Dorfmann v. United States

14-320-cv
Dorfmann v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of January, two thousand fifteen.
PRESENT: PETER W. HALL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
____________________________________________________
MARKUS DORFMANN,
Petitioner-Appellant,
v. No. 14-320-cv
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________________________________________
FOR APPELLANT: SAMUEL MICHAEL BRAVERMAN, Fasulo Braverman & Di
Maggio, LLP, Bronx, NY.
FOR APPELLEE: PARVIN DAPHNE MOYNE (Michael Alexander Levy,
Assistant United States Attorney, Brian A. Jacobs,
Assistant United States Attorney, and Natalie Lamarque on
the brief), Assistant United States Attorneys, for Preet
Bharara, United States Attorney for the Southern District of
New York, New York, NY.
_____________________________________________________
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Appeal from the United States District Court for the Southern District of New York
(Francis, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Petitioner-Appellant Markus Dorfmann (“Dorfmann”) appeals from a final judgment of
the United States District Court for the Southern District of New York (Francis, M.J.) denying
his petition for a writ of coram nobis. We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for review.
“We review de novo the standards that a District Court applies in considering the writ of
error coram nobis and review for abuse of discretion a District Court’s final decision to deny the
writ.” Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). “[I]neffective assistance of
counsel is one ground for granting a writ of coram nobis.” Kovacs v. United States, 744 F.3d 44,
49 (2d Cir. 2014) (citing Chhabra v. United States, 720 F.3d 395, 406 (2d Cir. 2013)). “A claim
of ineffective assistance entails a showing that: 1) the defense counsel’s performance was
objectively unreasonable; and 2) the deficient performance prejudiced the defense.” Id. “[A]
defense lawyer’s incorrect advice about the immigration consequences of a plea is prejudicial if
it is shown that, but for counsel’s unprofessional errors, there was a reasonable probability that
the petitioner could have negotiated a plea that did not impact immigration status or that he
would have litigated an available defense.” Id. at 52. In particular, “[t]he petitioner must clearly
demonstrate ‘that he placed particular emphasis on [immigration consequences] in deciding
whether or not to plead guilty.’” Id. (quoting United States v. Kwan, 407 F.3d 1005, 1017 (9th
Cir. 2005)).
The District Court denied the writ on the basis that Dorfmann failed to meet either of the
requirements for demonstrating ineffective assistance of counsel. This was not an abuse of
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discretion. Unlike in cases where a petitioner has satisfied “the very considerable burden”
required to demonstrate ineffective assistance of counsel, nothing in the factual record supports
petitioner’s assertions (1) that he was given incorrect legal advice regarding the potential
consequences of his plea and (2) that but for that incorrect advice he would have insisted on trial
or been able to secure a better plea bargain. Id. at 53. Indeed, the record indicates just the
opposite. Dorfmann has provided no evidence that his attorney ever misadvised him of the
immigration consequences of his plea, a matter about which he would have personal knowledge.
Instead he relies entirely on a letter from his attorney to the prosecution that says nothing about
how that attorney actually advised him. Absent so much as a sworn statement claiming that
Dorfmann’s counsel mischaracterized the effects of a misdemeanor plea, Dorfmann has not
established that he received ineffective assistance of counsel. The record is also insufficient with
respect to whether Dorfmann would have proceeded to trial or secured a more favorable plea
bargain had he been advised differently. No factual defenses appear to have been available to
Dorfmann, and he points to none on appeal. His purportedly ineffective counsel, moreover,
sought on Dorfmann’s behalf, but was not offered by the Government, a deferred prosecution in
lieu of the misdemeanor to which Dorfmann ultimately pleaded guilty. That plea to a
misdemeanor, nonetheless, allowed Dorfmann to avoid proceeding to trial on a felony charge
that was clearly supported by the available evidence.
We also agree with the magistrate judge that Dorfmann’s petition for a writ of coram
nobis was untimely, a determination that Dorfmann does not challenge on appeal. Id. at 54.
The judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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