Williams v. US

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bobby R. Baldock,* Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. *Of the Tenth Circuit, sitting by designation. [16-2147]

Case: 16-2147

Document: 00117164883

Page: 1

Date Filed: 06/08/2017

Entry ID: 6098182

United States Court of Appeals
For the First Circuit
No. 16-2147
SUNDAY WILLIAMS,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]

Before
Lynch, Baldock,* and Kayatta
Circuit Judges.

Simone Bertollini, with whom Law Offices of Simone
Bertollini was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.

June 8,, 2017

*

Of the Tenth Circuit, sitting by designation.

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Date Filed: 06/08/2017

BALDOCK, Circuit Judge.

Entry ID: 6098182

A little over sixteen years

ago, Petitioner Sunday Williams, a Nigerian citizen by birth,
attempted

to

secure

his

United

States

citizenship.

Unfortunately, the way he did so was less than ideal:

in lieu

of

instead

utilizing

submitted

a

any

legal

false

means

at

application

his

for

a

disposal,
United

he

States

passport

wherein he claimed that he was an American citizen hailing from
Brooklyn.

Federal

authorities

caught

him

in

the

act

and

eventually charged him with making a material false statement in
a matter within the jurisdiction of the United States government
in violation of 18 U.S.C. § 1001.

Petitioner pleaded guilty,

and the district court sentenced him to three years' probation.
Now, nearly a decade after his probationary sentence
ended, Petitioner seeks a writ of error coram nobis—"a remedy of
last resort for the correction of fundamental errors of fact or
law,"

United

States

v.

George,

676

F.3d

249,

253

(1st

Cir.

2012)—that vacates or, at the very least, allows him to revise
the

factual

obviously

basis

could

of

not

his

remedy

§ 1001
the

conviction.

direct

Such

consequences

conviction (i.e., his already-completed sentence).

a

writ

of

that

Petitioner,

however, hopes it could remedy the collateral consequences he
still suffers to this day.

Specifically, because the underlying

facts of his § 1001 guilty plea and conviction involved a false
claim

of

United

States

citizenship,
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Petitioner

is

now

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"ineligible to receive visas and ineligible to be admitted to
the United States."

See 8 U.S.C. § 1182(a)(6)(C)(ii).

Further,

no waiver or exception is available that could rescue him from
that

status.

permanently

See

barred

id.
from

Petitioner
obtaining

is

therefore

lawful

not

permanent

only

resident

status, see id., but also subject to deportation at any moment,
see id. § 1227(a)(3)(D).
its

underlying

factual

Vacating his conviction or revising
basis

would

thus

leave

open

the

possibility that he could obtain a green card and remain in the
United States.
So what is the supposed fundamental error that would
justify

granting

Petitioner

teeth rare" writ?

this

"extraordinary"

and

"hen's-

George, 676 F.3d at 253–54. In Petitioner's

opinion, it was the performance of his attorney, which he claims
was constitutionally deficient under Sixth Amendment standards,
during

the

proceedings

for

his

long-since-passed

conviction.

See generally Strickland v. Washington, 466 U.S. 668 (1984).

To

be

if

sure,

such

constitutionally

deficient

representation,

true, can function as the rock upon which a petitioner can build
her coram nobis church.

See United States v. Castro-Taveras,

841 F.3d 34, 36–37, 52–53 (1st Cir. 2016) (allowing a defendant
to

premise

his

coram

nobis

petition

ineffective-assistance-of-counsel

on

claim);

a

Sixth

Murray

Amendment
v.

United

States, 704 F.3d 23, 28 (1st Cir. 2013) (noting that writs of
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coram

nobis

are

"meant

Page: 4

to

Date Filed: 06/08/2017

correct

errors

'of

Entry ID: 6098182

the

most

fundamental character; that is, such as render[ ] the proceeding
itself

irregular

and

invalid'"

(alteration

in

original)

(emphasis added) (quoting United States v. Mayer, 235 U.S. 55,
69 (1914))).
To

demonstrate

performance,
hearing

Petitioner

from

July

29,

his

attorney's

first

points

2004.

As

allegedly

to
is

his

deficient

change-of-plea

relevant

here,

when

Petitioner walked into that hearing to plead guilty, he had not
yet been charged under § 1001; instead, he had been charged
under 18 U.S.C. § 1542 with the crime of passport fraud.

And in

fact, Petitioner had filed motions to dismiss the passport fraud
indictment for improper venue and to transfer the case to the
Eastern District of New York, where Petitioner had actually made
his false citizenship claims and where he lived at the time,
from

the

District

application

had

of

been

currently pending.

New

Hampshire,

processed

and

where

where

the

his

passport

indictment

was

The district court had initially denied both

motions but changed course at the hearing after recognizing that
our then-recent decision in United States v. Salinas, 373 F.3d
161 (1st Cir. 2004), mandated that venue did, in fact, lay in
the

Eastern

recognition,

District
the

of

district

New

York.

court

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asked

And

in

light

Petitioner

of

that

whether

he

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wished to waive venue and proceed with his guilty plea in the
District of New Hampshire.
After speaking with Petitioner, Petitioner's counsel
replied that Petitioner no longer wished to "go through with
this proceeding today" and wanted the case to be dismissed.

In

response, however, the prosecutor requested that the district
court delay dismissing the case so that the United States could
file a superseding indictment instead charging Defendant with
making a material false statement in violation of § 1001.
the

government's

practical

and

view,

this

expeditious

course

route,

of

for

action
venue

was
over

the
a

In
most

§ 1001

indictment would still lay in the District of New Hampshire.
Id. at 166–67.
Petitioner's counsel agreed with the government's new,
alternative suggestion.
to

see

whether

suggested

course

he
of

Without consulting anew with Petitioner

wanted
action

to

proceed

or

still

with

hoped

the
to

government's

have

the

case

dismissed, counsel stated that
[t]ime
is
important
for
[Petitioner]
regarding
immigration, what's going to happen with that, so I
suppose we don't have an objection to a superseding
indictment.
Petitioner's counsel also observed that a superseding indictment
would "avoid [Petitioner] being re-arrested."

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Although

Page: 6

Petitioner

Date Filed: 06/08/2017

went

along

with

his

Entry ID: 6098182

counsel's

conduct at the time and, as we noted above, eventually pleaded
guilty to the § 1001 charge, Petitioner now claims that his
"[c]ounsel sua sponte changed [his] plea by agreeing to allow
the

government

to

file

a

superseding

indictment—instead

of

having the charge dismissed—without asking [him] or explaining
what that meant."
assistance

of

Because a defendant is guaranteed effective

counsel

during

the

"plea

process,"

Hill

v.

Lockhart, 474 U.S. 52, 57 (1985), Petitioner argues that such an
action clearly amounts to unreasonable conduct under the Sixth
Amendment.
But Petitioner does not stop there.
appeal

that

his

counsel

both

He also claims on

"fail[ed]

to

advise"

and

"affirmatively misadvised" him of the immigration consequences
of

pleading

under

guilty

§ 1542

and

to

(initially)

(eventually)

§ 1001.

And

since

the

Kentucky,

559

U.S.

guarantee

of

effective

356

committing

making

Supreme
(2010),

Court
that

assistance

of

held

the

fraud

statements

false

passport

under

in

Sixth

counsel

Padilla

v.

Amendment's
requires

an

attorney for a criminal defendant to "inform her client whether
his [guilty] plea carries a risk of deportation," id. at 374,
Petitioner thus claims that his counsel's misadvice and lack of
advice

necessarily

made

his

representation

inadequate.
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constitutionally

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For

example,

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Petitioner

points

to

Entry ID: 6098182

his

counsel's

statement during the July 29, 2004 change-of-plea hearing that
"[t]ime is important for [Petitioner] regarding immigration."
He contends that this statement was affirmative misadvice about
the immigration consequences of pleading guilty because "[h]ow
the

passage

of

time

could

positively

or

negatively

affect

[Petitioner's] immigration status is difficult to understand."
Further, Petitioner averred under penalty of perjury that his
counsel "repeatedly told [him] that this was a criminal case and
that it had nothing to do with [his] immigration."

And, of

course, lingering in the background is his counsel's alleged
omitted advice—i.e., that he and his counsel "did not discuss
anything about [Petitioner's] immigration, other than [their]
initial discussion where [his counsel] told [Petitioner] that
the criminal case had nothing to do with [his] immigration."
For his third and final allegation of his counsel's
ineffectiveness,

Petitioner

targets

his

second

change-of-plea

hearing on October 14, 2004, during which he pleaded guilty to
the superseding § 1001 charge.
to

that

charge,

Petitioner

In the course of pleading guilty

admitted

that

he

made

materially

false statements "in connection with an application for a United
States

Passport"

and

"[i]n

order

to

issuance of a United States Passport."
that

his

counsel

should

not

have
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let

induce

and

secure

the

He now claims, however,
him

admit

to

such

an

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underlying

factual

basis.

Petitioner

argues,

an

Date Filed: 06/08/2017

Under

effective

Sixth

attorney

Amendment
would

Entry ID: 6098182

standards,

have

instead

instructed him to only plead guilty to making materially false
statements in connection with and for the purpose of obtaining a
"travel document."
Petitioner asserts that the choice of which phrase to
use—"travel document" or "United States Passport"—is not merely
a matter of semantics.

By pleading guilty to making a false

statement in connection with a U.S. Passport, he argues that his
counsel, for all intents and purposes, allowed him 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."
And

based

on

this

de

facto

admission

of

passport

fraud,

Petitioner claims that he unwittingly admitted he had made a
false claim of United States citizenship, which, as we noted
above, now forever precludes him from obtaining lawful permanent
resident status and subjects him to deportation at any moment.
See 8 U.S.C. §§ 1182(a)(6)(C)(ii), 1227(a)(3)(D).

If, however,

he had pleaded guilty to making a false statement in connection
with a travel document, Petitioner notes that he would not have
been admitting to a factual basis that implied a false claim of
citizenship.

And since, in Petitioner's opinion, a reference to

a generic "travel document" would have been more than sufficient
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to meet the elements of a § 1001 charge, he claims that an
effective

attorney

should

have

known

to

use

that

less

destructive term.
The

district

court,

which

took

the

first

shot

at

Petitioner's coram nobis petition under the authority vested to
it by the All Writs Act, 28 U.S.C. § 1651(a), concluded that
none of Petitioner's three arguments for ineffective assistance
of counsel were meritorious.

See George, 676 F.3d at 253 ("The

authority to grant coram nobis relief derives from the All Writs
Act, 28 U.S.C. § 1651(a),
'issue

all

respective

writs

necessary

jurisdictions

principles of law.'").
coram nobis.

which

empowers

or

and

federal

appropriate
agreeable

to

in

courts

aid

the

of

usages

to

their
and

It therefore denied him a writ of error

Petitioner accordingly appeals and asks us to do

what the district court would not.
Our

jurisdiction

arises

under

28 U.S.C. § 1291.

Trenkler v. United States, 536 F.3d 85, 95 (1st Cir. 2008).
Further, "we afford de novo review to the district court's legal
conclusions and clear-error review to its findings of fact."
George, 676 F.3d at 256.

Where, as here, the district court

"did not conduct an evidentiary hearing and denied the writ as a
matter of law," such a standard translates to plenary review.
Id.

As

always,

we

are

also

free

to

"affirm

on

any

basis

apparent in the record," even if it would "require[] ruling on
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arguments not reached by the district court or even presented to
us on appeal." Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237
n.11 (1st Cir. 2013) (second quotation quoting Jordan v. U.S.
Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir. 2011)).
We note at the outset that Petitioner's case presents
one of the few instances where we could even consider granting a
writ of error coram nobis: "[I]n its modern form, [this writ] is
ordinarily available only to a criminal defendant who is no
longer

in

custody."

Trenkler,

536

F.3d

undoubtedly satisfies that prerequisite.
for

this

"remedy

of

last

resort,"

at

98.

Petitioner

But his eligibility

George,

676

F.3d

at

253,

hinges on more than the simple fact that he is no longer serving
his sentence.

For one thing, he must "adequately explain his

failure to seek relief earlier through other means."
704 F.3d at 29.

Murray,

Further, he must also "show that he continues

to suffer a significant collateral consequence from the judgment
being challenged and that issuance of the writ will eliminate
this consequence."

Id.

Finally, and as we have alluded to

several times before, "he must demonstrate that the judgment
resulted from a fundamental error."

Id.

And even if Petitioner

satisfies this tripartite test, we "retain[] discretion to grant
or deny the writ."
has

always

Id. at 29–30.

envisioned

coram

Indeed, "[t]he Supreme Court

nobis

as

strong

medicine,

not

profligately to be dispensed," so we must issue this writ "only
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under circumstances compelling such action to achieve justice."
George,

676

F.3d

at

254–55

(second

quotation

quoting

United

States v. Morgan, 346 U.S. 502, 511 (1954)).
We assume for the purposes of argument that Petitioner
can

adequately

explain

why

he

did

§ 1001 conviction any earlier.
concluding

that

Petitioner

not

seek

relief

from

his

We also have little trouble

continues

to

suffer

significant

collateral consequences from his § 1001 conviction and that a
writ of error coram nobis would remedy those consequences.
Petitioner

himself

noted,

he

cannot

obtain

lawful

As

permanent

resident status because the underlying facts of that conviction
involved a false claim of United States citizenship, and he is
therefore subject to deportation at any moment.
§§ 1182(a)(6)(C)(ii), 1227(a)(3)(D).
explicitly

set

consequence,"

out
we

what
believe

"Although

comprises
that,

See 8 U.S.C.

a

we

continuing

whatever

the

Petitioner's dilemma satisfies that requirement.

have

not

collateral
definition,
George, 676

F.3d at 255–56; see also Murray, 704 F.3d at 29 n.6 (noting that
something "more than the mere fact of conviction is needed" to
prove

a

vacating

continuing
or

collateral

revising

the

consequence).

underlying

factual

And

of

basis

course,
of

his

conviction via a writ of error coram nobis would alleviate that
problem.

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That
§ 1001

leaves

conviction

us

Page: 12

to

resulted

Date Filed: 06/08/2017

determine
from

a

whether

Entry ID: 6098182

Petitioner's

fundamental

error—i.e.,

whether his counsel was constitutionally ineffective under the
Sixth Amendment.

To succeed on that argument, Petitioner must

first show that his counsel's "performance was deficient," and
he must then show that "the deficient performance prejudiced the
defense."

Strickland, 466 U.S. at 687.

necessitates
serious

that

a

demonstration

counsel

was

that

not

The first requirement

"counsel

functioning

made
as

errors

the

so

'counsel'

guaranteed the defendant by the Sixth Amendment," id., and in
reviewing

such

an

allegation,

we

must

"indulge

a

strong

presumption that counsel's conduct falls within the wide range
of reasonable professional assistance," Woods v. Donald, 135 S.
Ct. 1372, 1375 (2015) (quoting Strickland, 466 U.S. at 689).
Put differently, we will find deficiency only "where, given the
facts known [to counsel] at the time, counsel's choice was so
patently unreasonable that no competent attorney would have made
it."

Knight

v.

Spencer,

447

F.3d

6,

15

(1st

Cir.

2006)

(internal quotation marks omitted).
The prejudice requirement, meanwhile, necessitates a
demonstration

of

"a

reasonable

probability

that,

but

for

counsel's unprofessional errors, the result of the proceeding
would have been different."

Rossetti v. United States, 773 F.3d

322, 327 (1st Cir. 2014) (quoting Strickland, 466 U.S. at 694).
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Further,

that

Page: 13

probability

Date Filed: 06/08/2017

"must

be

substantial,

Entry ID: 6098182

not

just

conceivable," Rivera-Rivera v. United States, 827 F.3d 184, 187
(1st Cir. 2016) (quoting Hensley v. Roden, 755 F.3d 724, 736
(1st

Cir.

2014)),

or,

stated

differently,

"a

probability

sufficient to undermine confidence in the outcome," Mello v.
DiPaulo, 295 F.3d 137, 142 (1st Cir. 2002) (quoting Strickland,
466

U.S.

claim[s]

at

694).

will

fall

"Hence,
short

[Petitioner's]

unless

he

can

Sixth

show

a

Amendment
substantial

likelihood that he would have obtained a different outcome" on
his § 1001 charge.

Rivera-Rivera, 827 F.3d at 187.

Petitioner's

first

allegation—that

his

counsel

sua

sponte changed his plea by allowing the government to file a
superseding indictment without consulting him about it—fails for
two

reasons.

decision

to

First,
allow

we

the

do

not

believe

government

to

indictment was constitutionally deficient.

that
file

his
a

counsel's

superseding

Instead, we conclude

that it was a valid, reasoned decision meant to avoid further
delay.

If

Petitioner's

counsel

had

fought

the

government's

decision to file a superseding indictment, the district court
indicated

it

simply

would

have

dismissed

the

case

without

prejudice, and the government indicated that it still would have
filed new charges under § 1001 in a brand new indictment.

As a

practical matter, this would have been the exact same scenario
that Petitioner ended up facing: being charged under § 1001.
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The only difference is that, as Petitioner's counsel recognized,
the government would have had to re-arrest Petitioner, which
would

have

resulted

in

an

unnecessary

delay.

Because

Petitioner's counsel saw the writing on the wall and agreed with
the government's request for a superseding indictment to avoid
this

delay,

we

cannot

say

that

this

was

a

constitutionally

deficient choice even though counsel did not discuss the matter
with Petitioner.
Second,
constitutionally

even

if

deficient,

suffered any prejudice.

his

counsel's

Petitioner

cannot

decision
show

that

was
he

Again, the result of the proceeding

would have been no different had his counsel not agreed with the
government's wish to file a superseding indictment: Petitioner
eventually would have been charged under § 1001 for making a
material false statement.
initial

result

of

the

Petitioner, however, argues that the
proceeding

would

have

been

different

because the § 1542 charge for passport fraud would have been
dismissed.

As such, he contends that if the government chose to

file a new charge under § 1001, he in turn could have filed a
new motion to transfer that charge to the Eastern District of
New York (an action he could not take once his attorney agreed
to a superseding indictment in the District of New Hampshire).
And if the district court granted that motion, Petitioner claims
it would have been easier for him to defend against the charge
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since he would have been in his hometown and with his family.
But

Petitioner

has

provided

no

information

suggesting

that

granted

motion

evidence

transfer

any

to

the

Eastern District of New York.

or

district
a

new

other
court

§ 1001

compelling
would

charge

have

to

the

In fact, the record before us

shows a strong likelihood that Petitioner still would have been
subjected to a § 1001 charge in the District of New Hampshire.
Thus, at most, the probability the district court would have
granted any such motion is merely conceivable, not substantial.
And even if the district court did grant his motion, there is no
evidence

suggesting

that

he

could

have

successfully

against a § 1001 prosecution in New York.

defended

We therefore cannot

say Petitioner suffered any prejudice.
Petitioner's

second

ineffectiveness—that

his

allegation

counsel

failed

of

his
to

counsel's

advise

and

affirmatively misadvised him of the immigration consequences of
pleading
United

guilty—also
States,

133

fails.

For

S.

1103

Ct.

starters,
(2013),

under
we

Chaidez

cannot

v.

grant

Petitioner any relief for his claims insofar as they relate to
his

counsel's

alleged

failure

to

advise.

In

Chaidez,

the

Supreme Court expressly held that it had "announced a new rule
in Padilla," and for that reason "defendants whose convictions
became

final

holding."

prior

to

Id. at 1113.

Padilla . . . cannot

benefit

from

its

Further, "the Supreme Court certainly
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decided

that

claims."

Padilla's

Page: 16

new

Castro-Taveras,

Date Filed: 06/08/2017

rule

841

covers

F.3d

at

Entry ID: 6098182

failure-to-advise

43.

Consequently,

Plaintiff, whose judgment was entered in 2005, cannot rely on
the

2010

Padilla

decision

to

claim

that

his

attorney

was

constitutionally ineffective by failing to advise him of the
immigration consequences of pleading guilty.
The story is different for Petitioner's claims that
his attorney affirmatively misadvised him.

Unlike failure-to-

advise claims, "Padilla's misadvice holding did not constitute a
new

rule"

and

is

therefore

not

barred

Chaidez.

Castro-Taveras, 841 F.3d at 51.

judgment

was

entered,

Petitioner's

retroactively

under

Thus, as of 2005 when

counsel

could

have

been

constitutionally ineffective under Sixth Amendment standards if
he did, in fact, affirmatively misadvise Petitioner about the
immigration consequences of pleading guilty.

Id. (holding that

at least as of 2003—two years before Petitioner's judgment of
conviction—affirmative-misadvice claims were "so embedded in the
fabric of the Sixth Amendment framework that 'all reasonable
jurists' would have agreed that Strickland applied to [those]
claims" (citation omitted) (quoting Lambrix v. Singletary, 520
U.S. 518, 528 (1997))).
But

even

though

we

theoretically

could

grant

Petitioner relief for his claims that his attorney misadvised
him

about

the

immigration

consequences
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of

pleading

guilty,

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Document: 00117164883

Page: 17

Date Filed: 06/08/2017

Entry ID: 6098182

Petitioner hits another snag: although he makes this misadvice
argument on appeal, he did not advance this same argument in his
original coram nobis petition.

In fact, his petition alleged

only that his attorney failed to advise him of any immigration
consequences, and Petitioner sought to assert misadvice claims
only when the government moved to dismiss his petition on the
grounds that Padilla's holding on failure-to-advise claims was
not retroactive under Chaidez.

We do not take kindly to parties

who

and

"shift[]

legal

theories

s[eek]

to

re-characterize

[their] Complaint[s] in a way that might parry [the defendants']
blow[s]."

Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 85

(1st Cir. 2008). "The court, and the defendants, are entitled to
rely on the plain language and the structure of the complaint in
determining what claims are present there," and "the plaintiff
is not entitled to pursue 'every legal theory that a court may
some day find lurking in the penumbra of the record.'"

Ruivo v.

Wells Fargo Bank, N.A., 766 F.3d 87, 91 (1st Cir. 2014) (quoting
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir.
1995)).

"Otherwise, waiver looms."

Snyder v. Collura, 812 F.3d

46, 51 (1st Cir. 2016).
Moreover, even if we generously assume that Petitioner
did

not

suffered

waive
no

his

affirmative-misadvice

prejudice

from

his

attorney's

claims,
alleged

Petitioner
misadvice

because the district court itself informed Petitioner that he
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Case: 16-2147

faced

Document: 00117164883

immigration

Page: 18

Date Filed: 06/08/2017

consequences.

For

instance,

Entry ID: 6098182

at

his

first

change-of-plea hearing on July 29, 2004, while Petitioner was
still charged with passport fraud, the following exchange took
place:
THE COURT: Now, do you understand as a consequence of
this offense it is possible that you could be
deported?
[PETITIONER]: Yes, sir.
And at his second-change-of plea hearing on October 14, 2004,
where

Petitioner

pleaded

guilty

to

making

a

material

false

statement, a similar exchange occurred:
THE COURT: As a result of this conviction, do you
understand that you could face the possibility of
deportation?
[PETITIONER]: Yes, sir.
Given that the district court wisely took it upon itself to
inform Petitioner of the immigration consequences of pleading
guilty, we do not see a substantial likelihood that anything
different

would

have

happened

had

Petitioner's

counsel

not

(allegedly) misadvised him.
Petitioner's

third

and

final

allegation

of

his

counsel's ineffectiveness—that his counsel should not have let
him

plead

fails.

guilty

to

facts

establishing

passport

fraud—also

For one thing, under § 1001, "the government is required

to prove not only that the defendant's statements were false,
but also that they were material," United States v. Arcadipane,
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Case: 16-2147

Document: 00117164883

Page: 19

Date Filed: 06/08/2017

Entry ID: 6098182

41 F.3d 1, 7 (1st Cir. 1994), which means that "[t]he statement
must have 'a natural tendency to influence, or [be] capable of
influencing, the decision of the decisionmaking body to which it
was addressed,'" United States v. Gaudin, 515 U.S. 506, 509
(1995) (second alteration in original) (quoting Kungys v. United
States, 485 U.S. 759, 770 (1988)).

As should be obvious, the

district court could not have determined whether Petitioner's
false statements had a tendency to influence a decision of the
U.S. State Department's National Passport Center if it had not
known

he

had,

in

fact,

United States Passport.
have

gleaned

admitted

he

this
had

submitted

false

application

for

a

Indeed, the district court could not

same

made

a

information

false

generic travel document.

had

statements

in

Petitioner
order

to

merely

obtain

a

Even more, there is no persuasive

evidence that the prosecutor would have agreed to the amorphous
customization
therefore

of

the

conclude

constitutionally

charge
that

ineffective

even

had

it

Petitioner's
by

allowing

been

sought.

counsel
him

to

was

plead

We
not

guilty

under § 1001 to making material false statements in order to
obtain a U.S. Passport.
Accordingly,

because

Petitioner's

counsel

was

not

constitutionally ineffective under the Sixth Amendment in any
way,

Petitioner

cannot

establish

that

his

conviction

under

§ 1001 for making a material false statement arose from any
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Case: 16-2147

Document: 00117164883

fundamental error.

Page: 20

Date Filed: 06/08/2017

Entry ID: 6098182

We therefore deny him a writ of error coram

nobis on that ground alone.

But we note that even if Petitioner

could satisfy our tripartite test for coram nobis relief, we
would exercise our discretion to deny him such a writ in any
event.

"[W]hen

conviction

by

way

a

defendant
of

coram

seeks
nobis,

to

vacate

red

flags

request" and "great caution is warranted."
257–58.

a

guilty-plea

accompany

that

George, 676 F.3d at

And given that Petitioner entered a guilty plea in this

case, it "seems dubious that granting the writ w[ould] promote
the interests of justice."

Id. at 260.

Thus, no matter how he

slices it, Petitioner remains bound by his conviction.
***
"A

Hail

Mary

pass

in

American

football

is

a

long

forward pass made in desperation at the end of a game, with only
a small chance of success.
criminal-law equivalent."

The writ of error coram nobis is its
George, 676 F.3d at 251.

cannot satisfy this difficult standard.

We therefore AFFIRM the

district court's denial of a writ of error coram nobis.

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Petitioner