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Murray v. United States

United States District Court, N.D. Georgia, Atlanta Division

January 29, 2018

WALTER V. MURRAY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         CORAM NOBIS 28 U.S.C. § 1651

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE

         Movant, Walter V. Murray, filed a pro se “motion to vacate plea due to immigration consequences.” [Doc. 27.][1] The District Court construed that motion as a petition for writ of error coram nobis and referred the matter to the undersigned to conduct an evidentiary hearing. [Doc. 61.] Following the hearing, the parties filed briefs. [Docs. 75, 79, 82.] For the reasons discussed below, the undersigned RECOMMENDS that the “motion to vacate plea due to immigration consequences” be GRANTED.

         I. Background

         Movant is a citizen of Trinidad and Tobago and a lawful permanent resident of the United States for more than thirty years. [Doc. 27 at 5-6; Doc. 75 at 1; Doc. 79 at 2.] In an information filed on June 25, 2009, Movant was charged with income tax evasion in the amount of $22, 054, in violation of 26 U.S.C. § 7201. [Doc. 1.] Movant pleaded guilty on December 10, 2009. [Doc. 15.]

         On April 2, 2010, Movant was sentenced to twelve months and one day of imprisonment, followed by two years of supervised release. [Doc. 24.] The Judgment and Commitment, entered on April 14, 2010, provided that (1) Movant was “allowed to voluntarily surrender upon designation by the Bureau of Prisons, ” and (2) “[u]pon release from imprisonment, [Movant] shall be turned over to a duly authorized . . . Immigration and Custom[s] Enforcement official for appropriate removal proceedings from the United States.” [Id. at 2.] Movant did not appeal. [See Dkt.]

         Movant's retained counsel, David R. MacKusick, withdrew from the case after sentencing. [See Docs. 26, 34-1.] Movant filed his pro se “motion to vacate plea due to immigration consequences” on April 20, 2010. [Doc. 27.] Movant then obtained two extensions of his voluntary surrender date, until July 19, 2010. [Docs. 34-1, 39.] Movant surrendered on that date, but he obtained release on bond on August 3, 2010, pending adjudication of his “motion to vacate plea due to immigration consequences.” [Doc. 44.] Nicole M. Kaplan of the Federal Defender Program, Inc., was appointed to represent Movant in connection with that motion. [Docs. 45, 46.] On April 17 and August 14, 2013, Movant and the Government indicated that they were attempting to reach an agreement in this case. [Docs. 50, 51.] However, the parties' efforts were ultimately unsuccessful.

         On January 29, 2015, the District Court construed the “motion to vacate plea due to immigration consequences” as a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. [Doc. 57.] On March 13, 2015, the District Court granted the Government's consent motion to construe this matter as a petition for writ of error coram nobis. [Doc. 61.] On December 10, 2015, the undersigned conducted an evidentiary hearing. [Doc. 70.]

         II. Writ of Error Coram Nobis

         The United States Court of Appeals for the Eleventh Circuit has set forth the following standard that applies to a petition for writ of error coram nobis:

Federal courts have authority to issue a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). The writ of error coram nobis is an extraordinary remedy of last resort available only in compelling circumstances where necessary to achieve justice. . . . A court's jurisdiction over coram nobis petitions is limited to the review of errors of the most fundamental character. . . . Such errors do not include prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence. . . . In addition, courts may consider coram nobis petitions only where no other remedy is available and the petitioner presents sound reasons for failing to seek relief earlier.

United States v. Mills, 221 F.3d 1201, 1203-04 (11th Cir. 2000) (citations, footnotes, and internal quotation marks omitted). “A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255.” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (per curiam).

         In the present case, Movant was not incarcerated when he filed his “motion to vacate plea due to immigration consequences.” However, Movant had recently been sentenced and was scheduled to surrender voluntarily. Therefore, Movant was “in custody under sentence of a [federal] court . . . .” 28 U.S.C. § 2255(a); see also Daker v. Baker, 263 Fed.Appx. 809, 812 (11th Cir. Jan. 25, 2008) (per curiam) (explaining that movant “need not be physically confined . . . as long as [government] action subjects [him] to restraints on liberty that are not generally shared by the public”).[2]

         The undersigned concludes that Movant may not obtain a writ of error coram nobis, but his “motion to vacate plea due to immigration consequences” may be properly considered as a § 2255 motion.

         III. 28 U.S.C. § 2255

         A. Standard of Review

         A motion to vacate, set aside, or correct sentence may be made “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255(a).

         “[C]ollateral review is not a substitute for a direct appeal . . . .” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Section 2255 relief “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.” Id. (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted). A § 2255 movant “has the burden of sustaining his contentions by a preponderance of the evidence.” Tarver v. United States, 344 Fed.Appx. 581, 582 (11th Cir. Sept. 18, 2009) (per curiam) (quoting Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)[3]).

         B. Ineffective Assistance of Counsel

         Movant claims that MacKusick provided ineffective assistance. [Doc. 27 at 1-3.] “[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003). In order to demonstrate ineffective assistance of counsel, a convicted defendant must show that (1) “counsel's performance was deficient, ” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

         As to the first prong of Strickland, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). As to the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A court may consider either prong first and need not address the other “if the defendant makes an insufficient showing on one.” Id. at 697.

         “[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between [pleading guilty] and going to trial.” Searcy v. Fla. Dep't of Corr., 485 Fed.Appx. 992, 997 (11th Cir. Aug. 9, 2012) (per curiam) (quoting Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984)) (internal quotation marks omitted). A defendant who has pleaded guilty must satisfy the second prong of Strickland by showing that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Connolly v. United States, 568 Fed.Appx. 770, 770-71 (11th Cir. June 10, 2014) (per curiam). “In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012).

         C. Counsel's Performance

         Movant contends that MacKusick should have advised him that he definitely would be deported after pleading guilty to income tax evasion in the amount of $22, 054. [Doc. 27 at 1-3; Doc. 75 at 7-10.] At the evidentiary hearing, Movant testified that he understood MacKusick's advice to be that Movant “could possibly be deported or . . . not. . . . [I]t wasn't a clear-cut decision one way or the other . . . .” [Doc. 72 at 10.] Consequently, Movant thought that he “would have a chance to go to . . . an immigration court to make a case [against deportation].” [Id.] It was only after sentencing, when Movant ...


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