William v. USA

Filing 19

///ORDER granting 15 Motion to Dismiss. Clerk shall enter judgment and close the case. The court declines to issue a certificate of appealability. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sunday Williams
v.

Civil No. 15-cv-464-JD
Opinion No. 2016 DNH 132

United States of America

O R D E R
Sunday Williams filed a petition for a writ of coram nobis,
seeking relief from his conviction in 2004 on a charge of making
a false statement on an application for a passport.

In support

of his petition, Williams alleged that his counsel provided
ineffective assistance by changing Williams’s plea without his
consent and by misrepresenting and failing to advise Williams of
the immigration consequences of the plea.

Williams’s second

claim, based on the immigration consequences of his guilty plea,
was dismissed in response to the government’s previous motion to
dismiss.

The government now moves to dismiss the first claim,

that counsel changed Williams’s plea without his consent, and
Williams objects.
Standard of Review
“[C]oram nobis is an extraordinary remedy, which is
available ‘only under circumstances compelling such action to
achieve justice.’”

Murray v. United States, 704 F.3d 23, 28

(1st Cir. 2013) (quoting United States v. Morgan, 346 U.S. 502,
511 (1954)).

To show that he is eligible for a writ of coram

nobis, “the petitioner must first adequately explain his failure
to seek relief earlier through other means; second, he must show
that he continues to suffer a significant collateral consequence
from the judgment being challenged and that issuance of the writ
will eliminate the consequence; and third, he must demonstrate
that the judgment resulted from a fundamental error.”
704 F.3d at 29 (internal footnotes omitted).

Murray,

“Even if the

petition meets all three of the conditions in the coram nobis
eligibility test, the court retains discretion to grant or deny
the writ, depending on the circumstances of the individual
case.”

Id. 29-30.
Background1

Williams was born in Nigeria and entered the United States
on a visa in 1992.
time.

He has lived in the United States since that

In March of 1996, he married Nadine Williams, who was

born in Jamaica.

The Williamses have three children who were

all born in the United States.

The background information is taken from the prior order
granting the government’s first motion to dismiss.
1

2

Williams was indicted on a charge of passport fraud in
February of 2004 based on a misrepresentation of his citizenship
in his passport application.

See United States v. Williams, 04-

cr-51-JD (D.N.H. February 19, 2004).

During the change of plea

hearing in that case held on July 29, 2004, the court
acknowledged that the First Circuit had recently changed the law
with respect to venue for cases charging passport fraud and that
the case should not have been brought in the District of New
Hampshire.

The court asked Williams if, in light of the change

in the law, he freely and voluntarily waived his right to be
tried in one of the Districts in New York rather than the
District of New Hampshire.
In response to the court’s question, Williams consulted
with his attorney, Richard Monteith.

After discussing the issue

with Williams outside the courtroom, Monteith reported to the
court that Williams “would like to withdraw that waiver and not
go through with this proceeding today.”
31, at 9.

Transcript, doc. no.

The court asked if Williams wanted the case

dismissed, and Monteith responded, “He does, Judge.”

Id.

Monteith moved to dismiss the case.
In response, Assistant United States Attorney Rubega asked
the court to delay ruling on the motion to dismiss to give the
government time to file a superseding indictment to charge

3

Williams with making a false statement in a passport application
in violation of 18 U.S.C. § 1001.

After a discussion about

whether a superseding indictment or a new indictment would be
necessary to bring the charge under § 1001, Monteith said:
“Time is important to Mr. Williams regarding immigration, what’s
going to happen with that, so I suppose we don’t have an
objection to a superseding indictment.”

Id. at 12.

Monteith

also noted that a superseding indictment, as opposed to a new
indictment, would avoid having Williams arrested on the new
charge.
The court agreed to stay any ruling on Williams’s motion to
dismiss to allow time for the government to file a superseding
indictment.

The government filed a superseding indictment on

August 5, 2004, charging Williams with making a false statement
on a passport application in violation of § 1001.
Williams pleaded guilty to the charge of making a false
statement on October 14, 2004.

During the hearing, Williams

admitted the factual allegations read by the court to support
the charge against him.

Rubega then read the facts the

government would prove if the case went to trial.

Monteith did

not object to the facts as read, and Williams also accepted the
facts as read by Rubega.

4

When asked by the court if he had any questions about the
proceedings, Williams said that he had no objection but noted
that “the Immigration matter is pending.”

Monteith explained

that Williams had immigration hearings pending in New York.
Williams agreed that the New York hearings were the immigration
matter to which he referred.
plea.

The court then accepted Wiliams’s

Williams was sentenced on January 14, 2005, to three

years of probation.
Williams’s wife became a United States citizen in 2010.
When Williams applied for lawful permanent resident status based
on his marriage to a citizen, his application was denied based
on the facts underlying Williams’s guilty plea in 2004, which
included a false claim of United States citizenship.

Williams

has not been deported because of the current conditions in
Nigeria.
In this case, Williams alleged two claims to support a writ
of coram nobis.

The second claim has been dismissed.

In the

first claim, Williams contends that Monteith provided
ineffective assistance of counsel because he “sua sponte changed
[Williams’s] plea by agreeing to allow the government to file a
superseding indictment—instead of having the charge dismissed—
without asking [Williams] or explaining what that meant.”

As a

result, Williams had to defend the charge under § 1001 in the

5

superseding indictment in New Hampshire instead of defending a
charge of passport fraud in New York, where he lived.
Discussion
The government moves to dismiss the first claim, that
Monteith provided ineffective assistance by changing Williams’s
plea without his consent, on the grounds that Williams has not
explained the delay in raising the claim and that he did not
receive ineffective assistance of counsel.
motion to dismiss.

Williams opposes the

He contends that the motion is procedurally

improper, that he has alleged ineffective assistance of counsel,
and that the delay is due to the effect of recent events on his
understanding of the immigration consequences of the plea.
A.

Second Motion to Dismiss
Williams contends that the government is not allowed to

file a second motion to dismiss and urges the court to deny the
motion on that ground.

The government did not file a reply and,

therefore, did not respond to Williams’ procedural challenge.
Although Williams raises potentially valid reasons to avoid
successive motions to dismiss in some § 2255 cases, in this
case, the government’s motion asserts that Williams fails to
state a claim for relief through a writ of coram nobis, which

6

will be considered to avoid unnecessary further litigation and
expenditure of resources.
B.

Delay
“The writ of habeas corpus historically has served as the

principal vehicle for testing the legality of executive
detentions.”
Cir. 2008).

Trenkler v. United States, 536 F.3d 85, 96 (1st
For a petitioner challenging a federal sentence,

“[t]he strictures of section 2255 cannot be sidestepped by the
simple expedient of resorting to some more exotic writ.”
97.

Id. at

To qualify for relief under a writ of coram nobis,

therefore, a petitioner first must show why he did not seek
relief earlier by another means such as during proceedings in
the criminal case, on direct appeal, or by a petition under §
2255.

See Cruzado-Laureano v. United States, 146 F. Supp. 3d

445, 449-50 (D.P.R. 2015).
Although Williams characterizes his claim as ineffective
assistance of counsel because his counsel changed his plea
without his consent, that is a misinterpretation of the
circumstances alleged.
without his consent.

Counsel did not change Williams’s plea
Instead, counsel agreed to allow the

government time to file a superseding indictment to charge a
violation of § 1001 rather than requiring the court to grant the

7

motion to dismiss the passport fraud charge.

Williams then

pleaded guilty to charge in the superseding indictment.
There is no dispute that Williams knew at his change of
plea hearing held in July of 2004 that his counsel agreed to the
government’s proposal to delay ruling on Williams’s motion to
dismiss in order to allow time for a superseding indictment.

He

did not challenge that decision then or at any time until the
current petition.

He also knew that the government filed a

superseding indictment charging a violation of § 1001 in August
of 2004 and that he pleaded guilty to that charge in October of
2004.

Williams argues, however, that he did not challenge his

counsel’s decision to allow the superseding indictment, rather
than pursuing the motion to dismiss, until he realized the
collateral consequences of his guilty plea when his application
for a green card was denied in 2014.
Williams does not contend that the requirements for a green
card changed after his guilty plea or that any other
circumstances prevented him from understanding the consequences
of his guilty plea when the plea was given.

Instead, he argues

that he did not realize the negative consequences of the guilty
plea until the application was denied and he retained new
counsel.

He argues that he then learned his counsel had changed

his plea without his consent.

8

Williams’s theory is contrary to the facts.

He did know

that counsel agreed to the superseding indictment, and he did
know that he pleaded guilty to making a false statement on an
application for a passport.

Williams’s arguments that counsel

misrepresented the immigration consequences of his plea do not
support this claim.2
Therefore, Williams has not adequately explained the delay
in challenging his counsel’s representation.
C.

Fundamental Error
The government also contends that Williams cannot show a

fundamental error to support a writ of coram nobis.

Williams

argues that his counsel’s decision, without his consent, to
allow time for the government to file a superseding indictment,
rather than dismissing the indictment immediately, was
ineffective assistance of counsel that caused prejudice,
constituting a fundamental error.
“To succeed with a claim of ineffective assistance of
counsel, a criminal defendant must establish both that his
attorney’s performance was deficient under an objective standard
of reasonableness and that his defense suffered prejudice as a

As explained in the prior order, the immigration issue
Williams raises is not deportation, which is addressed in
Padilla, but his eligibility for a green card.
2

9

result.”

Rivera-Rivera v. United States, --- F.3d ---, 2016 WL

3546406, at *2 (1st Cir. June 29, 2016).

Representation is

constitutionally deficient only if “counsel made errors so
serious that ‘counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.’”

United

States v. LaPlante, 714 F.3d 641, 648 (1st Cir. 2013) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Prejudice

requires a showing that the result of the criminal proceeding
would have been different if counsel had done what the defendant
claims should have been done.

Rivera-Rivera, 2016 WL 3546406,

at *2.
Williams contends that counsel provided ineffective
representation when he agreed, without Williams’s consent, to
allow the government time to file a superseding indictment.3
Williams states in his affidavit that he wanted counsel to have
the case dismissed and did not consent to the superseding
indictment.

He did not raise that concern at the hearing or

afterward.
At the hearing, the government made clear that it would
file a new indictment in New York if the court granted
Williams’s motion to dismiss, but preferred to have time to file

As noted above, Williams characterizes that situation as
changing his plea without his consent, which misrepresents the
circumstances.
3

10

a superseding indictment in the New Hampshire case.

Williams’s

counsel agreed to allow time for the superseding indictment to
avoid the delay that a new indictment would entail.

Counsel

believed that the delay would be detrimental to Williams’s
immigration proceedings in New York.
As such, Williams’s counsel made a tactical decision to
avoid delay.

While Williams says he does not understand the

need to avoid delay, he has not shown that his counsel’s
tactical choice was not valid.

Counsel are afforded “wide

latitude” in making tactical decisions while representing
criminal defendants.

See United States v. Caparotta, 676 F.3d

213, 220 (1st Cir. 2012).

Therefore, Williams has not shown

constitutionally deficient performance.
Williams also has not shown prejudice.

Even if counsel had

not agreed to allow the superseding indictment and instead the
indictment had been dismissed, Williams does not contest that he
would have been reindicted in New York for passport fraud.
Although Williams argues that defending the charge would have
been easier for him in New York because he lived there, he does
not show that the result would have been different.
Conclusion
For the foregoing reasons, the government’s motion to
dismiss (document no. 15) is granted.
11

The clerk of court shall enter judgment accordingly and
close the case.
The court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c).
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
August 10, 2016
cc:

Seth R. Aframe, Esq.
Jonathan Cohen, Esq.
Paul F. O’Reilly, Esq.
Jacob Max Weintraub, Esq.

12