Phillips v. United States of America

Filing 10

MEMORANDUM AND OPINION: For the foregoing reasons, petitioner is not entitled to a writ of coram nobis. The petition is denied in its entirety. Ordered by Judge Nina Gershon on 7/7/2015. (Priftakis, Tina)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JUL 0 7 2015

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BROOKLYN OFFICE

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KEVIN W. PHILLIPS,
OPINION AND ORDER
Petitioner,
14-cv-5820 (NG)

-againstUNITED STATES OF AMERICA,
Respondent.

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GERSHON, United States District Judge:
Prose petitioner Kevin Phillips, a Guyanese citizen currently in the custody of United

States Immigration and Customs Enforcement C'ICE'~), requests a ·writ of coram nobis vacating a
2009 drug trafficking conviction that subjects him to mandatory deportation. Contending that his
trial counsel provided constitutionally ineffective assistance regarding the immigration
consequences of a conviction, petitioner seeks an opportunity to plead to a lesser offense that
\vould preserve his ability to seek discretionary relief from ren1oval.

BACKGROUND
Petitioner was arrested in August 2005 for selling 26.1 grams of crack cocaine to two
cooperating witnesses. He subsequently was tried before a jury in this court and, on December
11, 2009, he was found guilty on one count of distributing and possessing with intent to
distribute five grams or more of crack cocaine. See 21 U.S.C. § 841(a)(1). Petitioner received a
sentence of five years' imprisonment, the then-prevailing mandatory minimum, 1 and four years'
supervised release.

Three months before petitioner's sentencing, Congress passed the Fair Sentencing Act of
2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372, which increased from five grams to 28

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Because trafficking in any amount of crack cocaine constitutes an "aggravated felony"
within the meaning of the Immigration and Nationality Act ("INA"), 66 Stat. 163, 8 U.S.C. §
1101 et seq., petitioner's conviction rendered him not only deportable but subject to mandatory
deportation. 2 Petitioner's conviction was affirmed on appeal, see United States v. Hemmings,
482 Fed. App'x 640 (2d Cir. 2012), and, on October 1, 2012, the Supreme Court denied his
petition for a writ of certiorari. See Phillips v. United States, 133 S. Ct. 256 (2012). On March
6, 2014, after serving his term of imprisonment, petitioner was detained by ICE. Petitioner
asserts that he remains in ICE custody, where he is appealing an order of removal.
During the pendency of immigration proceedings, petitioner filed in this court the instant
petition for a writ of coram nobis. Liberally construed, the petition asserts that petitioner
proceeded to trial in 2009 only because his counsel at the time, Barry Krinsky, Esq., led him to

grams the quantity of crack cocaine needed to trigger a five-year mandatory minimum sentence.
Under prevailing law, petitioner ·was not entitled to a sentence under the FSA. See United States
v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011) (defendants whose crimes predate FSA not entitled to
FSA amendments). Subsequently in Dorsey v. United States, 132 S. Ct. 2321 (2012), the
Supreme Court held that the FSA applies retroactively to defendants sentenced after the FSA's
enactment (even if their crimes predate the FSA). Petitioner, who already has completed his
term of imprisonment, never requested resentencing under the FSA.
2

This result is dictated by a network of interconnected statutes. See Moncrieffe v. Holder,
133 S. Ct. 1678, 1682 (2012) (summarizing statutory scheme). In brief, noncitizens convicted of
"deportable" offenses may apply to the Attorney General for certain types of discretionary relief
from removal-for example, asyl urn and cancellation of removal based on an extended lawful
presence in the United States. See 8 U.S.C. §§ 1158, 1229b. Such relief is not available to
noncitizens who have been convicted of an "aggravated felony." !d. §§ 1158(b)(2)(A)(ii), (B)(i);
§§ 1229b(a)(3), (b)(1)(C). The class of aggravated felonies encompasses, inter alia, any "drug
trafficking crime (as defined in section 924(c) oftitle 18)." 8 U.S.C. § 1101(a)(43)(B). A "drug
trafficking crime," in turn, is defined to include "any felony punishable under the Controlled
Substance Act," 18 U.S.C. § 924(c)(2); and any crime for which the maximum term of
imprisonment is "more than one year" constitutes a felony. See§ 3559 (a)(l)-(5). In sum, any
offense under the Controlled Substances Act punishable by more than a year constitutes an
"aggravated felony" triggering automatic removal. Under the Controlled Substances Act-both
before and after enactment of the FSA-distribution of crack cocaine, in any quantity, is
punishable by more than a year and thus an aggravated felony for immigration purposes. See §
21 U.S.C. § 841(b)(1)(C).

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believe that a guilty verdict would not adversely affect his immigration status. Petitioner claims
that, far from advising him that a conviction would result in mandatory deportation, Mr. Krinsky
told him that, if he were found guilty, "he would not have any immigration consequences" so
long as he simply "completed his probation." Petition at 11. Had he known that a conviction
would assure his deportation, petitioner claims, he would have sought to plead to a lesser offense
for which deportation would not be mandatory. Petitioner contends that his trial counsel made
no attempt to negotiate such a plea agreement and that he was prejudiced as a result.
The government offers a different account of pretrial events, relying largely on affidavits
from Mr. Krinsky and Sylvia Shweder, the Assistant United States Attorney who handled
petitioner's trial. Mr. Krinsky affirms that, contrary to petitioner's allegations, he informed
petitioner that "if he was convicted after trial he would receive a mandatory prison sentence and
be subject to mandatory deportation." Affidavit of Barry Krinsky, dated March 2, 2015
("Krinsky Aff.")

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9. Mr. Krinsky also states that petitioner rejected plea bargaining out of hand,

asserting on numerous occasions that "he was not taking any plea to anything because he was not
guilty of these charges."

!d.~

6. Mr. Krinsky claims that he nevertheless asked the government

whether any plea offer was available to petitioner and was told that any agreement would
necessarily include "a plea to a federal felony narcotic conviction, which would carry with it a
prison sentence and which would include subjecting Mr. Phillips to deportation."

!d.~

8.

Consistent with Mr. Krinsky's account, AUSA Shweder represents that (1) she never
offered petitioner a plea agreement and (2) prosecutors who handled petitioner's case pretrial did
not offer any "plea agreement that did not include deportation nor was any such plea agreement
available." Affidavit of Sylvia Shweder, dated December 22, 2014 ("Shweder Aff.") ~~ 4-5.

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DISCUSSION
A.

Legal Standards

The government does not dispute that coram nobis provides an appropriate vehicle for
petitioner to challenge the immigration repercussions of his conviction. Relief by writ of coram

nobis is available only in "those cases in which errors of the most fundamental character have
rendered the proceeding itself irregular or invalid." United States v. Mandanici, 205 F.3d 519,
524 (2d Cir. 2000) (internal quotation marks omitted). To obtain the writ, a petitioner must show
that "1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist
for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal
consequences from his conviction that may be remedied by granting of the writ." !d. (internal
quotation marks omitted). As "a remedy of last resort," a writ of coram nobis should not serve
as "a substitute for appeal." !d. (internal quotation marks omitted).
Constitutionally "ineffective assistance of counsel is one ground for granting a writ of

coram nobis." Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014). To establish ineffective
assistance, a petitioner must satisfy the familiar Strickland standard, showing that "1) the defense
counsel's performance was objectively unreasonable; and 2) the deficient performance
prejudiced the defense." !d. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
As to Strickland's first prong, the Sixth Amendment right to effective counsel attaches at
the initiation of formal charges and encompasses an obligation to provide professionally
competent advice regarding the immigration consequences of a conviction. See Padilla v.

Kentucky, 559 U.S. 356, 374 (201 0). At a minimum, an attorney performs deficiently if he
provides "affirmative misadvice" as to his client's deportability. See Kovacs, 744 F.3d at 51
(citing United States v. Couto, 311 F.3d 179 (2d Cir. 2002)). But that is not to suggest that a

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defense attorney can satisfy his Sixth Amendment obligations by standing mute on the risks of
deportation "when answers are readily available." See Padilla, 559 U.S. at 370. The specificity
at which immigration advice must be volunteered ultimately turns on the complexity of the
issues confronted. See id. at 369. Where the deportation ramifications of a particular offense are
"not succinct and

straightforward,'~

defense attorneys "need do no more than advise a noncitizen

client that pending criminal charges may carry a risk of adverse immigration consequences." ld.
Where, however, "the deportation consequence is truly clear, ... the duty to give correct advice
is equally clear." Id.
To establish prejudice under Strickland's second prong, there must be a "reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. A petitioner claiming that his counsel's
incompetent performance caused him to stand trial, rather than plead guilty, can show prejudice
by demonstrating a reasonable probability that a "more favorable plea" offer could have been
secured, and that he would have taken it. See Lafler v. Cooper, 132 S. Ct. 1376, 1385, 1386
(2012); Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012). Where, as here, counsel's alleged errors
relate to immigration issues, the petitioner also must "clearly demonstrate that he placed
particular emphasis on immigration consequences in deciding whether or not to plead guilty."
Kovacs, 744 FJd at 52 (internal quotation and bracket marks omitted). In applying these
standards, courts "must keep in mind that 'a defendant has no right to be offered a plea, nor a
federal right that the judge accept it."' Id. at 51 (quoting Frye, 132 S. Ct. at 141 0).
Before turning to the merits of petitioner's claim, a note on the retroactivity of the
foregoing principles is in order. Under Teague v. Lane, 489 U.S. 288 (1989), "new rules" of
constitutional criminal procedure generally "·will not be applicable to those cases which have

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become final before the new rules are announced." !d. at 310 (plurality opinion); see also United

States v. Becker, 502 F.3d 122, 128-29 (2d Cir. 2007); Mandanici, 205 F.3d at 527 ("Teague
applies to coram nobis petitions."). Invoking Teague, the government contends that Padilla is
inapplicable here because it was decided three months after petitioner's conviction at trial.
The government is correct that, in recognizing a Sixth Amendment obligation to supply
some amount of immigration advice to noncitizen defendants, Padilla announced a new rule
without retroactive effect. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013). But the
government ignores that "a conviction becomes final for purposes of Teague when the
availability of direct appeal has been exhausted." Becker, 502 F.3d at 129 (internal quotation
marks omitted). Petitioner's direct appeal was not exhausted until the Supreme Court denied his
petition for a writ of certiorari on October 1, 2012, more than two years after Padilla was
decided. The nonretroactivity of Padilla is "therefore beside the point." Id. 3
More fundamentally, and as the government seems to concede, the petition here
ultimately does not rest on any innovation traceable to Padilla. Petitioner's claim is not simply
that he received insufficient immigration advice but, rather, that counsel affirmatively misled him
by advising that a conviction at trial would be without immigration consequences. Since no later
than 2002, the Second Circuit has recognized that such "affirmative misrepresentations"
regarding the possibility of deportation (in contrast to omissions) can "constitute ineffect~ve
assistance." Couto, 311 F.3d 187; see also Kovacs, 744 F.3d at 50 (applying Couto to conviction

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The Supreme Court's decisions in Lafler and Frye, on which petitioner also relies, similarly
predate the finality of petitioner's conviction. In any case, "[n]either Lafler nor Frye announced
a new rule of constitutional law: Both are applications of Strickland." Gallagher v. United
States, 711 F.3d 315, 315-16 (2d Cir. 2013) (internal quotation marks omitted).
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that became final prior to Padilla). Because he does not rely on any new rule, petitioner's
ineffective assistance claim is not barred by the nonretroactivity principle.

B.

Petitioner Has Not Established Ineffective Assistance of Counsel

There is no question that petitioner's defense counsel performed unreasonably if, as
petitioner alleges, he erroneously advised petitioner that a conviction on crack cocaine
trafficking charges would be without immigration consequences. See Kovacs, 744 F.3d at 50
(erroneous advice that misprision of felony was not a deportable offense fell outside "range of
professional competence"); Couto, 311 F.3d 187 (constitutionally deficient to advise that "there
were things that could be done to avoid deportation (when in fact there were none)"). The
government does not contend otherwise.
Petitioner's allegations of attorney error, however, cannot be accepted uncritically. See
Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003) ("[I]n most circumstances a convicted felon's
self-serving testimony is not likely to be credible."). Although defense attorneys cannot be
expected to master every wrinkle of the immigration code, it is no secret that noncitizens
convicted of drug trafficking offenses are deportable, often without recourse. It is difficult to
imagine an experienced New York criminal defense attorney being entirely ignorant of that basic
precept. Moreover, had Mr. Krinsky misled petitioner to believe that he confronted little (or no)
risk of deportation, one would expect petitioner to have taken issue with the misadvice at
sentencing, when he was notified in open court of his deportability (see Gov't Opp. to Pet., Ex. A
at 13), or on appeal. Petitioner did not do so. 4 In the circumstances, the court finds far more

4

Notably, while petitioner was not obligated to assert his ineffective assistance claim on
direct appeal, see Massaro v. United States, 538 U.S. 500, 505-06 (2003), his appeal papers
construed his deportation as an inevitable consequence of the conviction, not as a separate
injustice that might be the subject of collateral attack.
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credible Mr. Krinsky's representation that petitioner was advised, and fully understood, that a
conviction would inevitably lead to his removal from the country. See Chang v. United States,
250 F.3d 79, 86 (2d Cir. 2001) (trial court did not err in crediting counsel's affidavit over
petitioner's "self-serving and improbable assertions").
Petitioner also contends that Mr. Krinsky was ineffective for failing to negotiate a plea
with less severe immigration consequences. This claim, too, is v-.rithout merit. Mr. Krinsky's
credible affidavit establishes that petitioner expressed no interest in plea bargaining and stated
that he would not accept any offer the government might extend. This was petitioner's
prerogative, for the "choice of whether to plead guilty or insist on a trial belongs solely to the
defendant." Gonzalez v. United States, 722 F.3d 118, 132 (2d Cir. 2013). But having refused to
engage in plea discussions, petitioner cannot now claim that his counsel was ineffective for
failing to negotiate a plea. See Diallo v. United States, 2014 WL 4460364, at *5 (S.D.N.Y. Sept.
10, 2014) ("'Where a defendant refuses to plead guilty, counsel cannot be expected to pursue plea
negotiations with the government.").
Equally fatal is petitioner's failure to demonstrate any prejudice resulting from his
counsel's allegedly deficient performance. The only prejudice asserted by petitioner is his
exposure to mandatory deportation. Accordingly, to prevail he must show a reasonable
probability that, but for his counsel's asserted errors, he could have pleaded to an offense for
which deportation would not have been mandatory. See Strickland, 466 U.S. at 694 (to show
prejudice, there must be a "reasonable probability that ... the result of the proceeding would
have been different"). 5 Petitioner has not made that showing.

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The government erroneously asserts that petitioner is precluded from establishing
prejudice because he was ultimately convicted at trial. The Supreme Court rejected this very
argument in Frye, a case the government cites, and again in Lafler, a case petitioner cites and the
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To the contrary, AUSA Shweder has affirmed that no offer was made or available to
petitioner that would not have entailed mandatory deportation, and Mr. Krinsky has confrrmed
that he was so advised prior to trial. There is no reason to doubt these affiants given petitioner's
offense conduct. Petitioner was charged with, inter alia, distributing 26.1 grams of crack
cocaine. Because this offense carried a 40-year maximum sentence, it was most certainly an
"aggravated felony" assuring petitioner's deportation. See 21 U.S.C. § 841(b)(1)(B)(iii) (2009),
amended by FSA, Pub. L. No. 111-220, 124 Stat. 2372; supra note 2 (summarizing statutory

scheme). Indeed, trafficking in any amount of crack cocaine-both before and after the FSA's
passage-constitutes a felony offense for which deportation is mandatory. See 21 U.S.C. §
84l(b)(1)(C); supra note 2. 6 And, at the time of petitioner's conviction, the same was true for
simple possession of crack cocaine, at least in the amount charged in the indictment. See 21
U.S. C. § 844(a) (2009) (prescribing maximum sentence of20 years for possession of five grams
or more of crack cocaine), amended by FSA, Pub. L. No. 111-220, 124 Stat. 2372.
Nothing in the record suggests that the government was inclined to offer a plea agreement
for a misdemeanor offense that would have protected petitioner from mandatory removal.
Petitioner relies instead on the speculative hope that somehow, someway, improbable results
could have been achieved but for his counsel's alleged deficiencies. Speculation, however, does

government ignores. As the Court acknowledged in these decisions, "[b]ecause ours is for the
most part a system of pleas, not a system of trials, it is insufficient simply to point to the
guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Frye,
132 S. Ct. at 1407 (citation and internal quotation marks omitted); accord Lafler, 132 S. Ct. at
1386. Thus, where counsel's ineffective assistance results in a defendant foregoing a more
favorable plea agreement, the ensuing trial does not cure counsel's error; it "cause[ s] the injury
from the error." Lafler, 132 S. Ct. at 13 86.
6

Accordingly, even if petitioner were resentenced under the FSA-something he has not
requested-he would face mandatory deportation.
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not entitle petitioner to relief under Strickland, much less by way of extraordinary writ. See

United States v. Thornhill, 34 F. Supp. 3d 334, 360-61 (S.D.N.Y. 2014).
In addition, petitioner has failed to "clearly demonstrate," as he must to establish
prejudice in these circumstances, that he placed "particular emphasis on immigration
consequences in deciding whether or not to plead guilty." Kovacs, 744 F.3d at 52 (internal
quotation and bracket marks omitted). To be sure, petitioner now asserts that his primary
defense objective was to remain in the United States, irrespective of the custodial sentence he
received. But he never contends that this supposedly overriding concern was communicated to
his counsel, to the court at sentencing, or in any other manner that might be susceptible to
corroboration. With nothing to substantiate petitioner's assertions, the court finds more credible
Mr. Krinsky's representation that petitioner's pretrial focus was not on preserving his
immigration status but rather on proving his innocence.

C.

Petitioner Is Not Entitled To An Evidentiary Hearing

Petitioner contends that, at a minimum, he should be granted an evidentiary hearing and
the opportunity to cross-examine Mr. Krinsky. Given the "similarities between coram nobis
proceedings and [28 U.S.C.] § 2255 proceedings,"§ 2255 standards governing the use of
evidentiary hearings are often applied "by analogy in coram nobis cases." Foster v. United

States, 581 Fed. App'x 105, 106, n.1 (2d Cir. 2014). There is no basis to hold an evidentiary
hearing here. Petitioner cannot establish ineffective assistance of counsel under Mr. Krinsky's
description of pretrial events and, as already discussed, Mr. Krinsky's account is eminently
credible. See Chang, 250 F.3d at 86 (where petitioner and his counsel offer conflicting accounts,
court may credit detailed affidavit from counsel without holding an evidentiary hearing). And,

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even under petitioner's version of events, he cannot establish prejudice. Accordingly, an
evidentiary hearing would serve no substantive purpose.
CONCLUSION
For the foregoing reasons, petitioner is not entitled to a writ of coram nobis. The petition
is denied in its entirety.

SO ORDERED.

s/Nina Gershon
NINA GERSHON
United States District Judge

Dated:

Brooklyn, New York
July 7, 2015

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