United States v. Jose Luis Ramos

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-14936 MAY 2, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 4:92-cr-10007-JLK-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
JOSE LUIS RAMOS,
a.k.a. Jose A. Ramos,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 2, 2012)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Luis Ramos, a citizen of Cuba and permanent resident of the United
States, appeals the district court’s order denying his petition for a writ of error
coram nobis, 28 U.S.C. § 1651. Based on Padilla v. Kentucky, — U.S. —, 130
S. Ct. 1473 (2010), Ramos alleges ineffective assistance of counsel at the time that
he pleaded guilty to a drug offense in 1992. Assuming for the sake of argument
that Padilla has retroactive effect, Ramos has not shown that his counsel’s
representation at the time of his guilty plea was deficient under Padilla.
In 1992, Ramos pleaded guilty to one count of conspiracy to possess with
intent to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and
was sentenced to eighty-four months in prison. In March 2009, the Department of
Homeland Security issued Ramos a Notice to Appear, and in March 2010, he was
ordered to be deported. In March 2011, he sought post-conviction relief based on
ineffective assistance of counsel.
We review a district court’s denial of a writ of error coram nobis for abuse
of discretion. United States v. Peter, 310 F.3d 709, 711 (2002). The All Writs Act,
28 U.S.C. § 1651(a), grants authority to federal courts to issue a writ of error
coram nobis. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). The
writ serves as a remedy to vacate a conviction once a petitioner has served his
sentence and is no longer in custody, Peter, 310 F.3d at 712, thereby allowing a
2
petitioner to obtain relief from the persistent adverse legal consequences of a
wrongful conviction, id. at 715–16.
Ramos contends that his guilty plea should be vacated under the Supreme
Court’s recent decision in Padilla, because his defense counsel failed to inform him
of the potential adverse immigration consequences at the time he pleaded guilty.
In Padilla, the Supreme Court applied Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), to hold that, based on prevailing professional norms at the time
of Padilla’s guilty plea, his counsel’s failure to advise him of the risk of
deportation following a conviction for the charge at issue constituted
constitutionally deficient representation. 130 S. Ct. at 1482–84.
In reaching this conclusion, the Supreme Court examined two critical
developments in immigration law over the past two decades. First, in 1990,
Congress eliminated the judicial recommendation against deportation (JRAD), a
form of judicial relief during sentencing that had been previously available to
noncitizens convicted of narcotics offenses. See Immigration Act of 1990, Pub. L.
No. 101-649, § 505, 104 Stat. 4978, 5050 (1990); Padilla, 130 S. Ct. at 1479–80.
Second, in 1996, Congress removed the Attorney General’s discretion to grant
relief from deportation to immigrants convicted of aggravated felonies. See Illegal
Immigration Reform & Immigration Responsibility Act of 1996, Pub. L. No. 104-
3
208, § 304, 110 Stat. 3009-546, 3009-594, 3009-597 (1996); I.N.S. v. St. Cyr, 533
U.S. 289, 297, 121 S. Ct. 2271, 2277–78 (2001). The Supreme Court noted in
Padilla that, “if a noncitizen has committed a removable offense after the 1996
effective date of these amendments, his removal is practically inevitable.” 130
S. Ct. at 1480. Professional legal norms adapted to the fact that “the deportation
consequence” of a guilty plea was “truly clear” under this new regime. Id. at 1483.
Thus, these legislative developments as reflected in professional norms defined the
contours of the Sixth Amendment right to effective assistance of counsel to include
advising a criminal defendant of the risk of deportation following a guilty plea. Id.
at 1480, 1482–84.
Here, Ramos pleaded guilty to his drug offense in 1992. His guilty plea,
although it postdated the elimination of JRAD, predated the 1996 amendments that
made it “practically inevitable” he would be subject to deportation. Id. at 1480.
Ramos has not otherwise shown that at the time of his guilty plea, professional
norms had adapted to the developments in immigration law. Notably, he fails to
cite a single source of professional legal norms at the time of his guilty plea
suggesting that his counsel’s representation was deficient. As such, we cannot say
that the failure of Ramos’s counsel to advise him of the immigration consequences
of pleading guilty in 1992 amounted to ineffective assistance of counsel under
4
Padilla.
For the reasons stated, we AFFIRM the district court.
5