UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) UNITED STATES OF AMERICA ) ) v. ) ) Criminal No. 02-0273 (PLF) OWEN A. WILLIAMS, ) ) Defendant. ) ___________________________________ )

OPINION AND ORDER

On January 28, 2021, defendant Owen Williams filed a petition for writ of error

coram nobis, through which Mr. Williams seeks to vacate his 2002 guilty plea and conviction for

conspiracy to defraud the United States, in violation of

. See Petition for Writ of

Error Coram Nobis to Vacate and Set Aside Plea and Conviction (“Def. Pet.”) [Dkt. No. 28].

Mr. Williams argues that he received ineffective assistance of counsel before, during, and after

his plea hearing, and faces ongoing immigration consequences as a result of his conviction.

. The government opposes the petition, arguing that Mr. Williams’ claim of

ineffective assistance of counsel is foreclosed by Chaidez v. United States,

(2013).

See United States’ Opposition to Petitioner’s Petition for Writ of Error Coram Nobis (“Gov’t

Opp.”) [Dkt. No. 38] at 1. For the following reasons, the Court concludes that Mr. Williams has

not established a cognizable claim of ineffective assistance of counsel, and he therefore is not

entitled to relief under a writ of error coram nobis.1

1 The Court has reviewed the following documents in connection with the pending motion: Information [Dkt. No. 1]; Statement of Facts [Dkt. No. 9]; Judgment in a Criminal Case (“Judgment”) [Dkt. No. 18]; Defendant’s Petition for Writ of Error Coram Nobis to Vacate and Set Aside Plea and Conviction with Supporting Declaration of Petitioner/Defendant (“Def. Pet.”) I. BACKGROUND

A. Defendant Owen Williams

Mr. Williams is a Jamaican citizen who lawfully entered the United States

in 1985, approximately seventeen years before he was charged in this criminal action. Def. Pet.

at 25; Williams Aff. at 2. On June 25, 2002, the United States charged Mr. Williams by

information with one count of conspiracy to defraud the United States, in violation of

. See Information. The charge arose out of Mr. Williams’ role in a conspiracy to buy and

sell homes to purchasers whom he fraudulently qualified for loans with the Federal Housing

Administration (“FHA”), buyers who in fact did not have sufficient income to qualify for the

loans.

. The information alleged that Mr. Williams “cause[d] the lenders to issue

FHA-insured loans to buyers in amounts that were more than the properties were actually worth,

thus creating a large amount of illegal proceeds when the properties were ‘flipped’ to the

buyers.”

. Mr. Williams distributed the proceeds of these sales among himself and his

co-conspirators.

.

On July 12, 2002, Mr. Williams pleaded guilty to one count of conspiracy. Def.

Pet. at 5; Gov’t Opp. at 2. Mr. Williams was represented at his plea hearing and subsequent

sentencing by defense counsel Grandison Hill. See Def. Pet. at 6. At the plea hearing, Mr.

Williams waived his right to an indictment and to a jury trial.

; Plea Tr. at 5:14-7:15. He

stated on the record that he understood all of his constitutional and statutory rights, which he

[Dkt. No. 28]; Affidavit of Owen Williams (“Williams Aff.”) [Dkt. No. 28-1]; July 12, 2002 Transcript of Plea Hearing (“Plea Tr.”) [Dkt. No. 28-2]; June 26, 2003 Transcript of Sentencing (“Sentencing Tr.”) [Dkt. No. 28-3]; United States’ Opposition to Petitioner’s Petition for Writ of Error Coram Nobis (“Gov’t Opp.”) [Dkt. No. 38]; and Petitioner’s Reply to United States’ Response in Opposition to Petitioner’s Petition for Writ of Error Coram Nobis (“Def. Reply”) [Dkt. No. 43]. 2 waived by pleading guilty, and was aware of both the statutory maximum sentence and the

advisory Federal Sentencing Guidelines. See Plea Tr. at 5:14-7:15, 9:7-12:17. With respect to

the immigration consequences of his plea, the record includes the following exchange:

THE COURT: Mr. Williams where were you born?

THE DEFENDANT: Jamaica.

THE COURT: I need to tell you that if you are not a citizen of the United States, you are advised that conviction of this felony offense may have the consequences of deportation or exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Do you understand that?

THE DEFENDANT: Yes, I understand that.

Plea Tr. at 8:3-11. On June 26, 2003, the Court sentenced Mr. Williams to twelve months and

one day of imprisonment, three years of supervised release, and restitution in the amount of

$184,888.00. See Judgment; Sentencing Tr. at 26:22-28:23. Mr. Williams completed his

sentence of incarceration, followed by supervised release, in May of 2004. See Def. Pet. at 7;

Williams Aff. at 3.

B. Co-Conspirator Kerry Newman

Mr. Williams’ conspiracy involved a co-conspirator, Kerry Newman, who pled

guilty approximately eight months before Mr. Williams entered his guilty plea. See Williams

Aff. at 3; United States v. Newman,

(D.D.C. 2014), rev’d in part and

remanded,

(D.C. Cir. 2015). Like Mr. Williams, Mr. Newman was a Jamaican

citizen and a lawful permanent resident of the United States. See Def. Pet. at 6. Mr. Newman

was also represented at his plea and sentencing proceedings by defense counsel Grandison Hill.

See id.; Gov’t Opp. at 8.

3 On November 21, 2011, Mr. Newman filed a petition for writ of error coram

nobis with this Court. See Petition for Writ of Coram Nobis (“Newman Pet.”), United States v.

Newman, Crim. No. 01-361 (D.D.C. Nov. 21, 2011) [Dkt. No. 38]. Like Mr. Williams, Mr.

Newman requested that the Court vacate his prior plea and conviction. Id. at 2. Mr. Newman

identified two deficiencies that he alleged constituted ineffective assistance of counsel: “(1) his

counsel failed to provide any advice regarding the risk of deportation prior to his plea; and

(2) his counsel affirmatively misadvised him regarding the risk of deportation after his plea was

entered, but before and during sentencing.” United States v. Newman,

. To

support these claims, Mr. Newman provided the following evidence of Mr. Hill’s misstatements

from the record at sentencing:

MR. HILL: . . . I am a little bit concerned about the INS situation. And especially in this climate today . . . The problem is that [Mr. Newman’s] caught betwixt and between. If the Court should sentence [Mr. Newman] to more than a year and a day, as I understand it, that will trigger, may trigger some INS interest and possibly some difficulties. If the Court should sentence him to a sentence of less than a year, Mr. Newman will of course have to spend more time, if the Court gave him time, more time in jail. And we chatted about that and it’s Mr. Newman’s position that he would rather avoid any problem with INS because of his commitment to [his] family.

Newman Pet. at 14 (quoting September 19, 2002 Transcript of Sentencing, United States v.

Newman, Crim. No. 01-361 (D.D.C. Nov. 21, 2011) [Dkt. No. 38-3] at 18:6-17). Government

counsel also stated that if the sentence were more than a year and a day, “there may be some INS

implications . . . [T]his would be something I suggest the Court take into consideration.” United

States v. Newman,

. The Court relied on these misstatements by

counsel and sentenced Mr. Newman to less than a year and a day – which meant he could receive

no good time credits and actually would serve more time in prison than if the longer sentence

4 had been imposed.

. The Court stated that this would be “beneficial to [Newman] with

respect to the INS.”

The Court later recognized that in making these misstatements, “the

prosecutor, Newman’s defense attorney, and the Court were all wrong. Newman’s deportation

was a virtual certainty.”

The Court nevertheless denied Mr. Newman’s ineffective assistance of counsel

claim, concluding that he could show no prejudice from the plea proceeding because the

misstatements by defense counsel occurred at the time of sentencing, not at the time the Court

accepted the plea. See United States v. Newman,

. The court of appeals

disagreed, stating that “nothing about the temporal relationship between Newman’s plea and his

attorney’s inaccurate advice categorically bars Newman from establishing prejudice.” United

States v. Newman,

(D.C. Cir. 2015). It therefore remanded to this Court for

a determination of whether Mr. Newman could establish prejudice.

.

After remand, the parties filed a stipulated disposition whereby the government

agreed that the Court should vacate Mr. Newman’s conviction, permit him to withdraw his plea,

and dismiss the information. See Joint Statement and Notice of Stipulated Disposition, United

States v. Newman, Crim. No. 01-0361 (D.D.C. Sept. 30, 2016) [Dkt. No. 64] at 3-4. The Court

accepted the stipulation, stating that “defendant’s attorney gave affirmative misadvice as to the

immigration consequences and risk of deportation of the plea agreement and conviction.” Order,

United States v. Newman, (D.D.C. Nov. 8, 2016) [Dkt. No. 66] at 1 (emphasis added). The

Court also ordered that the criminal information be dismissed. See

II. LEGAL FRAMEWORK

“A petition for a writ of coram nobis provides a way to collaterally attack a

criminal conviction for a person . . .who is no longer ‘in custody’ and therefore cannot seek

5 habeas relief.” United States v. Newman,

(quoting Chaidez v. United States,

n.1). Writs of coram nobis are authorized in criminal proceedings under the All

Writs Act, which provides that “[t]he Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.”

(a); see also 3 CHARLES ALAN

WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE AND PROCEDURE § 624 (4th ed. 2021). This

right recognizes that “a person who had completed service of his federal sentence might continue

to suffer consequences because of it, since subsequent convictions might carry heavier penalties

and civil rights might be affected.” WRIGHT & WELLING, supra, § 624 (citing United States v.

Morgan,

(1954)). The writ is only available for “‘extraordinary’ cases

presenting circumstances compelling its use ‘to achieve justice.’” United States v. Denedo,

(2009) (quoting United States v. Morgan,

); see also United States

v. Newman,

; United States v. Verrusio, Crim. No. 09-0064,

,

at *8 (D.D.C. Apr. 21, 2017), aff’d, 758 Fed. App’x 2 (D.C. Cir. 2019).

“[C]ourts have traditionally applied a four-factor test to determine whether coram

nobis relief is warranted: ‘(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.’” United States v. Verrusio,

, at *8 (quoting United

States v. Faison,

(D.D.C. 2013)). Violations of the Sixth Amendment

right to counsel, including claims of ineffective assistance of counsel, are “fundamental error[s]”

that may be redressed through coram nobis. See United States v. Newman,

(citing United States v. Denedo,

). To demonstrate a fundamental error based on

6 ineffective assistance of counsel, a defendant carries the burden of demonstrating “that counsel’s

representation fell below an objective standard of reasonableness under prevailing professional

norms,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland v. Washington,

(1984).

The Supreme Court held in 2010 that “Strickland applies” in the immigration

context; the Sixth Amendment and “the weight of prevailing professional norms” require that

“counsel must inform her client whether his plea carries a risk of deportation.” Padilla v.

Kentucky,

(2010). Unfortunately for Mr. Williams, Padilla is not

retroactive. In Chaidez v. United States, the Supreme Court concluded that Padilla “announced a

‘new rule,’” and therefore “defendants whose convictions became final prior to Padilla [] cannot

benefit from its holding.”

, 358 (citing Teague v. Lane,

(1989)). A

defendant thus cannot retroactively invoke the right articulated in Padilla to prevail on a writ of

error coram nobis based on a claim of ineffective assistance of counsel. A petitioner must

instead establish that a “fundamental error” existed at the time the alleged conduct took place.

See United States v. Newman,

.

III. DISCUSSION

Mr. Williams’ petition does not warrant coram nobis relief under the four-part test

articulated in United States v. Verrusio. See

, at *8. Specifically, his petition

fails because he cannot demonstrate that his attorney’s performance constituted an “error [] of

the most fundamental character” at the time of his plea or at sentencing. Id.2

2 Because Mr. Williams does not meet his burden of demonstrating a fundamental error, the Court need not decide whether his petition satisfies the other three factors of this test. 7 Mr. Williams’ argument is premised on the assertion that “[d]efense counsel

failed to disclose the already known effect of his plea and sentence on his immigration status . . .

[and] failed to properly research the determinative factors in the case related to deportation.”

Def. Pet. at 17. He maintains that these failures constituted ineffective assistance of counsel

“based on a violation of [Mr. Hill’s] duty to mitigate harm under the plea agreement . . . [and]

the duty to negotiate an effective plea bargain.”

at 15 (citing Glover v. United States,

(2001); Missouri v. Frye,

(2012); Lafler v. Cooper,

(2012)).

Mr. Williams’ affidavit states that “had [he] known the immigration consequences of [his] guilty

plea at the time [he] would have sought to go to trial or would have had attorney Hill negotiate a

different plea agreement to try and avoid immigration consequences due to [his] significant and

deep family, life, and monetary ties to the United States.” Williams Aff. at 3.

The Court is sympathetic to Ms. Williams’ situation. As the Supreme Court

concluded in Padilla, “[t]he weight of prevailing professional norms supports the view that

counsel must advise her client regarding the risk of deportation.” Padilla v. Kentucky,

. The Supreme Court, however, could not have been more clear about the non-retroactive

effect of this new rule: “[D]efendants whose convictions became final prior to Padilla [] cannot

benefit from its holding.” Chaidez v. United States,

. Padilla was decided

in 2010. Mr. Williams’ conviction became final when he was sentenced on June 26, 2003.

Moreover, the D.C. Circuit concluded in the case of Mr. Williams’ co-conspirator, Mr. Newman,

that a claim based on the “fail[ure] to research and consider potential immigration consequences

The government concedes, however, that “a more usual remedy is not available” because Mr. Williams is no longer in custody and therefore cannot file a petition under

. Gov’t Opp. at 8. The Court agrees and concludes that a petition for a writ of error coram nobis is the appropriate avenue for Mr. Williams’ requested relief. 8 when negotiating [defendant’s] plea deal . . . is foreclosed by Padilla and Chaidez.” United

States v. Newman,

.

In Newman, the court of appeals rejected the argument that “although defense

attorneys had no duty to advise their clients about the immigration consequences of pleading

guilty prior to Padilla, they nonetheless had a duty to research those consequences and take them

into account when negotiating a plea deal.” United States v. Newman,

. There

simply was no such duty before Padilla. The court of appeals nevertheless concluded in

Newman that if a lawyer chooses to advise a client of the immigration consequences of their

plea, the advice must be accurate. See

In other words, if a lawyer “affirmatively

misrepresent[s]” or misstates “the potential immigration consequences of a conviction,” such

conduct could support a cognizable claim of ineffective assistance of counsel.

The court

reasoned that even before Padilla, providing “erroneous immigration advice” could form the

basis of an ineffective assistance of counsel claim because this conduct would infringe a criminal

defendant’s fundamental right to effective representation under the Sixth Amendment – a right

that was established “at the time” of Mr. Newman’s conviction.

The facts of Mr. Williams’ case are different from those of Mr. Newman. Mr.

Williams offers no evidence that Mr. Hill ever affirmatively misadvised him about his

immigration consequences or violated a fundamental right established at the time of his

conviction – that is, at or in connection with his plea or sentencing. To the contrary, he concedes

that Mr. Hill never made an affirmative misstatement about the immigration consequences of his

plea; he focuses instead on Mr. Hill’s lack of engagement throughout the plea bargaining

process. See, e.g., Def. Pet. at 19 (“Counsel did not give already known advice about the

possible immigration consequences however, and if he would have it would have been patently

9 wrong as with his other client.”); Williams Aff. at 3 (“Attorney Hill did nothing to my

knowledge to try to mitigate the criminal exposure and immigration exposure I had due to the

charges. It was as if there was no significant issue in that arena until one day I met with him and

he politely told me be prepared to serve some time in prison.”). If such conduct occurred today,

it might support a claim under Padilla, but Mr. Williams pleaded guilty over seven years before

the Supreme Court decided Padilla. Mr. Williams thus “cannot benefit from its holding.”

Chaidez v. United States,

.

Mr. Williams argues that the Supreme Court in Chaidez “did preserve the right of

an immigrant whose conviction became final before Padilla to obtain relief if the immigrant can

show that he or she was affirmatively misadvised regarding the immigration consequences of his

criminal case or that a defense lawyer violated an established constitutional duty such as failing

to negotiate effectively to mitigate harm in the plea.” Def. Pet at 13. This statement is

misleading. The Court in Chaidez stated that prior to Padilla, “decisions reasoned only that a

lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client

on any important matter,” and that these decisions “co-existed happily with precedent, from the

same jurisdictions (and almost all others), holding that deportation is not ‘so unique as to warrant

an exception to the general rule that a defendant need not be advised of the [collateral]

consequences of a guilty plea.’” Chaidez v. United States,

(quoting United

States v. Campbell,

(11th Cir. 1985)). Nowhere in Chaidez did the Court

“preserve the right” for defendants sentenced before Padilla to demonstrate violations premised

on “failing to negotiate effectively to mitigate harm in the plea.” See Def. Pet. at 13.

Mr. Williams nevertheless insists that Mr. Hill “failed to comply with the normal

professional standards of the time.” Def. Pet. at 17 (citing Glover v. United States,

(2001); Missouri v. Frye,

(2012); Lafler v. Cooper,

(2012)). This

argument fails for two reasons. First, contrary to Mr. Williams’ citation, Glover does not stand

for the proposition that there is a “duty to mitigate harm under the plea agreement.” Def. Pet. at

17. The Supreme Court in Glover focused solely on articulating the correct prejudice analysis

for “counsel’s failure to object to an error of law affecting the calculation of a sentence,” and the

decision explicitly stated that “the question of deficient performance is not before [the Court].”

Glover v. United States,

. And second, as discussed above, Mr. Williams’

argument that Mr. Hill violated his “duty to negotiate an effective plea bargain” is foreclosed by

the D.C. Circuit’s decision in Newman. In Newman, the court of appeals clearly stated that “it

makes no sense to suggest that although defense attorneys had no duty to advise their clients

about the immigration consequences of pleading guilty prior to Padilla, they nonetheless had a

duty to research those consequences and take them into account when negotiating a plea deal.”

United States v. Newman,

. For these reasons, Mr. Williams fails to state a

cognizable claim of ineffective assistance of counsel. His petition falls squarely within the scope

of Padilla and Chaidez, and he does not prove that a “fundamental error” existed at the time of

his conviction. Accordingly, it is hereby

ORDERED that Mr. Williams’ [Dkt. No. 28] Petition for Writ of Error Coram

Nobis to Vacate and Set Aside Plea and Conviction is DENIED.

SO ORDERED. Digitally signed by Paul L. Friedman Date: 2022.08.09 08:55:34 -04'00' PAUL L. FRIEDMAN United States District Judge DATE: August 9, 2022

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