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
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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
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Petitioner
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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
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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
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probability
Date Filed: 06/08/2017
"must
be
substantial,
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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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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
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