United States v. Mouhamed Dafer

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2018
• Docket: 17-55329
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-55329

Plaintiff-Appellee, D.C. No. 2:03-cr-00462-LGB-1 v.

MOUHAMED DAFER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding

Argued & Submitted August 9, 2018 Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and EZRA,*** District Judge.

Mouhamed Dafer appeals the district court’s order denying his petition for a

writ of error coram nobis. Dafer seeks to vacate his 2004 conviction for making a

false statement in violation of 18 U.S.C. § 1001, alleging that he received

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. ineffective assistance of counsel because of his defense attorney’s affirmative and

incorrect advice regarding the immigration consequences of his plea. We have

jurisdiction under 28 U.S.C. 1291, and review de novo, see United States v. Riedl,

496 F.3d 1003, 1005 (9th Cir. 2007).

The district court found that Dafer had met three of the four requirements for

coram nobis relief laid out in Hirabayashi v. United States, 828 F.2d 591, 604 (9th

Cir. 1987). It found that he failed to meet the fourth requirement—that the error be

“of the most fundamental character”—because of his inability to show prejudice

under Strikland’s second prong. Id.; Strickland v. Washington, 466 U.S. 668, 688

(1984).

The district court assumed, without deciding, that Dafer’s counsel rendered

ineffective assistance by making affirmative misrepresentations to Dafer regarding

the immigration consequences of a guilty plea. As to the prejudice prong, the court

focused on the strength of the evidence against Dafer, which made it unlikely that

he would have taken his case to trial, and the minimal chance that his counsel

could have negotiated a more favorable plea agreement. In reaching this

conclusion, the district court did not have the benefit of the Supreme Court’s

decision in Lee v. United States, 137 S. Ct. 1958, 1966-67 (2017), which expressly

rejected “a per se rule that a defendant with no viable defense cannot show

prejudice from the denial of his right to trial.”

2 Therefore, we remand for the district court to reconsider Dafer’s petition for

writ of coram nobis in light of Lee’s intervening authority, and, if necessary, to

complete the necessary fact-finding and evaluate whether Dafer can show

ineffective assistance of counsel under Strickland’s first prong. See 466 U.S. at

688.

VACATED AND REMANDED.