United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Currently pending before the court is the Amended Report and Recommendation of the United States Magistrate Judge Lawrence O. Anderson ("R & R") (Doc. 18), "find[ing] that petitioner [Matias Velazquez] is entitled to error coram nobis relief." R & R (Doc. 18) at 18:8-9. Timely objections were filed by the respondent, the United States of America (Doc. 19). The petitioner did not file a response to those objections as the R & R permitted, however. See R & R (Doc. 18) at 18:25-26. For the reasons set forth herein, the court rejects the recommendations, and denies the petitioner's "Motion to Vacate Plea of Guilty & Set Aside Judgement [sic]/Motion for Expungement" ("Mot.") (Doc. 1).
I. Factual & Procedural
A. Criminal Proceedings
On August 15, 1997, represented by criminal defense attorney Jose de la Vara, the petitioner pled guilty in this federal district court to a one count information charging him with conspiracy to defraud the United States in violation of 18 U.S.C. § 286. Response to Defendant's Motion to Vacate Plea of Guilty and to Defendant's Motion for Expungement ("Resp."), exh. 11 thereto (Doc. 10-1) at 2-5: and exh. 16 thereto (Doc. 10-1) at 17-24. Among other things, while managing a tax preparation business, as part of a rapid return program, the petitioner knowingly prepared and filed false federal income tax forms, claiming an Earned Income Credit for non-qualifying clients. Id. at 3-4; see also Mot. (Doc. 1), exh. 1 thereto (Doc. 1-1) at 13-14, ¶¶ 1-2. This program generated fees for not only the tax business, but also a bonus for petitioner for each rapid refund return prepared by his office. Id. at 3; see also Mot. (Doc. 1), exh. 1 thereto (Doc. 1-1) at 14, ¶ 3.
In the plea agreement, which the parties "approv[ed] and accept[ed]" on August 15, 1997, of the total tax loss of $285, 180.00, the parties stipulated to a "total loss attributable to" the petitioner of "$95, 121.00." Mot. (Doc. 1), exh. 1 (Doc. 1-1) thereto at 15:14 (emphasis omitted); and at 9:13-16, ¶ 3(g). Recognizing that it was "fully within the Court's discretion whether it follow[ed] this recommendation, as part of that plea agreement, the United States agreed to "ask the Court to recommend to the Immigration and Naturalization Service ("INS") that the [petitioner] not be deported... for his involvement" in the criminal activity to which he pled guilty. Id. at 9-10, ¶ 3(h)(2).
During the August 15, 1997, waiver and change of plea hearing, in response to the court's explicit inquiry as to whether the petitioner understood that it was within the court's discretion whether or not to follow the United States' recommendation that he not be deported, he responded, "Yes." See Resp. (Doc. 10), exh. 16 thereto (Doc. 10-1) at 18. At that time, the petitioner also confirmed the accuracy of the factual basis for his plea. Id. at 47-48. Prior to pleading guilty, the court inquired as to whether the petitioner had any questions of the court, his lawyer, or the Government's lawyer; he did not. Id. at 48. The petitioner then plead guilty "because [he] [was] guilty[.]" Id. at 49.
At his June 14, 1999, sentencing, where the petitioner was again represented by counsel, after granting a "substantial" downward departure, this court sentenced the petitioner to four years of probation. Id., exh. 17 thereto (Doc. 10-1) at 27:13; 27:18-19. As a "special condition of probation, the court ordered that "if deported, the [petitioner] shall not reenter the United States without legal authorization and the permission of this court." Id. at 30:16-18. The court "elected to decline to make the recommendation without prejudice[, ]... mean[ing] that if inquiry is made, the Court may reconsider its determination when it makes such recommendation." Id. at 32:9-12.
To support his motion, the petitioner filed a terse affidavit, wherein he avers that:
1. [He] read the Motion... and agree[s] with its factual contents.
2. When [he] entered into [his] plea agreement..., [he] was not aware that this type of conviction would have precluded [him] from remain[ing] in the United States with his family.
3. [H]ad [he] known that this conviction would result in automatic deportation, [he] most likely would have tried to work out a different plea agreement with the government, which would not have resulted in [his] deportation, or, [he] would have taken the matter to trial."
Mot. (Doc. 1), exh. 3 thereto (Doc. 1-3) at 2:14-22, ¶ ¶ 1-3.
The United States' response includes a declaration from the petitioner's attorney, more fully discussed herein, outlining his representation of the petitioner from the time of initial appearance through his sentencing. Suffice it to say for now that attorney de la Vara did not "tell [the petitioner] that his conviction would result in automatic deportation." Resp. (Doc. 10), exh. 24 thereto (Doc. 10-1) at 68, ¶ 6.
B. Immigration Proceedings
The petitioner is a native and citizen of Mexico who has been a lawful permanent resident, but not a citizen or a national, of the United States either since November 21, 1989, or December 27, 1989. Id., exh. 18 thereto (Doc. 10-1) at 37; exh. 22 thereto (Doc. 10-1) at 60. On January 17, 1996, prior to his guilty plea, the petitioner completed an Application for Naturalization, with the assistance of a non-attorney representative from Chicanos Por La Causa. Id., exh. 18 thereto (Doc. 10-1) at 40. After determining that his federal guilty plea rendered him "ineligible" to apply for naturalization, on April 17, 2002, the petitioner formally withdrew that Application. Id., exh. 19 thereto (Doc. 10-1) at 43.
On August 8, 2007, four years after the completion of his probation sentence, the petitioner filed a second Application for Naturalization, with the assistance from American Beginnings, a Yuma, Arizona organization. Id . exh. 20 (Doc. 10-1) thereto at 55. At his September 10, 2008, interview for that Application, the petitioner disclosed his fraud conviction and probation sentence. Id. at 52 and 54. Given his June 14, 1999, sentencing, "it was found" that the petitioner "was convicted of an aggravated felony[, ]" and was thus be "removable from the United States." Id . exh. 21 (Doc. 10-1) thereto at 57-58. On November 2, 2010, petitioner's second Application for Naturalization was denied. Id., exh. 20 (Doc.10-1) thereto at 45.
Thereafter, on November 8, 2010, given his prior conviction, the Department of Homeland Security served upon the petitioner, by regular mail, a Notice to Appear on an undetermined date and time for removal proceedings. Id., exh. 22 (Doc. 10-1) thereto at 60-61. The basis for removal, according to that Notice was:
petitioner's "convict[ion] of an aggravated felony as defined in section 101(a)(43)(M) of the Act, a law relating to an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10, 000; or (ii) is described in The Internal Revenue Code of 1986, Section 7201 (relating to tax evasion) in which this revenue loss to the Government exceeds $10, 000.
Id. at 62. By letter of the same date, the INS advised the petitioner of the denial of his second Application for Naturalization, and further advised him that he had been placed in removal proceedings. Id., exh. 23 thereto (Doc. 10-1) at 64-66.
C. Petitioner's Motion
Prior to the petitioner's placement in removal proceedings, on March 31, 2010, in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Supreme Court held "that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea." Chaidez v. United States, ___ U.S. ___ , 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013). Almost 12 years after his sentencing, nearly eight years after the completion of his probation, and exactly one year after Padilla, on March 31, 2011, the petitioner filed the present motion. In moving to vacate his guilty plea, the petitioner claims that he was not properly advised of the serious immigration consequences of his guilty. In particular, heavily relying upon Padilla, the petitioner contends that he should have been advised that his guilty plea would result in "presumptive, or, virtually mandated deportation[.]" Mot. (Doc. 1) at 5:17. In light of the foregoing, the petitioner argued that his guilty plea did not: (1) comply with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), because the record does not "affirmatively show" that his "plea was intelligent and voluntary[, ]" Murtishaw v. Woodford , 255 F.3d 925, 958 (9th Cir. 2001) (citation omitted); and (2) did not comport with Fed.R.Crim.Proc. 11 because it was not knowing, voluntary, and intelligent. The third basis for the petitioner's motion is an ineffective assistance of counsel claim against attorney de la Vara under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Padilla, and United States v. Kwan , 407 F.3d 1005 (9th Cir. 2005), abrogated on other grounds by Padilla , 130 S.Ct. 1473. Alternatively, the petitioner requested expungement of his criminal record
The United States' first responds that the petitioner is not entitled to relief under 28 U.S.C. § 2255 because he is no longer in custody. Next, arguing that he has not provided any authority for so doing, the United States challenged the petitioner's request for expungement. Then, construing the petitioner's motion as seeking coram nobis relief, the United States contended that such relief is not available because he did not show valid reasons for delay in seeking such relief in that he "knew from the very beginning that the criminal conviction could have immigration consequences." Resp. (Doc. 10) at 7:22-23 (citation omitted). Further, the United States contended that the petitioner did not show "error of the most fundamental character" because his counsel did provide effective assistance by "recogniz[ing] that the conviction could create problems for [the petitioner], [and]... d[oing] his best to mitigate those consequences[.]" Id. at 9:24-25 (internal quotation marks and citation omitted). In making this argument, the United States asserts that the petitioner's counsel's "actions were reasonable" because at the time the immigration consequences of the petitioner's guilty plea "were unclear" because "it was an open question whether his crime could be classified as an aggravated felony' for deportation purposes because the loss amount was not an element of the offense." Id. at 9:19 and 9:4-6 (citations omitted).
Additionally, the petitioner's ineffective assistance of counsel claim is not viable, the United States contends, because he did not show prejudice, the second prong of such a claim. Lastly, the United States argues that laches bars the petitioner's claim for coram nobis relief because it is prejudiced due to the delay such relief given that it does not have "witness statements or copies of the documentary evidence[.]" See Supplement to Government's Response to Defendant's Motion (Doc. 13) at 1:25-26.
Conceding the inapplicability of section 2255 relief, the petitioner nonetheless asserts that his motion was timely because the relevant time did "not start to run... at least until after" the March 31, 2010, Padilla decision. See Reply (Doc. 16) at 2:11-12. As to the expungement issue, the petitioner also concedes that his cited authority is not directly on point, but persists in arguing that "federal courts have the equitable power and thus the ability to expunge criminal convictions when justice requires." Id. at 2:17-18. Addressing his purported delay in filing this motion, the petitioner retorts that the relevant time frame is not when he became aware of the general "immigration consequences'" of his guilty plea, but rather, when he became aware of "automatic deportation[, ]" which came much later. Id. at 3:10-11. Further, contrary to what the Government asserts, the petitioner maintains that when he pled guilty, it was settled that the crime to which he pled was an aggravated felony, which would result in automatic deportation.
II. Report & Recommendation
At the outset, agreeing with the United States, the Magistrate Judge found that because the petitioner is no longer in custody, he is not entitled to § 2255 relief. R & R (Doc. 18) at 4:25-5:5. The Magistrate Judge thus went on to consider whether the petitioner may be entitled to coram nobis relief. In so doing, the Magistrate Judge did not consider, or even ...