.
We review the denial of coram nobis relief for an abuse of discretion.
United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002). A district court abuses
its discretion if it applies an incorrect legal standard, follows improper procedures,
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or relies on findings of fact that are clearly erroneous. United States v. Jordan,
582 F.3d 1239, 1249 (11th Cir. 2009). Nonetheless, issues that are not plainly and
prominently raised on appeal are deemed abandoned and will not be considered.
United States v. Jerigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). This includes
issues that are simply referenced in passing without substantive argument as to
their merits. Id.
A writ of error coram nobis is “an extraordinary remedy of last resort
available only in compelling circumstances where necessary to achieve justice.”
United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). The bar for coram
nobis relief is high, and the writ may issue only where (1) “there is and was no
other available avenue for relief,” and (2) “the error involves a matter of fact of the
most fundamental character which has not been put in issue or passed upon and
which renders the proceeding itself irregular and invalid.” Alikhani v. United
States, 200 F.3d 732, 734 (11th Cir. 2000). Furthermore, a district court may
consider a coram nobis petition only where “the petitioner presents sound reasons
for failing to seek relief earlier.” Mills, 221 F.3d at 1204.
A petitioner asserting a claim of ineffective assistance of counsel must show
both that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687
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(1984). Before the Supreme Court issued its 2010 decision in Padilla, most
courts, including this one, held that counsel was under no constitutional obligation
to advise a client of the possible deportation consequences of pleading guilty. See,
e.g., Padilla, 559 U.S. at , 130 S.Ct. at 1481 n.9 (collecting cases); see also
United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir. 1985). In Padilla, the
Supreme Court rejected this view, holding that an attorney renders deficient
performance by failing to advise a non-citizen client that a guilty plea “carries a
risk of deportation.” 559 U.S. at , 130 S.Ct. at 1486. The Supreme Court did
not, however, alter or address the prejudice requirement for obtaining relief, which
continues to demand a showing that there was a reasonable probability that, but
for counsel’s errors, the petitioner would not have pleaded guilty and would have
insisted on going to trial. See id. at , 130 S.Ct. at 1478, 1483-84; Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Circuits are split as to whether Padilla should be given retroactive effect to
convictions that became final prior to its issuance, pursuant to the principles set
forth in Teague v. Lane, 489 U.S. 288 (1984). See, e.g., Chaidez v. United States,
655 F.3d 684, 686 (7th Cir. 2011) (Padilla does not apply retroactively to cases on
collateral review); United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011)
(Padilla does apply retroactively). And although this circuit has not addressed the
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issue, we need not do so here.
In this case, the district court assumed that Padilla was retroactively
applicable but found that Louis failed to satisfy the prejudice prong of Strickland.
Louis fails to challenge this finding in her brief and thus has abandoned it.1
Accordingly, Louis has not shown that the district court abused its
discretion in denying her petition, and we affirm the district court’s denial of her
petition for a writ of error coram nobis.
AFFIRMED.
1
She has also abandoned any challenge to the district court’s alternate findings, each of
which standing alone would be a sufficient basis to deny relief.
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