Wassouf v . United States 11-CV-51-SM 2/7/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
George Wassouf
v. Case N o . 11-cv-51-SM Opinion N o . 2011 DNH 021 United States of America
O R D E R
Almost ten years ago, the petitioner, a Syrian citizen, pled
guilty to and was convicted of bank fraud in this court. United
States v . Wassouf, N o . 01-cr-1-SM (D.N.H.). He was sentenced to
33 months in prison and a 5-year period of supervised release.
Petitioner completed his prison sentence on October 1 , 2003.
He was promptly taken into custody by Immigration and Customs
Enforcement agents, and deportation proceedings were begun, based
upon his federal conviction. Petitioner then filed a motion for
relief from his conviction and sentence under the provisions of
28 U.S.C. § 2255, claiming that his trial defense counsel
provided constitutionally deficient representation, in that he
failed to file a notice of appeal as petitioner had directed.
After considering the record, and trial counsel’s response, the
court granted the motion to the extent of affording petitioner a
renewed opportunity to file an appeal, which he did. See Wassouf
v . United States, 2003 WL 22474623 (D.N.H. Oct. 3 1 , 2003). Because petitioner took advantage of the opportunity to appeal,
his conviction was no longer final. Accordingly, the
administrative removal proceedings were terminated without
prejudice, pending final resolution of petitioner’s criminal
case.
On his belated direct appeal petitioner argued, inter alia,
that his trial counsel failed to tell him that his guilty plea to
a felony might result in his being deported. On that basis, he
sought to have his conviction overturned and his plea withdrawn.
In 2005, the court of appeals affirmed the conviction and
sentence, finding that petitioner abandoned his ineffective
assistance claim, because he raised it in only a perfunctory
manner, unaccompanied by any developed argument. The court also
noted that the claim appeared to be meritless. See United States
v . Wassouf, App. N o . 03-2602 (1st Cir. Sept. 1 3 , 2005). At that
time, no circuit court of appeals had held that defense counsel’s
failure to advise a non-citizen defendant that a guilty plea and
conviction might result in removal proceedings constituted
ineffective assistance of counsel under the Sixth Amendment.
Those courts that had considered the issue generally agreed that
such a failure related only to a collateral matter, and did not
deprive a criminal defendant of effective assistance of counsel
in the criminal prosecution.
2 Petitioner’s 5-year term of supervised release was scheduled
to expire on October 1 , 2008. Because he resided in
Massachusetts, on September 6, 2006, jurisdiction was transferred
to the District of Massachusetts. Petitioner had by then
violated the terms of his supervised release and, after pleading
guilty, was sentenced in December of 2006, to 6 months in prison
followed by 12 months of supervised release. United States v .
Wassouf, N o . 06-cr-10300-NMG, (D. Mass.). Petitioner completed
the 6-month sentence in June of 2007, after which he was again
promptly taken into custody pending removal, or deportation,
proceedings. (The 12-month supervised release term presumably
expired without further violations in June of 2008.)
The renewed deportation proceedings were also dismissed,
without prejudice, for procedural reasons. But, within a week of
that procedural dismissal, removal proceedings were begun yet
again. See Wassouf v . United States, et a l . , N o . 09-cv-11738-RWZ
(D. Mass.). On December 3 , 2007, an Administrative Law Judge
ordered petitioner removed to Syria, which order was subsequently
carried out.
On March 3 1 , 2010, the Supreme Court decided Padilla v .
Kentucky, 130 S.Ct. 1473 (2010), holding that criminal defense
counsel are obligated to inform their non-citizen clients of the
3 deportation consequences of a guilty plea and resulting
conviction. Id. at 1483. Failure to so advise a non-citizen
client will, in most cases, render counsel’s performance
constitutionally deficient, under the first part of the
ineffective assistance of counsel test set out in Strickland v .
Washington, 466 U.S. 668 (1984). Based on Padilla, petitioner
filed the pending motion seeking to collaterally attack his
federal bank fraud conviction, on ineffective assistance of
counsel grounds. The government objects.
Petitioner styles his motion as one for coram nobis relief
under the All Writs Act, 28 U.S.C. § 1651, rather than one for
relief under 28 U.S.C. § 2255. Neither petitioner nor the
government addresses his custody status at the time he filed the
motion (July 9, 2010), but the record discloses that petitioner
was no longer in custody with respect to the challenged
conviction.
By July of 2008, two years before this motion was filed,
petitioner had completed the 33-month sentence, the 6-month
sentence imposed for violations of the terms of his supervised
release, and the 12-month period of reimposed supervised release.
If petitioner had been “in custody” in July of 2010, then his
motion could not be considered by this court. In that
4 circumstance, § 2255 would provide the appropriate remedy, not
coram nobis, and the motion would be recast as a second or
successive petition under § 2255. The court of appeals has not
certified that the motion invokes a “new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable,” so this court
would be without jurisdiction to consider that second or
successive petition. 28 U.S.C. § 2255(h)(2); see Trenkler v .
United States, 536 F.3d 8 5 , 98 (1st Cir. 2008).
The writ of coram nobis, on the other hand, “is ordinarily
available only to a criminal defendant who is no longer in
custody.” Id. As it seems reasonably certain that petitioner
was no longer “in custody” with respect to the challenged
conviction when he filed the motion, the relief provided by §
2255 is not available to him. But coram nobis relief i s . And,
as the petition represents a collateral challenge that is civil
in nature, it is properly docketed as a separate case.1
Whether petitioner can benefit from Padilla’s holding
depends, initially, upon whether it is retroactively applicable
to his case. Those courts that have considered whether Padilla’s
1 Petitioner filed the motion in the underlying criminal case. The Clerk has been directed to assign the petition a civil docket number.
5 rule has retroactive effect are decidedly not in agreement. See
e.g., United States v . Haddad, 2010 WL 2884645 (E.D. Mich. July
2 0 , 2010) (Padilla is not retroactively applicable); United
States v . Gilbert, 2010 WL 4134286 (D.N.J. October 1 9 , 2010)
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Wassouf v . United States 11-CV-51-SM 2/7/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
George Wassouf
v. Case N o . 11-cv-51-SM Opinion N o . 2011 DNH 021 United States of America
O R D E R
Almost ten years ago, the petitioner, a Syrian citizen, pled
guilty to and was convicted of bank fraud in this court. United
States v . Wassouf, N o . 01-cr-1-SM (D.N.H.). He was sentenced to
33 months in prison and a 5-year period of supervised release.
Petitioner completed his prison sentence on October 1 , 2003.
He was promptly taken into custody by Immigration and Customs
Enforcement agents, and deportation proceedings were begun, based
upon his federal conviction. Petitioner then filed a motion for
relief from his conviction and sentence under the provisions of
28 U.S.C. § 2255, claiming that his trial defense counsel
provided constitutionally deficient representation, in that he
failed to file a notice of appeal as petitioner had directed.
After considering the record, and trial counsel’s response, the
court granted the motion to the extent of affording petitioner a
renewed opportunity to file an appeal, which he did. See Wassouf
v . United States, 2003 WL 22474623 (D.N.H. Oct. 3 1 , 2003). Because petitioner took advantage of the opportunity to appeal,
his conviction was no longer final. Accordingly, the
administrative removal proceedings were terminated without
prejudice, pending final resolution of petitioner’s criminal
case.
On his belated direct appeal petitioner argued, inter alia,
that his trial counsel failed to tell him that his guilty plea to
a felony might result in his being deported. On that basis, he
sought to have his conviction overturned and his plea withdrawn.
In 2005, the court of appeals affirmed the conviction and
sentence, finding that petitioner abandoned his ineffective
assistance claim, because he raised it in only a perfunctory
manner, unaccompanied by any developed argument. The court also
noted that the claim appeared to be meritless. See United States
v . Wassouf, App. N o . 03-2602 (1st Cir. Sept. 1 3 , 2005). At that
time, no circuit court of appeals had held that defense counsel’s
failure to advise a non-citizen defendant that a guilty plea and
conviction might result in removal proceedings constituted
ineffective assistance of counsel under the Sixth Amendment.
Those courts that had considered the issue generally agreed that
such a failure related only to a collateral matter, and did not
deprive a criminal defendant of effective assistance of counsel
in the criminal prosecution.
2 Petitioner’s 5-year term of supervised release was scheduled
to expire on October 1 , 2008. Because he resided in
Massachusetts, on September 6, 2006, jurisdiction was transferred
to the District of Massachusetts. Petitioner had by then
violated the terms of his supervised release and, after pleading
guilty, was sentenced in December of 2006, to 6 months in prison
followed by 12 months of supervised release. United States v .
Wassouf, N o . 06-cr-10300-NMG, (D. Mass.). Petitioner completed
the 6-month sentence in June of 2007, after which he was again
promptly taken into custody pending removal, or deportation,
proceedings. (The 12-month supervised release term presumably
expired without further violations in June of 2008.)
The renewed deportation proceedings were also dismissed,
without prejudice, for procedural reasons. But, within a week of
that procedural dismissal, removal proceedings were begun yet
again. See Wassouf v . United States, et a l . , N o . 09-cv-11738-RWZ
(D. Mass.). On December 3 , 2007, an Administrative Law Judge
ordered petitioner removed to Syria, which order was subsequently
carried out.
On March 3 1 , 2010, the Supreme Court decided Padilla v .
Kentucky, 130 S.Ct. 1473 (2010), holding that criminal defense
counsel are obligated to inform their non-citizen clients of the
3 deportation consequences of a guilty plea and resulting
conviction. Id. at 1483. Failure to so advise a non-citizen
client will, in most cases, render counsel’s performance
constitutionally deficient, under the first part of the
ineffective assistance of counsel test set out in Strickland v .
Washington, 466 U.S. 668 (1984). Based on Padilla, petitioner
filed the pending motion seeking to collaterally attack his
federal bank fraud conviction, on ineffective assistance of
counsel grounds. The government objects.
Petitioner styles his motion as one for coram nobis relief
under the All Writs Act, 28 U.S.C. § 1651, rather than one for
relief under 28 U.S.C. § 2255. Neither petitioner nor the
government addresses his custody status at the time he filed the
motion (July 9, 2010), but the record discloses that petitioner
was no longer in custody with respect to the challenged
conviction.
By July of 2008, two years before this motion was filed,
petitioner had completed the 33-month sentence, the 6-month
sentence imposed for violations of the terms of his supervised
release, and the 12-month period of reimposed supervised release.
If petitioner had been “in custody” in July of 2010, then his
motion could not be considered by this court. In that
4 circumstance, § 2255 would provide the appropriate remedy, not
coram nobis, and the motion would be recast as a second or
successive petition under § 2255. The court of appeals has not
certified that the motion invokes a “new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable,” so this court
would be without jurisdiction to consider that second or
successive petition. 28 U.S.C. § 2255(h)(2); see Trenkler v .
United States, 536 F.3d 8 5 , 98 (1st Cir. 2008).
The writ of coram nobis, on the other hand, “is ordinarily
available only to a criminal defendant who is no longer in
custody.” Id. As it seems reasonably certain that petitioner
was no longer “in custody” with respect to the challenged
conviction when he filed the motion, the relief provided by §
2255 is not available to him. But coram nobis relief i s . And,
as the petition represents a collateral challenge that is civil
in nature, it is properly docketed as a separate case.1
Whether petitioner can benefit from Padilla’s holding
depends, initially, upon whether it is retroactively applicable
to his case. Those courts that have considered whether Padilla’s
1 Petitioner filed the motion in the underlying criminal case. The Clerk has been directed to assign the petition a civil docket number.
5 rule has retroactive effect are decidedly not in agreement. See
e.g., United States v . Haddad, 2010 WL 2884645 (E.D. Mich. July
2 0 , 2010) (Padilla is not retroactively applicable); United
States v . Gilbert, 2010 WL 4134286 (D.N.J. October 1 9 , 2010)
(same); United States v . Perez, 2010 WL 4643033 (D. Neb. November
9, 2010) (same); United States v . Hubenig, 2010 WL 2650625 (E.D.
Cal. July 1 , 2010) (Padilla is retroactively applicable); United
States v . Chaidez, 730 F. Supp. 2d 896, (N.D. Ill. 2010) (same);
Al Kokabani v . United States, 2010 WL 3941836 (E.D.N.C. July 3 0 ,
2010) (same).
The court of appeals for this circuit has not yet had
occasion to decide the issue, and reasonable jurists certainly
can (and do) disagree about whether Padilla applies
retroactively. It is not necessary, however, to decide that
issue to resolve this case. Even assuming for argument’s sake
that Padilla is retroactively applicable, to obtain relief
petitioner must show not only that trial counsel’s performance
was constitutionally deficient, but also that counsel’s deficient
performance prejudiced him in some way. Strickland, 466 U.S. at
687. That, he cannot d o .
Accepting then, that coram nobis review is available, and
that trial defense counsel did not personally advise petitioner
6 of the removal consequences of his guilty plea and resulting
felony conviction, and that his representation was, under
Padilla, sufficiently deficient to satisfy the first part of
Strickland’s ineffective assistance test,2 the second part of the
Strickland test (i.e., prejudice) must be considered. When a
petitioner claims ineffective assistance of counsel with respect
to a guilty plea, he must show that he was materially prejudiced
by counsel’s deficient performance, in that, had he been properly
informed, he would not have pled guilty and would have insisted
on going to trial. Hill v . Lockhart, 474 U.S. 5 2 , 59 (1985); see
also Premo v . Moore, 131 S.Ct. 733 (2011).
Petitioner cannot meet that burden here. The record, as the
government points out, completely undermines petitioner’s
suggestion of prejudice. Before pleading guilty in this court,
petitioner was fully aware that removal proceedings would likely
follow his guilty plea and conviction. Indeed, well before he
was arrested on this federal charge, petitioner pled guilty t o ,
and was convicted o f , similar offenses (larceny, forgery,
uttering forged instruments) in the Middlesex (Massachusetts)
2 Under the particular circumstances of this case, it may well be that counsel’s failure did not run afoul of the first part of the Strickland test. As discussed later, petitioner had multiple representation during the prosecution of his criminal case, including separate immigration counsel before and after he entered his guilty plea in the underlying criminal case.
7 District Court, Lowell Division. Based upon those state
convictions, on April 2 1 , 2000, the Immigration and
Naturalization Service (INS) began deportation proceedings
against petitioner. In response, petitioner successfully moved
the state court to vacate his state guilty pleas and convictions
because (in his own words):
4 . Because of these [state] convictions and sentences the INS is in the process of deporting m e .
5 . If I had thought that I could be deported, I would never have entered into the plea agreement.
6. During the plea hearing, I was not informed by the judge that it was possible that I could get deported because of this case.
7 . I do not believe that I was given the appropriate immigration warnings as required.
Affidavit of George Wassouf, dated October 2 6 , 2000. (Exhibit 3
to document n o . 2 4 2 ) .
The state court accepted petitioner’s argument and vacated
the challenged convictions on January 1 7 , 2001. Sometime later,
the INS dismissed the pending removal proceedings that were based
upon those convictions, without prejudice.
S o , well before petitioner pled guilty to bank fraud in this
court (August 2 0 , 2001), he had pled guilty to similar state
charges, faced removal proceedings as a result, recognized the
8 connection between those similar convictions and removal, moved
to vacate his pleas and convictions on grounds that he would not
have pled guilty had he known of the possibility of removal based
upon those convictions, and was successful in getting the
convictions vacated — all to facilitate avoidance of the removal
consequences of his pleas and convictions.
There is more. At the time of sentencing in this case, the
INS had not yet dismissed the deportation proceedings based upon
the then-vacated state convictions in the Lowell District Court.
S o , at the sentencing hearing before this court, counsel for
petitioner asked the court to recommend that the Bureau of
Prisons designate the facility at Fort Devens as the place where
petitioner would serve his sentence.
Mr. Saxe: Your Honor, and I would request, I know it’s not your practice to make recommendations for designations, but in this case I have spoken with Attorney Evans, I’ve also spoken with another attorney that was employed by the defendant, Attorney Laganna (ph) regarding ongoing immigration issues. I know that - - I’m not an immigration lawyer, so I don’t know exactly what they are going to be trying to d o , but I know that there is ongoing communication between them and has been, between my client and those attorneys since I came into this case, and if the court could make an exception in this case and recommend Fort Devens, that would help my client and his immigration attorneys, and would also help his family to maybe be able to see him while he’s incarcerated.
See Transcript, Sentencing Hearing (document n o . 224) at 4-5.
9 Given this record, petitioner cannot credibly assert that
had his appointed trial defense counsel personally told him of
the potential deportation consequences of his guilty plea and
conviction, he never would have pled guilty and would have
insisted on going to trial. Petitioner knew perfectly well what
the removal consequences could b e , indeed at that time he was
represented by legal counsel familiar with immigration law, who
were working on his behalf with respect to removal proceedings
based upon similar state convictions. And, his trial defense
counsel was communicating with petitioner’s immigration
attorneys, as was petitioner, prior to his guilty plea in this
court and through and after sentencing. It is inconceivable that
petitioner did not discuss the potential effect of his plea in
this case with immigration counsel, and it is equally
inconceivable that petitioner did not fully understand the
potential deportation consequences of his plea and conviction in
his federal criminal case.
Finally, the evidence against petitioner with respect to the
bank fraud charge was overwhelming. The plea agreement
represented a rational and beneficial disposition of the case in
petitioner’s interest, given the risks he faced if he proceeded
to trial. Petitioner assured the court during the plea colloquy,
while he was under oath, that the prosecutor’s factual proffer
10 was accurate; that he was in fact guilty, and that he understood
that he would be found guilty based on his plea alone should the
court accept that plea. Under all of these circumstances,
petitioner cannot show prejudice under Strickland. He simply
cannot credibly argue that he would not have pled guilty and
would have insisted on going to trial if only his defense counsel
had personally told him what he already very well knew.
The other issues raised by petitioner are without merit.
For example, petitioner seems to ask this court to vacate his
final order of removal — a request he has unsuccessfully pursued
in other districts as well. But, that is a matter over which
this court is without jurisdiction. 8 U.S.C. § 1252(a)(5);
Hernandez v . Gonzales, 424 F.3d 42 (1st Cir. 2005). (The
government advises that petitioner is also challenging his final
order of removal in the United States Court of Appeals for the
District of Columbia. See Wassouf v . United States Department of
Homeland Security, CA N o . 10-5261 (D.C. Cir.)).
Conclusion
Because petitioner cannot meet the prejudice test under
Strickland, he is not entitled to the relief he seeks, even if
Padilla is deemed retroactively applicable to his petition. The
11 petition for coram nobis relief is denied. The clerk shall close
the case.
SO ORDERED.
February 7 , 2011
cc: George Wassouf, pro se Aixa Maldonado-Quinones, AUSA