United States v. Maureen Chan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-55469
Plaintiff-Appellee, D.C. No. 2:93-cr-00583
v.
MAUREEN ELAINE CHAN, AKA MEMORANDUM*
Maureen Ridley
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and submitted April 11, 2018
Pasadena, CA
Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge.
Defendant-Appellant Maureen Elaine Chan, aka Maureen Ridley (“Ridley”)
appeals the district court’s dismissal of her petition for a writ of error coram nobis.
We review de novo a district court’s denial of a petition for a writ of error coram
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
nobis. United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015) (quoting United
States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007)). We have jurisdiction under
28 U.S.C. § 1291, and we reverse.
Ridley, a native of South Africa, has been a lawful permanent resident of the
United States since 1973. On June 22, 1993, a grand jury returned an indictment
charging Ridley with six counts of perjury. According to Ridley’s declaration filed
in support of the instant petition for a writ of coram nobis, Ridley asked her trial
counsel what immigration consequences a guilty plea might carry. According to
Ridley’s declaration, her counsel’s “response was simply that [Ridley] had nothing
to worry about”: “He assured me that I did not face any adverse immigration
consequences and that I would not be excluded from the United States.” Ridley
pleaded guilty to three of the six counts in the indictment. On May 15, 2000, the
district court sentenced Ridley to two months in prison, three years of supervised
release, and an assessment of $150. In 2012, the Department of Homeland
Security initiated removal proceedings against Ridley based on the 1993 perjury
conviction.
Ridley petitioned the district court below for a writ of error coram nobis.
“[T]he writ of error coram nobis is a highly unusual remedy, available only to
correct grave injustices in a narrow range of cases where no more conventional
remedy is applicable.” Riedl, 496 F.3d at 1005. “[W]hereas petitions for habeas
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corpus relief and motions for relief under 28 U.S.C. § 2255 may 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.’” United States v. Kwan, 407 F.3d 1005, 1009 (9th Cir. 2005)
(alteration in original), abrogated on other grounds by Padilla v. Kentucky, 559
U.S. 356 (2010). “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. at
1009–10. To establish that she qualifies for coram nobis relief, Ridley must prove
the following four factors: “(1) a more usual remedy is not available; (2) valid
reasons exist for not attacking the conviction earlier; (3) adverse consequences
exist from the conviction sufficient to satisfy the case or controversy requirement
of Article III; and (4) the error is of the most fundamental character.” Id. at 1011
(quoting Estate of McKinney By & Through McKinney v. United States, 71 F.3d
779, 781–82 (9th Cir. 1995)).
The government concedes that Ridley has met the first three factors.
Therefore, we address only the fourth factor, “error [] of the most fundamental
character.” Id. Ridley “may satisfy the fundamental error requirement by
establishing that [s]he received ineffective assistance of counsel” in her perjury
case. Id. at 1014. To demonstrate ineffective assistance, Ridley “must prove 1)
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that h[er] counsel’s performance fell below an objective standard of
reasonableness, and 2) that the deficiency in h[er] counsel’s performance
prejudiced h[er].” Id. at 1014–15. (citing Strickland v. Washington, 466 U.S. 668,
688, 692 (1984)).
The government concedes that the district court’s reasoning was erroneous
as to both prongs of Strickland. On the first prong, the district court found that
trial counsel did not provide deficient performance because “even if Defendant’s
counsel failed to disclose the immigration consequences of her plea deal, other
evidence indicates that Defendant was fully aware of such ramifications.” This
was error. “The government’s performance in including provisions in the plea
agreement, and the court’s performance at the plea colloquy, are simply irrelevant
to the question whether counsel’s performance fell below an objective standard of
reasonableness.” United States v. Rodriguez-Vega, 797 F.3d 781, 787 (9th Cir.
2015). On the second prong, the district court erred insofar as it required Ridley to
show that “she would have fared better at trial or successfully negotiated a more
favorable plea deal.” “[W]hen a defendant claims that his counsel’s deficient
performance deprived him of a trial by causing him to accept a plea, the defendant
can show prejudice by demonstrating a ‘reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
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going to trial.’” Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
Although it admits the decision below was based on legal error, the
government asks this court to affirm the district court because Ridley supported her
ineffective assistance of counsel claim with only “a self-serving declaration
containing post hoc, conclusory, and uncorroborated assertions.”1 The government
argues that Ridley therefore “failed to prove facts that satisfy either prong of the
Strickland test, and this Court should not permit defendant’s self-serving and
conclusory declaration to upset the finality of three perjury convictions that are
now over 17 years old.”
Ordinarily, “that an affidavit is selfserving bears on its credibility, not on its
cognizability,” SEC v. Phan, 500 F.3d 895, 909 (9th Cir. 2007), and “[c]redibility
is properly for the judgment of the trier of fact.” Davison v. United States, 368 F.2d
505, 507 (9th Cir. 1966); see also Sch. Dist. No. 1J, Multnomah Cty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993) (“The district court must make a
finding of fact that the affidavit was a ‘sham.’”). However, here, the district court
dismissed the petition based on an erroneous application of Strickland. Thus the
trier of fact—the district court—made no findings regarding the credibility of the
1
This court “may affirm on any basis supported by the record.” United States v.
Pope, 686 F.3d 1078, 1083 (9th Cir. 2012).
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assertions in Ridley’s declaration. Rather than do so for the first time on appeal,
we reverse and remand for the district court to complete the necessary fact-finding
and to apply the correct legal standards as set forth in Strickland.
The government notes that “[c]ourts should not upset a plea solely because
of post hoc assertions from a defendant about how [s]he would have pleaded but
for [her] attorney’s deficiencies.” Lee, 137 S. Ct. at 1967. Rather, “[j]udges
should instead look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” Id. But here the contemporaneous evidence is
inconclusive. The government argues that the warnings in the plea agreement
“cast substantial doubt on the credibility of defendant’s allegations of misadvice”
because the warnings contradict the purported misadvice of Ridley’s trial counsel.
Surely, the argument goes, counsel would not have assured Ridley that she would
not face immigration consequences in the face of the plea agreement’s
contradictory warnings. But these two facts are not necessarily inconsistent:
counsel may have dismissed what he perceived as boilerplate warnings in the plea
agreement if he sincerely believed—as Ridley now claims—that Ridley would not
in fact face any adverse immigration consequences. On the other hand, it is
undisputed that Ridley has been a legal permanent resident of the United States
since 1973 and has substantial family ties here. These facts tend to corroborate
Ridley’s assertion that she would not have pleaded guilty but for counsel’s claimed
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deficient performance. Again, the district court should weigh the evidence in the
first instance.
Because we conclude that a remand to the district court is necessary in any
case, we do not decide whether the district court abused its discretion by
dismissing the petition without first holding an evidentiary hearing.
Therefore, we remand for the district court to hold an evidentiary hearing
and assess the credibility and sufficiency of Ridley’s evidence, in view of all the
evidence bearing thereon.
REVERSED and REMANDED.
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