UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sunday Williams

v. Civil No. 15-cv-464-JD Opinion No.

United States of America

O R D E R

Sunday Williams petitions for a writ of coram nobis,

seeking relief from his conviction in 2004 on a charge of making

a false statement on an application for a passport. Williams

contends that his counsel provided ineffective assistance by

changing Williams’s plea without his consent and by

misrepresenting and failing to advise Williams of the

immigration consequences of the plea. The government moves to

dismiss the petition on the ground that Williams is not entitled

to relief based on Padilla v. Kentucky,

(2010).

Williams objects to the motion to dismiss.

Standard of Review

“[C]oram nobis is an extraordinary remedy, which is

available ‘only under circumstances compelling such action to

achieve justice.’” Murray v. United States,

(1st Cir. 2013) (quoting United States v. Morgan,

(1954)). To show that he is eligible for a writ of coram

nobis, “the petitioner must first adequately explain his failure

to seek relief earlier through other means; second, he must show

that he continues to suffer a significant collateral consequence

from the judgment being challenged and that issuance of the writ

will eliminate the consequence; and third, he must demonstrate

that the judgment resulted from a fundamental error.” Murray,

(internal footnotes omitted). “Even if the

petition meets all three of the conditions in the coram nobis

eligibility test, the court retains discretion to grant or deny

the writ, depending on the circumstances of the individual

case.”

.

Background

Williams was born in Nigeria and entered the United States

on a visa in 1992. He has lived in the United States since that

time. In March of 1996, he married Nadine Williams, who was

born in Jamaica. The Williamses have three children who were

all born in the United States.

Williams was indicted on a charge of passport fraud in

February of 2004 based on a misrepresentation in his passport

application. See United States v. Williams, 04-cr-51-JD (D.N.H.

February 19, 2004). During the change of plea hearing held on

July 29, 2004, the court acknowledged that the First Circuit had

2 recently changed the law with respect to venue for cases

charging passport fraud and that the case should not have been

brought in the District of New Hampshire. The court asked

Williams if, in light of the change in the law, he freely and

voluntarily waived his right to be tried in one of the Districts

in New York rather than the District of New Hampshire.

In response to the court’s question, Williams consulted

with his attorney, Richard Monteith. After discussing the issue

with Williams outside the courtroom, Monteith reported to the

court that Williams “would like to withdraw that waiver and not

go through with this proceeding today.” Transcript, doc. no.

31, at 9. The court asked if Williams wanted the case

dismissed, and Monteith responded, “He does, Judge.”

Monteith moved to dismiss the case.

In response, Assistant United States Attorney Rubega asked

that the court delay ruling on the motion to dismiss to give the

government time to file a superseding indictment to charge

Williams with making a false statement in violation of

. After a discussion about whether a superseding

indictment or a new indictment would be necessary to bring the

charge under § 1001, Monteith said: “Time is important to Mr.

Williams regarding immigration, what’s going to happen with

that, so I suppose we don’t have an objection to a superseding

indictment.” Id. at 12. Monteith also noted that a superseding

3 indictment, as opposed to a new indictment, would avoid having

Williams arrested on the new charge.

The court agreed to stay any ruling on the motion to

dismiss to allow time for the government to file a superseding

indictment. The government filed a superseding indictment on

August 5, 2004, charging Williams with making a false statement

in violation of § 1001.

Williams pleaded guilty to the charge of making a false

statement on October 14, 2004. During the hearing, Williams

admitted the factual allegations read by the court to support

the charge against him. Rubega then read the facts the

government would prove if the case went to trial. Monteith did

not object to the facts as read, and Williams also accepted the

facts as read by Rubega.

When asked by the court if he had any questions about the

proceedings, Williams said that he had no objection but noted

that “the Immigration matter is pending.” Monteith explained

that Williams had immigration hearings pending in New York.

Williams agreed that was the immigration matter to which he

referred. The court then accepted Wiliams’s plea. Williams was

sentenced on January 14, 2005, to three years of probation.

Williams’s wife became a United States citizen in 2010.

When Williams applied for lawful permanent resident status based

on his marriage to a citizen, his application was denied based

4 on the facts underlying Williams’s guilty plea in 2004, which

included a false claim of United States citizenship. Williams

has not been deported because of the current conditions in

Nigeria.

Discussion

In support of his petition, Williams contends that Monteith

provided ineffective assistance of counsel (1) by “sua sponte”

changing Williams’s plea and (2) by failing to inform Williams

of the immigration consequences of his plea and permitting him

to plead to facts that constituted passport fraud. The

government moves to dismiss the petition on the ground that the

relief provided by Padilla is not available to Williams.

Williams objects, arguing that his claims for relief are not

predicated on Padilla.

In Padilla, the Supreme Court held “that counsel must

inform her client whether his plea carries a risk of

deportation.”

. Failure to do so constitutes a

violation of the Sixth Amendment right to competent counsel.

The Court explained that its holding depended on “the

unique nature of deportation,”

, due to “the

seriousness of deportation as a consequence of a criminal plea,

and the concomitant impact of deportation on families living

lawfully in this country,”

.

5 A. “Sua Sponte” Changing Plea

The government does not appear to challenge Williams’s

first claim, that Monteith provided ineffective assistance by

“sua sponte” changing his plea. The only reference in the

petition to Padilla in support of the first claim is a quote

from Missouri v. Frye,

(2012), that

discusses Padilla in the context of determining that negotiation

of a guilty plea is a critical stage of criminal proceedings.

Therefore, the government does not provide grounds to dismiss

the first claim.

B. Immmigration Consequences of the Plea

In his second claim, Williams alleges that Monteith

provided ineffective assistance by failing to inform him of the

immigration consequences of the plea and by permitting him to

plead guilty to facts that constituted passport fraud when the

charge was making a false statement. As a result, Williams

contends, he cannot achieve lawful permanent resident status

despite his wife’s citizenship. The government argues that

Williams cannot seek relief under Padilla, which requires that

the claim be dismissed.

The requirement in Padilla that counsel advise criminal

defendants about the deportation consequences of a guilty plea

6 is limited to advice about deportation. See Chaidez v. United

States,

(2013); United States v. Suero,

, at *4, n.2 (D.N.H. Dec. 5, 2014). Williams

does not argue that Monteith failed to advise him about the

deportation consequences of his guilty plea or even that his

guilty plea raised any issue of deportation. Instead, he argues

that Monteith provided ineffective assistance because the facts

underlying his guilty plea preclude his eligibility for

permanent resident status based on being married to a United

States citizen. Therefore, Padilla does not support Williams’s

ineffective assistance of counsel claim.

Even if Padilla were interpreted to apply outside the

context of advice about deportation, Williams could not rely on

the holding to support his petition. Because “the Court

announced a new rule in Padilla,” the holding in Padilla does

not apply to “defendants whose convictions became final prior to

Padilla.” Chaidez,

. Judgment was entered on

Williams’s conviction on January 14, 2005. Williams did not

appeal his conviction. As a result, Williams’s conviction

became final long before the decision in Padilla was issued on

March 31, 2010.

Therefore, Williams’s second claim that alleges ineffective

assistance of counsel due to a failure to advise him about the

immigration consequences of his guilty plea must be dismissed.

7 Conclusion

For the foregoing reasons, the government’s motion to

dismiss (document no. 8) is granted as to the petitioner’s

second claim at Part B on page 13 of the petition but is denied

as to the first claim at Part A on Page 11 of the petition.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 22, 2016

cc: Seth R. Aframe, Esq. Jonathan Cohen, Esq. Paul F. O’Reilly, Esq. Jacob Max Weintruab, Esq.

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