UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
___________________________________ ) UNITED STATES ) ) ) v. ) Criminal No. 01-0361 (PLF) ) Civil Action No. 11-2077 (PLF) KERRY NEWMAN, ) ) Defendant/Petitioner. ) ___________________________________ )
MEMORANDUM OPINION
Petitioner Kerry Newman asks the Court to vacate his 2001 guilty plea to a
criminal information charging him with one count of wire fraud. Newman alleges that his
attorney provided ineffective assistance of counsel by failing to inform him that his plea, to a
near certainty, would cause him to be deported, in violation of the rule announced by the
Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010). The government argues that
Newman’s conviction must stand because it became final in 2001 and Padilla “does not have
retroactive effect,” as the Supreme Court recently held in Chaidez v. United States, 133 S. Ct.
1103, 1105 (2013). After careful consideration of the parties’ papers, the record in this case, and
the relevant case law, the Court reluctantly must deny the petition. 1
1 The papers reviewed in connection with the pending motions include the following: petitioner’s petition for a writ of coram nobis to vacate and set aside plea and conviction (“Pet.”) [Dkt. No. 38]; government’s opposition to petition for writ of coram nobis (“Opp.”) [Dkt No. 44]; petitioner’s reply in support of his petition (“Reply”) [Dkt. No. 45]; petitioner’s supplemental brief (“Pet. Supp.”) [Dkt. No. 53]; government’s reply to petitioner’s supplemental brief (“Gov. Supp.”) [Dkt. No. 55]; the transcript of plea proceedings (“Plea Transcript”) [Dkt. No. 38-2]; the transcript of sentencing proceedings (“Sentencing Transcript”) [Dkt. No. 38-3]; and petitioner’s affidavit in support of his petition (“Aff.”) [Dkt. No. 38-4]. I. BACKGROUND
On October 24, 2001, Kerry Newman pled guilty to a one count information
charging him with wire fraud, in violation of 18 U.S.C. § 1343. Mot. at 2. Specifically, the
government alleged that Newman participated in a scheme to purchase and “flip” homes at
fraudulently inflated prices. Id.; see generally Plea Transcript at 18-20. Newman agreed to
plead guilty and aid the government in prosecuting other participants in the housing scheme.
Mot. at 2-3. Although Newman, a native Jamaican who had lived in the United States since he
was nine years old, was a Lawful Permanent Resident of the United States, his attorney did not
inform him prior to his plea of any potential immigration consequences of pleading guilty.
Aff. at 2.
Before accepting his plea, the Court, consistent with its standard practices, asked
Newman where he was born. When Newman responded “Jamaica, West Indies,” the Court
informed him that his guilty plea to a felony offense “could have the consequence of deportation
or exclusion from admission to the United States or denial of naturalization under the laws of the
United States.” Plea Transcript at 8-9. Although the Court noted that it did not “know if that
applie[d]” to his case, Newman stated that he still wanted to plead guilty. Id. at 9. Despite the
Court’s warning, Newman’s attorney stood silent, failing to offer any advice regarding the risk of
deportation or otherwise intervene. Aff. at 2-3 (stating that the Court’s warning was “the first
time this was ever brought to my attention, and even then my attorney did not advise me to
change my plea or offer any advice regarding my immigration status.”).
After pleading guilty, Newman cooperated fully with the government, making 37
phone calls and arranging twelve in-person meetings with other participants in the scheme. Aff.
at 2; Sentencing Transcript at 7. The Court sentenced Newman to four months’ incarceration,
2 with a recommendation that that period of confinement be served in a halfway house, followed
by a three-year period of supervised release with a condition that the first four months be served
in home detention with electronic monitoring. Id. at 22-23; Judgment at 2-3 (Sept. 20, 2002)
[Dkt. No. 19].
At the sentencing hearing, government counsel mistakenly represented to the
Court that:
[I]f a sentence were more than a year and a day there may be some INS implications. I have not talked with INS about this case but I know from past experience that when there is a sentence of more than a year and a day it puts it into a different level. I have no idea whether INS is interested in doing anything whatsoever in this case and I don’t plan on calling them, but this would be something I suggest the Court take into consideration.
Sentencing Transcript at 8-9. Newman’s counsel repeated the same misunderstanding:
The problem is that he’s caught betwixt and between. If the Court should sentence him to more than a year and a day, as I understand it, that will trigger, may trigger, some INS interest and possibly some difficulties. If the Court should sentence him to a sentence of less than a year, Mr. Newman will of course have to spend more time, if the Court gave him time, more time in jail. And we chatted about that and it’s Mr. Newman’s position that he would rather avoid any problems with INS because of his commitment to the family. His family. And his commitment to the family business.
Id. at 18. In accepting the government’s recommended sentence, the Court relied on these
misstatements, stating that it thought the sentence imposed was “beneficial to [Newman] with
respect to the INS.” Id. at 22.
In truth, however, the prosecutor, Newman’s defense attorney, and the Court were
all wrong. Newman’s deportation was a virtual certainty. Wire fraud is a “crime involving
moral turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i)(I), rendering him inadmissible to the United
States. See Doe v. Atty. Gen. of the United States, 659 F.3d 266, 270 n.2 (3d Cir. 2011) (noting
that “fraud is universally recognized” as a crime involving moral turpitude); accord Jordan v. De
3 George, 341 U.S. 223, 232 (1951) (stating that “crimes in which fraud was an ingredient have
always been regarded as involving moral turpitude.”).
Newman served his sentence and was released in May 2003. Aff. at 4. In 2007
— on his fourth trip to Jamaica since his release — he was stopped at the border upon his return
to the United States and charged as inadmissible by Immigration and Customs Enforcement. Id.
After receiving advice from an immigration attorney that he had no defense to deportation
because of his fraud conviction, Newman consented to deportation and returned to Jamaica,
where he has resided since. Id. Following the Supreme Court’s decision in Padilla v. Kentucky,
559 U.S. 356 (2010), Newman filed this petition for a writ of coram nobis, arguing that Padilla’s
holding applied retroactively to his 2001 guilty plea. Pet. at 6-8. 2 In 2012, the Supreme Court
granted certiorari in Chaidez v. United States, which presented the question of whether Padilla
applied retroactively. After the Supreme Court answered that question in the negative, the
parties filed supplemental briefs.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
___________________________________ ) UNITED STATES ) ) ) v. ) Criminal No. 01-0361 (PLF) ) Civil Action No. 11-2077 (PLF) KERRY NEWMAN, ) ) Defendant/Petitioner. ) ___________________________________ )
MEMORANDUM OPINION
Petitioner Kerry Newman asks the Court to vacate his 2001 guilty plea to a
criminal information charging him with one count of wire fraud. Newman alleges that his
attorney provided ineffective assistance of counsel by failing to inform him that his plea, to a
near certainty, would cause him to be deported, in violation of the rule announced by the
Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010). The government argues that
Newman’s conviction must stand because it became final in 2001 and Padilla “does not have
retroactive effect,” as the Supreme Court recently held in Chaidez v. United States, 133 S. Ct.
1103, 1105 (2013). After careful consideration of the parties’ papers, the record in this case, and
the relevant case law, the Court reluctantly must deny the petition. 1
1 The papers reviewed in connection with the pending motions include the following: petitioner’s petition for a writ of coram nobis to vacate and set aside plea and conviction (“Pet.”) [Dkt. No. 38]; government’s opposition to petition for writ of coram nobis (“Opp.”) [Dkt No. 44]; petitioner’s reply in support of his petition (“Reply”) [Dkt. No. 45]; petitioner’s supplemental brief (“Pet. Supp.”) [Dkt. No. 53]; government’s reply to petitioner’s supplemental brief (“Gov. Supp.”) [Dkt. No. 55]; the transcript of plea proceedings (“Plea Transcript”) [Dkt. No. 38-2]; the transcript of sentencing proceedings (“Sentencing Transcript”) [Dkt. No. 38-3]; and petitioner’s affidavit in support of his petition (“Aff.”) [Dkt. No. 38-4]. I. BACKGROUND
On October 24, 2001, Kerry Newman pled guilty to a one count information
charging him with wire fraud, in violation of 18 U.S.C. § 1343. Mot. at 2. Specifically, the
government alleged that Newman participated in a scheme to purchase and “flip” homes at
fraudulently inflated prices. Id.; see generally Plea Transcript at 18-20. Newman agreed to
plead guilty and aid the government in prosecuting other participants in the housing scheme.
Mot. at 2-3. Although Newman, a native Jamaican who had lived in the United States since he
was nine years old, was a Lawful Permanent Resident of the United States, his attorney did not
inform him prior to his plea of any potential immigration consequences of pleading guilty.
Aff. at 2.
Before accepting his plea, the Court, consistent with its standard practices, asked
Newman where he was born. When Newman responded “Jamaica, West Indies,” the Court
informed him that his guilty plea to a felony offense “could have the consequence of deportation
or exclusion from admission to the United States or denial of naturalization under the laws of the
United States.” Plea Transcript at 8-9. Although the Court noted that it did not “know if that
applie[d]” to his case, Newman stated that he still wanted to plead guilty. Id. at 9. Despite the
Court’s warning, Newman’s attorney stood silent, failing to offer any advice regarding the risk of
deportation or otherwise intervene. Aff. at 2-3 (stating that the Court’s warning was “the first
time this was ever brought to my attention, and even then my attorney did not advise me to
change my plea or offer any advice regarding my immigration status.”).
After pleading guilty, Newman cooperated fully with the government, making 37
phone calls and arranging twelve in-person meetings with other participants in the scheme. Aff.
at 2; Sentencing Transcript at 7. The Court sentenced Newman to four months’ incarceration,
2 with a recommendation that that period of confinement be served in a halfway house, followed
by a three-year period of supervised release with a condition that the first four months be served
in home detention with electronic monitoring. Id. at 22-23; Judgment at 2-3 (Sept. 20, 2002)
[Dkt. No. 19].
At the sentencing hearing, government counsel mistakenly represented to the
Court that:
[I]f a sentence were more than a year and a day there may be some INS implications. I have not talked with INS about this case but I know from past experience that when there is a sentence of more than a year and a day it puts it into a different level. I have no idea whether INS is interested in doing anything whatsoever in this case and I don’t plan on calling them, but this would be something I suggest the Court take into consideration.
Sentencing Transcript at 8-9. Newman’s counsel repeated the same misunderstanding:
The problem is that he’s caught betwixt and between. If the Court should sentence him to more than a year and a day, as I understand it, that will trigger, may trigger, some INS interest and possibly some difficulties. If the Court should sentence him to a sentence of less than a year, Mr. Newman will of course have to spend more time, if the Court gave him time, more time in jail. And we chatted about that and it’s Mr. Newman’s position that he would rather avoid any problems with INS because of his commitment to the family. His family. And his commitment to the family business.
Id. at 18. In accepting the government’s recommended sentence, the Court relied on these
misstatements, stating that it thought the sentence imposed was “beneficial to [Newman] with
respect to the INS.” Id. at 22.
In truth, however, the prosecutor, Newman’s defense attorney, and the Court were
all wrong. Newman’s deportation was a virtual certainty. Wire fraud is a “crime involving
moral turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i)(I), rendering him inadmissible to the United
States. See Doe v. Atty. Gen. of the United States, 659 F.3d 266, 270 n.2 (3d Cir. 2011) (noting
that “fraud is universally recognized” as a crime involving moral turpitude); accord Jordan v. De
3 George, 341 U.S. 223, 232 (1951) (stating that “crimes in which fraud was an ingredient have
always been regarded as involving moral turpitude.”).
Newman served his sentence and was released in May 2003. Aff. at 4. In 2007
— on his fourth trip to Jamaica since his release — he was stopped at the border upon his return
to the United States and charged as inadmissible by Immigration and Customs Enforcement. Id.
After receiving advice from an immigration attorney that he had no defense to deportation
because of his fraud conviction, Newman consented to deportation and returned to Jamaica,
where he has resided since. Id. Following the Supreme Court’s decision in Padilla v. Kentucky,
559 U.S. 356 (2010), Newman filed this petition for a writ of coram nobis, arguing that Padilla’s
holding applied retroactively to his 2001 guilty plea. Pet. at 6-8. 2 In 2012, the Supreme Court
granted certiorari in Chaidez v. United States, which presented the question of whether Padilla
applied retroactively. After the Supreme Court answered that question in the negative, the
parties filed supplemental briefs.
II. LEGAL STANDARDS
A. Writ of Coram Nobis
A petition for a writ of coram nobis is a means to “challenge the validity of a
conviction after the sentence was fully served.” Mudd v. Caldera, 26 F. Supp. 2d 113, 123
(D.D.C. 1998) (citing United States v. Morgan, 346 U.S. 502 (1954)). Coram nobis is an
2 The government does not contest that Newman has satisfied the first three requirements for coram nobis relief, and the Court agrees. Coram nobis is the only remedy available to Newman; the timing of the Padilla v. Kentucky decision is a valid reason for Newman’s delay in attacking his conviction; and permanent exclusion from the United States unquestionably qualifies as an adverse consequence. The only remaining question, therefore, is whether Newman received ineffective assistance of counsel constituting an error “of the most fundamental character.” United States v. Faison, 956 F. Supp. 2d 267, 269 (D.D.C. 2013) (quoting United States v. Hansen, 906 F. Supp. 688, 692-93 (D.D.C. 1995)).
4 “extraordinary” remedy, United States v. Denedo 556 U.S. 904, 911 (2009), and such relief is
“rarely granted,” Craven v. United States, 26 Fed. App’x 417, 419 (6th Cir. 2001). A petitioner
seeking a writ of coram nobis must show that:
(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.
United States v. Faison, 956 F. Supp. 2d 267, 269 (D.D.C. 2014) (quoting United States v.
Hansen, 906 F. Supp. 688, 692-93 (D.D.C. 1995)). An error is fundamental if it is “(1) an error
of fact; (2) unknown at the time of trial; (3) of a fundamentally unjust character which probably
would have altered the outcome of the challenged proceeding if it had been known.” Id. at 271
(quoting United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001)).
B. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant carries the
burden of demonstrating that (1) his “counsel’s representation fell below an objective standard of
reasonableness,” and (2) “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v. Washington, 466
U.S. 668, 687, 694 (1984); accord United States v. Shabban, 612 F.3d 693, 697 (D.C. Cir. 2010).
Regarding the first prong, the Supreme Court has emphasized that “judicial scrutiny of counsel’s
performance must be highly deferential.” Strickland v. Washington, 466 U.S. at 689. As the
Supreme Court held in Padilla, 559 U.S. at 374, however, this first prong is satisfied when an
attorney fails to advise a defendant about the risk of deportation as a result of the pending
charges.
As for the second, or “prejudice,” prong of the Strickland test, the Supreme Court
has explained that “[a]n error by counsel, even if professionally unreasonable, does not warrant 5 setting aside the judgment of a criminal proceeding, if the error had no effect on the judgment.”
Hill v. Lockhart, 474 U.S. 52, 57 (1985) (quoting Strickland v. Washington, 466 U.S. at 691)
(alteration in original) (internal quotation marks omitted). This second prong requires only a
reasonable probability – that is “a probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U.S. at 694. As the court of appeals recently clarified,
“[t]he prejudice inquiry focuses on whether there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” United
States v. Solofa, 745 F.3d 1226, 1229 (D.C. Cir. 2014) (internal citations and quotation marks
omitted). “In the context of pleas a defendant must show the outcome of the plea process would
have been different with competent advice.” United States v. Wright, 2014 WL 3919619, at *5
(D.D.C. August 12, 2014) (quoting Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)). In other
words, a defendant must show “that there is a reasonable probability that, but for counsel’s
errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.”
Lafler v. Cooper, 132 S. Ct. at 1384-85 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Because the movant must satisfy both prongs of the Strickland test in order to
succeed, “there is no reason for a court deciding an ineffective assistance of counsel claim to . . .
address both components of the inquiry if the defendant has made an insufficient showing on
one.” Strickland v. Washington, 466 U.S. at 697.
III. DISCUSSION
Newman identifies two deficiencies he alleges constitute ineffective assistance of
counsel: (1) his counsel failed to provide any advice regarding the risk of deportation prior to his
plea; and (2) his counsel affirmatively misadvised him regarding the risk of deportation after his
6 plea was entered, but before and during sentencing. Pet. at 1; Pet. Supp. at 3; Aff. at 3. The
Court concludes that Newman cannot succeed on either claim.
The first alleged deficiency fails because, before Padilla, Newman’s counsel was
not required to affirmatively advise him before or at his plea of the possible immigration
consequences of his plea, as Newman now concedes. See Pet. Supp. at 1. Padilla established
that a failure to advise a defendant about the risk of deportation or other immigration
consequences constitutes ineffective assistance of counsel. But the Supreme Court held in
Chaidez v. United States, 133 S. Ct. at 1110-11, that Padilla “altered the law of most
jurisdictions,” broke “new ground,” “impos[ed] a new obligation,” “modified governing law,”
and thus established a “new rule;” it therefore is not retroactive. Newman’s conviction was final
years before Padilla was decided. He therefore cannot benefit from its rule. See Chaidez v.
United States, 133 S. Ct. at 1107 (citing Teague v. Lane, 489 U.S. 288 (1989)) (an individual
whose conviction has become final “may not benefit” from a new rule of constitutional law “in a
habeas or similar proceeding”).
The second alleged deficiency — that Newman’s counsel affirmatively
misadvised him regarding the risk of deportation at the time of sentencing — fails because the
misrepresentations by Newman’s attorney occurred after he already had pled guilty. Newman
therefore cannot show that “the result of [his] proceeding would have been different” absent
these post-plea misrepresentations. Strickland v. Washington, 466 U.S. at 694.
7 IV. CONCLUSION
For the foregoing reasons, the Court will deny Newman’s petition for a writ of
coram nobis and dismiss these cases. An Order consistent with this Memorandum Opinion shall
issue this same day.
/s/____________________________ PAUL L. FRIEDMAN United States District Judge DATE: November 26, 2014