Fernandes v. Johnson et al

Filing 15

MEMORANDUM & ORDER for 6 Motion to Dismiss/Lack of Jurisdiction filed by Robert T. Johnson, 11 Report and Recommendations. Respondents have moved to dismiss Petitioner Akile Fernandes's petition for a writ of coram nobis, arguing that the Co urt lacks subject-matter jurisdiction. After de novo review of Magistrate Judge Francis's R&R and the parties' filings, we adopt the R&R in its entirety. All of Fernandes's arguments have been considered and are without merit. For the above reasons, it is hereby ordered that Judge Francis' report is approved, adopted, and ratified by the Court in its entirety. Fernandes's petition is DENIED. SO ORDERED. (Signed by Judge Leonard B. Sand on 3/5/2013) (ja)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AKILE FER1\i\NDES a/kJa Akile
Fernandez aik/a Julio Cesar Rivas
Ramirez,

USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ____~--~~DATE FILED: (-f.:>f 0 SI\J

12 Civ. 2774 (LBS)
Petitioner,

MEMORANDUM

& ORDER

v.

ROBERT T. JOHNSON et aI.,
Respondents.
SAND, J.

Respondents have moved to dismiss Petitioner Akile Fernandes's petition for a writ of
coram nobis, arguing that the Court lacks subject-matter jurisdiction. This matter is before us on
a November 8, 2012, Report and Recommendation ("R&R") of United States Magistrate Judge
James C. Francis IV, in which Magistrate Judge Francis recommended dismissing the petition.
Fernandes filed an objection pursuant to 28 U.S.c. § 636(b)(l) on November 21, 2012, and, after
a brief extension, filed a brief in support of his objection on December 11, 2012. After de novo
review of Magistrate Judge Francis's R&R and the parties' filings, we adopt the R&R in its
entirety .

STANDARD OF REVIEW
A district court reviewing a magistrate judge's report and recommendation "may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.c. § 636(b)(l). Ifa party files written objections to the report and
recommendation, the district court "shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made." Jd.

DISCUSSION

1. Writ of Coram Nobis
On April 10,2012, Fernandes petitioned this COUli for a writ of coram nobis to vacate a
September 28, 2011, decision by New York Supreme Court Justice Edgar G. Walker denying the
vacation of Fernandes's guilty plea to Attempted Criminal Possession ofa Controlled Substance
in the Third Degree. See Aff. Guttlein 15, Apr. 10, 2012, ECF No.1; Pet.

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5; Pet. Ex. 1.

Fernandes has finished serving the sentence for that crime, but is sti II trying to vacate his guilty
plea because of its collateral immigration consequences. See Pet.

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3 (arguing that the Court

should grant a writ of coram nobis because it is "a remedy of last resort for petitioners who are
no longer in custody pursuant to a criminal conviction"); Aff. Guttlein ~ 12 (noting that
Fernandes was sentenced to five years of probation in 1995); id.

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10 (stating that the conviction

made Fernandes "mandatorily removal, [sic] permanently banished from the United States and
ineligible from adjusting his status"); Supp. Br. Supp. Objection 3 ("[Fernandes] is presently in
custody at the Metropolitan Correctional Center for federal charges of illegal reentry as an
aggravated felon, solely because of the instant conviction. "). Fernandes argues that his counsel
was constitutionally ineffective in recommending Fernandes plead guilty because he was not
warned about the immigration consequences of his plea as was required for the petitioner in
Padilla v. Kentucky, 130 S. Ct. 1473 (2010), see Pet. ,-r 26-37, and because his counsel had a

conflict of interest, see Pet.

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8-9, 11. Although the Supreme Court's very recent decision in

United States v. Chaidez, No. 11-820 (U.S. Feb. 20 , 2013), demolishes Fernandes's main case

because it held that Padilla was not retroactive, we discuss the jurisdictional questions because
they are logically antecedent and dispatch Fernandes's complaint about his counsel's conflict of
interest as well.

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On August 30, 2012, Respondents moved to dismiss for lack of jurisdiction, explaining
that federal coutis do not have subject-matter jurisdiction to grant the writ of coram nobis to
vacate state court decisions. See Mem. Law Supp. Mot. 2-5. Magistrate Francis agreed, see
R&R 4-6, and so do we , "[F]ederal courts derive their power to issue writs of error coram
nobis" from the All-Writs Act. Finkelstein v. Spitzer, 455 F.3d 131, 134 (2d Cir. 2006) The All­

Writs Act, in turn, only allows federal courts to issue "all writs necessary or appropriate in aid of
their respective jurisdictions." Id. (quoting 28 U.S.c. § 1651(a) (emphasis added)). "As the text

plainly indicates, 'the All Writs Act does not confer jurisdiction on the federal courts. '" Id.
(quoting Syngenta Crop Prot., Inc. v. Henson, 537 U.S . 28, 33 (2002)); cf also Chaidez, No. 11­
820, slip op. at 2 n.1 (suggesting that coram nobis petitions can only be brought by persons who
were at one point eligible for habeas relief "under 28 U. S. C. § 2255 or § 2241 ").
Fernandes objects, arguing that the All-Writs Act has been modified somehow by Padilla
v. Kentucky, 130 S. Ct. 1473 (2010), because courts can no longer "use a direct versus collateral

consequences distinction regarding immigration consequences of a criminal conviction and an
attorney's duty to advise his client regarding said consequences." Supp. Br. Supp. Objection 2.
At best, this argument is baffling. Whether failure to warn about the immigration consequences
of a guilty plea now constitutes ineffectiveness of counsel has no bearing on whether the All­
Writs Act confers subject-matter jurisdiction. It still does not.
Accordingly, we adopt Magistrate Francis's R&R, which states that we must dismiss the
petition for lack of subject-matter jurisdiction.
II. Conversion to Habeas Corpus
In his brief opposing Respondents' motion to dismiss and in his brief supporting his
objection, Fernandes suggests that if we find we have no subject-matter jurisdiction to issue a

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writ of coram nobis, we should convert his petition to a petition for habeas corpus. See Aff.
Guttlein ~ 5, ECF No.9 ; Supp. Br. Supp. Objection 2-3. Magistrate Judge Francis
recommended not converting this petition to a habeas corpus petition because that habeas
petition would still have to be dismissed . R&R 7-8. We agree.
Relying on Ogunwomoju v. United States, 512 F.3d 69 (2d Cir. 2008), and Camara v.

New York, No. 11 Civ. 8235,2012 WL 3242697 (S .D.N.Y. Aug. 9, 2012), Magistrate Francis
found that the Court lacks subject-matter jurisdiction because Fernandes was not in custody for

§ 2254 purposes because Fernandes concluded his sentence for his crime. R&R 7. Being in
custody of the Federal Bmeau of Prisons awaiting trial for illegal entry, predicated on the
immigration consequences of the earlier state crime , did not constitute § 2254 custody either. Id.
We agree with M agistrate Judge Francis that habeas relief would be inappropriate here
because the custody requirement cannot be met. "This Court must follow [binding Second
Circuit] precedent unless a subsequent decision of the Supreme Court so undermines it that it
will almost inevitably be overruled by the Second Circuit." United States v. Emmenegger, 329
F. Supp. 2d 416, 429 (S.D.N.Y. 2004). Contrary to Fernandes's argument, Padilla did not
clearly undermine Ogun womoju, a Second Circuit case that held that immigration detention or
being subject to an order of removal as a consequence of state sentence are not state custody. In

Ogunwomoju, an immigration detainee tried to challenge his state drug conviction, but he had
already served his sentence for that conviction. The Second Circuit held that Ogunwomoju was
not in custody because "once the sentence imposed for a conviction has completely expired, the
collateral consequences bf that conviction are not themselves sufficient to render an individual
' in cu stody' for the purpose ofa habeas attack upon it." Ogunwomoju , 512 F.3d at 75 (quoting

Maleng v. Cook, 490 U.S 488, 492 (1989) (per curiam)) (internal quotation marks omitted).

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Fernandes again argues that Padilla rejected the distinction between direct and collateral
consequences, but Padilla did not eliminate consideration of direct and indirect consequences in
every area of the law. Instead, Padilla held that direct and collateral consequences were an
inappropriate analytical tool in the ineffectiveness assistance ofcounsel framework when
considering immigration consequences.) In so doing, Padilla avoided taking a position as to
whether immigration consequences were direct or indirect or whether direct or indirect
consequences were still an acceptable way to determine "custody" in a § 2254 case. 2
Accordingly, no court in this circuit has held that Ogunwomoju was so undermined as to
make its overruling inevitable. Instead, other lower courts have followed Ogunwomoju since
Padilla . See Owuor v. Viator ex ref. N.Y., No. 12 Civ. 4338, 2012 WL 3930554, at *1-2

(E.D.N.Y. Sept. 10,20 12); Camara, 2012 WL 3242697, at *3- 4, adopting 2012 WL 3242713, at
*2-4 (S.D.N.Y. Mar. 13,2012); cf Rodriguez v. United States, No 98 Crim. 764, 2012 WL
6082477 , at *3 (S.D.N. Y. Dec. 4, 2012); Medina v. United States, Nos. 12 Civ. 238 & 86 Crim.
238,2012 WL 742076, at *2 (S .D.N.Y. Feb. 21, 2012).

Because Fernandes has not shown the Supreme Court's nuanced statements about direct
and collateral consequences will result in the inevitable overruling of Ogonwomoju, we follow
Ogonwomoju, and hold fernandes is not in custody, as Fernandes originaly admitted. See Pet.

We, howe ver, have never applied a distinction between direct and collateral
consequences to define the scope of constitutionally "reasonable professional
assistance" required under Strickland, 466 U.S., at 689, 104 S.Ct. 2052. Whether that
distinction is appropriate is a question we need not consider in this case because of
the unique nature of deportation .. , ,
Deportation as a consequence of a criminal conviction is, because of its close
connection to the criminal process , uniquely difficult to classify as either a direct or a
collateral consequence. The collateral versus direct di stin ction is thus ill-suited to
evaluating a Strickland claim concerning the specific risk of deportation. We
conclude that advice regardin g deportation is not categorically removed from the
ambit of the Sixth Amendment right to counsel.
Padilla, 130 S, Ct. 1473,1481-82,

Padilla was not a § 2254 case, See Commonwealth v, Padilla, 253 S,W .3d 482, 483 (Ky. 2008) (explaining that
Padilla's challenge was raised under Kentucky Rule of Criminal Procedure 11.42), rev'd, 130 S. Ct, 1473,

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,,3(arguing that the Court should grant a writ of coram nobis because it is "a remedy of last
resort for petitioners who are no longer in custody pursuant to a criminal conviction and
therefore cannot pursue ... a writ of habeas corpus").
Because, under econd Circuit law, Fernandes is not in "custody," we \vould have no
subject-matter jurisdiction to consider his claim as a habeas petition. We therefore decline to
convert his petition to a habeas petition.
III. Stay
Finally, Fernandes suggests we defer decision until the Supreme Court's decision in

Chaidez. As noted above, this request has been made moot by the Supreme Court. Chaidez was
decided on February 20, 2013, and concluded that "under the principles set out in Teague v.

Lane, 489 U. S. 288 (1989), Padilla does not have retroactive effect." Chaidez, No. 11-820, slip
op. at 1.

CONCLUSION
All of Fernandes 's arguments have been considered and are without merit. For the above
reasons, it is hereby ordered that Judge Francis' report is approved, adopted, and ratified by the
Court in its entirety. Fernandes's petition is DENIED.
SO ORDERED.
Dated:

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, 2013

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U.S .DJ.