United States v. Hernandez

283 F. Supp. 3d 144
CourtDistrict Court, S.D. Illinois
DecidedJanuary 16, 2018
Docket03 Cr. 1257–005 (RWS)
StatusPublished
Cited by6 cases

This text of 283 F. Supp. 3d 144 (United States v. Hernandez) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hernandez, 283 F. Supp. 3d 144 (S.D. Ill. 2018).

Opinion

Sweet, D.J.

*147Petitioner Jacqueline Hernandez ("Hernandez" or the "Petitioner") has moved for a writ of error coram nobis , pursuant to the All Writs Act, 28 U.S.C. § 1651(a), and the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , to remedy the collateral consequences of her criminal conviction in 03 Cr. 1257 (RWS), in which she pled guilty to conspiracy to distribute cocaine. Based on the facts and conclusions set forth below, the Petitioner's motion is granted.

I. Facts & Prior Proceedings

Petitioner became a Legal Permanent Resident ("LPR") of the United States on October 20, 1992. See Pet'r's Br. 2. On October 6, 2003, Petitioner was arrested, and on October 21, 2003, an indictment was filed in court against Hernandez and other co-defendants for engaging in a conspiracy to commit narcotics trafficking, in violation of 21 U.S.C. § 846. The Petitioner retained the services of Amelio Marino ("Marino" or "Petitioner's counsel") to represent her in the original criminal proceeding. The Petitioner testified that she told Marino that under no circumstances would she plead guilty if it would cause her to lose her LPR status. See Pet'r's Br. 3 & Ex. would cause her to lose her LPR status. See Pet'r's Br. 3 & Ex. 1. Petitioner further alleges that she informed Marino that if her entering a guilty plea would have immigration consequences, she would rather have a trial, and that Marino assured her that the plea would not cause her to lose her LPR status and face deportation. See id.

As such, the Petitioner pled guilty before this Court on June 10, 2004 to conspiracy to distribute cocaine. See id. Ex. 2. At the plea hearing, Hernandez confirmed that she was satisfied with her attorney's representation. See id. at 11 ("Are you satisfied with him?" to which Petitioner responded "Yes"). In allocuting Hernandez, this Court did not specifically ask the Petitioner if she was aware of the immigration consequences of her plea, but instead addressed a variant of this inquiry to Petitioner's counsel. See id. 11-12 ("Mr. Marino, have you had an opportunity to advise Miss Hernandez of her rights, the nature of the charges and the consequence of her plea?" to which counsel responded "Yes, I have, Judge"). Finally, at the close of the hearing, the Court accepted Hernandez's guilty plea. Id. at 12-13. On June 2, 2005, this Court sentenced Hernandez to time served and three years' supervised release. See id. Ex. 3 at 14. Hernandez did not appeal her conviction or seek any other post-conviction relief at that time.1

On April 23, 2008, the United States Department of Homeland Security ("DHS") issued a Notice to Appear (the "Notice") in which it alleged that Hernandez was removable as a consequence of her *148conviction. See Gov't Br. Ex. 1. The Notice was served directly on Hernandez on that day, at which point she was provided oral notice in Spanish of the time and place of her removal hearing and the consequences of failure to appear for that hearing. Id. at 5. Hernandez contacted her attorney, Marino, in response to receiving the Notice. See Pet'r's Br. 4. Marino then represented Hernandez through the majority of her removal proceedings before the Immigration Court (the "IC" or the "Immigration Judge"), which spanned about six years. Id.

As Petitioner's counsel, Marino caused the removal proceedings to be adjourned an inordinate number of times. For example, at the first appearance on February 9, 2009, Marino requested an adjournment to provide him time to review Hernandez's file, and to file an application on her behalf. See id. At the next court date on May 19, 2009, Marino had yet to file an application on behalf of Hernandez, and once again requested an adjournment from the IC in order to file an S-Visa.2 See id. 5. Yet again, at the next hearing on May 12, 2012, the IC adjourned the proceeding to allow Marino to appear on behalf of Hernandez, who instead was represented on that occasion by another attorney from Marino's law office. See id. On November 27, 2012, the IC allegedly questioned Marino for having again failed to file any application on behalf of Hernandez. See id. The Immigration Judge stated her expectation that the relevant documents be submitted to the court by the next hearing. See id. Shockingly, on June 4, 2013, and once again on December 3, 2013, Marino failed to file any application or document. See id.

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Bluebook (online)
283 F. Supp. 3d 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hernandez-ilsd-2018.