USA v. Omar Manjang

Filing

OPINION filed : AFFIRMED, decision not for publication. Ralph B. Guy , Jr., Circuit Judge AUTHORING; Jeffrey S. Sutton, Circuit Judge and David W. McKeague, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0822n.06

FILED

No. 15-3638
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
OMAR MANJANG,
Defendant-Appellant.
_________________________________/

Dec 16, 2015
DEBORAH S. HUNT, Clerk

On Appeal from the United States
District Court for the Southern
District of Ohio

Before: GUY, SUTTON, and McKEAGUE, Circuit Judges
Ralph B. Guy, Jr., Circuit Judge.

Defendant, Omar Manjang, appeals the

District Court’s denial of his petition for a writ of coram nobis seeking to vacate his
guilty plea to willful misrepresentation of citizenship. We affirm.
I.
Defendant, then a citizen of The Gambia, entered the United States on a student
visa. Years later, he applied to a community college in Cincinnati, falsely representing
himself as a United States citizen in violation of 18 U.S.C. § 911. Defendant initially
rejected a plea offer because it included a stipulation for judicial removal. After defense

Case: 15-3638

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counsel said he would refer him to an immigration attorney, defendant accepted the
agreement. At the change of plea hearing, the District Court informed defendant that “the
government will probably request that you be deported” and that “[t]he facts in this case
and the acceptance of the plea, that would be a basis . . . for your deportation.”
Defendant answered that he understood, and pleaded guilty.
At sentencing, the District Court stated that defendant, after his sentence, would
“become immediately the subject of deportation proceedings,” and asked him, “you
understand you’re going to be deported, though, correct?” Defendant replied that “[t]hey
told me I have to see an immigration lawyer, Judge, so I don’t know about that stuff.”
Defense counsel said defendant “intended to dispute . . . the deportation in those
proceedings” but “[h]e is aware that that will occur.” The District Court noted that “if,
for some reason, he’s successful, he has to report to Probation within 72 hours after his
release; and if he does get deported and comes back in, he’s got to report as soon as he
comes back in.” The District Court sentenced defendant to time served and one year of
supervised release, and remanded him to the custody of the United States Marshals
pursuant to an immigration detainer.
Immigration counsel advised defendant that his conviction permanently barred
him from reentry to the United States. Attempts to remove defendant to The Gambia
stalled, as The Gambia no longer recognizes him as a citizen. As a result, immigration
authorities placed defendant on indefinite supervised release. After this information
came to light, and after serving his sentence, defendant petitioned the District Court for a

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writ of coram nobis to vacate his plea and conviction, arguing that he would not have
pleaded guilty had he known the true immigration consequences. The District Court
denied the petition in a written opinion and order, which defendant now appeals.
II.
In a coram nobis proceeding, we review the District Court’s legal determinations
de novo, and its factual findings for clear error. United States v. Johnson, 237 F.3d 751,
755 (6th Cir. 2001).
III.
Coram nobis relief may be granted only where the petitioner demonstrates “(1) an
error of fact; (2) unknown at the time of trial; (3) of a fundamentally unjust character
which probably would have altered the outcome of the challenged proceeding if it had
been known.” Id. The writ is available only when habeas relief is not – “generally, when
the petitioner has served his sentence completely and thus is no longer ‘in custody’ as
required for § 2255 relief.” Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996).
A. Ineffective Assistance of Counsel
According to defendant, the District Court erred in “fail[ing] to recognize that the
controlling case is Strickland v. Washington, 466 U.S. 668 (1984) and that extending the
reasoning, if not the holding, in Padilla[ v. Kentucky, 559 U.S. 356 (2010)], would lead to
a determination in [his] favor[.]” Recognizing that Padilla does not apply because his
conviction became final prior to that ruling, defendant attempts to legally particularize
and distinguish the facts of his case.

Defendant makes no attempt to conform his

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argument to the showings required for a writ of coram nobis, instead asserting that his
“trial counsel should have arranged the consultation with the immigration attorney before
[defendant] changed his plea to guilty and was sentenced.” In essence, defendant argues
that his counsel’s failure to arrange consultation with an immigration attorney before he
pleaded guilty constituted ineffective assistance under Strickland, separate from and
regardless of Padilla’s holding that counsel must advise clients of the immigration
consequences of a guilty plea.
Whatever dubious significance might lay in this distinction, Padilla decided the
threshold question applicable in both instances: whether Strickland applies. Chaidez v.
United States, ___ U.S. ___, 133 S.Ct. 1103, 1108 (2013) (“prior to asking how the
Strickland test applied . . . , Padilla asked whether the Strickland test applied”). Padilla’s
determination that Strickland applies constituted a new rule, id. (“that preliminary
question about Strickland’s ambit came to the Padilla Court unsettled – so that the
Court’s answer . . . required a new rule”), and, as defendant concedes, new rules are not
retroactive as to final convictions, id. at 1107 (“When we announce a ‘new rule,’ a person
whose conviction is already final may not benefit from the decision in a habeas or similar
proceeding.”). Defendant nevertheless asks us to order the District Court to apply a new
rule announced in Padilla – that Strickland governs in this context – to a conviction
which was final at the time of that ruling. Because Padilla is prospective only, the
District Court cannot apply Strickland analysis to the immigration advice at issue, and
thus properly denied defendant’s petition for a writ of coram nobis. Id. at 1113.

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B. District Court Statements
Defendant also argues that the District Court erroneously created the impression
that he might be able to reenter the United States after deportation. Defendant again
makes no effort to conform his pleadings to the elements of a writ of coram nobis. Nor
did he raise this claim below. Moreover, defendant fails to establish the factual predicate
of his claim, i.e., that the District Court made misleading statements suggesting he might
not be deported or could later reenter the United States. Even if defendant could show
that he misinterpreted these statements, he articulates no legal basis for any assertion of
error, and concedes that the District Court had no obligation to inform him of the
potential deportation consequences of his plea, which are outside its control. See United
States v. Rodriguez-Gonzales, 543 F.App’x 532, 533-534 (6th Cir. 2013). Absent any
legal and factual support for this argument, we decline to address it. See Leary v.
Livingston Cnty., 528 F.3d 438, 449 (6th Cir. 2008) (undeveloped legal arguments are
deemed waived); United States v. Westenfelder, 70 F.App’x 302, 304 (6th Cir. 2003) (per
curiam) (declining to consider unpreserved and factually unsupported claims).
AFFIRMED.