KIMBERLY J. MUELLER, District Judge.
The matter is before the court on pro se movant Andreas Koertel's request to vacate his conviction and sentence under 28 U.S.C. § 2255, on the ground that he had received constitutionally ineffective assistance of counsel in connection with his decision to plead guilty. See generally Mem. P. & A., ECF No. 34-1. Koertel argues his counsel during his arraignment, change of plea, and sentencing hearing, Danny Brace, provided ineffective assistance of counsel because Brace did not inform Koertel of the immigration consequences of Koertel's guilty plea to the felony charge of alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Id. at 11-12. The United States opposes the motion. Opp'n, ECF No. 46. No reply was filed.
As explained below, the motion is dismissed with prejudice.
On June 11, 2014, Koertel pled guilty to alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). ECF No. 46-1. As part of the plea agreement, Koertel agreed to waive various rights, including the right to appeal and collaterally attack any aspect of his conviction or sentence. Id. In exchange, the United States would move to dismiss the two remaining counts against Koertel. Id. The plea agreement also explicitly stated, with respect to the immigration consequences of pleading guilty,
ECF No. 46-1 at 9; see also ECF No. 22. Koertel affirmed at the plea hearing that he understood the plea agreement and had no question about the possible consequences of his plea. See ECF No. 46-2 at 8-10.
On December 10, 2014, the court sentenced Koertel to 30 months' imprisonment with no term of supervised release, and requested the Bureau of Prisons consider giving him credit for time served in state custody. ECF No. 33 at 2; see also ECF No. 46-3 at 10, 14-15 (sentencing hearing transcript). On October 20, 2015, Koertel finished his prison sentence and was released into the custody of the U.S. Department of Homeland Security's Immigration and Customs Enforcement division. Koertel Decl., ECF No. 34-2 at 3. He subsequently was transported to the Adelanto ICE Detention Facility where he was detained pending removal proceedings. Id.; see also ECF No. 34-3. On November 2, 2015, the immigration judge issued a final removal order. ECF No. 34-4. On March 28, 2016, Koertel filed a notice of change of address to a street in Friedberg, Germany.
In the meantime, on December 28, 2015, Koertel filed the pending motion and a waiver of personal appearance. ECF Nos. 34, 35. The United States opposed on April 21, 2016. ECF No. 46.
Pointing to the March 28, 2016 docket entry showing Koertel's current address in Germany, the United States argues Koertel's § 2255 motion should be denied because he is no longer "in custody" as required by § 2255(a). Opp'n at 1 n.1. Although the court ultimately dismisses Koertel's motion, the critical question is not whether Koertel currently resides in Germany, but rather where he was when he filed the § 2255 motion. The "in custody" analysis is jurisdictional.
Section 2255(a) provides,
28 U.S.C. § 2255(a). A defendant must be "in custody" for the conviction or sentence under attack at the time his § 2255 motion is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); United States v. Krboyan, No. 10-cv-2016, 02-cr-5438, 2010 WL 5477692, at *4 (Dec. 30, 2010).
Koertel filed his § 2255 motion while he was in the Department of Homeland Security's Adelanto detention facility in this country, pending removal proceedings. See generally Mem. P. & A.; ECF No. 34-3. In order to invoke collateral review in the first instance, Koertel must satisfy the jurisdictional "in custody" requirement of § 2255. Matysek v. United States, 339 F.3d 389 (9th Cir. 1964). In Maleng, supra, the Supreme Court held that "[w]hile we have very liberally construed the `in custody' requirement for purposes of federal habeas . . . [w]e have never held . . . that a habeas petitioner may be `in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." 490 U.S. at 492 (emphasis omitted). "[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual `in custody' for the purposes of a habeas attack upon it." Id.
Another judge in this district, citing a New York district court case, has pointed out:
Krboyan, 2010 WL 5477692, at *4-5 (citing Abimobola v. United States, 369 F.Supp.2d 249, 252 (E.D.N.Y. 2005)). This court agrees, and finds Koertel's ICE detention here insufficient to satisfy the "in custody" requirement under § 2255. He was not subjected to supervised release, and his sentence for his conviction of incarceration had expired by the time he filed the § 2255 motion. Accordingly, the court finds it does not have jurisdiction over Koertel's § 2255 motion.
While the court has no jurisdiction over Koertel's § 2255 motion, federal courts have the authority to sua sponte issue a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a), which does not impose the same "in custody" requirement as does § 2255. United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005), abrogated by Padilla, 559 U.S. at 370. In an exercise of caution, the court considers whether coram nobis relief is available here. However, even if the court construes Koertel's motion as a petition for writ of error coram nobis, and accepts for sake of argument that Koertel received ineffective assistance of counsel, the court finds Koertel was not prejudiced by his defense counsel's representation.
The four requirements for prevailing on coram nobis are:
Estate of McKinney By and Through McKinney v. United States, 71 F.3d 779, 781-82 (9th Cir. 1995). There is no statute of limitations applicable to a petition seeking coram nobis relief. Kwan, 407 F.3d at 1014. The Ninth Circuit has held that a petitioner fulfills the first and second coram nobis relief requirements where the writ was filed once he was aware that deportation will occur as a result of his conviction. Here, similar to Kwan, and assuming Koertel's allegations are true for purposes of this motion, Koertel was not fully aware of the immigration consequences of his guilty plea until he was brought before the immigration court in November 2015. ECF No. 34-2 at 3-4. Upon learning he would be deported, Koertel filed the pending motion. The court therefore finds Koertel has satisfied the first and second prongs to prevail on coram nobis. The Ninth Circuit has also found that the possibility of deportation, or in this case actual deportation, is an "adverse consequence" of a defendant's conviction sufficient to satisfy the third prong of meeting Article III's case or controversy requirement. Kwan, 407 F.3d at 1014. Therefore, Koertel may prevail on coram nobis if he can satisfy the fundamental error requirement, which is possible if he establishes he received ineffective assistance of counsel. Id.
Though the plea agreement included general waivers to the extent Koertel could waive his right to appeal and collateral attack, ECF No. 46-1 at 7-8, the constitutional right to effective assistance of counsel is non-waivable. Strickland, 466 U.S. at 689. Accordingly, Koertel's motion is not barred by waiver.
Koertel argues his conviction and sentence should be vacated because of ineffective assistance of counsel. In relevant parts, the Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel. An ineffective assistance of counsel claim entails a two-pronged analysis, as recognized in Strickland v. Washington, 466 U.S. 668 (1984). The first prong consists of determining whether counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The second prong consists of determining whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This two-prong test applies to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 670. The objective standard of reasonableness is determined by the "prevailing professional norms" of the legal community, as reflected in "American Bar Association standards and the like . . . ." Padilla, 559 U.S. at 367 (citing Strickland, 466 U.S. at 688). "The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Id. In a recent case after the Supreme Court's decision in Padilla, the Ninth Circuit held that where a defendant's "conviction of a removable offense renders her removal `practically inevitable,' . . . [her] counsel was required to advise her that her conviction rendered her removal virtually certain, or words to that effect." United States v. Rodriguez-Vega, 797 F.3d 781, 786 (9th Cir. 2015) (citing United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011)). It is insufficient for counsel to use the words "probably," "potential," "high likelihood," or other similarly generalized verbiage where the "immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal, [and the] `deportation consequence is truly clear.'" Id. at 785-87 (citing Padilla, 559 U.S. at 369).
Koertel alleges that Brace never explained to Koertel there would be any negative immigration consequences of Koertel's conviction and guilty plea. Mem. P. & A. at 4, 16. In raising this claim Koertel waives his attorney-client privilege as to communications related to the claim. Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003). Brace has signed a declaration, submitted with the United States' opposition, representing otherwise. See generally Brace Decl., ECF No. 46-4. Brace states he was aware that Koertel had stayed in the United States illegally after his work visa expired, and an ICE hold or detainer was placed on Koertel because he had overstayed. Id. at 2; ECF No. 46-3. Brace says he knew Koertel's guilty plea to an alien in possession of a firearm would result in deportation, and advised Koertel as such. Brace Decl. at 2-3. Brace notes that even if Koertel had elected to go to trial on all three counts in the indictment, as opposed to agreeing to plead guilty on one count in exchange for a more lenient sentence, Koertel still would have been deported following service of sentence.
Brace's declaration is consistent with the record made in open court. Id. at 3. During the change of plea hearing, the undersigned explicitly asked Koertel whether he understood "that there may be consequences with respect to his immigration status if he's found guilty of this offense, Count Two." ECF No. 46-2. Koertel replied that he understood. Id. During the sentencing, the court questioned Brace in Koertel's presence and asked: "is Mr. Koertel deportable?" ECF No. 46-4 at 11; ECF No. 46-3 at 10. Brace responded in the affirmative, providing the same explanation he provides now in his declaration. Id. Brace also noted at the sentencing hearing that, since the beginning of the case, ICE had informed him that Koertel was deportable and precluded his posting bail. Id. In light of this information, the United States agreed a term of supervised or unsupervised release should not be imposed, and the court imposed none. Id. The court again emphasized Koertel's deportation status during a discussion of his substance abuse issues. Id. The presentence investigation report, which Koertel admitted having reviewed, noted that Koertel was subject to removal proceedings, because he overstayed his work visa and was not in the United States legally. ECF No. 25 at 8.
In sum, the record provides ample evidence for the court to conclude that Koertel's counsel was fully aware of his immigration status and had informed Koertel he would be deported, after having explored Koertel's options.
Even if Brace had not explained the negative immigration consequences of his guilty plea to Koertel, and Koertel never knew he would definitively be deported until he appeared before the immigration court, Koertel still cannot satisfy the second Strickland prong of prejudice.
To satisfy Strickland's prejudice prong, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rodriguez-Vega, 797 F.3d at 788 (citing Strickland, 466 U.S. at 694). "A `reasonable probability' is a standard of proof `sufficient to undermine confidence in the outcome' and is `somewhat lower' than a preponderance of the evidence." Id. "[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372. "Where ineffective assistance leads a petitioner to accept a plea bargain, a different result means that `but for counsel's errors, petitioner would either have gone to trial or received a better plea bargain." Rodriguez-Vega, 797 F.3d at 788 (citing United States v. Howard, 381 F.3d 873, 882 (9th Cir. 2004)).
Here, going to trial or attempting to negotiate a better plea bargain would not have produced a different result, as Koertel's deportation status and the ICE hold predated his conviction and sentencing. Koertel has not met the second Strickland prong, and thus cannot meet the requirement of fundamental error for coram nobis relief.
Koertel's motion to vacate his conviction and sentence under 28 U.S.C. § 2255 on the ground that he received constitutionally ineffective assistance of counsel is DISMISSED with prejudice.
