     13-0209
     Kovacs v. United States

 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2013
 6
 7
 8      (Argued: November 21, 2013             Decided: March 3, 2014)
 9
10                               Docket No. 13-0209
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   STEPHEN KOVACS,
15
16                     Petitioner-Appellant,
17
18               - v.-
19
20   UNITED STATES OF AMERICA,
21
22                     Respondent-Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:             KEARSE, JACOBS, and PARKER, Circuit
27                             Judges.
28
29         Appeal from a judgment of the United States District

30   Court for the Eastern District of New York, denying Stephen

31   Kovacs’ petition for a writ of error coram nobis to vacate

32   his 1999 guilty plea to misprision of felony.         We reverse

33   and order the granting of the writ.

34                                      NICHOLAS A. GRAVANTE, JR.
35                                      (Thomas Ling, on the brief),
36                                      Boies, Schiller & Flexner LLP,
37                                      New York, N.Y., for
38                                      Appellant.
 1                                 MICHAEL H. WARREN (Peter A.
 2                                 Norling, on the brief), for
 3                                 Loretta E. Lynch, United States
 4                                 Attorney for the Eastern
 5                                 District of New York, Brooklyn,
 6                                 N.Y., for Appellee.
 7
 8   The Opinion of the Court is filed by Judge JACOBS.    Judge
 9   KEARSE concurs except for Part I.B.1.
10
11   DENNIS JACOBS, Circuit Judge:
12
13       Petitioner Stephen Kovacs appeals from a judgment of

14   the United States District Court for the Eastern District of

15   New York (Wexler, J.), denying his petition for a writ of

16   error coram nobis.   Kovacs was convicted for misprision of

17   felony, in violation of 18 U.S.C. § 4, and seeks the writ on

18   the ground that his lawyer rendered ineffective assistance

19   by giving erroneous advice concerning the deportation

20   consequences of pleading guilty to that offense, with the

21   result that he is at risk of detention and deportation if he

22   reenters the United States.    The district court denied the

23   petition without an evidentiary hearing.    For the reasons

24   that follow, we reverse and order the granting of the writ.

25

26                             BACKGROUND

27       Stephen Kovacs is an Australian national who became a

28   permanent resident of the United States in 1977.    While


                                     2
1    here, Kovacs founded International Bullion and Metal

2    Brokers, Inc., an importer and distributor of gold and metal

3    jewelry.   After Kovacs’ company lost $250,000 in a 1991

4    burglary, Hanover Insurance Company dispatched a public

5    adjustor named Eliot Zerring to assess the loss.    Zerring,

6    who was corrupt, see Chubb & Son Inc. v. Kelleher, No. 92 CV

7    4484, 2010 WL 5978913 (E.D.N.Y. Oct. 22, 2010), purportedly

8    convinced Kovacs to inflate the claim to $850,000.    The

9    claim was submitted in September 1991 and paid later that

10   month.   Kovacs ultimately took $400,000 of the $850,000, and

11   Zerring kept the rest.

12       Kovacs was charged in October 1996 with wire fraud and

13   conspiracy to commit wire fraud, in violation of 18 U.S.C.

14   §§ 371 and 1343.   Kovacs instructed his lawyer, Robert Fink,

15   to negotiate a plea that would have no immigration

16   consequences.   Fink advised Kovacs that a conviction for

17   misprision of felony, 18 U.S.C. § 4, would not impact his

18   immigration status.   Fink allegedly conveyed these

19   immigration concerns to the Government, which agreed to the

20   misprision of felony charge.

21       On November 24, 1999, Kovacs pled guilty to a single

22   count of misprision of felony.     Kovacs’ immigration concerns

23   were aired during the plea hearing.    At the outset, Fink

                                    3
1    sought to seal the minutes of the guilty plea so immigration

2    officials could not see them.       The district court warned

3    Kovacs that immigration consequences were not in its control

4    and that it would give no such assurance.      Fink, however,

5    responded that he “researched it and we feel comfortable

6    that this is not a deportable offense.”      Special App. at 12,

7    ECF No. 31 (transcript of plea proceeding).      At the

8    conclusion of the proceeding, Fink again stated that

9    “misprision of felony is not deportable.”      Id. at 16.   The

10   court accepted the plea.

11       Kovacs was sentenced on December 17, 2001 to five

12   years’ probation and restitution of $600,000.      The district

13   court granted a downward departure for extraordinary

14   acceptance of responsibility in view of Kovacs’ decision to

15   forgo an available defense based on the five-year statute of

16   limitations.   Kovacs paid the restitution in full by August

17   8, 2002.   In 2006, the district court granted a motion to

18   terminate Kovacs’ probation early.

19       Kovacs continued his regular international travel until

20   April 2009, when immigration officials questioned Kovacs’

21   eligibility for reentry on the ground that misprision of

22   felony is considered a crime of moral turpitude.      At that

23   point, immigration officials directed him to appear for an

                                     4
1    interview to evaluate his immigration status.    Kovacs

2    discussed his options with his lawyers, but allegedly none

3    of them advised him to seek vacatur of his conviction.

4        Before his scheduled interview, on the advice of

5    counsel, Kovacs returned to Australia, where he currently

6    resides.   His wife and children, all United States citizens,

7    remain here.    Kovacs’ children have had to adjust their

8    lives to carry on the family business.

9        Kovacs alleges that, notwithstanding his efforts to

10   seek counsel earlier, he first became aware of the

11   possibility of coram nobis relief in October 2011.    At about

12   that time, his counsel asked the Government to negotiate an

13   agreed-upon motion for a writ of error coram nobis.

14   Negotiations failed, and Kovacs submitted a petition for the

15   writ in May 2012.   The district court denied the petition on

16   the ground that Kovacs could not show prejudice within the

17   framework established by Strickland v. Washington, 466 U.S.

18   668 (1984).    Because the court denied the petition on those

19   grounds, it did not reach the merits of the Government’s

20   other arguments: that the petition was untimely, and that

21   Kovacs could not show Fink’s advice was objectively

22   unreasonable at the time the conviction became final.

23   Kovacs now appeals the denial of his petition.

                                    5
1                              DISCUSSION

2        A writ of error coram nobis is an “extraordinary

3    remedy,” United States v. Morgan, 346 U.S. 502, 511 (1954),

4    typically available only when habeas relief is unwarranted

5    because the petitioner is no longer in custody.   See

6    Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).

7    We review the legal standards applied by the district court

8    de novo.   Id.

9        A petitioner seeking coram nobis relief “must

10   demonstrate that 1) there are circumstances compelling such

11   action to achieve justice, 2) sound reasons exist for

12   failure to seek appropriate earlier relief, and 3) the

13   petitioner continues to suffer legal consequences from his

14   conviction that may be remedied by granting of the writ.”

15   Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)

16   (internal citations and quotation marks omitted).   There is

17   no doubt that Kovacs’ likely ineligibility to reenter the

18   United States constitutes a continuing consequence of his

19   conviction.   The remaining questions are whether Fink’s

20   misadvice warrants granting the writ, and whether the

21   petition was timely.

22



                                   6
1                                   I

2        “Defendants have a Sixth Amendment right to counsel, a

3    right that extends to the plea-bargaining process.”   Lafler

4    v. Cooper, 132 S. Ct. 1376, 1384 (2012).   Thus, ineffective

5    assistance of counsel is one ground for granting a writ of

6    coram nobis.   See Chhabra v. United States, 720 F.3d 395,

7    406 (2d Cir. 2013).   A claim of ineffective assistance

8    entails a showing that: 1) the defense counsel’s performance

9    was objectively unreasonable; and 2) the deficient

10   performance prejudiced the defense.     Strickland, 466 U.S.

11   at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 58 (1985)

12   (holding Strickland test applies to guilty plea challenges);

13   Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011).

14

15                                  A

16       The performance component of the Strickland test asks

17   whether a “counsel’s representation fell below an objective

18   standard of reasonableness.”   Strickland, 466 U.S. at 688.

19   A defense counsel’s performance is unreasonable when it is

20   so deficient that it falls outside the “wide range of

21   professionally competent assistance.”   Id. at 690.

22



                                    7
1        As the district court observed, “there is no dispute

2    that Fink misadvised Kovacs regarding the immigration

3    consequences of his plea.”   Memorandum and Order, Kovacs v.

4    United States, No. 12-cv-02260, at 3 (E.D.N.Y. Jan. 2, 2013,

5    ECF No. 18).    The transcript of the plea allocution reflects

6    repeated erroneous assurances by Fink that misprision of

7    felony was not a deportable offense.   We held in United

8    States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), that an

9    affirmative misrepresentation of the deportation

10   consequences of a guilty plea falls outside this range of

11   professional competence.   However, Couto was decided the

12   year after Kovacs’ 2001 conviction became final.   If Kovacs

13   had entered his plea after Couto was decided, there is

14   little doubt Fink’s performance would be deemed

15   unreasonable.   Kovacs seeks to apply Couto retroactively.1

16       The retroactive application of case law is governed by

17   the rule set forth in Teague v. Lane, 489 U.S. 288 (1989),



          1
            Because the district court ruled Kovacs could not
     make a showing of prejudice, the court did not decide
     whether Couto retroactively applies. However, this issue
     has been argued by the parties and presents a pure question
     of law. See Hartford Courant Co. v. Pellegrino, 380 F.3d
     83, 90 (2d Cir. 2004) (“In general, we refrain from
     analyzing issues not decided below, but we have the
     authority to decide issues that were argued before but not
     reached by the district court.”).
                                    8
1    which looks to a decision’s novelty.    If a decision

2    announces a new rule, “a person whose conviction is already

3    final may not benefit from the decision in a habeas or

4    similar proceeding.”   Chaidez v. United States, 133 S. Ct.

5    1103, 1107 (2013).   Only if the Court applies a settled rule

6    “may a person avail herself of the decision on collateral

7    review.”   Id.   “[A] case announces a new rule if the result

8    was not dictated by precedent existing at the time the

9    defendant’s conviction became final.”   Teague, 489 U.S. at

10   301 (emphasis in original).   Such a holding must have been

11   “apparent to all reasonable jurists.”   Chaidez, 133 S. Ct.

12   at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28

13   (1997)).

14       We have little trouble concluding that, by the time

15   Kovacs’ conviction became final, the Couto rule was

16   indicated, and was awaiting an instance in which it would be

17   pronounced.   Courts had concluded similar misadvice was

18   objectively unreasonable as far back as the 1970s2; our

19   decisions reflected this trend long before Kovacs’


          2
            See, e.g., United States v. Briscoe, 432 F.2d 1351,
     1353-54 (D.C. Cir. 1970); Downs-Morgan v. United States, 765
     F.2d 1534, 1538-41 (11th Cir. 1985); United States v.
     Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich. 1987);
     United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173
     (D. Kan. 1999).
                                    9
1    conviction.   See United States v. Santelises, 509 F.2d 703,

2    704 (2d Cir. 1975) (per curiam) (“Since [defense counsel]

3    does not aver that he made an affirmative misrepresentation,

4    [petitioner] fails to state a claim for ineffective

5    assistance of counsel.”); Michel v. United States, 507 F.2d

6    461, 465 (2d Cir. 1974) (“While recognizing that deportation

7    was a serious sanction, this court . . . [noted] that there

8    was before it no allegation of misleading by counsel.”); see

9    also United States v. Zilberov, 162 F.3d 1149, 1998 WL

10   634211, at *1 (2d Cir. 1998) (unpublished summary order)

11   (“[T]rial counsel’s alleged warning of ‘possible’

12   deportation may have been inaccurate and, arguably,

13   objectively unreasonable.”).

14       The Government observes that these statements were

15   dicta, not holdings; but if there had been holdings, there

16   would be no occasion now to consider retroactivity.    Couto

17   did nothing more than apply the “age-old principle that a

18   lawyer may not affirmatively mislead a client.”   Chaidez,

19   133 S. Ct. at 1119 (Sotomayor, J., dissenting).     At the time

20   Kovacs’ conviction became final, no reasonable jurist could

21   find a defense counsel’s affirmative misadvice as to the

22   immigration consequences of a guilty plea to be objectively

23   reasonable.

                                    10
1                                  B

2        Once a petitioner shows deficient performance of

3    defense counsel, the inquiry shifts to the prejudicial

4    effect of that performance.   To establish prejudice, a

5    petitioner “must show that there is a reasonable probability

6    that, but for counsel’s unprofessional errors, the result of

7    the proceeding would have been different.   A reasonable

8    probability is a probability sufficient to undermine

9    confidence in the outcome.”   Strickland, 466 U.S. at 694.

10   In determining whether a different outcome sufficiently

11   demonstrates prejudice, we must keep in mind that “a

12   defendant has no right to be offered a plea, nor a federal

13   right that the judge accept it.”   Missouri v. Frye, 132 S.

14   Ct. 1399, 1410 (2012) (internal citations omitted).

15       Notwithstanding the prevalence of pleas in the criminal

16   justice system, see id. at 1407, the Supreme Court has not

17   often had occasion to consider Strickland prejudice in the

18   plea negotiation context.   The Government, relying on Hill,

19   474 U.S. 52, contends Kovacs can succeed only if he shows he

20   would have gone to trial absent his attorney’s unreasonable

21   performance.   While Kovacs contends he has made that

22   showing, he also argues that he can demonstrate prejudice by


                                   11
1    showing his ability to negotiate an alternative plea based

2    on the holding of Frye, 132 S. Ct. 1399.

3          In Hill, the petitioner sought habeas relief to

4    challenge his guilty plea to first-degree murder.     Hill, 474

5    U.S. at 54.   He alleged that his attorney’s misadvice about

6    when he would become eligible for parole caused his plea to

7    be involuntary.   See id. at 56.     In that context, the Court

8    stated that prejudice is shown when “there is a reasonable

9    probability that, but for the counsel’s errors, he would not

10   have pleaded guilty and would have insisted on going to

11   trial.”   Id. at 59.   Because the petitioner there did not

12   allege that he would have insisted on trial or that he

13   placed “particular emphasis on his parole eligibility in

14   deciding” to plea, the Court denied his petition.     Id. at

15   60.

16         Frye opened another avenue to showing prejudice in the

17   pretrial process.   Frye’s lawyer failed to tell him of a

18   proposed plea that would have resulted in a reduced

19   sentence.   132 S. Ct. at 1404-05.    The plea lapsed and Frye

20   argued that he would have accepted the better offer but for

21   his attorney’s performance.   Id.     Prejudice can arise under

22   Frye if a petitioner can “demonstrate a reasonable



                                    12
1    probability [he] would have accepted the earlier plea offer

2    had [he] been afforded effective assistance of counsel.”

3    Id. at 1409.    In addition, a petitioner must show “a

4    reasonable probability that the end result of the criminal

5    process would have been more favorable by reason of a plea

6    to a lesser charge or a sentence of less prison time.”      Id.

7    Acknowledging that there is no right to a plea, the Court

8    also required “a reasonable probability neither the

9    prosecution nor the trial court would have prevented the

10   offer from being accepted or implemented.”     Id. at 1410.

11       The Government contends that Frye is limited to lapsed

12   pleas and that Kovacs must satisfy the Hill standard.       We

13   disagree.    “Hill . . . applies in the context in which it

14   arose.”     Id. at 1409.   “Hill does not . . . provide the sole

15   means for demonstrating prejudice arising from the deficient

16   performance of counsel during plea negotiations.”     Id. at

17   1409-10.3    The proper focus is not on the specific test

18   applied in Hill or Frye; each case is a context-specific

19   application of Strickland directed at a particular instance

20   of unreasonable attorney performance.     See Hare v. United

          3
            As the Supreme Court noted, “it is insufficient
     simply to point to the guarantee of a fair trial as a
     backstop that inoculates any errors in the pretrial
     process.” Frye, 132 S. Ct. at 1407.
                                      13
1    States, 688 F.3d 878, 879 (7th Cir. 2012) (“Both Hill and

2    Frye apply Strickland’s inquiry . . . .” (internal quotation

3    marks omitted); see also Lafler v. Cooper, 132 S. Ct. 1376

4    (2012) (developing different test for prejudice when

5    attorney misadvice leads to standing trial instead of

6    accepting a plea offer).

7        We conclude that a defense lawyer’s incorrect advice

8    about the immigration consequences of a plea is prejudicial

9    if it is shown that, but for counsel’s unprofessional

10   errors, there was a reasonable probability that the

11   petitioner could have negotiated a plea that did not impact

12   immigration status or that he would have litigated an

13   available defense.4   See United States v. Kwan, 407 F.3d

14   1005, 1017-18 (9th Cir. 2005) (“Kwan could have gone to

15   trial or renegotiated his plea agreement to avoid

16   deportation.”).   The petitioner must clearly demonstrate

17   “that he placed particular emphasis on [immigration

18   consequences] in deciding whether or not to plead guilty.”

19   Id. at 1017 (internal quotation marks omitted).


          4
            See also Sasonov v. United States, 575 F.Supp.2d 626,
     639 (D.N.J. 2008) (immigration consequences “may have been
     enough to . . . have allowed [petitioner] to negotiate a
     more favorable plea agreement with the Government.”); United
     States v. Shaw, No. Civ.A. 03-6759, 2004 WL 1858336, at *11
     (E.D. Pa. 2004) (“Defendant could have negotiated with the
     government in such a way as to produce a sentence that would
     not have triggered the INA mandatory removal provisions.”).
                                   14
1        Strickland prejudice focuses on the outcome of the

2    proceeding rather than a defendant’s priorities or desires.

3    “[B]ecause a defendant has no right to be offered a plea,”

4    Frye, 132 S. Ct. at 1410, the ultimate outcome of a plea

5    negotiation depends on whether the government is willing to

6    agree to the plea the defendant is willing to enter.     To

7    prevail on that ground, a petitioner must therefore

8    demonstrate a reasonable probability that the prosecution

9    would have accepted, and the court would have approved, a

10   deal that had no adverse effect on the petitioner’s

11   immigration status.   Cf. id. (“reasonable probability

12   neither the prosecution nor the trial court would have

13   prevented the offer from being accepted or implemented”);

14   Lafler, 132 S. Ct. at 1385 (“the prosecution would not have

15   withdrawn it in light of intervening circumstances”); United

16   States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (“He

17   alleges no facts that would suggest that his attorney could

18   have successfully negotiated a plea agreement . . . .”)

19   (emphasis added).

20       We conclude 1) that Kovacs has sufficiently shown that

21   he could have negotiated a plea that would not have impaired

22   his immigration status, and 2) that even if he could not, he


                                   15
1    would have litigated an available defense.   Judge Kearse

2    would decide this appeal on the second ground only, under

3    Hill, and does not subscribe to our discussion of the first.

4

5                                  1

6        Kovacs has sustained the very considerable burden of

7    establishing prejudice under the principles reviewed above.

8    It is apparent from the transcript of the Rule 11 hearing

9    that Kovacs’ single-minded focus in the plea negotiations

10   was the risk of immigration consequences.    The declaration

11   submitted by Fink stated that the misprision of felony

12   charge was settled on in the plea negotiation for the sole

13   reason that Fink believed it would not impair Kovacs’

14   immigration status–-a view Fink conveyed to the prosecution.

15   Kovacs has thus shown a reasonable probability that he could

16   have negotiated a plea with no effect on his immigration

17   status.   The Government’s arguments on appeal are directed

18   at contesting the applicable legal standard rather than the

19   factual premise: the reasonable probability that the

20   prosecution would have accepted a plea to an offense that

21   would have left Kovacs’ immigration status intact.

22


                                   16
1          Consequently, we find that Kovacs has made a showing of

2    prejudice based on his ability to negotiate an alternative

3    plea.

4

5                                    2

6          Alternatively, Kovacs demonstrates prejudice under the

7    standards set forth in Hill.     Kovacs’ petition alleges he

8    would have litigated a meritorious statute of limitations

9    defense.     When a petitioner claims that he would have

10   pursued an affirmative defense but for his lawyer’s

11   erroneous advice, “the resolution of the ‘prejudice’ inquiry

12   will depend largely on whether the affirmative defense

13   likely would have succeeded at trial.”5     Hill, 474 U.S. at

14   59.   At sentencing, Kovacs requested a downward departure

15   for extraordinary acceptance of responsibility on the basis

16   that he waived this potential meritorious defense, and the

17   district court granted it.     The request itself demonstrates

18   Kovacs’ awareness of the defense prior to the plea becoming

19   final.     See Fed. R. Crim. P. 11(d)(2).   More importantly,


           5
            The Government argues that this language applies only
     when the unreasonable performance impairs the defense. This
     portion of Hill, though, merely provides examples of how its
     rule might apply, and does not suggest a limitation. See
     Hill, 474 U.S. at 59-60.
                                     17
1    the district court’s grant of Kovacs’ request in the course

2    of a conscientious and searching sentencing process

3    implicitly acknowledged that the defense had weight.    As a

4    result, Kovacs has shown a reasonable probability that he

5    would have proceeded to trial.

6        The Government contests the merit of the defense,

7    citing a fax sent after Kovacs received the final payment in

8    his fraudulent scheme, a document that is not in the present

9    record.   In any event, the question is not whether the

10   defense would ultimately have been successful.    Rather, the

11   inquiry is whether the defense was viable and sufficiently

12   promising that Kovacs would have litigated the defense to

13   avoid immigration consequences.     There is no doubt that (fax

14   or no fax) the defense was sufficient trouble for the

15   Government that Kovacs would have been foolish to forgo it

16   at trial or as a means of softening the Government’s

17   position in plea bargaining.

18

19                                  II

20       The Government urges affirmance on the ground that the

21   petition was untimely.   The district court did not reach

22   that issue; but we do, insofar as timeliness bears on

23   possible prejudice to the Government.
                                    18
1        No statute of limitations governs the filing of a coram

2    nobis petition.    See Foont, 93 F.3d at 79.      At the same

3    time, the petitioner must demonstrate “sound reasons” for

4    any delay in seeking relief.     Id.     “The critical inquiry . .

5    . is whether the petitioner is able to show justifiable

6    reasons for the delay.”     Id. at 80.

7        Kovacs has supplied sufficient reasons to justify the

8    delay.   He avers that he has diligently pursued ways to

9    reenter the country, but was unaware that a writ of coram

10   nobis existed until October 2011--and contacted the

11   Government soon thereafter.     The Government is skeptical

12   about the recent discovery of a writ so “ancient.”        Morgan,

13   346 U.S. at 506.   When such a disputed issue of fact arises,

14   we typically remand for a hearing.       Under present

15   circumstances, however, no hearing is needed because it is

16   improbable that Kovacs (or whatever attorney he consulted)

17   would have promptly thought about coram nobis, which is as

18   arcane as it is ancient.     The writ is an “extraordinary

19   remedy” available only in rare cases.       Id. at 511.   Further,

20   the Government does not suggest any tactical reason Kovacs

21   would have delayed pursuit of the writ until 2011 if he had

22   learned of it earlier.     Lastly, the focus on the filing date

23   of the petition insufficiently accounts for Kovacs’ efforts

                                     19
1   to negotiate for an agreed-upon motion in 2011.   We conclude

2   that Kovacs’ petition was timely.

3

4       For these reasons, Kovacs has established his claim of

5   ineffective assistance of counsel and satisfies the

6   requirements for coram nobis relief.   Therefore, we reverse

7   and remand to the district court with instructions to issue

8   the writ and vacate Kovacs’ conviction.




                                 20
