Chico v. United States Of America
Filing
2
MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Chico's petition for a writ of error coram nobis under 28 U.S.C. § 165 1(a) is DENIED and her civil cause is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot. IT IS ALSO ORDERED that the Clerk shall CLOSE this case. Signed by Judge Frank Montalvo. (st)
'I
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
MARIA CHICO,
Petitioner,
1
§
§
§
v.
§
EP-15-CV-301-FM
§
UNITED STATES OF AMERICA,
Respondent.
§
§
MEMORANDUM OPINION AND ORDER
Petitioner Maria Chico, through her counsel, asks the Court to vacate her guilty-plea
conviction in cause number EP-13-CR-1203-FM-1 for one count of encouraging and inducing
the illegal entry of an alien into the United States. Chico argues in her petition for a writ of error
under 28 U.S.C. § 1651(a)' that her counsel provided constitutionally ineffective
coram nobis
assistance.2
After reviewing the record and for the reasons discussed below, the Court concludes
that Chico fails to establish her entitlement to relief Accordingly, the Court will deny her
petition and dismiss her cause with prejudice.
FACTUAL AND PROCEDURAL HISTORY
According to a criminal complaint filed by a Customs and Border Protection ("CBP")
enforcement officer, on May 11, 2013, Chico drove a Honda Odyssey minivan into the United
States from Mexico at the Paso del Norte Port of Entry in El Paso, Texas.3 Chico's two minor
children and one adult male, Angel Duarte-Cervantes, accompanied her as passengers in the van.
28 U.S.C. § 165 1(a) (West 2015) ("The Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.").
1
2
See
Pet'r's Pet
1,
ECF No.
1
Criminal Compl. 2, ECF No.
1,
EP-13-CR-1203-FM-1.
1
Chico presented to an inspecting CBP officer a Form 1-551 Permanent Residence Card properly
issued to her and three United States passport books for her passengers. Chico told the CBP
officer that Duarte-Cervantes was her husband. Chico admitted, after the CBP officer
determined Duarte-Cervantes was not, in fact, the person named in the passport book, she knew
Duarte-Cervantes was a citizen of Mexico, did not possess the legal documents necessary to
enter the United States, and was not her husband. Chico then claimed she brought DuarteCervantes to the United States as a favor to his wife, who lived in Irving, Texas.
When questioned by the CBP officer, Duarte-Cervantes said Chico provided him with the
United States passport book and told him to memorize its contents to enable him to answer
questions about it at the border. He also claimed Chico told him to claim he was her husband
during any border inspection.
A grand jury sitting in the Western District of Texas, El Paso Division, returned a one-
count indictment alleging Chico "did encourage and induce a certain alien to come to, enter, and
reside in the United States, knowing and in reckless disregard of the fact that such coming to,
entry, and residence in the United States was in violation of law," in violation of 18 U.S.C.
1324(a)(1)(A)(iv) and
(a)(1)(B)(ii).4
§S
Chico appeared before a United States Magistrate Judge to
enter a plea. After the Magistrate Judge admonished her as required by Federal Rule of Criminal
Procedure 11, Chico agreed she understood the nature of the charge and the immigration
consequences of her plea.5 She further agreed to a factual basis which supported the
charge.6
Chico then pleaded guilty to the indictment as charged. The Court accepted her plea and, on
4lndictment, ECF No. 11, EP-13-CR-1203-FM-l.
Report and Recommendation
6.Jd
1-2, ECF No. 22, EP- 13-CR-i 203-FM-i.
at2.
2
October 31, 2013, sentenced her to time served without supervised release. Chico did not
appeal.
In her petition for a writ of error coram nobis, Chico asks the Court to vacate and set
aside her sentence for six reasons related to her claim that her trial counsel provided
constitutionally ineffective assistance. First, she asserts her counsel failed to advise her the
Government did not possess sufficient evidence to prove beyond a reasonable doubt that she had
"encouraged" Duarte-Cervantes to come to, enter, and reside in the United
States.7
Second, she
claims her counsel failed to inform her of "the meaning of the terms 'encourage' and 'induce', as
used in the indictment," and the evidence the Government needed to prove its case at trial.8
Third, she contends her counsel failed to investigate whether she had "encouraged or induced"
Duarte-Cervantes to come to, enter, or reside in the United
States.9
Fourth, she avers her counsel
affirmatively represented to her that her guilty plea "would not result in her deportation or
removal from the United States because she was a United States
citizen."10
Fifth, Chico
maintains she is "actually innocent" of the alien smuggling offense." Finally, she contends her
counsel failed to "obtain a plea agreement wherein [she] would enter a guilty plea to the offense
of making a false statement to a federal officer" and avoid proceedings to remove her from the
United
States.'2
Pet'r's Pet. 3, ECF No.
1.
8Id at4.
91d.
at9.
'°Id. at
"Id.
12
11.
at 16.
Id. at 17. See Rivera
v.
Gonzales, 147 F. App'x 683, 684 (9th Cir. 2005) (Explaining
3
LEGAL STANDARD
"The writ of coram nob is is an ancient common-law remedy designed 'to correct errors
of fact."3 "[T]he authority to grant a writ of coram nobis is conferred by the All Writs Act,
which permits 'courts established by Act of Congress' to issue 'all writs necessary or appropriate
in aid of their respective jurisdictions."4 It provides "an 'extraordinary remedy'.
. .
to a
petitioner no longer in custody who seeks to vacate his conviction in circumstances where 'the
petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal
convictions and that the challenged error is of sufficient magnitude to justifi the extraordinary
relief"5
"The writ will issue only when no other remedy is available and when 'sound reasons
exist[] for failure to seek appropriate earlier relief"6 A petitioner seeking coram nobis relief
must demonstrate (1) there are circumstances compelling the granting of the writ in order to
achieve justice, (2) sound reasons exist for the failure to seek appropriate earlier relief, and (3)
the petitioner continues to suffer legal consequences from his conviction which may be remedied
Section 237(a)(1)(A) of the of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A),
authorizes the removal of "[amy alien who at the time of entry or adjustment of status was within
one or more of the classes of aliens inadmissible by the law existing at such time," and Section
212(a)(6)(E)(i) of the Act, 8 U.S.C. § 1182(a)(6)(E)(i), deems an alien "inadmissible" if she "at
any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter
or to try to enter the United States in violation of law.").
13
United States v. Denedo, 556 U.S. 904, 910 (2009) (quoting United States
346 U.S. 502, 507 (1954)).
v.
Morgan,
'4id. at 911 (quoting 28 U.S.C. § 1651(a)).
15
Un ited States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) (citing United States v.
Morgan, 346 U.S. 502, 511(1954) and United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir.
1989)).
16
United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (quoting Morgan, 346 U.S. at
512 (alteration in original)).
by granting the writ.17 "In addition, a petitioner bears the considerable burden of overcoming the
presumption that previous judicial proceedings were
correct."18
Ineffective assistance of counsel may provide grounds for coram nobis
relief.19
The
standard for establishing an ineffective assistance of counsel claim comes from the two-prong
Strickland test,20 which requires a petitioner to show both that her counsel's performance was
deficient and that the deficient performance prejudiced her
cause.21
Under the deficient
performance prong, a court evaluates an attorney's performance based on "an objective standard
of reasonableness under prevailing professional norms."22 Under the prejudice prong, a
petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."23 Because a petitioner must
prove both deficient performance and prejudice, failure to prove either is fatal to an ineffective
assistance of counsel
claim.24
ANALYSIS
A. Sufficiency of the Evidence
In Chico's first three claims, she asserts her counsel failed to (1) investigate whether she
encouraged or induced Duarte-Cervantes to come to, enter, or reside in the United States; (2)
17
Foontv. United States, 93 F.3d 76, 78-79 (2nd Cir. 1996).
18
Dyer, 136 F.3d at 422 (citation omitted).
19
Un ited States v. Castro, 26 F.3d 557, 559-60 (5th Cir. 1994).
20
Stricklandv. Washington, 466 U.S. 668 (1984).
21
Castro, 26 F.3d at 560 (citing Strickland, 466 U.S. at 687).
22
Id. (quotations omitted).
23
Id. (quotations omitted).
v.
Scott, 68 F.3d 106, 109 (5th Cir. 1995).
5
explain the elements of the alleged offense to her; or (3) advise her that the Government did not
have sufficient evidence to prove she committed the alleged offense. In her fifth claim, Chico
maintains her actual innocence. Chico contends she merely "made a spur-of-the-moment
decision to help Duarte-Cervantes without asking for a fee because of her friendship with [hisi
wife
,,25
.
"In order to establish a criminal violation of § 1324(a), the Government must prove,
beyond a reasonable doubt, that the defendant (1) encouraged or induced the alien to reside in the
United States (2) knowing or in reckless disregard that the alien's residence in the United States
was in violation of the
law."26
The Eleventh Circuit Court of Appeals gives "a broad
interpretation to the phrase 'encouraging or inducing' in this context, construing it to include the
act of 'helping' aliens come to, enter, or remain in the United
States."27
The Fourth Circuit Court
of Appeals explains "'encouraging' relates to actions taken to convince the illegal alien to come
to this country or to stay in this
immigration papers.
. .
country."28
Thus, providing "fraudulent documents and
constitutes 'encourages' as that word is used in the
statute."29
Inducing
"means to knowingly bring on or about, to affect, cause to influence an act or course of conduct,
lead by persuasion or reasoning, incite by motives, and/or to prevail
on."30
25
Pet'r's Pet.
26
United States v. Ndiaye, 434 F.3d 1270, 1297 (11th Cir. 2006).
8, ECF No. 1.
27Edwardsv. Prime, Inc., 602 F.3d 1276, 1295
(llthCir. 2010)
28
Un ited States v. Oloyede, 982 F.2d 133, 137 (4th Cir. 1992).
29
Id.
30
United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009).
In this case, the criminal complaint states Duarte-Cervantes told a CBP officer that Chico
provided him with a false United States passport book and told him to memorize the information
contained inside. Duarte-Cervantes also said Chico told him to claim he was her husband during
any border inspection. Chico admitted to the CBP officer that she knew Duarte-Cervantes was a
citizen of Mexico, did not possess the legal documents necessary to enter the United States, and
was not her husband. Thus, a jury would have had ample evidence before it to conclude, beyond
a reasonable doubt, that Chico encouraged Duarte-Cervantes to enter the United States, with
knowledge or in reckless disregard of the fact that his entry was in violation of law.
Counsel, of course, has a duty to conduct a reasonable investigation into the allegations
against a defendant or to make a reasonable decision that a particular investigation is
unnecessary.3' A determination of whether an investigation is reasonable or further investigation
is unnecessary depends upon a variety of factors, including the number
of issues in the case, the
relative complexity of those issues, the strength of the Government's case, and the overall
defense
strategy.32
However, bare allegations and conclusory statements of a defense counsel's
failure to investigateunsupported by factual allegations or proof to demonstrate prejudiceare
insufficient to support a claim for collateral relief from a
conviction.33
A movant who alleges a
failure to investigate on the part of her counsel must allege with specificity what the
' Nelson
v.
Hargett, 989 F.2d 847, 850 (5th Cir. 1993) (citing Stricklandv. Washington,
466 U.S. 668, 691 (1984).
32
Baldwin v. Maggio, 704 F.2d 1325, 1333 (5th Cir. 1983).
Mayberry
v.
Davis, 608 F.2d 1070, 1072 (5th Cir. 1979).
7
investigation would have revealed and how it would have altered the outcome of the
trial.34
Moreover, even where trial counsel has clearly failed to adequately investigate a case, a movant
must demonstrate that counsel's failure has prejudiced her cause.35 To show prejudice, the
movant must prove that an alleged breach of her attorney's duty to investigate resulted in an
actual and substantial disadvantage to the course of her defense.36
Chico contends a further investigation by her counsel would have disclosed "she did not
accept or agree to accept money or any other form of compensation [and] her decision.
based solely on her friendship with Duarte-Cervantes'
wife."37
.
.
was
She also suggests Duarte-
Cervantes could have corroborated her claim that she did not encourage or induce him to enter
the United
States.38
Thus, she suggests a further investigation would have shown she lacked the
intent to violate the law.
As in other criminal prosecutions that require mens rea, the
government may prove the defendant's knowledge by reference to
the facts and the circumstances surrounding the case. Relevant
considerations bearing on this issue include whether the defendant
received compensation for his transportation activity, whether the
defendant took precautionary efforts to conceal the illegal aliens,
Nelson, 989 F.2d at 850 (citing United States
v.
Green, 882 F.2d 999, 1003 (5th Cir.
1989).
Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986).
36
Baldwin, 704 F.2d at 1333.
37Pet'r's Pet. 9, ECF No.
at 10.
1.
and whether the illegal aliens were the defendant's friends or coworkers or merely human cargo."39
The Government, however, never suggests Chico received compensation or was
motivated by any factor other than to do a favor for a friend. The criminal complaint clearly
states "[tjhe DEFENDANT further stated that she was just bringing [Duarte-Cervantes] into the
United States as a favor for [his]
wife."4°
The presentence investigation report recommends
Chico receive a three-level downward adjustment to her sentence because "the offense was
committed other than for profit.
. .
as a favor for a neighbor.
,,41
The Government's evidence
shows Chico gave Duarte-Cervantes a false United States passport book, asked him to memorize
its contents, told him to tell inspectors at the border he was her husband, and drove him from
Mexico into the United States. It also shows Chico knew Duarte-Cervantes was a citizen of
Mexico, did not possess the legal documents necessary to enter the United States, and was not
her husband. Notably, Chico does not identify with specificity what new evidence further
investigation would have revealed or how it would have altered the outcome of her trial. Chico
has not, therefore, carried her burden of showing specifically how her attorney's purported
failure to conduct a further investigation prejudiced her cause.
Furthermore, Chico testified under oath at her plea hearing that she fully understood "the
nature of the charge" against her.42 "Solemn declarations in open court carry a strong
presumption of verity," forming a "formidable barrier in any subsequent collateral
United States
v.
Parmelee, 42 F.3d 387, 391 (7th Cir. 1994).
40
Criminal Compi. 2, ECF No. 1, EP-13-CR-1203-FM-1.
41
Presentence Investigation Report 6, ECF No. 26-1.
42
and Recommendation 1, ECF No. 22.
proceedings."43 Thus, "a defendant ordinarily will not be heard to refute her testimony given at a
plea hearing while under oath."44
Finally, based on the evidence outlined above, the Government had evidence to prove
beyond a reasonable doubt that Chico committed the offense as alleged. When faced with this
overwhelming evidence, Chico cannot maintain her actual innocence.
In sum, Chico has not met her burden of establishing her counsel's performance was
either deficient or prejudiced her cause. She is not entitled to relief on these claims.
B. Immigration Consequences of a Guilty Plea
Chico also claims her counsel affirmatively represented to her that her guilty plea "would
not result in her deportation or removal from the United States because she was a United States
citizen."45 She argues her counsel provided ineffective assistance under the standard established
in Padilla
v.
Kentucky, 559 U.S. 356 (2010),46 by failing to properly advise her that the offense
to which she was pleading guilty would result in her deportation.
Chico states during the plea colloquy with the Magistrate Judge that she fully understands
"the possible immigration consequences for non-United States citizens upon entering a guilty
Blackledge
v.
Allison, 431 U.S. 63, 73-74 (1977).
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citing United States v.
Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)).
Pet'r's Pet. 11, ECF No.
1.
46
See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) ("We now hold that counsel must
inform her client whether his plea carries a risk of deportation. Our longstanding Sixth
Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and
the concomitant impact of deportation on families living lawfully in this country demand no
less.").
10
Indeed, pursuant to a 2013 amendment, Federal Rule of Criminal Procedure
plea."47
11
requires
a court, before accepting a guilty plea, to advise every defendant "that, if convicted, a defendant
who is not a United States citizen may be removed from the United States, denied citizenship,
and denied admission to the United States in the
future."48
As a consequence, "a judge's
statement at the guilty plea proceeding that deportation is 'likely' is not dispositive of whether a
petitioner whose counsel failed to advise him regarding the immigration consequences of his
plea can demonstrate prejudice as a result
therefrom."49
Thus, Chico is not foreclosed from
challenging her guilty plea under Padilla solely because, as in this case, the Magistrate Judge
notified her that her deportation was "likely."
As discussed above, however, coram nobis is an "extraordinary"
remedy.5°
It should not
be issued without a finding of"sound reasons" for not seeking relief earlier.51 While there are no
statutory time limits to a petition,52 a petitioner should at least meet the same standards of
diligence as others seeking collateral relief through a habeas corpus petition.
'
48
'
Report and Recommendation 2, ECF No. 22.
Fed. R. Crim. P. 1 1(b)(1)(0).
United States v. Batamula, 788 F.3d 166, 176 (5th Cir. 2015).
50
United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004) (internal quotation marks
omitted) (quoting Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996)).
51
See United States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998) ("The writ will issue only
when no other remedy is available and when 'sound reasons exist[] for failure to seek
appropriate earlier relief") (quoting United States v. Morgan, 346 U.S. 502, 512 (1954)
(alteration in original))).
52Flippins
v.
United States, 747 F.2d 1089, 1091 (6th Cir.1984).
11
"[TJhe primary means of collateral attack on a federal sentence" is a motion under 28
U.S.C.
2255 to vacate, set aside, or correct a
§
errors that occurred at trial or sentencing.54 A
sentence.53
§
Relief under § 2255 is warranted for
2255 motion is subject to a one-year limitations
A federal prisoner must file his motion within one year from the date on which (1) the
period.55
judgment became
removed;57
final;56
(2) the government-created impediment to filing the motion was
(3) the United States Supreme Court initially recognized, and made retroactively
applicable to cases on collateral review, the legal predicate for the motion;58 or (4) the petitioner
could have discovered, through due diligence, the factual predicate for the
motion.59
218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d
1111, 1113 (5thCir. 1990)).
Packv. Yusuff,
54See Cox, 911 F.2d at 1114 (5th Cir. 1990) ("The district court's dismissal of these
grounds clearly was proper because they concerned alleged errors that occurred at sentencing
and, therefore, may be remedied under section 2255."); Ojo v. INS, 106 F.3d 680, 683 (5th Cir.
1997) ("Because all of the errors Ojo alleges [occurred before or during sentencing], they must
be addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that
sentenced him."); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131(5th Cir. 1987) (explaining
that, because defendant's claims attacked the constitutionality of his conviction and proof of his
claims would undermine the validity of his conviction, his exclusive initial remedy was a motion
under 2255).
28 U.S.C.
§
2255(f) (West 2015).
2255(f)(1) ("The limitation period shall run from.
judgment of conviction becomes final. .
565ee
id.
§
. .
the date on which the
See id. § 2255(f)(2) ("The limitation period shall run from. . . the date on which the
impediment to making a motion created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was prevented from making a motion by
such governmental action.").
'
58
2255(f)(3) ("The limitation period shall run from. . . the date on which the
right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.").
See
id.
§
See
id.
§
2255(f)(4) ("The limitation period shall run from.
12
.
.
the date on which the
The one-year limitations period is not jurisdictional and is subject to equitable
tolling.60
Equitable tolling is not, however, available for "garden variety claims of excusable neglect."61
It "is permitted only 'in rare and exceptional
circumstances."62
Such circumstances include
situations in which a movant is actively misled by the respondent
"or is prevented in some
extraordinary way from asserting his rights."63 Additionally, "[e]quity is not intended for those
who sleep on their rights."64 Rather, "[e]quitable tolling is appropriate where, despite all due
diligence, a plaintiff is unable to discover essential information bearing on the existence of his
claim."65
Moreover, a movant has the burden of proving that he is entitled to equitable tolling.66
In order to satisfy his burden, he must show "(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way" of timely filing a motion.67 "The
facts supporting the claim or claims presented could have been discovered through the exercise
of due diligence."); United States v. Brown, 305 F.3d 304, 306-07 (5th Cir. 2002).
60Hollandv. Florida, 560 U.S. 631, 645 (2010) ("[W]e hold that
equitable tolling in appropriate cases.").
§
2244(d) is subject to
61Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
62
Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis
F.3d 806, 811 (5th Cir. 1998)).
v.
Johnson, 158
v.
Arkansas River
631d (quoting Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999)).
64Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (quoting Covey
Co., 865 F.2d 660, 662 (5th Cir. 1989)).
651d at 715 n.14 (quoting Pacheco
66
Phillips
67
Lawrence
v.
v.
Rice, 966 F.2d 904, 906-07 (5th Cir. 1992)).
Donnelly, 216 F.3d 508, 511(5th Cir. 2000).
v.
Florida, 549 U.S. 327, 336 (2007).
13
decision to invoke equitable tolling is left to the discretion of the district court" and reviewed
only for an abuse of discretion.68
In most cases,
§
225 5's limitations period begins to run when the judgment of conviction
becomes final.69 A judgment becomes final when the applicable period for seeking direct review
expires.7°
In this case, the Court entered its judgment on October 31, 2013, and Chico's
conviction became final on November 14, 2013, the last day on which she could have appealed
to the Fifth Circuit Court of Appeals.71 Accordingly, Chico's time period for filing a § 2255
motion within one year after her conviction became final expired on November 14, 2014. Chico
delayed filing her petition for a writ of error coram nobis until October 14, 2015. Thus, she
submitted it nearly one year beyond the deadline. Her petition is untimely under the rules
applicable to
§
2255 motions unless another statutory provision or equitable tolling applies.
Chico does not allege in her petition that a government-created impediment prevented her
from filing her motion.72 Further, she does not assert her petition is timely because the Supreme
Court initially recognized the legal predicate for her motion and made it retroactively applicable
68
Cousin
v.
Lensing, 310 F.3d 843, 848 (5th Cir. 2002).
69
See Clay v. United States, 537 U.S. 522, 524 (2003) ("A motion by a federal prisoner
for postconviction relief under 28 U.S.C. § 2255 is subject to a one-year time limitation that
generally runs from 'the date on which the judgment of conviction becomes final.") (quoting 28
U.S.C. § 2255(0(1)).
701d.
at 525; United States
v.
Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam).
71
See Fed. R. App. P. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal
must be filed in the district court within 14 days after the later of (i) the entry of either the
judgment or the order being appealed; or (ii) the filing of the government's notice of appeal.");
see also United States v. Johnson, 457 U.S. 537, 542 n.8 (1982) (noting that a conviction is final
when the availability of further appeal is exhausted).
72
28 U.S.C.
§
2255(0(2).
14
to cases on collateral review within the past year.73 She does, however, suggest she "first became
aware that she potentially faced removal or deportation from the United States after receiving a
letter dated October 18, 2013 from her trial
counsel."74
'If all
The letter "informed Chico that
30th
you
documentation is not available at the time of sentencing, which is scheduled on October
may be removed [to] Mexico after your sentencing is
complete."75
Using either of these
datesthe date her conviction became final or the date she learned she could be removed to
MexicoChico still submitted her petition approximately a year beyond the deadline. Her
petition is therefore untimely under the rules applicable to
§
2255 motions unless equitable
tolling applies.
Chico does not argue that she "has been pursuing [her] rights diligently, and.
. .
that
some extraordinary circumstance stood in [her] way" of timely filing her petition.76
Accordingly, it appears from the record that Chico's motion is untimely and that she is not
entitled to equitable tolling.
Furthermore, a writ of coram nobis cannot be issued without a finding of"sound
reasons" for not seeking relief earlier.77 Chico provides no such reasons here. Chico's delay is
unreasonable, and her petition is untimely.
Id. § 225 5(f)(3).
74Pet'r's Pet. 12, ECF No.
751d.
1.
at 13.
76Lawrence
v.
Florida, 549 U.S. 327, 336 (2007).
77See United States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998) ("The writ will issue only
when no other remedy is available and when 'sound reasons exist[] for failure to seek
appropriate earlier relief.") (quoting United States v. Morgan, 346 U.S. 502, 512 (1954)
(alteration in original))).
15
C. Plea Agreement
Finally, Chico contends her counsel failed to "obtain a plea agreement wherein [she]
would enter a guilty plea to the offense of making a false statement to a federal officer."78 She
suggests "if she had entered a plea of guilty to the offense of making a false statement.
.
.
[s]he
could have sought the remedy of cancellation of removal," which would have enabled her to
remain in the United
States.79
The Court notes "defendants have 'no right to be offered a plea.. . nor a federal right that
the judge accept it."80 When a petitioner contends her counsel failed to properly negotiate a
favorable plea, she:
must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it in light
of intervening circumstances), that the court would have accepted
its terms, and that the conviction or sentence, or both, under the
offer's terms would have been less severe than under the judgment
and sentence that in fact were imposed.8'
Moreover, "[i]f no plea offer is made, or a plea deal is accepted by the defendant but rejected by
the judge" there is no basis for an ineffective assistance of counsel claim under the Sixth
Amendment. 82
78
Pet'r's Pet.
17, ECF No. 1.
Id.
80
Lafler v. Cooper, 132 S.Ct. 1376, 1387 (2012) (quoting Missouri v. Frye, 132 S.Ct.
1399, 1388-1389 (2011).
81
Id. at 1385.
82 Id. at 1387.
16
In this case, the grand jury returned a one-count indictment alleging Chico "did
encourage and induce a certain alien to come to, enter, and reside in the United States, knowing
and in reckless disregard of the fact that such coming to, entry, and residence in the United States
was in violation of law," in violation of 18 U.S.C.
§SS
1324(a)(1)(A)(iv) and (a)(l)(B)(ii).83 The
United States Attorney for the Western District of Texas generally has not offered plea
agreements when a grand jury returns a one-count indictment.
Furthermore, Chico provides no evidence that the Government ever considered offering
her a plea agreement or that she would have accepted its terms. Finally, there is no indication
that the Court would have accepted the terms of a plea agreement. Thus, Chico has not shown
that her counsel was ineffective for not obtaining a plea agreement and she cannot demonstrate
prejudice. Chico is not entitled to relief on this claim.
CONCLUSION AND ORDERS
Accordingly, the Court finds Chico is not entitled to the extraordinary remedy of a writ of
error coram
nobis.
The Court, therefore, enters the following orders:
IT IS ORDERED that Chico's petition for a writ of error coram
165 1(a) is DENIED and her civil cause is DISMISSED
nobis
under 28 U.S.C.
WITH PREJUDICE.
IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot.
IT IS ALSO ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.
SIGNED this
/7
day of November 2015.
ca*
t
FRAIK MONTALVO
UNITED STATES DISTRICT JUDGE
83
Indictment, ECF No. 11.
17
§
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