UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sunday Williams
v. Civil No. 15-cv-464-JD Opinion No. 2016 DNH 086 United States of America
O R D E R
Sunday Williams petitions for a writ of coram nobis,
seeking relief from his conviction in 2004 on a charge of making
a false statement on an application for a passport. Williams
contends that his counsel provided ineffective assistance by
changing Williams’s plea without his consent and by
misrepresenting and failing to advise Williams of the
immigration consequences of the plea. The government moves to
dismiss the petition on the ground that Williams is not entitled
to relief based on Padilla v. Kentucky, 559 U.S. 356 (2010).
Williams objects to the motion to dismiss.
Standard of Review
“[C]oram nobis is an extraordinary remedy, which is
available ‘only under circumstances compelling such action to
achieve justice.’” Murray v. United States, 704 F.3d 23, 28
(1st Cir. 2013) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). To show that he is eligible for a writ of coram
nobis, “the petitioner must first adequately explain his failure
to seek relief earlier through other means; second, he must show
that he continues to suffer a significant collateral consequence
from the judgment being challenged and that issuance of the writ
will eliminate the consequence; and third, he must demonstrate
that the judgment resulted from a fundamental error.” Murray,
704 F.3d at 29 (internal footnotes omitted). “Even if the
petition meets all three of the conditions in the coram nobis
eligibility test, the court retains discretion to grant or deny
the writ, depending on the circumstances of the individual
case.” Id. 29-30.
Background
Williams was born in Nigeria and entered the United States
on a visa in 1992. He has lived in the United States since that
time. In March of 1996, he married Nadine Williams, who was
born in Jamaica. The Williamses have three children who were
all born in the United States.
Williams was indicted on a charge of passport fraud in
February of 2004 based on a misrepresentation in his passport
application. See United States v. Williams, 04-cr-51-JD (D.N.H.
February 19, 2004). During the change of plea hearing held on
July 29, 2004, the court acknowledged that the First Circuit had
2 recently changed the law with respect to venue for cases
charging passport fraud and that the case should not have been
brought in the District of New Hampshire. The court asked
Williams if, in light of the change in the law, he freely and
voluntarily waived his right to be tried in one of the Districts
in New York rather than the District of New Hampshire.
In response to the court’s question, Williams consulted
with his attorney, Richard Monteith. After discussing the issue
with Williams outside the courtroom, Monteith reported to the
court that Williams “would like to withdraw that waiver and not
go through with this proceeding today.” Transcript, doc. no.
31, at 9. The court asked if Williams wanted the case
dismissed, and Monteith responded, “He does, Judge.” Id.
Monteith moved to dismiss the case.
In response, Assistant United States Attorney Rubega asked
that the court delay ruling on the motion to dismiss to give the
government time to file a superseding indictment to charge
Williams with making a false statement in violation of 18 U.S.C.
§ 1001. After a discussion about whether a superseding
indictment or a new indictment would be necessary to bring the
charge under § 1001, Monteith said: “Time is important to Mr.
Williams regarding immigration, what’s going to happen with
that, so I suppose we don’t have an objection to a superseding
indictment.” Id. at 12. Monteith also noted that a superseding
3 indictment, as opposed to a new indictment, would avoid having
Williams arrested on the new charge.
The court agreed to stay any ruling on the motion to
dismiss to allow time for the government to file a superseding
indictment. The government filed a superseding indictment on
August 5, 2004, charging Williams with making a false statement
in violation of § 1001.
Williams pleaded guilty to the charge of making a false
statement on October 14, 2004. During the hearing, Williams
admitted the factual allegations read by the court to support
the charge against him. Rubega then read the facts the
government would prove if the case went to trial. Monteith did
not object to the facts as read, and Williams also accepted the
facts as read by Rubega.
When asked by the court if he had any questions about the
proceedings, Williams said that he had no objection but noted
that “the Immigration matter is pending.” Monteith explained
that Williams had immigration hearings pending in New York.
Williams agreed that was the immigration matter to which he
referred. The court then accepted Wiliams’s plea. Williams was
sentenced on January 14, 2005, to three years of probation.
Williams’s wife became a United States citizen in 2010.
When Williams applied for lawful permanent resident status based
on his marriage to a citizen, his application was denied based
4 on the facts underlying Williams’s guilty plea in 2004, which
included a false claim of United States citizenship. Williams
has not been deported because of the current conditions in
Nigeria.
Discussion
In support of his petition, Williams contends that Monteith
provided ineffective assistance of counsel (1) by “sua sponte”
changing Williams’s plea and (2) by failing to inform Williams
of the immigration consequences of his plea and permitting him
to plead to facts that constituted passport fraud. The
government moves to dismiss the petition on the ground that the
relief provided by Padilla is not available to Williams.
Williams objects, arguing that his claims for relief are not
predicated on Padilla.
In Padilla, the Supreme Court held “that counsel must
inform her client whether his plea carries a risk of
deportation.” 559 U.S. at 374. Failure to do so constitutes a
violation of the Sixth Amendment right to competent counsel.
Id. The Court explained that its holding depended on “the
unique nature of deportation,” id. at 365, due to “the
seriousness of deportation as a consequence of a criminal plea,
and the concomitant impact of deportation on families living
lawfully in this country,” id. at 374.
5 A. “Sua Sponte” Changing Plea
The government does not appear to challenge Williams’s
first claim, that Monteith provided ineffective assistance by
“sua sponte” changing his plea. The only reference in the
petition to Padilla in support of the first claim is a quote
from Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012), that
discusses Padilla in the context of determining that negotiation
of a guilty plea is a critical stage of criminal proceedings.
Therefore, the government does not provide grounds to dismiss
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sunday Williams
v. Civil No. 15-cv-464-JD Opinion No. 2016 DNH 086 United States of America
O R D E R
Sunday Williams petitions for a writ of coram nobis,
seeking relief from his conviction in 2004 on a charge of making
a false statement on an application for a passport. Williams
contends that his counsel provided ineffective assistance by
changing Williams’s plea without his consent and by
misrepresenting and failing to advise Williams of the
immigration consequences of the plea. The government moves to
dismiss the petition on the ground that Williams is not entitled
to relief based on Padilla v. Kentucky, 559 U.S. 356 (2010).
Williams objects to the motion to dismiss.
Standard of Review
“[C]oram nobis is an extraordinary remedy, which is
available ‘only under circumstances compelling such action to
achieve justice.’” Murray v. United States, 704 F.3d 23, 28
(1st Cir. 2013) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). To show that he is eligible for a writ of coram
nobis, “the petitioner must first adequately explain his failure
to seek relief earlier through other means; second, he must show
that he continues to suffer a significant collateral consequence
from the judgment being challenged and that issuance of the writ
will eliminate the consequence; and third, he must demonstrate
that the judgment resulted from a fundamental error.” Murray,
704 F.3d at 29 (internal footnotes omitted). “Even if the
petition meets all three of the conditions in the coram nobis
eligibility test, the court retains discretion to grant or deny
the writ, depending on the circumstances of the individual
case.” Id. 29-30.
Background
Williams was born in Nigeria and entered the United States
on a visa in 1992. He has lived in the United States since that
time. In March of 1996, he married Nadine Williams, who was
born in Jamaica. The Williamses have three children who were
all born in the United States.
Williams was indicted on a charge of passport fraud in
February of 2004 based on a misrepresentation in his passport
application. See United States v. Williams, 04-cr-51-JD (D.N.H.
February 19, 2004). During the change of plea hearing held on
July 29, 2004, the court acknowledged that the First Circuit had
2 recently changed the law with respect to venue for cases
charging passport fraud and that the case should not have been
brought in the District of New Hampshire. The court asked
Williams if, in light of the change in the law, he freely and
voluntarily waived his right to be tried in one of the Districts
in New York rather than the District of New Hampshire.
In response to the court’s question, Williams consulted
with his attorney, Richard Monteith. After discussing the issue
with Williams outside the courtroom, Monteith reported to the
court that Williams “would like to withdraw that waiver and not
go through with this proceeding today.” Transcript, doc. no.
31, at 9. The court asked if Williams wanted the case
dismissed, and Monteith responded, “He does, Judge.” Id.
Monteith moved to dismiss the case.
In response, Assistant United States Attorney Rubega asked
that the court delay ruling on the motion to dismiss to give the
government time to file a superseding indictment to charge
Williams with making a false statement in violation of 18 U.S.C.
§ 1001. After a discussion about whether a superseding
indictment or a new indictment would be necessary to bring the
charge under § 1001, Monteith said: “Time is important to Mr.
Williams regarding immigration, what’s going to happen with
that, so I suppose we don’t have an objection to a superseding
indictment.” Id. at 12. Monteith also noted that a superseding
3 indictment, as opposed to a new indictment, would avoid having
Williams arrested on the new charge.
The court agreed to stay any ruling on the motion to
dismiss to allow time for the government to file a superseding
indictment. The government filed a superseding indictment on
August 5, 2004, charging Williams with making a false statement
in violation of § 1001.
Williams pleaded guilty to the charge of making a false
statement on October 14, 2004. During the hearing, Williams
admitted the factual allegations read by the court to support
the charge against him. Rubega then read the facts the
government would prove if the case went to trial. Monteith did
not object to the facts as read, and Williams also accepted the
facts as read by Rubega.
When asked by the court if he had any questions about the
proceedings, Williams said that he had no objection but noted
that “the Immigration matter is pending.” Monteith explained
that Williams had immigration hearings pending in New York.
Williams agreed that was the immigration matter to which he
referred. The court then accepted Wiliams’s plea. Williams was
sentenced on January 14, 2005, to three years of probation.
Williams’s wife became a United States citizen in 2010.
When Williams applied for lawful permanent resident status based
on his marriage to a citizen, his application was denied based
4 on the facts underlying Williams’s guilty plea in 2004, which
included a false claim of United States citizenship. Williams
has not been deported because of the current conditions in
Nigeria.
Discussion
In support of his petition, Williams contends that Monteith
provided ineffective assistance of counsel (1) by “sua sponte”
changing Williams’s plea and (2) by failing to inform Williams
of the immigration consequences of his plea and permitting him
to plead to facts that constituted passport fraud. The
government moves to dismiss the petition on the ground that the
relief provided by Padilla is not available to Williams.
Williams objects, arguing that his claims for relief are not
predicated on Padilla.
In Padilla, the Supreme Court held “that counsel must
inform her client whether his plea carries a risk of
deportation.” 559 U.S. at 374. Failure to do so constitutes a
violation of the Sixth Amendment right to competent counsel.
Id. The Court explained that its holding depended on “the
unique nature of deportation,” id. at 365, due to “the
seriousness of deportation as a consequence of a criminal plea,
and the concomitant impact of deportation on families living
lawfully in this country,” id. at 374.
5 A. “Sua Sponte” Changing Plea
The government does not appear to challenge Williams’s
first claim, that Monteith provided ineffective assistance by
“sua sponte” changing his plea. The only reference in the
petition to Padilla in support of the first claim is a quote
from Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012), that
discusses Padilla in the context of determining that negotiation
of a guilty plea is a critical stage of criminal proceedings.
Therefore, the government does not provide grounds to dismiss
the first claim.
B. Immmigration Consequences of the Plea
In his second claim, Williams alleges that Monteith
provided ineffective assistance by failing to inform him of the
immigration consequences of the plea and by permitting him to
plead guilty to facts that constituted passport fraud when the
charge was making a false statement. As a result, Williams
contends, he cannot achieve lawful permanent resident status
despite his wife’s citizenship. The government argues that
Williams cannot seek relief under Padilla, which requires that
the claim be dismissed.
The requirement in Padilla that counsel advise criminal
defendants about the deportation consequences of a guilty plea
6 is limited to advice about deportation. See Chaidez v. United
States, 133 S. Ct. 1103, 1110 (2013); United States v. Suero,
2014 WL 6896011, at *4, n.2 (D.N.H. Dec. 5, 2014). Williams
does not argue that Monteith failed to advise him about the
deportation consequences of his guilty plea or even that his
guilty plea raised any issue of deportation. Instead, he argues
that Monteith provided ineffective assistance because the facts
underlying his guilty plea preclude his eligibility for
permanent resident status based on being married to a United
States citizen. Therefore, Padilla does not support Williams’s
ineffective assistance of counsel claim.
Even if Padilla were interpreted to apply outside the
context of advice about deportation, Williams could not rely on
the holding to support his petition. Because “the Court
announced a new rule in Padilla,” the holding in Padilla does
not apply to “defendants whose convictions became final prior to
Padilla.” Chaidez, 133 S. Ct. at 1113. Judgment was entered on
Williams’s conviction on January 14, 2005. Williams did not
appeal his conviction. As a result, Williams’s conviction
became final long before the decision in Padilla was issued on
March 31, 2010.
Therefore, Williams’s second claim that alleges ineffective
assistance of counsel due to a failure to advise him about the
immigration consequences of his guilty plea must be dismissed.
7 Conclusion
For the foregoing reasons, the government’s motion to
dismiss (document no. 8) is granted as to the petitioner’s
second claim at Part B on page 13 of the petition but is denied
as to the first claim at Part A on Page 11 of the petition.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
April 22, 2016
cc: Seth R. Aframe, Esq. Jonathan Cohen, Esq. Paul F. O’Reilly, Esq. Jacob Max Weintruab, Esq.