United States v. Kwan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50315
Plaintiff-Appellee, D.C. No.
v.
 CR-96-00433-SVW
KWOK CHEE KWAN, aka Jeff Kwan, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 6, 2004—Pasadena, California
Filed May 12, 2005
Amended July 21, 2005
Before: Betty B. Fletcher, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Betty Binns Fletcher
8543
UNITED STATES v. KWAN 8547
COUNSEL
David Ross, Ross, Rose & Hammill, LLP, Beverly Hills, Cal-
ifornia, for the defendant-appellant.
John Owens, Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellee.
ORDER
The Government’s request in its petition for panel rehear-
ing to correct a factual error is granted to the following extent
to clarify the opinion, United States of America v. Kwok Chee
Kwan, aka Jeff Kwan, slip. op. 5147 filed May 12, 2005.
The first two sentences of the paragraph that begins at the
bottom of slip op. 5152 and continues on page 5153 are
deleted and the following is inserted in its place:
Defense counsel did not inform Kwan that, as a
result of this change in the definition of an aggra-
vated felony, he had pled guilty to an offense that
would almost certainly cause him to be deported.
Nor did counsel inform Kwan, or the court, that
Kwan potentially could avoid deportation, either by
8548 UNITED STATES v. KWAN
renegotiating his plea agreement or by receiving a
sentence of less than one year. On December 2,
1996, the court applied one downward adjustment
(for acceptance of responsibility), which reduced the
sentencing range from 18-24 months to 12-18
months. The court then sentenced Kwan to a prison
term of one year and one day. The court also ordered
him to pay restitution of $10,000.
The sentence on slip op. 5153 that begins, “On May 1,
1997, the Immigration and Naturalization Service (“INS”)
issued Kwan a Notice to Appear . . .,” then starts a new para-
graph.
The petition for rehearing is otherwise denied.
Future petitions for rehearing and petitions for rehearing en
banc shall not be entertained.
OPINION
B. FLETCHER, Circuit Judge:
Kwok Chee Kwan appeals the district court’s dismissal of
his petition for writ of error coram nobis. Kwan’s petition col-
laterally attacks his conviction by guilty plea and his sentence
on the ground of ineffective assistance of counsel. Because
we find that Kwan’s counsel was constitutionally ineffective
in affirmatively misleading him as to the immigration conse-
quences of his conviction, and that Kwan has satisfied all of
the requirements for coram nobis relief, we reverse.
I.
Kwan entered the United States in March of 1989. Subse-
quently, he became a lawful permanent resident. His wife and
UNITED STATES v. KWAN 8549
three children, ages 12, 15, and 18, are United States citizens.
In February of 1996, Kwan was indicted for two counts of
bank fraud. When considering whether to plead guilty, Kwan
asked his defense counsel whether doing so would cause him
to be deported. Defense counsel assured Kwan that although
there was technically a possibility of deportation, “it was not
a serious possibility.” Counsel further assured Kwan that this
advice was based “on his knowledge and experience.” Coun-
sel also explained to Kwan that, at his plea colloquy, the
judge would tell him that he might suffer immigration conse-
quences, but reassured him that there was no serious possibil-
ity that his conviction would cause him to be deported.
On July 9, 1996, Kwan pled guilty to two counts of bank
fraud in violation of 18 U.S.C. § 1344(1). Under the Sentenc-
ing Guidelines, the sentencing range for Kwan’s conviction
was 18-24 months imprisonment; however, Kwan was poten-
tially eligible for various downward adjustments that, if
granted, could reduce his sentence to less than one year.
Legal permanent residents who are convicted of an aggra-
vated felony are subject to deportation. 8 U.S.C.
§ 1227(a)(2)(iii). On September 30, 1996, the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) was enacted; inter alia, IIRIRA amended the defi-
nition of an aggravated felony under the Immigration and
Nationality Act (“INA”) by reducing the prison-sentence
requirement for a qualifying theft offense from “at least five
years” to “at least one year.” See Pub. L. No. 104-208, 1996
HR 3610 (amending 8 U.S.C. § 1101(a)(43)(G)). IIRIRA
expressly provided that changes in the definition of an aggra-
vated felony would apply retroactively, regardless of the date
of conviction. 8 U.S.C. § 1101(a)(43) (“Notwithstanding any
other provision of law (including any effective date), the term
applies regardless of whether the conviction was entered
before, on, or after September 30, 1996.”).
Defense counsel did not inform Kwan that, as a result of
this change in the definition of an aggravated felony, he had
8550 UNITED STATES v. KWAN
pled guilty to an offense that would almost certainly cause
him to be deported. Nor did counsel inform Kwan that he
potentially could avoid deportation, either by renegotiating his
plea agreement or by receiving a sentence of less than one
year. On December 2, 1996, the court applied one downward
adjustment (for acceptance of responsibility), which reduced
the sentencing range from 18-24 months to 12-18 months.
The court then sentenced Kwan to a prison term of one year
and one day. The court also ordered him to pay restitution of
$10,000.
On May 1, 1997, the Immigration and Naturalization Ser-
vice (“INS”) issued Kwan a Notice to Appear, which stated
that he was subject to deportation because he had been con-
victed of an aggravated felony. Kwan retained immigration
counsel and challenged his deportation, and on December 10,
1997, the Immigration Judge (“IJ”) ruled that Kwan’s offense
was not an aggravated felony as defined under either 8 U.S.C.
§ 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R). Kwan
completed his prison term and was released from INS cus-
tody. After rejoining his family, he completed his period of
supervised release and paid the entire $10,000 restitution
ordered by the sentencing court.
However, on May 26, 2000, the INS issued Kwan a second
Notice to Appear, which again informed Kwan that he was
subject to deportation because his 1996 conviction was an
aggravated felony. On February 26, 2001, the second IJ to
consider Kwan’s status found that he had been convicted of
a theft offense for which a term of imprisonment of at least
one year was imposed, an aggravated felony as defined under
8 U.S.C. § 1101(a)(43)(G). After Kwan’s Motion to Revisit
was denied, he filed the petition for writ of coram nobis that
is the subject of this appeal.
II.
[1] Before addressing the merits of this appeal, we must
address the government’s motion to dismiss for lack of juris-
UNITED STATES v. KWAN 8551
diction, which argues that we lack jurisdiction over this
appeal because Kwan failed to first obtain a Certificate of
Appealability (“COA”). Whether the COA requirement of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
as specified in 28 U.S.C. § 2253(c)(1), applies to coram nobis
proceedings is a question of first impression for this court. We
find that the COA requirement does not apply to coram nobis
proceedings, hold that we have jurisdiction to review the dis-
trict court’s denial of Kwan’s coram nobis petition without a
COA, and deny the motion to dismiss.
[2] In reaching our conclusion, we keep in mind the partic-
ular nature of coram nobis relief: whereas petitions for habeas
corpus relief and motions for relief under 28 U.S.C. § 2255may only be filed by persons who are in government custody,
“[t]he writ of error coram nobis affords a remedy to attack a
conviction when the petitioner has served his sentence and is
no longer in custody.” Estate of McKinney By and Through
McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995).
“Specifically, the writ [of coram nobis] provides a remedy for
those suffering from the lingering collateral consequences of
an unconstitutional or unlawful conviction based on errors of
fact and egregious legal errors.” Id. (quotation marks and cita-
tion omitted).
[3] Section 2253(c)(1) makes the grant of a COA necessary
in only two kinds of appeals: an appeal from “(A) the final
order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court;
or (B) the final order in a proceeding under section 2255.” 28
U.S.C. § 2253(c)(1); see also Forde v. United States Parole
Comm’n, 114 F.3d 878, 879 (9th Cir. 1997) (concluding that
the plain language of 28 U.S.C. § 2253(c)(1) does not require
a COA in an appeal from an order denying a § 2241 petition
where the detention complained of does not arise out of a pro-
cess issued by a state court). Thus, the plain language of 28
U.S.C. § 2253(c)(1) indicates that a COA is not required to
8552 UNITED STATES v. KWAN
obtain appellate review of the denial of a coram nobis peti-
tion.
[4] The Third Circuit is the only circuit that has ruled on
the question of whether a COA is required before an appeal
of a petition for a writ of error coram nobis may be taken, and
it held that there is no COA requirement for coram nobis
appeals.1 See United States v. Baptiste, 223 F.3d 188, 189 n.1
(3d Cir. 2000) (“Neither the statute making the writ of error
coram nobis available in federal courts in criminal matters,
see 28 U.S.C. § 1651(a), nor any Federal Rule of Appellate
Procedure requires a certificate of appealability before an
appeal may be taken, nor does such a requirement appear in
the case law.”).
In arguing that this court should find that coram nobis
appeals are subject to the COA requirement, despite the plain
language of 28 U.S.C. § 2253(c)(1) and the Third Circuit’s
holding in Baptiste, the government points only to cases that
are inapposite here. First, the government cites two cases in
which we have applied AEDPA’s COA requirement to
motions collaterally attacking convictions but not brought
under 28 U.S.C. § 2255: Porter v. Adams, 244 F.3d 1006 (9th
Cir. 2001) and Ortiz v. Stewart, 195 F.3d 520 (9th Cir. 1999).
What the government fails to recognize is that in both Porter
and Ortiz, we held that the petitioners’ motions were subject
to the COA requirement only because we found that the
motions had to be construed as successive habeas petitions: in
both cases, the petitioners were attempting to raise claims via
forms of collateral attack that are not subject to the COA
requirement solely because they had already unsuccessfully
attempted to obtain relief via forms of collateral attack that
are subject to the COA requirement. See Porter, 244 F.3d at
1007 (applying the COA requirement to a § 2241 motion and
distinguishing Forde after concluding that the motion should
1
The Second Circuit declined to decide this issue in United States v.
Mandanici, 205 F.3d 519, 524 n.9 (2d Cir. 2000).
UNITED STATES v. KWAN 8553
be construed as a successive § 2255 motion to which
§ 2253(c)(1) applied); Ortiz, 195 F.3d at 520-21 (applying the
COA requirement to a Rule 60(b) motion after concluding
that the motion should be construed as a successive habeas
petition to which § 2253(c)(1) applied). Unlike the motions at
issue in Porter and Ortiz, Kwan’s coram nobis petition cannot
be construed as a successive petition for collateral relief.
[5] The government also relies upon cases where we have
prevented the use of coram nobis petitions to circumvent
AEDPA’s gatekeeping provisions by persons who would be
eligible to petition for the forms of collateral relief governed
by AEDPA but for those gatekeeping provisions. For exam-
ple, the government cites Matus-Leva v. United States, 287
F.3d 758, 761 (9th Cir. 2002), in which a prisoner argued that
he was eligible for coram nobis relief, despite the fact that he
remained in government custody, because he could show that
“a more usual remedy” was unavailable to him. Id. at 761.
However, the more usual remedy of a § 2255 petition was not
available to him only because he was time-barred from bring-
ing a § 2255 petition. Id. Because Matus-Leva was eligible for
§ 2255 relief but for the AEDPA time-bar, we held that he
was ineligible for coram nobis relief. Id. (“Matus-Leva cannot
overcome the first hurdle [for coram nobis eligibility] because
he is still subject to supervised release, and thus he is in ‘cus-
tody.’ A person in custody may seek relief pursuant to 28
U.S.C. § 2255. Because the more usual remedy of a habeas
petition is available, the writ of error coram nobis is not.”
(citations omitted)). Unlike Matus-Leva, Kwan has served his
full sentence and is no longer in custody. As a result, he is no
longer eligible for any form of relief governed by AEDPA,
and he is not using the writ of coram nobis simply as a means
to bypass AEDPA’s gatekeeping requirements.
Arguing that it would be “at odds with AEDPA” to permit
a person who petitions for coram nobis relief after serving his
or her full sentence to avoid AEDPA’s gatekeeping require-
ments, the government ignores the obvious reason why those
8554 UNITED STATES v. KWAN
gatekeeping requirements are not necessary in legitimate
coram nobis cases — namely, few defendants who have
already completely served their sentences continue to have
reasons to challenge their conviction or sentence.
[6] For the foregoing reasons, we hold that AEDPA’s COA
requirement does not apply to coram nobis proceedings. We
further conclude that there is no compelling reason to con-
strue Kwan’s coram nobis petition as one that is subject to the
COA requirement.
[7] Federal courts have authority to issue the writ of coram
nobis under the All Writs Act, 28 U.S.C. § 1651(a). Kwan
filed his petition for writ of error coram nobis on June 19,
2002. The district court granted the government’s motion to
dismiss the petition on May 28, 2003. Petitioner filed his
notice of appeal on June 26, 2003. Pursuant to Rule 4(a)(1)
of the Federal Rules of Appellate Procedure, the appeal is
timely.2 We have jurisdiction over this appeal under 28 U.S.C.
§ 1291.
III.
[8] We review a denial of the writ of error coram nobis de
novo. McKinney, 71 F.3d at 781; United States v. Walgren,
885 F.2d 1417, 1420 (9th Cir. 1989).
[T]o qualify for coram nobis relief, four require-
ments must be satisfied. Those requirements are: (1)
a more usual remedy is not available; (2) valid rea-
sons exist for not attacking the conviction earlier; (3)
2
Rule 4 of the Federal Rules of Appellate Procedure was amended in
2002 to clarify whether an appeal from an order granting or denying a
petition for writ of error coram nobis is governed by criminal or civil time
limitations. As amended, Rule 4 expressly provides that such appeals are
governed by the civil time limitations, superseding our holding in Yasui
v. United States, 772 F.2d 1496 (9th Cir. 1985). See Fed. R. App. P., Advi-
sory Committee Notes to Rule 4, 2002 Amendments.
UNITED STATES v. KWAN 8555
adverse consequences exist from the conviction suf-
ficient to satisfy the case or controversy requirement
of Article III; and (4) the error is of the most funda-
mental character.
McKinney, 71 F.3d at 781-82 (quotation marks and citations
omitted). We find that Kwan satisfied all four requirements
for coram nobis relief. We address each requirement in turn.
A.
[9] Kwan satisfied the first requirement, that “a more usual
remedy is not available” to him, by establishing that he is not
in custody and, as a result, not eligible for habeas relief or
§ 2255 relief. See United States v. Mett, 65 F.3d 1531, 1533-
34 (9th Cir. 1995). The government argues that Kwan did not
satisfy this first requirement because Kwan could have filed
a § 2255 motion while he was still in custody but failed to do
so. In other words, the government argues that Kwan cannot
be eligible for coram nobis relief, even though § 2255 relief
is clearly not available to him now, because a “more usual
remedy was available to him” then.
Other courts have not interpreted this threshold requirement
as the government would have us do. See, e.g., United States
v. Morgan, 346 U.S. 502, 512 (1954) (finding petitioner met
threshold requirement for coram nobis relief even though peti-
tioner could have raised denial of counsel claim by filing
§ 2255 motion while incarcerated); United States v. Esogbue,
357 F.3d 532, 534 (5th Cir. 2004) (same).
Moreover, the government’s argument asks us to adopt a
subtle change in the language of the threshold requirement
(from “is unavailable” to “was unavailable”) that would cause
a great change in its meaning (from “unavailable now” to “un-
available ever”). If the mere fact that a coram nobis petitioner
could have raised his claim while in custody was sufficient to
bar coram nobis eligibility, then there would be no need for
8556 UNITED STATES v. KWAN
the second coram nobis requirement, which requires the peti-
tioner to establish that “valid reasons exist for not attacking
the conviction earlier.” Taken together, the first and second
requirements make clear that a petitioner is not barred from
seeking coram nobis relief simply because he could have
sought relief while in custody. Instead, he is given the oppor-
tunity to explain why he did not seek relief while in custody,
and he is only barred from coram nobis eligibility if he fails
to show that he had valid reasons for delaying.3
B.
“Because a petition for writ of error coram nobis is a collat-
eral attack on a criminal conviction, the time for filing a peti-
tion is not subject to a specific statute of limitations.” Telink,
Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994); see also
Morgan, 346 U.S. at 507 (explaining that coram nobis peti-
tions are allowed “without limitation of time”). In lieu of a
specific statute of limitations, courts have required coram
nobis petitioners to provide valid or sound reasons explaining
why they did not attack their sentences or convictions earlier.
See, e.g., Morgan, 346 U.S. at 512; McKinney, 71 F.3d at 781;
Maghe v. United States, 710 F.2d 503, 503-04 (9th Cir. 1983).
Similarly, in Telink, we explained that a coram nobis petition
“is subject to the equitable doctrine of laches . . . [which] bars
a claim if unreasonable delay causes prejudice to the defen-
3
The Fifth Circuit adopted similar reasoning in Esogbue. In that case,
the petitioner had filed his petition in the court of his conviction, faced the
collateral consequence of possible deportation, and was no longer serving
his sentence for his federal conviction, but the government argued that
Esogbue’s coram nobis petition should be dismissed because Esogbue
could have sought permission to file a successive § 2255 motion instead.
357 F.3d at 533-34. The Fifth Circuit explained that “this argument is
flawed, because Esogbue was no longer in custody when he sought coram
nobis relief; therefore, the alternative legal remedy of a successive § 2255
motion was not available to him at that time.” Id. at 534. The Fifth Circuit
further noted that, on remand, Esogbue would still have to demonstrate
sound reasons for failing to assert his claims while he was still in custody.
Id. at 535.
UNITED STATES v. KWAN 8557
dant.” 24 F.3d at 45 (citations omitted); see also Hirabayashi
v. United States, 828 F.2d 591, 605 (9th Cir. 1987) (rejecting
argument that coram nobis petition should be denied on the
ground of laches because petitioner’s reasons for delaying
were reasonable). If a respondent seeks dismissal of a coram
nobis petition on the ground of laches, the respondent bears
the burden of showing he was prejudiced by the petitioner’s
delay. Telink, 24 F.3d at 47.
While courts have not elaborated on what constitutes a
“sound” reason, our review of coram nobis cases reveals that
courts have denied relief on this ground where the petitioner
has delayed for no reason whatsoever, where the respondent
demonstrates prejudice, or where the petitioner appears to be
abusing the writ. For example, in Maghe, the petitioner filed
a coram nobis petition challenging a 25-year old conviction.
710 F.2d at 503. Maghe had pled guilty to transporting a
stolen motor vehicle in 1956, and a collateral consequence of
that conviction was an “undesirable discharge” from the
Army. Id. Twenty-five years later, Maghe requested that the
Army upgrade his discharge, and the Army denied the
request. Id. In response, Maghe filed a coram nobis petition
challenging the validity of the 1956 conviction. Id. Unlike
Kwan, Maghe had been aware of the ground for attacking his
conviction throughout the duration of the 25-year delay.
Unlike Kwan, who sought the advice of counsel and pursued
legal remedies to address the collateral consequences of his
conviction during the period of delay, Maghe simply delayed
for twenty-five years and offered no explanation for doing so.
Id. at 504; see also Klein v. United States, 880 F.2d 250, 254
(10th Cir. 1989) (petitioner delayed seeking coram nobis
relief for seven years without any explanation, delay caused
prejudice to the government because key witnesses died, and
petitioner was raising claims that had already been litigated);
United States v. Correa-De Jesus, 708 F.2d 1283, 1286 (7th
Cir. 1983) (petitioner waited sixteen years to re-litigate claim
that he had raised and then dropped on direct appeal); Marti-
nez v. United States, 90 F. Supp. 2d 1072, 1075-77 (D. Haw.
8558 UNITED STATES v. KWAN
2000) (petitioner attacking prior conviction on a ground that
he had already litigated and failed to challenge on direct
appeal, failed to collaterally challenge while in custody for
that conviction, and failed to collaterally challenge until six
years after receiving enhanced sentence for a subsequent con-
viction).
[10] In the instant case, Kwan has provided a reasonable
explanation for not challenging his conviction earlier, the
government has failed to demonstrate prejudice, and Kwan is
not abusing the writ — he is not attempting to re-litigate
claims or circumvent procedural bars. Although the district
court found that Kwan’s reasons for delaying were not sound,
we disagree. In reaching its conclusion, the district court rea-
soned that Kwan’s delay was not justified because the Service
first notified Kwan that it considered him removable on the
basis of his conviction in May, 1997, and Kwan could have
challenged his conviction by filing a § 2255 motion at that
time. However, Kwan explained that he did not pursue habeas
relief in 1997 because he retained immigration counsel, and
that counsel advised him to challenge the INS’s determination
that Kwan’s conviction was an aggravated felony under either
8 U.S.C. § 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R), as
indicated in Kwan’s first Notice to Appear. Given the fact that
defense counsel had advised him that there was little chance
his conviction would cause him to be deported, Kwan’s deci-
sion to focus on challenging his deportation on the basis of
that conviction was reasonable. Only after the INS re-initiated
removal proceedings against Kwan and determined that his
conviction was an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G) did Kwan have reason to conclude that his
criminal defense counsel had in fact erred and affirmatively
misled him by advising him that there was “no serious possi-
bility” that his conviction would cause him to be deported.
Although it may have been more prudent of Kwan to collat-
erally attack his conviction earlier, his course of action was
reasonable. The law does not require Kwan to challenge his
UNITED STATES v. KWAN 8559
conviction at the earliest opportunity, it only requires Kwan
to have sound reasons for not doing so. Cf. United States v.
Tucor Int’l, Inc., 189 F.3d 834, 836-38 (9th Cir. 1999) (grant-
ing coram nobis relief even though the petitioner waited four
years after pleading guilty to file coram nobis petition and
petitioner could have, but did not, raise same claim at the time
of conviction); Hirabayashi, 828 F.2d at 605 (rejecting argu-
ment that coram nobis petition, filed nearly forty years after
conviction, should be dismissed on ground of laches where
claim was based upon evidence that could have been, but was
not, discovered years earlier); Rewak v. United States, 512
F.2d 1184, 1185 (9th Cir. 1975) (granting coram nobis peti-
tion for sentencing error ten years after petitioner was
released from custody).
In sum, because there is no statute of limitations for coram
nobis petitions, Kwan has provided sound reasons for not
challenging his conviction earlier, Kwan is not attempting to
abuse the writ of coram nobis, and the government has not
even suggested that Kwan’s delay caused it any prejudice, we
decline to find Kwan ineligible for relief based solely on the
fact that he could have, but did not, collaterally attack his con-
viction earlier.
C.
[11] It is undisputed that the possibility of deportation is an
“adverse consequence” of Kwan’s conviction sufficient to sat-
isfy Article III’s case or controversy requirement. See, e.g.,
Park v. California, 202 F.3d 1146, 1148 (9th Cir. 2000)
(“Because he faces deportation, Park suffers actual conse-
quences from his conviction.”); Esogbue, 357 F.3d at 534
(finding collateral consequence of deportation sufficient to
establish jurisdiction for coram nobis petition).
D.
[12] Kwan may satisfy the fundamental error requirement
by establishing that he received ineffective assistance of coun-
8560 UNITED STATES v. KWAN
sel. See Mett, 65 F.3d at 1534 (explaining that “[a]n individ-
ual no longer in custody may employ the rarely-used writ of
coram nobis to make a Sixth Amendment assistance of coun-
sel attack on his conviction”); Esogbue, 357 F.3d at 534-35
(“[I]neffective assistance of counsel, if proven, can be
grounds for coram nobis relief.”) (citing United States v. Cas-
tro, 26 F.3d 557, 559-60 (5th Cir. 1994) (reversing denial of
coram nobis petition and remanding for determination of
whether counsel rendered ineffective assistance by failing to
advise Castro of the availability of a judicial recommendation
against deportation or to request same from the sentencing
court)).
To prevail on his claim of ineffective assistance of counsel,
Kwan must prove 1) that his counsel’s performance fell below
an objective standard of reasonableness, and 2) that the defi-
ciency in his counsel’s performance prejudiced him. Strick-
land v. Washington, 466 U.S. 668, 688, 692 (1984). The
district court found Kwan’s defense counsel’s performance to
be deficient, but not prejudicial. We “review de novo a claim
of ineffective assistance of counsel, which is a mixed question
of law and fact.” Harris By and Through Ramseyer v. Wood,
64 F.3d 1432, 1435 (9th Cir. 1995).
i. Deficient Performance
We have held that an attorney’s failure to advise a client of
the immigration consequences of a conviction, without more,
does not constitute ineffective assistance of counsel under
Strickland. United States v. Fry, 322 F.3d 1198, 1200 (9th
Cir. 2003). However, Fry is not dispositive here, where coun-
sel did not merely refrain from advising Kwan regarding the
immigration consequences of his conviction, but, instead,
responded to Kwan’s specific inquiries regarding the immi-
gration consequences of pleading guilty and purported to have
the requisite expertise to advise Kwan on such matters.
UNITED STATES v. KWAN 8561
[13] While we have not yet determined what “more” would
cause a defense counsel’s advice, or lack thereof, regarding
the immigration consequences of a conviction to fall below an
objective standard of reasonableness, we note that the Second
Circuit has held that an affirmative misrepresentation regard-
ing immigration consequences is deficient under Strickland.
United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002).
In Couto, the Second Circuit noted that it had previously held
“that an attorney’s failure to inform a client of the deportation
consequences of a guilty plea, without more, does not fall
below an objective standard of reasonableness,” id. at 187
(citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir.
1975)), but recognized that the circumstances of Couto’s case
were more egregious. In Couto, as here, counsel had not
merely failed to advise his client regarding deportation conse-
quences: in response to his client’s inquiry, counsel assured
Couto that while deportation was a possibility, “there were
many things that could be done to prevent her from being
deported.” Couto, 311 F.3d at 183. Couto’s counsel’s advice
was, however, incorrect. “[B]ecause the 1996 amendments to
the Immigration and Nationality Act eliminated all discretion
as to deportation of non-citizens convicted of aggravated felo-
nies, her plea of guilty meant virtually automatic, unavoidable
deportation.” Id. at 183-84. As a result, the Second Circuit
found that Couto’s counsel had affirmatively misrepresented
the deportation consequences of Couto’s guilty plea and held
that such an affirmative misrepresentation is objectively
unreasonable, particularly in light of contemporary standards
of attorney competence.4 Id. at 188.5
4
The Second Circuit also discussed evidence that “standards of attorney
competence [may] have evolved to the point that a failure to inform a
defendant of the deportation consequences of a plea would by itself now
be objectively unreasonable” but did not reach the issue. Couto, 311 F.3d
at 188.
5
See also Downs-Morgan v. United States, 765 F.2d 1534, 1540-41
(11th Cir. 1985) (finding affirmative misrepresentation regarding immi-
gration consequences, coupled with likelihood that petitioner would be
imprisoned and executed after deportation, could be ineffective assis-
tance).
8562 UNITED STATES v. KWAN
[14] The circumstances of the instant case are analogous to
those in Couto. We agree that where, as here, counsel has not
merely failed to inform, but has effectively misled, his client
about the immigration consequences of a conviction, coun-
sel’s performance is objectively unreasonable under contem-
porary standards for attorney competence. Here, Kwan asked
counsel whether pleading guilty would cause him to be
deportable, and counsel chose to advise him. Moreover, coun-
sel represented himself as having expertise on the immigra-
tion consequences of criminal convictions. Subsequently,
counsel either failed to keep abreast of relevant and signifi-
cant changes in the law or failed to inform Kwan of those
changes’ effect on the deportation consequences of Kwan’s
conviction. In either case, counsel never advised Kwan of the
options that remained open to him prior to sentencing, and
counsel never informed the sentencing judge that a sentence
only two days shorter than the sentence ultimately imposed
would enable Kwan to avoid deportation and remain united
with his family.
That counsel may have misled Kwan out of ignorance is no
excuse. It is a basic rule of professional conduct that a lawyer
must maintain competence by keeping abreast of changes in
the law and its practice. See, e.g., ABA Model Rules of Pro-
fessional Conduct, Rule 1.1[6]. Although counsel was a crim-
inal defense attorney and not an immigration attorney,
counsel made an affirmative representation to Kwan that he
had knowledge and experience regarding the immigration
consequences of criminal convictions; as a result, counsel had
a professional responsibility to inform himself and his client
of significant changes in the law that drastically affected the
immigration consequences of his client’s plea. See generally
ABA Model Rules of Professional Conduct, Rule 1.1. At the
time that Kwan was prosecuted, Congress’s efforts to revise
immigration law were widely reported, as was the ultimate
enactment of IIRIRA. If counsel did not have the requisite
competence in immigration law, or if counsel did not plan on
maintaining the requisite competence, he should not have
UNITED STATES v. KWAN 8563
advised Kwan regarding the immigration consequences of his
plea without referring Kwan to an immigration lawyer or con-
sulting himself with an immigration lawyer in the first place.
See id.Counsel’s performance also fell below the American Bar
Association’s ethical standard for criminal defense attorneys
with respect to immigration consequences. The Supreme
Court noted this standard in INS v. St. Cyr, 533 U.S. 289(2001): “[T]he American Bar Association’s Standards for
Criminal Justice provide that, if a defendant will face deporta-
tion as a result of a conviction, defense counsel ‘should fully
advise the defendant of these consequences.’ ” Id. at 323 n.48
(quoting 3 ABA Standards for Criminal Justice 14-3.2 Com-
ment, 75 (2d ed. 1982)). Although “breach of an ethical stan-
dard does not necessarily make out a denial of the Sixth
Amendment guarantee of assistance of counsel,” Nix v. White-
side, 475 U.S. 157, 165 (1986), “[p]revailing norms of prac-
tice as reflected in American Bar Association standards and
the like . . . are guides to determining what is reasonable . . . .”
Strickland, 466 U.S. at 688.
Despite counsel’s knowledge that the likelihood of deporta-
tion was a significant factor considered by Kwan when he was
deciding whether to plead guilty, counsel never informed
Kwan that IIRIRA rendered his previous assessment of the
risk grossly inaccurate. As noted above, after IIRIRA, Kwan’s
conviction would create a near-certain risk of deportation,
unless he received a prison term of less than one year.
Although IIRIRA was enacted before Kwan’s sentencing
hearing was scheduled, counsel never advised Kwan that the
option of moving to withdraw his plea was viable, so long as
he moved prior to sentencing. See Fed. R. Crim. P. 32(e)
(1996) (“If a motion to withdraw a plea of guilty or nolo con-
tendere is made before sentence is imposed, the court may
permit the plea to be withdrawn if the defendant shows any
fair and just reason.”).6 Counsel never explored the option of
6
Pursuant to the 2002 Amendments to the Federal Rules of Criminal
Procedure, withdrawal of guilty pleas is now governed by Fed. R. Crim.
8564 UNITED STATES v. KWAN
renegotiating the plea agreement with the prosecution so as to
avoid the deportation consequences. Nor did counsel inform
the sentencing judge that Kwan would almost certainly be
deported if he was sentenced to a year or more in prison.
[15] Counsel’s representations regarding the deportation
consequences of Kwan’s plea may not have been erroneous at
the time he made them, but he failed to correct those represen-
tations when they became grossly misleading, and when
counsel still had the opportunity, and responsibility, to do so.
Counsel’s performance breached not only standards particular
to criminal defense attorneys but also basic standards for
competence that are general to the profession. We therefore
hold that counsel’s performance was objectively unreasonable
and meets the first prong of the Strickland test.
ii. Prejudice
In the Strickland prejudice analysis, the determinative ques-
tion is whether there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. Glover v. United States, 531 U.S.
198, 202-03 (2001). To demonstrate this, “a defendant need
not show that counsel’s deficient conduct more likely than not
altered the outcome in the case.” Strickland, 466 U.S. at 693.
[16] Kwan alleges that, but for counsel’s deficient perfor-
mance, the outcome of his proceedings would have differed
in one of two ways. Specifically, Kwan alleges that “had he
known what constituted an ‘aggravated felony,’ he would
have discussed with his lawyer the possibility of amending his
plea agreement or asking the [sentencing] court for a down-
ward departure.” Although the sentencing judge would not
P. 11(e). The 2002 Amendments were intended to spell out or clarify
existing law. See Fed. R. Crim. P., Advisory Committee Notes to Rule 11,
2002 Amendments.
UNITED STATES v. KWAN 8565
have had the discretion to grant a downward departure solely
on the basis of immigration consequences, United States v.
Alvarez-Cardenas, 902 F.2d 734, 736-37 (9th Cir. 1990),
Kwan was potentially eligible for downward departures on
other grounds. Had counsel and the court been aware that a
nominally shorter sentence would enable Kwan to avoid
deportation, there is a reasonable probability that the court
would have imposed a sentence of less than one year.
In addition, Kwan explains that, had he been made aware
of the deportation consequences of his conviction, he would
have explored the option of renegotiating his plea agreement.
That Kwan asked counsel about the immigration conse-
quences of pleading guilty before agreeing to do so demon-
strates clearly “that he placed particular emphasis on
[immigration consequences] in deciding whether or not to
plead guilty.” Hill v. Lockhart, 474 U.S. 52, 60 (1985). Kwan
has also gone to great lengths to avoid deportation and separa-
tion from his wife and children, who are all United States citi-
zens. Taken together, these facts establish that but for
counsel’s deficient performance, there is a reasonable proba-
bility that Kwan would have moved to withdraw his guilty
plea. After withdrawing his plea, Kwan could have gone to
trial or renegotiated his plea agreement to avoid deportation;
he could have pled guilty to a lesser charge, or the parties
could have stipulated that Kwan would be sentenced to less
than one year in prison.
As noted above, a sentencing court may exercise its discre-
tion to permit a defendant to withdraw his guilty plea prior to
sentencing if the defendant shows a fair and just reason for
requesting the withdrawal. Fed. R. Crim. P. 32(e) (1996).
There is a reasonable probability that the sentencing court in
this case would have considered the significant change in the
immigration consequences of Kwan’s plea to be a fair and just
reason for withdrawing his plea. While the sentencing court’s
decision to grant or deny a motion to withdraw is discretion-
ary, “to show prejudice [Kwan] need only show ‘a probability
8566 UNITED STATES v. KWAN
sufficient to undermine confidence in the outcome’ ” that he
could have withdrawn his plea. United States v. Leonti, 326
F.3d 1111, 1122 (9th Cir. 2003) (holding that petitioner could
establish prejudice by showing that counsel’s deficient perfor-
mance reduced likelihood that prosecution would make a sub-
stantial assistance motion, even though “the government has
wide discretion in filing a substantial assistance motion, and
the court has discretion in choosing to depart downward”). “A
deprivation of an opportunity to have a sentencing court exer-
cise its discretion in a defendant’s favor can constitute inef-
fective assistance of counsel.” Castro, 26 F.3d at 560 (holding
that counsel’s failure to request that sentencing judge exercise
its discretion to make judicial recommendation against depor-
tation was prejudicial under Strickland) (citing United States
v. Golden, 854 F.2d 31, 32 (3d Cir. 1988)).
*****
[17] For the foregoing reasons, we conclude that Kwan has
established his claim of ineffective assistance of counsel
under Strickland, which is fundamental error. Because Kwan
satisfied all four requirements for coram nobis relief, we
reverse and remand to the district court with instructions to
grant the writ, vacate Kwan’s sentence, and impose a sentence
of one day less than one year.
REVERSED AND REMANDED.