Wassouf v . United States 11-CV-51-SM 2/7/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

George Wassouf

v. Case N o . 11-cv-51-SM Opinion N o .

United States of America

O R D E R

Almost ten years ago, the petitioner, a Syrian citizen, pled

guilty to and was convicted of bank fraud in this court. United

States v . Wassouf, N o . 01-cr-1-SM (D.N.H.). He was sentenced to

33 months in prison and a 5-year period of supervised release.

Petitioner completed his prison sentence on October 1 , 2003.

He was promptly taken into custody by Immigration and Customs

Enforcement agents, and deportation proceedings were begun, based

upon his federal conviction. Petitioner then filed a motion for

relief from his conviction and sentence under the provisions of

, claiming that his trial defense counsel

provided constitutionally deficient representation, in that he

failed to file a notice of appeal as petitioner had directed.

After considering the record, and trial counsel’s response, the

court granted the motion to the extent of affording petitioner a

renewed opportunity to file an appeal, which he did. See Wassouf

v . United States,

(D.N.H. Oct. 3 1 , 2003). Because petitioner took advantage of the opportunity to appeal,

his conviction was no longer final. Accordingly, the

administrative removal proceedings were terminated without

prejudice, pending final resolution of petitioner’s criminal

case.

On his belated direct appeal petitioner argued, inter alia,

that his trial counsel failed to tell him that his guilty plea to

a felony might result in his being deported. On that basis, he

sought to have his conviction overturned and his plea withdrawn.

In 2005, the court of appeals affirmed the conviction and

sentence, finding that petitioner abandoned his ineffective

assistance claim, because he raised it in only a perfunctory

manner, unaccompanied by any developed argument. The court also

noted that the claim appeared to be meritless. See United States

v . Wassouf, App. N o . 03-2602 (1st Cir. Sept. 1 3 , 2005). At that

time, no circuit court of appeals had held that defense counsel’s

failure to advise a non-citizen defendant that a guilty plea and

conviction might result in removal proceedings constituted

ineffective assistance of counsel under the Sixth Amendment.

Those courts that had considered the issue generally agreed that

such a failure related only to a collateral matter, and did not

deprive a criminal defendant of effective assistance of counsel

in the criminal prosecution.

2 Petitioner’s 5-year term of supervised release was scheduled

to expire on October 1 , 2008. Because he resided in

Massachusetts, on September 6, 2006, jurisdiction was transferred

to the District of Massachusetts. Petitioner had by then

violated the terms of his supervised release and, after pleading

guilty, was sentenced in December of 2006, to 6 months in prison

followed by 12 months of supervised release. United States v .

Wassouf, N o . 06-cr-10300-NMG, (D. Mass.). Petitioner completed

the 6-month sentence in June of 2007, after which he was again

promptly taken into custody pending removal, or deportation,

proceedings. (The 12-month supervised release term presumably

expired without further violations in June of 2008.)

The renewed deportation proceedings were also dismissed,

without prejudice, for procedural reasons. But, within a week of

that procedural dismissal, removal proceedings were begun yet

again. See Wassouf v . United States, et a l . , N o . 09-cv-11738-RWZ

(D. Mass.). On December 3 , 2007, an Administrative Law Judge

ordered petitioner removed to Syria, which order was subsequently

carried out.

On March 3 1 , 2010, the Supreme Court decided Padilla v .

Kentucky,

(2010), holding that criminal defense

counsel are obligated to inform their non-citizen clients of the

3 deportation consequences of a guilty plea and resulting

conviction.

. Failure to so advise a non-citizen

client will, in most cases, render counsel’s performance

constitutionally deficient, under the first part of the

ineffective assistance of counsel test set out in Strickland v .

Washington,

(1984). Based on Padilla, petitioner

filed the pending motion seeking to collaterally attack his

federal bank fraud conviction, on ineffective assistance of

counsel grounds. The government objects.

Petitioner styles his motion as one for coram nobis relief

under the All Writs Act,

, rather than one for

relief under

. Neither petitioner nor the

government addresses his custody status at the time he filed the

motion (July 9, 2010), but the record discloses that petitioner

was no longer in custody with respect to the challenged

conviction.

By July of 2008, two years before this motion was filed,

petitioner had completed the 33-month sentence, the 6-month

sentence imposed for violations of the terms of his supervised

release, and the 12-month period of reimposed supervised release.

If petitioner had been “in custody” in July of 2010, then his

motion could not be considered by this court. In that

4 circumstance, § 2255 would provide the appropriate remedy, not

coram nobis, and the motion would be recast as a second or

successive petition under § 2255. The court of appeals has not

certified that the motion invokes a “new rule of constitutional

law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable,” so this court

would be without jurisdiction to consider that second or

successive petition.

(h)(2); see Trenkler v .

United States,

5 , 98 (1st Cir. 2008).

The writ of coram nobis, on the other hand, “is ordinarily

available only to a criminal defendant who is no longer in

custody.”

As it seems reasonably certain that petitioner

was no longer “in custody” with respect to the challenged

conviction when he filed the motion, the relief provided by §

2255 is not available to him. But coram nobis relief i s . And,

as the petition represents a collateral challenge that is civil

in nature, it is properly docketed as a separate case.1

Whether petitioner can benefit from Padilla’s holding

depends, initially, upon whether it is retroactively applicable

to his case. Those courts that have considered whether Padilla’s

1 Petitioner filed the motion in the underlying criminal case. The Clerk has been directed to assign the petition a civil docket number.

5 rule has retroactive effect are decidedly not in agreement. See

e.g., United States v . Haddad,

(E.D. Mich. July

2 0 , 2010) (Padilla is not retroactively applicable); United

States v . Gilbert,

(D.N.J. October 1 9 , 2010)

(same); United States v . Perez,

(D. Neb. November

9, 2010) (same); United States v . Hubenig,

(E.D.

Cal. July 1 , 2010) (Padilla is retroactively applicable); United

States v . Chaidez,

, (N.D. Ill. 2010) (same);

Al Kokabani v . United States,

(E.D.N.C. July 3 0 ,

2010) (same).

The court of appeals for this circuit has not yet had

occasion to decide the issue, and reasonable jurists certainly

can (and do) disagree about whether Padilla applies

retroactively. It is not necessary, however, to decide that

issue to resolve this case. Even assuming for argument’s sake

that Padilla is retroactively applicable, to obtain relief

petitioner must show not only that trial counsel’s performance

was constitutionally deficient, but also that counsel’s deficient

performance prejudiced him in some way. Strickland,

. That, he cannot d o .

Accepting then, that coram nobis review is available, and

that trial defense counsel did not personally advise petitioner

6 of the removal consequences of his guilty plea and resulting

felony conviction, and that his representation was, under

Padilla, sufficiently deficient to satisfy the first part of

Strickland’s ineffective assistance test,2 the second part of the

Strickland test (i.e., prejudice) must be considered. When a

petitioner claims ineffective assistance of counsel with respect

to a guilty plea, he must show that he was materially prejudiced

by counsel’s deficient performance, in that, had he been properly

informed, he would not have pled guilty and would have insisted

on going to trial. Hill v . Lockhart,

2 , 59 (1985); see

also Premo v . Moore,

(2011).

Petitioner cannot meet that burden here. The record, as the

government points out, completely undermines petitioner’s

suggestion of prejudice. Before pleading guilty in this court,

petitioner was fully aware that removal proceedings would likely

follow his guilty plea and conviction. Indeed, well before he

was arrested on this federal charge, petitioner pled guilty t o ,

and was convicted o f , similar offenses (larceny, forgery,

uttering forged instruments) in the Middlesex (Massachusetts)

2 Under the particular circumstances of this case, it may well be that counsel’s failure did not run afoul of the first part of the Strickland test. As discussed later, petitioner had multiple representation during the prosecution of his criminal case, including separate immigration counsel before and after he entered his guilty plea in the underlying criminal case.

7 District Court, Lowell Division. Based upon those state

convictions, on April 2 1 , 2000, the Immigration and

Naturalization Service (INS) began deportation proceedings

against petitioner. In response, petitioner successfully moved

the state court to vacate his state guilty pleas and convictions

because (in his own words):

4 . Because of these [state] convictions and sentences the INS is in the process of deporting m e .

5 . If I had thought that I could be deported, I would never have entered into the plea agreement.

6. During the plea hearing, I was not informed by the judge that it was possible that I could get deported because of this case.

7 . I do not believe that I was given the appropriate immigration warnings as required.

Affidavit of George Wassouf, dated October 2 6 , 2000. (Exhibit 3

to document n o . 2 4 2 ) .

The state court accepted petitioner’s argument and vacated

the challenged convictions on January 1 7 , 2001. Sometime later,

the INS dismissed the pending removal proceedings that were based

upon those convictions, without prejudice.

S o , well before petitioner pled guilty to bank fraud in this

court (August 2 0 , 2001), he had pled guilty to similar state

charges, faced removal proceedings as a result, recognized the

8 connection between those similar convictions and removal, moved

to vacate his pleas and convictions on grounds that he would not

have pled guilty had he known of the possibility of removal based

upon those convictions, and was successful in getting the

convictions vacated — all to facilitate avoidance of the removal

consequences of his pleas and convictions.

There is more. At the time of sentencing in this case, the

INS had not yet dismissed the deportation proceedings based upon

the then-vacated state convictions in the Lowell District Court.

S o , at the sentencing hearing before this court, counsel for

petitioner asked the court to recommend that the Bureau of

Prisons designate the facility at Fort Devens as the place where

petitioner would serve his sentence.

Mr. Saxe: Your Honor, and I would request, I know it’s not your practice to make recommendations for designations, but in this case I have spoken with Attorney Evans, I’ve also spoken with another attorney that was employed by the defendant, Attorney Laganna (ph) regarding ongoing immigration issues. I know that - - I’m not an immigration lawyer, so I don’t know exactly what they are going to be trying to d o , but I know that there is ongoing communication between them and has been, between my client and those attorneys since I came into this case, and if the court could make an exception in this case and recommend Fort Devens, that would help my client and his immigration attorneys, and would also help his family to maybe be able to see him while he’s incarcerated.

See Transcript, Sentencing Hearing (document n o . 224) at 4-5.

9 Given this record, petitioner cannot credibly assert that

had his appointed trial defense counsel personally told him of

the potential deportation consequences of his guilty plea and

conviction, he never would have pled guilty and would have

insisted on going to trial. Petitioner knew perfectly well what

the removal consequences could b e , indeed at that time he was

represented by legal counsel familiar with immigration law, who

were working on his behalf with respect to removal proceedings

based upon similar state convictions. And, his trial defense

counsel was communicating with petitioner’s immigration

attorneys, as was petitioner, prior to his guilty plea in this

court and through and after sentencing. It is inconceivable that

petitioner did not discuss the potential effect of his plea in

this case with immigration counsel, and it is equally

inconceivable that petitioner did not fully understand the

potential deportation consequences of his plea and conviction in

his federal criminal case.

Finally, the evidence against petitioner with respect to the

bank fraud charge was overwhelming. The plea agreement

represented a rational and beneficial disposition of the case in

petitioner’s interest, given the risks he faced if he proceeded

to trial. Petitioner assured the court during the plea colloquy,

while he was under oath, that the prosecutor’s factual proffer

10 was accurate; that he was in fact guilty, and that he understood

that he would be found guilty based on his plea alone should the

court accept that plea. Under all of these circumstances,

petitioner cannot show prejudice under Strickland. He simply

cannot credibly argue that he would not have pled guilty and

would have insisted on going to trial if only his defense counsel

had personally told him what he already very well knew.

The other issues raised by petitioner are without merit.

For example, petitioner seems to ask this court to vacate his

final order of removal — a request he has unsuccessfully pursued

in other districts as well. But, that is a matter over which

this court is without jurisdiction.

(a)(5);

Hernandez v . Gonzales,

(1st Cir. 2005). (The

government advises that petitioner is also challenging his final

order of removal in the United States Court of Appeals for the

District of Columbia. See Wassouf v . United States Department of

Homeland Security, CA N o . 10-5261 (D.C. Cir.)).

Conclusion

Because petitioner cannot meet the prejudice test under

Strickland, he is not entitled to the relief he seeks, even if

Padilla is deemed retroactively applicable to his petition. The

11 petition for coram nobis relief is denied. The clerk shall close

the case.

SO ORDERED.

February 7 , 2011

cc: George Wassouf, pro se Aixa Maldonado-Quinones, AUSA

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