RESTREPO v. UNITED STATES OF AMERICA
Filing
7
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/8/2012. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAVIER RESTREPO,
Petitioner,
Civil Action
No. 12-3517 (JBS)
v.
UNITED STATES OF AMERICA,
OPINION
Respondent.
APPEARANCES:
Lee March Grayson, Esq.
55-21 69th Street
Maspeth, NY 11378
Attorney for Plaintiff Javier Restrepo
Nelson Thayer, Jr., Assistant U.S. Attorney
United States Attorney’s Office
970 Broad Street
Room 702
Newark, NJ 07102
Attorneys for Respondent United States of America
SIMANDLE, Chief Judge:
I. INTRODUCTION
On June 12, 2012, Petitioner Javier Restrepo filed a
petition for a writ of error coram nobis [Docket Item 1] to
vacate his October 6, 1997 conviction for conspiracy to
distribute and to possess with the intent to distribute more than
five kilograms of cocaine. He claims that he received ineffective
assistance of counsel because his attorney never informed him
that his conviction could result in deportation. His petition
1
will be denied because, although he learned about potential
deportation consequences in 1998, he did not file his petition
until 2012. Coram nobis petitioners must show sound reasons for
failing to seek relief earlier; Petitioner has not done so and
his petition will be denied.
II. BACKGROUND
This section provides an overview of Petitioner’s conviction
and sentencing, the arguments in his coram nobis petition, and
Respondent’s arguments in opposition.
A. Factual Background
On October 6, 1997, Petitioner pled guilty before this Court
to conspiracy to distribute and to possess with the intent to
distribute more than five kilograms of cocaine.
The conviction occurred because Petitioner owned a tractor
trailer and, in 1996, he agreed to allow Jorge Restrepo (no
relation)1 and a man named Pacho to outfit his trailer with a
secret compartment to hold cocaine. (Plea Tr. 27:18-25.) The
compartment could hold approximately 10 kilograms of cocaine.
(Pre-Sentencing Report (“PSR”) ¶ 53.) After the compartment was
completed, Pacho loaned Petitioner $500. (Plea Tr. 28:20-24.) At
his plea hearing, Petitioner emphasized that he had “no money at
1
To avoid confusion, the Court will refer to Jorge Restrepo
as “Jorge.”
2
the time” and the $500 “was no pay for nothing, so only lent
money.” (Plea Tr. 28:16-19.) On January 20, 1997, Petitioner met
with Jorge and Hernando Celis at a truck stop in South Kearney,
New Jersey. (Plea Tr. 29:3-5.) In Petitioner’s presence, Celis
gave Jorge $150,000. (Plea Tr. 29:7-10.) Jorge then gave
Petitioner $30,000 and asked Petitioner to deliver it to Jorge’s
mother. (Plea Tr. 29:14-17.)
At his plea hearing, the Court asked Petitioner, “Did you
understand that the $30,000 was proceeds of the drug
transaction?” (Plea Tr. 29:18-19.) Petitioner responded “[n]ot
really” and said that the money “got me a surprise.” (Plea Tr.
29:20-24.) Petitioner’s lawyer requested a recess and spoke with
his client. When Petitioner returned from the recess, he said,
“Yeah, yeah, I know what the $150 so he give me the $30,000 was
coming from the, the drugs.” (Plea Tr. 30:5-6.)
Petitioner admitted that his actions were wrong, that he
knew they were wrong at the time, and that no one forced him to
participate in the conspiracy. (Plea Tr. 40:23-41:6.)
Petitioner’s role in the conspiracy was minor, particularly
as compared to the other defendants. He stipulated to 5 to 15
kilograms of cocaine; every other defendant stipulated to 250
kilograms or more. (PSR ¶ 53.) At the plea hearing, Petitioner
said that no illegal drugs were ever actually transported in his
truck. (Plea Tr. 31:13-17.) The government’s allegations were
3
somewhat different, claiming that “although [he] allowed his
truck to be used to transport cocaine, he did not drive the truck
himself . . . (although it was mentioned that he was due to drive
to Houston, TX to pick up cocaine). . . .” (PSR ¶ 53.) But the
government acknowledged that Petitioner “had limited knowledge of
the organization and it’s [sic] activities.” (PSR ¶ 53.)
Javier Restrepo not only acknowledged his guilt in entering
his guilty plea, but he also accepted responsibility for his
crime, as detailed in statements he made during the interview
with the Probation Office, set forth in his Presentence
Investigation and Report. (PSR ¶ 56.) He acknowledged that Jorge
Restrepo had approached him for permission to install a secret
compartment to conceal drugs that would be transported in Javier
Restrepo’s truck, and he agreed that the compartment could be
installed and that the truck could be used to haul drugs when
Javier was not using it for legitimate purposes. (Id.) Javier
would allow Jorge to borrow the truck and use it to transport
drugs. (Id.) Javier said he agreed to this arrangement in hopes
that Jorge would eventually purchase the truck from him. (Id.)
Thus, Javier Restrepo’s factual guilt of the conspiracy rested
upon two spheres of conduct and knowledge: he agreed to permit
Jorge to install the secret compartment and use his truck to haul
drugs, and he agreed to deliver $30,000, which he knew to be drug
proceeds, to Jorge’s mother.
4
Deportation consequences were never discussed at the plea
hearing, even though Petitioner was not a United States citizen.
Petitioner arrived in the United States from Colombia in 1987
and, before his conviction, he possessed a valid green card.
(Restrepo Aff. ¶ 2.)2
On January 23, 1998, the Court sentenced Petitioner to 57
months of imprisonment followed by sixty months of supervised
release and ordered him to pay a special assessment of $100.
(Restrepo Aff. ¶ 1.)
At the sentencing hearing, both Petitioner’s lawyer, David
Secular, and the Court mentioned deportation consequences.
Secular said that Petitioner “most likely will have to suffer the
consequences of deportation at the end of his prison term.”
(Sentencing Tr. 25:21-22.) The Court told Petitioner, “I don’t
know whether you’ll be deported or whether you’ll be permitted to
stay in the country. I would assume it would be deportation
because this is a felony offense, but that’s not a decision that
is given to Judges to make. It’s in the hands of the Immigration
and Naturalization Service.” (Sentencing Tr. 44:4-8.) In
announcing the sentence and its conditions, the Court mandated
that Petitioner must cooperate with the Immigration and
Naturalization Service (“INS”) to resolve any problems with his
2
Petitioner filed an affidavit in support of his Petition.
The affidavit is dated October 17, 2011, but his petition was not
filed until June 12, 2012.
5
status in the United States and, if deported, must not reenter
the United States without written permission from the Attorney
General. (Sentencing Tr. 48:11-18.)
On February 25, 1999,3 Petitioner filed a habeas corpus
petition pursuant to 28 U.S.C. § 2255. His petition was denied
because it was untimely and because his claims lacked merit.
Petitioner argued, inter alia, that he received ineffective
assistance of counsel because his counsel failed to “argue
vigorously” for a downward adjustment of three to four levels in
the sentencing guidelines. Restrepo v. United States, Civ. No.
99-924, at 10 (D.N.J. Nov. 15, 1999) (Simandle, J.). The Court
held that Petitioner’s attorney’s advocacy “cannot plausibly be
characterized as brief or lacking in vigor.” Id. at 12. In
addition, the Court held that, even if the attorney’s performance
had been deficient, Petitioner’s defense was not prejudiced
because he received a much lighter sentence than any other
conspirator. Id. at 12. In his habeas corpus petition, Petitioner
never raised his attorney’s failure to advise him of deportation
consequences.
B. Petitioner’s Arguments
Petitioner argues that his conviction is invalid and should
be vacated because he is facing deportation, a collateral
3
The petition was dated February 25, 1999, but it was not
filed until March 1, 1999. Restrepo v. United States, Civ. No.
99-924, at 3 (D.N.J. Nov. 15, 1999) (Simandle, J.).
6
consequence arising directly from his conviction. He argues that
his attorney’s failure to advise him about the deportation
consequences constituted ineffective assistance of counsel.
Petitioner claims that his lawyer, David Secular, never
warned him that his plea would result in deportation and that he
never would have pled guilty if he had been aware of the
consequences. (Id. ¶ 3.) Petitioner claims that he would have
insisted upon trial because he was innocent. (Restrepo Aff. ¶ 3,
6.) He claims that Secular pressured him to plead guilty despite
his innocence to get better treatment from the judge. (Restrepo
Aff. ¶ 6.) Petitioner emphasized that he was innocent, that one
of his co-defendants confessed that Petitioner had not been
involved in the conspiracy, and that the evidence against him was
weak. (Pet. at 11.) He also alleges that the government’s case
was based on circumstantial evidence, that his truck was searched
without a warrant, and that Secular did not try to suppress the
evidence.(Restrepo Aff. ¶ 6.)
According to Petitioner, Secular only advised Petitioner
about the criminal process and his efforts to minimize prison
time; he never discussed deportation. (Restrepo Aff. ¶ 4.)
Petitioner argues that “any competent attorney would have
realized that pleading to a drug trafficking offense would likely
have grave immigration consequences. . . .” (Pet. at 9.) Secular
had notice that Petitioner was not an American citizen because
7
Petitioner told Secular that he was a Colombian citizen, and
Petitioner speaks with a noticeable accent and has a Latin
appearance and name. (Restrepo Aff. ¶ 5.)
Petitioner argues that the consequences of deportation would
be severe because he would have no employment in Colombia, he
would have to leave his American wife who needs medical treatment
in the United States, and guerilla groups make Colombia unsafe
for him. (Restrepo Aff. ¶ 8-9.)
He argues that his petition is timely because, before the
Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473
(2010), “there was no established state or federal law that
recognized counsel’s duty to discuss the immigration consequences
of a plea deal and failure to meet this duty as ineffective
assistance of counsel.” (Pet. at 5.) In addition, before the
Third Circuit’s decision in United States v. Orocio, 645 F. 3d
630 (3d Cir. 2011), “it was unclear whether the Padilla decision
had retroactive effect.” (Pet. at 5-6.)
D. Respondent’s Arguments
Respondent argues that Petitioner is not entitled to coram
nobis relief because (1) he fails to establish that he was
prejudiced by his attorney’s performance; (2) he fails to make a
plausible, actual innocence claim; and (3) he cannot show any
sound reasons for the unreasonable delay – over 15 years – in
8
challenging his guilty plea.
Respondent argues that Petitioner was not prejudiced because
he cannot show that he would have pled not guilty and gone to
trial. Respondent emphasizes the strength of the evidence against
Petitioner, including the secret compartment in his truck and the
$30,000 in drug proceeds. Respondent argues that Petitioner
failed to actually claim innocence “but for scattered bald
invocations of the word” and did not dispute “critical
inculpatory elements,” such as allowing Jorge to use his truck
and install a secret compartment in it. (Resp’t Answer at 14-15.)
In addition, Respondent notes that Petitioner received
generous benefits in exchange for his guilty plea, including a
three-level reduction in offense level, a two-level downward
minor role adjustment, and use of the safety valve provision to
issue a sentence below the mandatory minimum. (Resp’t Answer at
13.) Petitioner must, Respondent argues, show that “in view of
all the considerations . . . – the chances of prevailing at
trial, given the strength of the prosecution’s case and the
availability of any defenses, and the relative advantages and
disadvantages of a trial and a plea – going to trial would have
been a rational choice.” (Resp’t Answer at 8.) Petitioner’s “bare
assertion” that he would have pled not guilty if he had been
aware of the deportation consequences is “insufficient to justify
a coram nobis hearing.” (Resp’t Answer at 8.)
9
Respondent also disputes Petitioner’s explanation for his
delay, i.e. that the Padilla decision changed the legal
landscape. Respondent cites case law emphasizing that lawyers in
the Third Circuit have long been expected to advise clients of
deportation consequences and that unsettled law does not justify
delay in filing a coram nobis petition. Even accepting
Petitioner’s claim that his attorney failed to inform him of
deportation consequences, Respondent argues that Petitioner
learned of those consequences at sentencing and should have
argued ineffective assistance through a habeas petition fourteen
years ago. Respondent argues that Petitioner “should not be in a
more favorable position by his unjustified delay and failure to
raise his claim in his § 2255 petition.” (Resp’t Answer at 19.)
Essentially, Respondent argues that Petitioner cannot establish
sound reasons for the delay.
The unreasonable delay would severely prejudice the
government by forcing it to take a “wholly stale” case to trial.
(Resp’t Answer at 3, 19.) Respondent argues, even if witnesses
can be found, their memories will have faded; the physical
evidence has likely been destroyed or lost; and co-conspirators
would have little incentive to testify at trial because they have
already been prosecuted. (Resp’t Answer at 20-21.) In addition,
Respondent emphasized that the Court made Petitioner aware of the
deportation consequences at the 1998 sentencing hearing and, if
10
he had sought relief then, his counsel “would surely have had a
firmer recollection then of any advice he gave to Petitioner in
1997 and 1998 than he does now.” (Resp’t Answer at 6 no.1.)
III. Analysis
The writ of error coram nobis “is available to federal
courts in criminal matters under the All Writs Act, 28 U.S.C.A. §
1651(a).” United States v. Stoneman, 870 F. 2d 102, 105 (3d Cir.
1989) (internal citation omitted). It “is used to attack
allegedly invalid convictions which have continuing consequences,
when the petitioner has served his sentence and is no longer in
custody. . . .” Stoneman at 105–06. The writ is available to
“persons not held in custody [to] attack a conviction for
fundamental defects, such as ineffective assistance of counsel.”
United States v. Rad–O–Lite of Philadelphia, Inc., 612 F.2d 740,
744 (3d Cir. 1979).
Coram nobis relief is “reserved for exceptional
circumstances.” United States v. Osser, 864 F.2d 1056, 1059 (3d
Cir. 1988). It is “an extraordinary remedy, and a court's
jurisdiction to grant relief is of limited scope.” Stoneman at
106. A coram nobis petition faces stringent standards:
“The
interest in finality of judgments dictates that the standard for
a successful collateral attack on a conviction be more stringent
than the standard applicable on a direct appeal . . . [and] even
11
more stringent than that on a petitioner seeking habeas corpus
relief under § 2255.” Stoneman at 106.
A court may grant a coram nobis petition “to correct errors
for which there was no remedy available at the time of trial and
where ‘sound reasons' exist for failing to seek relief earlier,”
Stoneman, 870 F.2d at 106. A petitioner seeking coram nobis
relief must therefore demonstrate three elements: “that sound
reasons exist for failing to seek relief earlier, that he
continues to suffer collateral consequences from his conviction
(even though he is out of custody), and that an error of the most
fundamental character has occurred.” Gudiel-Soto v. United
States, 761 F. Supp. 2d 234, 236-37 (D.N.J. 2011).
The Court will analyze each element, showing that while
Petitioner has sufficiently asserted the collateral consequence
and fundamental error elements, he has not shown that sound
reasons exist for failing to seek relief earlier. Petitioner also
cannot make an actual innocence claim that would excuse his
procedural default.
A. Deportation Is a Collateral Consequence
Deportation satisfies the collateral consequence requirement
of a coram nobis petition. See United States v. Romero-Vilca, 850
F.2d 177, 179 (3d Cir. 1988) (“potential deportation is a
collateral consequence of a guilty plea”). Petitioner has
12
satisfied the first coram nobis requirement because he is subject
to deportation under the Immigration and Nationality Act, which
states that “[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable.” 8 U.S.C. §
1227(a)(2)(A)(iii).
B. Ineffective Assistance of Counsel Is Fundamental Error
Ineffective assistance of counsel constitutes fundamental
error that satisfies the next requirement for coram nobis relief.
Rad–O–Lite of Philadelphia at 744. The Sixth Amendment of the
United States Constitution guarantees criminal defendants the
right to effective assistance of counsel.
In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court has
established a two-part test to establish ineffective assistance
of counsel: “First, the defendant must show that counsel's
performance fell below an objective standard of reasonableness,
and, second, the defendant must show he was actually prejudiced
by counsel's deficient performance.” Werts v. Vaughn, 228 F.3d
178, 203 (3d Cir. 2000) (citing Strickland). An ineffective
assistance claim therefore requires a showing of both incompetent
performance and prejudice.
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme
Court held that competent counsel “must inform her client whether
his plea carries a risk of deportation.” Padilla at 1486. An
attorney’s failure to inform his client about the deportation
13
consequences of a guilty plea, if proven, thus falls below the
standard for competent attorney representation and satisfies the
first prong of the Strickland test. Petitioner alleges that his
attorney never informed him about the deportation consequences of
his plea bargain and that, if he had been aware of the
consequences, he never would have pled guilty. (Restrepo Aff. ¶
3.) Deportation consequences were never discussed at the plea
hearing. (Pl. Tr.)
The Third Circuit has held that Padilla applies
retroactively. United States v. Orocio, 645 F. 3d 630 (3d Cir.
2011). After Orocio, it is therefore “beyond cavil that
[Petitioner]'s counsel was constitutionally deficient under the
first prong of the Strickland inquiry if, as is alleged, he did
not advise [Petitioner] of the adverse immigration consequences
of his guilty plea.” Orocio at 642-643. In short, Petitioner’s
allegation that his counsel failed to inform him about
deportation consequences satisfies the first Strickland prong
such that an evidentiary hearing would be merited to determine
the truth of Petitioner’s allegations.
Having alleged the first Strickland prong, Petitioner must
allege the second prong, i.e. prejudice. His burden is to “show
that there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). In
14
determining whether the outcome of the plea process would have
been different, Petitioner need not show that he would have been
acquitted at trial: The Third Circuit has noted that the Supreme
Court “requires only that a defendant could have rationally gone
to trial in the first place, and it has never required an
affirmative demonstration of likely acquittal at such a trial as
the sine qua non of prejudice.” Orocio at 643.4
The burden of showing that a defendant would have chosen a
trial over a plea is particularly feasible in alien cases:
“Padilla reiterated that an alien defendant might rationally be
more concerned with removal than with a term of imprisonment.”
Orocio at 643. Given Petitioner’s minor role in the conspiracy
and the length of time that he had been living in the United
States, the Court finds that it could have been rational for him
to choose trial over a plea agreement. Thus, if he was truly
uninformed of the risk of deportation when making his decision to
plead guilty, it is conceivable that he was prejudiced by
ineffective assistance of counsel. The Court
therefore finds
that Petitioner has made a prima facie showing of fundamental
defect such that an evidentiary hearing would be merited to
determine whether Petitioner did, in fact, suffer ineffective
4
The Orocio court overruled United States v. Nino, 878 F. 2d
101 (3d Cir. 1989) and held that “Nino’s requirement that a
defendant affirmatively show that he would have been acquitted in
order to establish prejudice . . . is no longer good law.” Orocio
at 644.
15
assistance of counsel. Petitioner has failed, however, to
establish the third element, which requires sound reasons for
failing to seek relief earlier, as next discussed.
C. Petitioner Failed to Seek Relief Earlier
Assuming the truth of Petitioner’s allegation that his
counsel failed to inform him about deportation consequences
before he pled guilty, Petitioner learned about those
consequences, at the latest, at his sentencing hearing on January
23, 1998. His counsel said at the hearing that Petitioner “most
likely will have to suffer the consequences of deportation at the
end of his prison term.” (Sentencing Tr. 25:21-22.) The Court
told Petitioner, “I don’t know whether you’ll be deported or
whether you’ll be permitted to stay in the country. I would
assume it would be deportation because this is a felony offense.
. . .” (Sentencing Tr. 44:4-8.)
In Mendoza v. United States, 390 F. 3d 157 (3d Cir. 2012),5
the Third Circuit held that references to deportation in a presentencing report constitute sufficient notice for purposes of
considering unreasonable delay in filing a coram nobis petition.
In this case, the notice to Petitioner Restrepo was even stronger
than in Mendoza. Here, both Petitioner’s attorney and the Court
referenced deportation at the sentencing hearing during the
5
Mendoza was published on August 1, 2012, almost two months
after Petitioner filed his petition on June 12, 2012.
16
presentence colloquy. Petitioner was certainly present at the
sentencing hearing and had the assistance of an interpreter.
(Sentencing Tr. 1:13-16.) If a pre-sentencing report constitutes
sufficient notice in Mendoza, then the direct statements to
Petitioner at Petitioner’s sentencing hearing surely constitute
sufficient notice for coram nobis purposes.
To be clear, the Court does not contend that these
sentencing hearing statements cured Petitioner’s counsel’s
allegedly deficient performance, if any. The Orocio court
emphasized that allusions to immigration authorities at
sentencing and plea hearings were “insufficient to mitigate the
prejudice suffered. . . .” and that the question under Strickland
and Hill is not whether Orocio had later access to remedies, but
whether he would have pled guilty at all. Orocio at 646. In this
case, the Court has already found that Petitioner Restrepo made a
prima facie showing of fundamental error due to ineffective
assistance of counsel. If that were the only requirement, the
Court would order an evidentiary hearing. But a coram nobis
petition must satisfy all three elements: collateral
consequences, fundamental error, and sound reasons for failing to
seek relief earlier. The Orocio court’s analysis was limited to
determining whether Padilla applied retroactively and whether a
prejudice inquiry most show that the defendant would have been
acquitted at trial. It did not address the coram nobis elements,
17
including the requirement that there must be sound reasons for
failing to seek relief earlier. The Orocio court stated that
“[b]ecause the District Court did not address the requirements
for coram nobis relief other than the fundamental defect of
Strickland error, we leave such issues to be addressed in the
first instance on remand.” Orocio at 635 n.4. The issue before
the Court is not whether statements at the sentencing hearing
cured Petitioner’s counsel’s allegedly deficient performance; the
issue is whether Petitioner can justify the 14.5-year delay after
he learned about deportation consequences before he challenged
his guilty plea.
The Third Circuit analyzed unjustifiable delay in Mendoza.
In that case, petitioner Mendoza pled guilty in March 2006 to an
aggravated felony. His counsel failed to advise him that
deportation would result, but the pre-sentencing report notified
him about deportation consequences. In 2010, Mendoza filed a
habeas petition alleging that his counsel was ineffective. And,
in 2011, he filed a coram nobis petition. The Mendoza court held:
Although Mendoza's counsel's deficient performance may
have precluded him from seeking relief at the time of his
plea, Mendoza cannot show any “sound reasons” for his
lengthy delay in seeking relief since that time. Mendoza
became aware of his plea's deportation consequences in
September 2006 via his PSR, yet did not allege until 2010
that his counsel was ineffective.
Mendoza at 159-60. The Mendoza court held that “the government
would certainly be unduly prejudiced by the re-prosecution of a
18
case involving facts nearly a decade dormant” and that petitioner
Mendoza’s “delay in pursuing relief was unreasonable and bars his
petition.” Mendoza at 161. Mendoza’s four-year filing delay was
fatal; in this case, Petitioner’s delay was 14.5 years.
In Mendoza, the petitioner argued that he did not file
sooner because, before Padilla, there was no Supreme Court
precedent regarding a counsel’s duty to warn of a plea’s
immigration consequences. The Mendoza court held that reason was
not sound because “Padilla did not create a ‘new rule’ for
retroactivity purposes precisely because lawyers in the Third
Circuit have long been expected to advise clients of a plea's
deportation implications.” Mendoza at 160. Even if Padilla had
clarified an uncertain legal landscape, the Third Circuit stated
“[t]hat the law is unsettled does not justify a delay in filing a
coram nobis petition.” Mendoza at 160 (citing Bousley v. United
States, 523 U.S. 614, 623 (1998) (“futility cannot constitute
cause if it means simply that a claim was unacceptable to that
particular court at that particular time.”)).
Petitioner Restrepo makes similar arguments about
timeliness. He argues that his petition is timely because, before
Padilla, “there was no established state or federal law that
recognized counsel’s duty to discuss the immigration consequences
of a plea deal and failure to meet this duty as ineffective
assistance of counsel.” (Pet. at 5.) In addition, Petitioner
19
argues that before Orocio, “it was unclear whether the Padilla
decision had retroactive effect.” (Pet. at 5-6.)
These arguments fail. In Mendoza, the Third Circuit clearly
held that citing Padilla as the cause for delay in filing is not
a sound reason because Padilla did not create a new rule. Mendoza
at 160. In addition, the Mendoza court distinguished Orocio
because “Orocio filed his petition alleging deficient performance
before the Supreme Court decided Padilla, based on existing
precedent, and did so immediately upon learning of his impending
deportation.” Mendoza at 160 (emphasis in original). The Third
Circuit has therefore established that Padilla does not excuse
delay in filing.
Petitioner Restrepo also argues that Orocio changed the
legal landscape by making Padilla retroactive. This argument is
suspect. The Orocio court held that Padilla applied retroactively
precisely because it did not establish a new standard: “We are
convinced that Padilla did not break new ground in holding that
counsel must inform a criminal defendant of the immigration
consequences of a guilty plea in order to be constitutionally
adequate.” Orocio at 638. If the standard for attorney conduct
already existed, then Petitioner Restrepo cannot excuse his
failure to file earlier. Even if, arguendo, the law was unclear
before Orocio, the Mendoza court held that unsettled law does not
excuse delay: “That the law is unsettled does not justify a delay
20
in filing a coram nobis petition.” Mendoza at 160. Neither
Padilla nor allegedly unsettled law justifies Petitioner’s delay.
Because Petitioner lacks sound reasons for failing to file
earlier, his petition will be denied.
D. Petitioner Cannot Claim Actual Innocence
Petitioner’s delay precludes relief. But habeas
jurisprudence allows actual innocence to trump procedural
defaults: “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even
in the absence of a showing of cause for the procedural default.”
Murray v. Carrier, 477 U.S. 478, 496 (1986). Although this is not
a habeas case, innocence analysis is warranted because Petitioner
has claimed that he is actually innocent and because, if
Petitioner were actually innocent, it would be an extraordinary
case that could negate his procedural default.
Petitioner has asserted his innocence in general terms. He
stated that he “was in fact innocent,” (Restrepo Aff. ¶ 3) and
that his attorney “pressured me to plead guilty despite my
innocence,” (Restrepo Aff. ¶ 6). He argues that the case against
him “was based only on circumstantial evidence” and that the
“evidence should have been suppressed.” (Restrepo Aff. ¶ 6.) He
emphasized that he never actually transported drugs, that his
voice was not on any tape-recorded conversations that the
21
government used to establish a conspiracy, and that there was “no
other evidence tying him to the conspiracy, other than an
agreement to use his truck.” (Pet. at 11.) Petitioner does admit
he “allowed his truck to be used by codefendant Jorge Restrepo .
. . and allowed Jorge to install a secret compartment in the
passenger area of the truck.” (Pet. at 3.)
Petitioner’s innocence claim lacks merit. His admission that
he allowed Jorge to use his truck and install a secret
compartment for drug transport defeats his innocence claim, as
does his acknowledgment that he agreed to transport $30,000 in
known drug proceeds. It is clear that Petitioner’s role in the
conspiracy was minor, but it is also clear that he had a role in
the conspiracy in which, at minimum, he permitted the
construction of a secret compartment in and use of his truck.
Claiming a minor role is not the equivalent of making a genuine
innocence claim. He was a member, whether minor or not, who was
aware of the purpose of the conspiracy, which was to use his
truck for the distribution of cocaine.
Murray references the “extraordinary case” where a
constitutional violation has resulted in the conviction of an
“actually innocent” person. Petitioner is not actually innocent.
He admitted his guilt in his Rule 11 hearing, in his statements
to the Probation Office set forth in his PSR, and in his
debriefing for purposes of the safety valve under 18 U.S.C. §
22
3553(f) & U.S.S.G. § 5C1.2, which he earned by describing his
role and that of others in the conspiracy offense. Restrepo’s
petition is untimely, and that defect is fatal. He has not
overcome this procedural default with an actual innocence
showing.
E. The Pending Supreme Court Case Has No Impact
There is presently a pending Supreme Court case regarding
whether Padilla applies retroactively, but the outcome of that
case will not impact Petitioner’s case. The question of Padilla’s
retroactive applicability has split the Circuits. Compare Orocio
(holding that Padilla is retroactive), with Chaidez v. United
States, 655 F.3d 684 (7th Cir. 2011) (holding that Padilla is not
retroactive) and United States v. Chang Hong, 671 F.3d 1147 (10th
Cir.2011) (same). The Supreme Court has granted certiorari to
answer the question of whether Padilla applies to persons whose
convictions became final before its announcement. Chaidez v.
United States,
655 F.3d 684 (7th Cir. 2011), cert. granted 132
S. Ct. 2101 (U.S. Apr. 30, 2012) (No. 11-820). The resolution of
this question
has no bearing on [Petitioner]'s claim, which falls short
regardless. If the Supreme Court were to . . . conclude
that Padilla did, in fact, create a new rule, such a
ruling may strengthen [Petitioner]'s argument that he was
previously unaware of the rule, but would also preclude
him from invoking Padilla retroactively, effectively
foreclosing his claim.
Mendoza v. United States, 690 F.3d 157, 160 no.1 (3d Cir. 2012).
23
Essentially, Restrepo’s petition fails, regardless of the Supreme
Court’s ruling on Padilla’s retroactive application. If the
Supreme Court finds that Padilla is not retroactive, then
Petitioner cannot claim the rule applies to him. If the Supreme
Court affirms Orocio and finds that Padilla announced a preexisting rule, then Petitioner cannot justify his 14.5-year delay
in filing his petition. The Orocio court held that “[w]e are
convinced that Padilla did not break new ground in holding that
counsel must inform a criminal defendant of the immigration
consequences of a guilty plea in order to be constitutionally
adequate.” Orocio at 638. If Padilla did not break new ground,
then, as explained above, Petitioner’s delay is fatal to his
position. Essentially, the pending Chaidez case will not negate
this case’s outcome.
III. Conclusion
Restrepo’s coram nobis petition is denied because he has not
alleged sound reasons for his failure to file earlier. The Court
has not included a certificate of appealability because
“[n]either the statute making the writ of error coram nobis
available in federal courts in criminal matters, . . . nor any
Federal Rule of Appellate Procedure requires a certificate of
appealability before an appeal may be taken, nor does such a
24
requirement appear in the case law.” United States v. Baptiste,
223 F.3d 188, 189 (3d Cir. 2000).
November 8, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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