16‐3739‐cv Rodriguez v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of April, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges.

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CLEOPATRA RODRIGUEZ, Petitioner‐Appellant,

v. 16‐3739‐cv

UNITED STATES OF AMERICA, Respondent‐Appellee.

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FOR PETITIONER‐APPELLANT: MALVINA NATHANSON, New York, New York.

FOR RESPONDENT‐APPELLEE: ANDREW D. BEATY, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Preska, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is VACATED and the

case is REMANDED for further proceedings.

Petitioner‐appellant Cleopatra Rodriguez appeals from a memorandum

and order entered October 17, 2016, denying her petition for a writ of error coram nobis

seeking to vacate her guilty plea and conviction. We assume the partiesʹ familiarity

with the underlying facts, procedural history, and issues on appeal.

Rodriguez legally entered the United States in 1994 from the Dominican

Republic. In March 2007, she applied for citizenship, and in October 2007, she became a

naturalized citizen of the United States. As part of her citizenship application,

Rodriguez stated, under penalty of perjury, that she had not committed a crime or

offense for which she had not been arrested.

In June 2009, however, Rodriguez was indicted, along with ten others, for

crimes arising out of an income tax scheme alleged to have occurred between 2006 and

2008. As part of the scheme, different individuals filed for federal and state tax refunds

to which they were not entitled and rented apartments under false names to which the

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refunds would be sent. Rodriguezʹs alleged role was to cash checks on three separate

occasions and to rent an apartment under a false name, for which she received ʺa little

under a thousand dollarsʺ in total. App. 90.

On January 25, 2010, Rodriquez pleaded guilty to three counts of the

indictment: conspiracy to defraud the United States in violation of

,

conspiracy to commit mail and wire fraud in violation of

, and

conspiracy to commit identification document fraud in violation of

(a)(7) & (f).

At the plea proceeding, the magistrate judge (Ellis, M.J.) inquired about

Rodriguezʹs citizenship. Speaking through an interpreter, Rodriguez stated that she

was a citizen of the United States but her counsel immediately ‐‐ but incorrectly ‐‐ told

the court that ʺshe is not a citizen of the United States.ʺ App. 59. The magistrate judge

then warned Rodriguez of the deportation consequences associated with her guilty

plea, and asked, ʺdo you understand that by pleading guilty to these charges and

because youʹre not a citizen of the United States . . . you are subject to being deported

and that in all likelihood you will be deported? Do you understand that?ʺ

Rodriguez responded, ʺYes, sir.ʺ

Rodriguez then read a statement, prepared by her lawyer and translated

into Spanish, admitting that ʺ[b]etween 2006 and 2008 [she] agreed to help others to

defraudʺ the Government and ʺ[i]n 2007, three different times [she] went to check

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cashing places . . . [and] cashed tax refund checks that were not payable to [her],ʺ for

which she ʺwas paid $200ʺ each time. App. 68‐69. Additionally, Rodriguez admitted

that ʺ[i]n early 2007, [she] signed a lease in [her] name for an apartment for one of the

persons involved in this scheme . . . [and] knew that the person was going to use it as

one of the locations where tax refund checks generated as a result of the [scheme] were

going to be sent.ʺ App. 69.1 The magistrate judge recommended that the district court

accept Rodriguezʹs guilty plea, and the district court (Baer, J.) subsequently did so.

On June 10, 2010, Rodriguez appeared before the district court for

sentencing. At sentencing, defense counsel stated, contrary to his earlier

representations, that Rodriguez is ʺa United States citizen, has filed tax returns every

year, has paid her taxes, and is in a position of fully documented income here.ʺ App.

80. Counsel then requested a below‐guidelines sentence, emphasizing Rodriguezʹs

desire to continue working to support her family because she is the ʺsole basis of

financial support for her two infant children . . . as well as both of her parents,ʺ and her

ʺfamily would suffer from severe collateral consequences due to [her] imprisonment.ʺ

App. 75, 77.

In sentencing Rodriguez, the district court acknowledged that her

ʺculpability . . . was significantly less than most of [the] other defendants,ʺ and that it

1 In her affidavit submitted to the district court, Rodriguez represented that during the plea allocution, she told her lawyer off the record that she ʺwas not sure the allocution was correct.ʺ App. 27. The lawyer responded that she should follow his instructions.

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was ʺtaking into consideration [Rodriguezʹs] clean record, the family problems,

. . . the relatively small role that she played [in the scheme], and [ ] her acknowledgment

in advance of her arrest as to her guilt.ʺ App. 88, 91. Rodriguez was then sentenced to

90 daysʹ imprisonment, significantly below the guidelines range of 21 to 27 months, to

be followed by two yearsʹ supervised release.

In April 2014, after Rodriguez had completed her sentence and term of

supervised release, the Government filed denaturalization proceedings against her in

the Eastern District of New York. The denaturalization complaint alleged that

Rodriguez was ineligible for naturalization when she applied for citizenship in March

2007, in part because she had committed an unlawful act within the period prior to her

application, which adversely reflected on her character. The complaint also alleged that

Rodriguez illegally procured her citizenship by willfully mispresenting by omission in

her application her prior and ongoing criminal activities.

On September 25, 2014, Rodriguez filed a petition for a writ of error coram

nobis seeking not only vacatur of the judgment of conviction, but also vacatur of her

plea. Rodriguez claimed, as she does on appeal, that prior to the plea allocution, her

counsel ʺassured [her] several times that [she] did not have to worry about the

immigration consequences of a plea because [she] was a citizen,ʺ and that she ʺrelied on

his assurancesʺ in pleading guilty. App. 26. She also argued that a ʺcompetent attorney

could have negotiated a plea that would not have required her to admit to facts that

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would support denaturalization,ʺ Appellantʹs Br. 11‐12, and that, for example, had she

been properly advised, she would have asked her attorney to seek a plea agreement

that would not require her to admit to criminal conduct before October 2007. App. 29.

Rodriguez also asserted that had she known of possible immigration consequences, she

ʺwould have . . . instructed [counsel] . . . to move to vacate the plea immediately.ʺ App.

30. Rodriguez requested a hearing.

On October 17, 2016, the district court denied the petition, without a

hearing, and held that Rodriguez failed to establish (1) circumstances compelling coram

nobis relief because she had not demonstrated that she was prejudiced by her counselʹs

objectively unreasonable advice because ʺ[t]here is no reason to believe [that] the

Government or the Court would have entertained a plea agreement that contradicted

the allegations of [the] indictment,ʺ App. 165, and (2) that an order vacating her

conviction would affect her denaturalization proceedings because Rodriguezʹs plea

allocution would remain an undisputed matter of record, and Rodriguez did not deny

the accuracy of the allocution in her coram nobis petition. This appeal followed.

DISCUSSION

This Court ʺreview[s] the judgeʹs ultimate decision to deny the writ [of

coram nobis] for abuse of discretion,ʺ but reviews de novo ʺthe question of whether a

district judge applied the proper legal standard.ʺ United States v. Mandanici,

(2d Cir. 2000).

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A writ of error coram nobis is an ʺʹextraordinary remedyʹ available only in

rare cases.ʺ Kovacs v. United States,

(2d Cir. 2014) (quoting United States v.

Morgan,

(1954)). To obtain coram nobis relief, a petitioner must

demonstrate three factors: (1) ʺthere are circumstances compelling such action to

achieve justice,ʺ (2) ʺsound reasons exist [ ] for failure to seek appropriate earlier relief,ʺ

and (3) ʺthe petitioner continues to suffer legal consequences from [her] conviction that

may be remedied by granting of the writ.ʺ Foont v. United States,

(2d Cir.

1996) (citations and internal quotation marks omitted) (alteration in original)).

Only the first and third factors are at issue here. As to the first factor,

ineffective assistance of counsel is one circumstance that may warrant coram nobis relief.

Kovacs,

(citing Chhabra v. United States,

(2d Cir. 2013)).

For an ineffective assistance claim, a defendant (1) ʺmust demonstrate that [her]

counselʹs performance ʹfell below an objective standard of reasonableness in light of

prevailing professional normsʹʺ and (2) ʺaffirmatively ʹprove prejudice arising from

counselʹs allegedly deficient representation.ʹʺ United States v. Cohen,

(2d Cir. 2005) (quoting Strickland v. Washington,

(1984) (internal

quotation marks omitted)).

The district court concluded, and we agree, that Rodriguezʹs counselʹs

ʺalleged advice that she need not worry about immigration consequences . . . [fell]

below an objective standard of reasonableness.ʺ App. 164. See Kovacs,

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(ʺ[N]o reasonable jurist could find a defense counselʹs affirmative misadvice as to the

immigration consequences of a guilty plea to be objectively reasonable.ʺ); Padilla v.

Kentucky,

, 365‐68 (2010) (holding that deportation is always ʺa particularly

severe ʹpenalty,ʹʺ and the failure by counsel to properly advise client of deportation

consequences was constitutionally deficient). Here, counselʹs apparent advice to

Rodriguez that she did not have to worry about the immigration consequences of a plea

ignored the possibility of denaturalization. Accordingly, the question is whether

Rodriguez was prejudiced by her counselʹs deficient performance.

Whether a defendant is prejudiced requires a ʺcase‐by‐case examination,ʺ

Williams v. Taylor,

(2000), of the ʺtotality of the evidence,ʺ Strickland,

. We have previously held that ʺa defense lawyerʹs incorrect advice about

the immigration consequences of a plea is prejudicial if it is shown that, but for

counselʹs unprofessional errors, there was a reasonable probability that the petitioner

could have negotiated a plea that did not impact immigration status or that he would

have litigated an available defense.ʺ Kovacs,

. To show prejudice, ʺ[t]he

petitioner must [also] clearly demonstrate that [she] placed particular emphasis on

immigration consequences in deciding whether or not to plead guilty.ʺ

(brackets

and internal quotation marks omitted).

On this record, it is not clear whether there was a reasonable probability

that counsel could have negotiated a plea that did not impact Rodriguezʹs immigration

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status, and indeed, the record is silent as to whether any such discussions took place or

whether counsel even considered the possibility of denaturalization. In Kovacs, we

determined that the defendant, an Australian national who had become a permanent

resident of the United States, ʺmade a showing of prejudice based on his ability to

negotiate an alternative plea.ʺ

. In that case, Kovacsʹs counsel submitted a

declaration that stated that Kovacs had pleaded guilty to a misprision of felony charge

for the sole reason that counsel incorrectly believed the charge would not impair

Kovacsʹs immigration status ‐‐ ʺa view [that was] conveyed to the prosecutionʺ during

plea negotiations. Id.2 Rodriguezʹs prior counsel, however, did not submit an affidavit

nor did the district court conduct an evidentiary hearing to determine what happened

during plea discussions and negotiations.

Although, unlike in Kovacs, there were no statements at Rodriguezʹs plea

hearing clearly demonstrating a ʺsingle‐minded focusʺ on avoiding negative

immigration consequences, this is not surprising given counselʹs alleged early and

continued assurances that there were no immigration consequences to worry about in

her case. Kovacs,

; see also Lee v. United States,

(2017).

2 It is certainly plausible that Rodriguezʹs counsel could have asked the Government to agree not to seek denaturalization or that the Government would have agreed to a charge or more limited factual allocution that would reduce the possibility of denaturalization. See, e.g., Kovacs,

(ʺ[T]he petitioner could have negotiated a plea that did not impact immigration status.ʺ); United States v. Kwan,

, 1017‐18 (9th Cir. 2005), abrogated in irrelevant part by Padilla,

(ʺKwan could have gone to trial or renegotiated his plea agreement to avoid deportation.ʺ).

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Moreover, there clearly was some confusion during the plea allocution as counsel

incorrectly stated that Rodriguez was not a citizen. Finally, in her affidavit submitted to

the district court, Rodriguez unequivocally stated that, had she been properly advised,

she would have insisted that counsel ʺcorrect his error at the plea as to [her] citizenshipʺ

and ʺmove to vacate the plea immediately.ʺ App. 30.

The Supreme Court has recently instructed that judges should look to

ʺcontemporaneous evidence to substantiate a defendantʹs expressed preferencesʺ when

a defendant alleges that he would not have pleaded guilty but for an attorneyʹs deficient

advice on immigration consequences. Lee,

.3 In Lee, the Court

particularly emphasized that the defendant had ʺstrong connections to the United

Statesʺ ‐‐ Lee had lived in the United States for nearly three decades, had established

two businesses, and was the only family member in the United States who could care

for his elderly parents.

. Under the circumstances, this left ʺno reason to

doubt the paramount importance [the defendant] placed on avoiding deportation.ʺ

Here, Rodriguezʹs counsel repeatedly emphasized at the plea proceeding

that Rodriguezʹs sole concern with respect to a sentence was to ensure that she would

be able to continue working in the United States to financially support her family.

Additionally, like Lee, Rodriguez had lived in the United States for a long period ‐‐

approximately 13 years ‐‐ prior to her involvement in the charged conspiracy, worked

3 Lee was decided on June 23, 2017, after the district courtʹs October 27, 2016, decision, and after the partiesʹ briefs were filed in this action.

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several jobs, and provided the sole source of income for her family, many of whom had

extensive health issues. Therefore, there also is reason to believe that Rodriguez would

have placed ʺparamount importance,ʺ Lee,

, on avoiding

denaturalization had she known that was a possibility. On this record, however, we

cannot make that determination.

It also is not clear on this record whether Rodriquez would have

proceeded to trial had she known she could face denaturalization, but that certainly is a

possibility as Rodriguez stated that she would have asked her lawyer to ʺvacate the plea

immediatelyʺ had she been properly advised. App. 30. See Kwan, 407 F.3d at 1017‐18

(ʺ[B]ut for counselʹs deficient performance, there is a reasonable probability that [the

defendant] would have moved to withdraw his guilty plea. After withdrawing his plea,

[the defendant] could have gone to trial or renegotiated his plea agreement to avoid

deportation[,] [or] he could have pled guilty to a lesser charge.ʺ). In Kovacs, we held

that even if the defendant could not negotiate a plea that did not impair his

immigration status, Kovacs alternatively demonstrated prejudice because he alleged he

would have litigated an available defense. See Kovacs,

. At oral argument

before this Court, Rodriguezʹs appellate counsel suggested that Rodriguez also might

have decided to proceed to trial had she been accurately informed of the possibility of

denaturalization and deportation.

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Even assuming Rodriguez might not have had a successful defense to the

charges, ʺpreserving the [ ] right to remain in the United States may be more important

to the [defendant] than any potential jail sentence.ʺ Lee,

. In situations

ʺwhere we are [ ] asking what an individual defendant would have done, the possibility

of even a highly improbable result may be pertinent to the extent it would have affected

[the defendantʹs] decisionmaking.ʺ

. Therefore, ʺthere is more to consider [in

the prejudice inquiry] than simply the likelihood of success at trial,ʺ and when the

ʺconsequences of a conviction after trial and by plea . . . are, from the defendantʹs

perspective, similarly dire, even the smallest chance of success at trial may look

attractive.ʺ

. On the present record and under the circumstances, we cannot

determine whether Rodriguez would have opted to defend against the charges had she

known she could be denaturalized.

For all of the reasons above, we remand for the district court to develop a

fuller record concerning the issue of prejudice.

The district court also held that Rodriguez is ineligible for coram nobis

relief because she failed to establish the third factor: that vacating her conviction would

ʺremedy the effect of her denaturalization proceedings.ʺ App. 169; see Foont,

(the petitioner must show that the ʺlegal consequences from his conviction . . . may

be remedied by granting of the writʺ).

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In evaluating this factor, however, the court did not acknowledge that

Rodriguez sought vacatur of not only the judgment of conviction, but also her guilty

plea. Rodriguez argues that if the district court were also to vacate her plea, the

statements she made at the plea allocution could not be used against her, and the

foundation for the denaturalization proceeding would disappear. See Fed. R. Evid.

410(a)(1), (3) (evidence of a statement made during a guilty plea that is later withdrawn

is inadmissible in a civil or criminal case). Indeed, there is support for this argument.

See United States v. Mergen, No. 06‐CR‐352,

, at *3 (E.D.N.Y. Feb. 3, 2010)

(ʺAs a general rule, statements made by a defendant in connection with . . . [a]

withdrawn plea cannot be introduced at trial.ʺ (citing Fed. R. Evid. 410)). Moreover, the

Government has already ʺconcede[d] that [Rodriguez] has satisfied the . . . third

requirement[ ] for obtaining relief,ʺ because she ʺʹcontinues to suffer legal consequences

from [her] conviction that may be remedied by granting of the writ.ʹʺ App. 126 n.1

(quoting Foont, 83 F.3d at 79) (final alteration in original).

Accordingly, we also remand the case for the district court to further

develop the factual record as to whether the legal consequences of Rodriguezʹs

conviction ‐‐ the basis for the denaturalization proceedings ‐‐ would be remedied by

granting coram nobis relief.

. . .

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For the reasons set forth above, we VACATE the district courtʹs order and

REMAND for further proceedings.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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