7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

Sample Coram Nobis petition

PETITION FOR A WRIT OF CORAM NOBIS PURSUANT TO 28 U.S.C. § 1651(a)

Petitioner, XXXXXXXXX, hereby petitions this Court for a Writ of Coram Nobis to remedy the collateral
consequences of his criminal conviction in Case XXXXXXXX. In support of this Petition and Complaint
for injunctive relief, Petitioner alleges as follows:

SUMMARY

During a plea hearing conducted on the record, counsel explained to Petitioner for the first time that
his indictment for passport fraud was improperly brought in the wrong venue. Counsel asked
Petitioner whether he wished to waive the venue issue or have the indictment dismissed. Petitioner
unequivocally replied that he wanted the indictment dismissed. Minutes later, however, counsel sua
sponte changed Petitioner’s plea by agreeing to allow the Government to file a superseding
indictment—instead of having the charge dismissed—without asking Petitioner or explaining what that
meant. Was Petitioner’s plea made knowingly and voluntarily?

The government obtained a superseding indictment on the charge of making false statements. At the
second plea hearing, Petitioner’s counsel allowed Petitioner to plead guilty to a factual basis sufficient
to prove not only the charge of making false statements, but also the original charge passport fraud,
which was superseded and no longer pending. Specifically, the factual basis set forth that Petitioner
made false statements to a federal official with the intent to obtain a passport. Counsel failed to inform
Petitioner of the collateral consequences a guilty plea to making false statements would have on his
immigration status—let alone the more severe immigration consequences afforded to a guilty plea to
facts sufficient to prove passport fraud.

Given that counsel sua sponte changed Petitioner’s plea without consent; did not inform Petitioner of
the immigration consequences afforded to a guilty plea to making false statements or passport fraud;
and allowed Petitioner to plead guilty to facts establishing passport fraud even though the charge was
no longer pending, and the facts involving a passport were not elements of the charge of making false
statements; was counsel’s performance ineffective?

COLLATERAL CONSEQUENCES

Petitioner’s wife became a U.S. citizen in 2010. Accordingly, if Petitioner had simply pled guilty to
making a false statement, with a factual basis limited to making a false statement to a federal official
in order to obtain a “travel document,” instead of a “U.S. passport,” he would now be eligible to apply
for a lawful permanent resident status. However, because the factual basis sufficient to prove passport
fraud was allowed by counsel, the Immigration Judge viewed his guilty plea as including a false claim
of U.S. citizenship−effectively barring him from ever obtaining a green card. Petitioner is now subject
to removal from the United States at any moment.

Petitioner served his sentence of probation. Petitioner wishes vacate his plea or, in the alternative, be
allowed to plead guilty to making false statements in order to obtain a “travel document” as opposed
to a “U.S. passport.”

http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 1/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

JURISDICTION

This action arises under the Constitution of the United States, the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101 et seq., and the All Writs Act 28 U.S.C. § 1651 et seq.

This Court has jurisdiction under 28 U.S.C. § 1651(a). See U.S. v. Morgan, 346 U.S. 502, 507, 74 S.
Ct. 247 (1954); Ybarra v. U.S., 461 F.2d 1195, 1197 (9th Cir. 1972); Correa-Negron v. U.S., 473 F.2d
684, 685 (5th Cir. 1973); Bruno v. U.S., 474 F.2d 1261, 1263 (8th Cir. 1973).

VENUE

Venue is properly laid in the United States District Court, District of XXXXXXX under 28 U.S. Code §
1391(e)(1), because Mr. XXXXX was formerly convicted in this Court under Case XXXXXX.

PARTIES

PETITIONER, XXXXXXXX was convicted of making false statements 18 U.S.C. § 1001(a) as a result
of a guilty plea.

Mr. XXXXX is seeking to vacate or, in the alternative, amend his criminal conviction because his plea
was not made knowingly and voluntary and his attorney failed to negotiate a plea that took into
account the immigration consequences of the facts stipulated in the factual basis, which were not
necessary to sustain a plea a conviction for false statements.

RESPONDENT, THE UNITED STATES entered the criminal conviction against Mr. XXXXX in violation
of his Constitutional rights.

STATEMENT OF FACTS

1. Petitioner, XXXXX came to the United States from Nigeria on a H1-B Visa on May 5, 1992. Mr.
XXXXX later applied for asylum. In 2000, Mr. XXXX tried to obtain a Green Card through the
diversity lottery, but his application was not filed timely. Mr. XXXX has lived continuously in the
United States since that time.
2. On March 30, 1996, Mr. XXXXX married Nadine XXXXX, who hailed from Kingston, Jamaica.
The couple had three children during their marriage all of whom were born in the United States.
3. Divine Olatunde-XXXXX is 13 years old and attends eighth grade at XXXXXX School, Brooklyn,
New York. The twins, David and Daniel are 11 years old and attend sixth grade at the
XXXXXX School in Brooklyn, New York.
4. XXXXX became a U.S. citizen in 2010.
5. XXXXX came to the United States with a Bachelor Degree in Biochemistry and earned a
Master’s Degree in Community Health Care Management at Western Governor University.
6. XXXXX worked for the City of New York, Human Resources Administration for 19 years as a
Case Manager/Supervisor helping the elderly and disabled people of New York City.
7. In 2005, Mr. XXXXX founded XXXXXXX, Inc., a start-up business dealing in surgical equipment
sales. XXXXXXXX, Inc. currently employees six workers, and is making a positive ripple effect
on the U.S. economy.
8. In May 2015, XXXXXX.org bestowed Mr. XXXXXX with an Award of Appreciation for
Participating in Transforming the Community.

http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 2/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

9. XXXXX expects to expand XXXXXXX, Inc. in the next three months by adding another location
and three more employees.
10. Around February 19, 2004, Mr. XXXXX was indicted in the United States District Court, District
of XXXXXX for passport fraud in violation of 18 U.S.C. § 1542.
11. Williams was represented by Richard XXXXXXX, Esquire, 14 XXXXXX Road, XXXXXX.
12. The government obtained an indictment for passport fraud.
13. XXXXX filed a motion to dismiss and a motion to change venue, both of which were denied.
14. Later, on July 29, 2004 the Court acknowledged that there had been a change in law, which
consequently affected the validity of its prior motion rulings. Roughly one month earlier, on June
28, 2004, the United States Court of Appeals, First Circuit announced its decision in the
matter United States v. Salinas, 373 F.3d. 161 Court of Appeals, 1st 2004 holding that the proper
venue for the charge of passport fraud laid in the district where the Defendant made the false
statement and not where the passport was processed.
15. Because it was undisputed that Mr. XXXXX’ allegedly false statement occurred in Brooklyn, New
York, this Court acknowledged that “this case and all other cases like it should not have been
brought in this district.” (Transcript of July 29, 2004 Hearing, Page 8 Lines 22-24).
16. The Court then asked Mr. XXXXXX about the written waiver with respect to venue which his
counsel filed on his behalf and whether he freely gave up his Sixth Amendment right to be tried
in another venue. After a discussion between counsel and Mr. XXXXX, counsel expressed to the
Court:

“Judge, based on my conversation, we discussed this matter outside the courtroom because we were
just initially approached with that. Mr. XXXXXX actually would like to withdraw that waiver and not go
through with this proceeding today.” (Transcript of July 29, 2004 Hearing, Page 9 Lines 10-14).

17. The Court then asked whether Mr. XXXXX wanted the case dismissed, and counsel replied “[h]e
does, Judge.” (Transcript of July 29, 2004 Hearing, Page 9 Lines 15-18).
18. The Court then explained that the dismissal would be without prejudice and the Government
would have the option to either re-file the passport fraud action in Brooklyn, New York, (Eastern
District of New York) or bring different charges that might properly lie in the District of New
Hampshire.
19. The government requested that the Court delay its ruling to allow for a superseding indictment.
The Court advised that the Government would not be seeking a superseding indictment as
much as a new indictment.
20. In response, the Government admitted that if the Court dismissed the within indictment they
would certainly need a new indictment. But the Government wished the Court to delay its ruling
so that they could file a superseding indictment. (Transcript of July 29, 2004 Hearing, Page 10
Lines 7-25).
21. In a complete reversal, counsel for Mr. XXXXX then informed the Court, that “[t]ime is important
for Mr. XXXX regarding immigration, I suppose we don’t have an objection to a superseding
indictment.” (Transcript of July 29, 2004 Hearing, Page 12 Lines 8-11). (Ironically, counsel did
not understand the consequences of that criminal conviction on Mr. XXXX’ immigration status).
As a result, the Court left the motion pending and allowed the government time to supersede the
indictment.
22. The Government obtained a superseding indictment for the charge of making false statements,
18 U.S.C. § 1001(a).
23. On or about January 14, 2005, Mr. XXXXX plead guilty to making false statements, in violation
of 18 U.S.C. § 1001(a) before the United States District Court, District of New Hampshire.
Following his guilty plea, the Court sentenced Mr. XXXXX to 3 years of probation.
24. At the plea hearing, Mr. XXXXX’s counsel stipulated to a factual basis sufficient to sustain a
conviction for passport fraud in violation of 18 U.S.C. § 1542—despite the fact that the charge
was no longer pending. (See Transcript of October 14, 2004 Hearing, Page 12, Lines 21-23 and
Page 16 Lines 14-18).
http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 3/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

25. Thereafter, Mr. XXXXX applied for lawful permanent resident status based on the marriage to
his U.S. citizen spouse. However, the immigration judge reviewed Mr. XXXXX’ plea agreement,
including the factual basis, and concluded that Mr. XXXXX’ plea contained a false claim of U.S.
citizenship, because the factual basis set forth that Mr. XXXXX made false statements with the
intent to obtain a “U.S. passport.”
26. Only a U.S. citizen can apply for a U.S. passport. That is why a conviction under 18 U.S.C. 1542
necessarily implies a false claim of U.S. citizenship under INA 212(a)(6)(c).
27. However, for immigration purposes, a false statement under 8 U.S.C. 1001 does not necessarily
imply a false claim of U.S. citizenship. For instance, Mr. XXXXX could have pleaded guilty to
“making false statements to a federal agent for the purpose of obtaining a travel document.” A
passport is in fact a travel document, but there are other travel documents that can be obtained
by lawful permanent residents and even undocumented aliens. See 8 U.S.C. § 1203 (Reentry
Permit); 8 C.F.R. § 212.5(f) (Parole of Aliens Into The United States). Therefore, a plea to
making false statements to obtain a travel document would not necessarily imply a false claim of
U.S. citizenship.
28. Pursuant to 8 U.S.C. 1182(a)(6)(C)(i) and (ii), “Classes of Aliens Ineligible for Visas or
Admission” aliens making false claims of U.S. citizenship are permanently inadmissible to the
United States and no waiver of any kind is available (only a limited exception exists for aliens
whom both parents were U.S. citizens). In other words, they will be permanently barred from
ever obtaining any visa or admission into the U.S.
29. If Mr. XXXXX had pleaded guilty to making false statements and set forth the same factual
basis, with the only difference being changing the word “passport” to “travel document” he would
not have been permanently barred from ever obtaining any visa or admission into the U.S.
30. XXXXX does not have any other convictions. Mr. XXXXX’ wife is now a naturalized U.S. citizen.
Although a conviction for making false statements to a federal officer may be considered a crime
involving moral turpitude, the law would allow XXXXX to seek a waiver of that conviction based
on the prospective extreme hardship to his U.S. citizen wife.
31. On the other hand, it is undisputed that no waiver is available to a false claim of U.S. citizenship.
32. The Immigration Court treated Mr. XXXXX’s plea to making false statements as if it were a guilty
plea to the superseded charge of passport fraud, which necessarily included a false claim of
U.S. citizenship, and consequently denied Mr. XXXXX’ application for lawful permanent resident
status. However, the Immigration Court granted Witholding of Removal based on the current
turmoil in Nigeria.
33. XXXXX’ counsel is rightfully a well-respected practitioner. But, given that counsel sua
spontechanged Mr. XXXXX’ plea without consent; did not inform Mr. XXXXX of the immigration
consequences afforded to a guilty plea to making false statements or passport fraud; and
allowed Mr. XXXXX to plead guilty to facts establishing passport fraud even though the charge
was no longer pending; the performance of counsel fell below any objective standard of
reasonableness.
34. XXXXX served his sentence of probation, but would be suffering the collateral consequences of
plea for the rest of his life.
35. XXXXX respectfully preys that this Court vacates his conviction or, in the alternative, allow him
to amend his guilty plea to making false statements for obtaining a “travel document.”

EXHAUSTION OF REMEDIES

A Federal Court will grant Coram Nobis relief only if “no other remedy is available and sound reason
exists for failure to seek appropriate relief.” U.S. ex rel. Gomori v. Maroney, 196 F. Supp. 190, 191
(W.D. Pa. 1961).

Mr. XXXXX cannot appeal his conviction or file a motion to vacate with this Court, because the time
for doing so has expired. Unfortunately, Mr. XXXXX did not learn of the collateral consequences that
http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 4/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

attached to his guilty plea until after the time to appeal or file a motion to vacate had expired.

Thus, Mr. XXXXX has no other remedy at law for the direct and collateral consequences of his
criminal conviction.

LEGAL FRAMEWORK FOR RELIEF SOUGHT

The writ of error Coram Nobis is a remedy intended to achieve justice when “errors of the most
fundamental character” have occurred in a criminal proceeding.United States v. Khalaf, 116 F.
Supp.2d 210, 213-214 (D.Mass.1999) (quoting United States v. Morgan, 346 U.S. 502, 511-12, 74
S.Ct. 247, 252-53, 98 L.Ed. 248 (1954) quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16,
19, 59 L.Ed. 129 (1914)). It is “limited to ‘those cases where the errors were of the most fundamental
character, that is, such as rendered the proceeding itself irregular and invalid.’” United States v.
Khalaf, 116 F. Supp.2d 210, 213-214 (D.Mass.1999) (quoting United States v. Michaud, 925 F.2d 37,
39 (1st Cir.1991)).

The remedy of error Coram Nobis is available to vacate a conviction after sentence has been served
and the defendant is no longer in custody. U.S. v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248
(19544). In Morgan,the Supreme Court recognized that “[a]lthough a term has been served, the
results of the conviction may persist.” 346 U.S. at 512, 74 S.Ct. 247.

In order to obtain Coram Nobis relief, a petitioner must first establish that a fundamental error
occurred at some point during the course of the criminal proceedings. Morgan, 346 U.S. at 512, 74
S.Ct. at 253. An example of such an error is where a defendant receives ineffective assistance of
counsel in violation of the Sixth Amendment of the U.S. Constitution. Id., 346 at 511-12, 74 S.Ct. at
252-53 (finding Coram Nobis lies to remedy Sixth Amendment error); Moody v. United States, 874
F.2d 1575, 1577-78 (11th Cir.1989), cert denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042
(1990).

Criminal defendants have a Sixth Amendment right to effective assistance of counsel at

sentencing. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The granting of
§ 1251(b) relief, a JRAD, is part of the sentencing process. Ittah v. U.S., 761 F.Supp. 157, 158
(D.Me.1989) citing Janvier v. U.S., 793 F.2d 449 (2nd Cir.1986).

ALLEGATIONS OF ERROR

Counsel’s performance was ineffective, and Petitioner’s plea was not made knowingly or
voluntarily.

Counsel sua sponte changed Petitioner’s plea.

In order to prove ineffective assistance of counsel, petitioner must show (i) that his attorney’s
performance was, in light of all circumstances, unreasonable under prevailing professional norms, and
(ii) that there is a reasonable probability that, but for counsel’s errors, a different result would have
obtained. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Argencourt v. U.S., 78 F.3d 14, 16 (1st Cir.1996).

http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 5/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

The First Circuit has held that in order to state a claim under the first prong of Strickland, “a defendant
must allege and demonstrate that his counsel’s error clearly ‘resulted from neglect or ignorance,
rather than from informed professional deliberation.’” United States v. Khalaf, 116 F. Supp.2d 210,
213-214 (D.Mass.1999) (quoting U.S. v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978), citing Marzullo v.
Maryland, 561 F.2d 540, 543-45 (4th Cir.1977) cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d
394 (1978).

An attorney has a duty to research the applicable law and to advise his client in such a way as to
allow him to make informed choices, when the attorney undertakes to represent a criminal
defendant. United States v. Khalaf, 116 F. Supp.2d 210, 213-214 (D.Mass.1999) (quoting Straw v.
U.S., 931 F.Supp. 49, 51-52 (D.Mass.1996).

To obtain reversal of a conviction, the defendant must prove that counsel’s performance fell below an
objective standard of reasonableness and that counsel’s deficient performance prejudiced the
defendant, resulting in an unreliable or fundamentally unfair outcome in the
proceeding. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Court established that
claims of ineffective assistance of counsel in the plea bargaining context are governed by the
deficiency and prejudice test of Strickland. In Missouri v. Frye, 132 S.Ct. 1399 (2012), Justice
Kennedy observed that the Sixth Amendment right to the effective assistance of counsel applies to all
critical stages of criminal proceedings.

The Court’s more recent decision in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010),
which held that counsel was deficient in misinforming the defendant of the immigration consequences
of his guilty plea, made clear that the negotiation of a plea bargain is a critical stage under the Sixth
Amendment.

As stated in Frye,

“in Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea
offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set
aside because counsel misinformed the defendant of the immigration consequences of the conviction.
The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for
purposes of the Sixth Amendment right to effective assistance of counsel.” 559 U.S., at ––––, 130
S.Ct., at 1486. It also rejected the argument made by petitioner in this case that a knowing and
voluntary plea supersedes errors by defense counsel. Missouri v. Frye, 132 S. Ct. 1399, 1406, 182 L.
Ed. 2d 379 (2012).

Given the centrality of plea bargains to the criminal justice system today, defense counsels have the
responsibility during the plea bargain process to render the adequate assistance that the Sixth
Amendment requires at critical stages. “It is insufficient,” wrote Justice Kennedy, “simply to point to the
guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” Id at 1407.

Here, during a plea hearing, counsel explained to Mr. Williams for the first time that his indictment for
passport fraud was improperly brought in the wrong venue. Counsel asked Mr. Williams whether he
wished to waive the venue issue or have the indictment dismissed. Mr. Williams unequivocally replied
that he wanted the indictment dismissed. Minutes later, however, counsel sua sponte changed Mr.
Williams’ plea by agreeing to allow the government to file a superseding indictment—instead of having

http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 6/7
7/11/2017 Sample Coram Nobis petition | Writ of Coram Nobis

the charge dismissed—without asking Mr. Williams or explaining what that meant. Mr. Williams was
then required to defend the charges in the District of New Hampshire, located a fair distance from his
residence in Brooklyn, New York.

Counsel failed to inform Petitioner of the immigration consequences of his plea, and permitted
Petitioner to plead guilty to facts constituting passport fraud even though the charge was no
longer pending.

The Sixth Amendment required counsel to provide affirmative, competent advice to Mr. XXXXX, a
non-citizen, regarding the immigration consequences of his guilty plea, and absent this advice a non-
citizen may claim ineffective assistance of counsel. Padilla at 1483. Counsel, however, did not inform
Mr. XXXXX of the immigration consequences afforded to a guilty plea to making false statements or
passport fraud.

Moreover, Counsel allowed Mr. XXXXX to plead guilty to facts establishing passport fraud even
though the charge was no longer pending, and the facts involving a passport were not elements of the
charge of making false statements. Counsel’s error clearly “resulted from neglect or ignorance, rather
than from informed professional deliberation.”

If Mr. XXXXX had pleaded guilty to making false statements and set forth the same factual basis, with
the only difference being changing the word “passport” to “travel document” he would not have been
permanently barred from ever obtaining any visa or admission into the U.S. But for counsel’s error, Mr.
XXXXX would be eligible to apply for lawful permanent resident status based on marriage to his U.S.
citizen spouse, and seek a waiver of the criminal conviction.

Counsel’s performance fell below any objective standard of reasonableness. Unfortunately, Mr.
XXXXX is still suffering the collateral consequences of counsel’s errors.

PRAYER FOR RELIEF

WHEREFORE, Petitioner, XXXXXXXXXX, prays that this Court grant the following relief:

1. Assume jurisdiction over this matter;

2. Grant Petitioner a writ of Coram Nobis vacating the criminal conviction of making false
statements, 18 U.S.C. § 1001(a) because it was obtained in violation of Petitioner’s
Constitutional rights;
3. In the alternative, allow Petitioner to amend his guilty plea;
4. Grant any other and further relief which this Court deems just and proper.

Dated: November 12, 2015 Respectfully submitted,

http://www.writofcoramnobis.com/sample-coram-nobis-petition/ 7/7