13-179-cv
Asan v. United States


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of January, two thousand fourteen.

PRESENT: RALPH K. WINTER,
                 GUIDO CALABRESI,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
ADNAN ASAN,
                                 Petitioner-Appellant,
                                                                            No. 13-179-cv
                        v.

UNITED STATES OF AMERICA,
                                 Respondent-Appellee.
---------------------------------------------------------------------

APPEARING FOR APPELLANT:                         WILLIAM C. MENARD (Raymond Lahoud,
                                                 on the brief), Baurkot & Baurkot, Easton,
                                                 Pennsylvania.

APPEARING FOR APPELLEE:                          MICHAEL A. LEVY (Jessica R. Lonergan,
                                                 Jennifer G. Rodgers, on the brief), Assistant
                                                 United States Attorneys, for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, New York.


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       Appeal from a judgment of the United States District Court for the Southern

District of New York (Charles S. Haight, Jr., Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 14, 2012, is AFFIRMED.

       Adnan Asan appeals from the denial of his second petition for coram nobis relief

from a 1984 conviction for using a telephone to facilitate a heroin conspiracy, see 21

U.S.C. § 843(b). Asan pleaded guilty to that lesser charge pursuant to a cooperation

agreement, and he was sentenced to a non-incarceratory term of two years’ probation.

Despite Asan’s cooperation, federal immigration authorities concluded that his narcotics

conviction rendered him excludable from the United States and, in 2008, Asan was

removed to Macedonia, where he is presently located. Asan submits that the district

court erred in failing to grant him coram nobis relief from conviction because he entered

his guilty plea without the effective assistance of counsel. We apply de novo review to

the standards a district court applies to a coram nobis petition and, in the absence of any

legal error, we review the denial of such relief for abuse of discretion. See Porcelli v.

United States, 404 F.3d 157, 158 (2d Cir. 2005). We assume the parties’ familiarity with

the underlying facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.




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1.      Coram Nobis Standards

        A writ of error coram nobis will be granted only in “extraordinary circumstances”

to correct errors of “the most fundamental character.” Foont v. United States, 93 F.3d 76,

78 (2d Cir. 1996) (internal quotation marks omitted). To obtain such relief, a petitioner

“must demonstrate that (1) there are circumstances compelling such action to achieve

justice; (2) sound reasons exist for failure to seek appropriate earlier relief; and (3) the

petitioner continues to suffer legal consequences from his conviction that may be

remedied by granting of the writ.” Id. at 79 (internal citations and quotation marks

omitted).

2.      Waiver

        The government contends not only that Asan generally fails to satisfy the first two

coram nobis requirements but also that true waiver specifically precludes Asan from

satisfying the second because his counsel expressly withdrew the ineffective assistance

claim raised in Asan’s first coram nobis petition. See Johnson v. Zerbst, 304 U.S. 458,

464 (1938) (defining waiver as “intentional relinquishment or abandonment of a known

right or privilege”); accord United States v. Velez, 354 F.3d 190, 196 (2d Cir. 2004). In

concluding otherwise, the district court noted that Asan’s withdrawn ineffectiveness

claim    appeared    to   charge   counsel   with   omission    rather   than   affirmative

misrepresentation. We need not here decide if this is a distinction that defeats the

government’s waiver argument, much less whether it provides Asan with a sound reason

not to have pursued misrepresentation along with omission in asserting ineffective

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assistance of counsel in his first coram nobis petition.     Even if these matters were

resolved in Asan’s favor, he would not be entitled to relief because the district court’s

findings of fact easily support its conclusion that Asan was not denied effective

assistance of counsel and, therefore, that there are no extraordinary circumstances present

to warrant a writ of error coram nobis.

3.     Ineffective Assistance Claim

       A petitioner seeking to vacate his guilty plea on the ground of ineffective

assistance of counsel bears a heavy burden in that he must show both that counsel’s

performance was objectively unreasonable and ensuing prejudice. See Strickland v.

Washington, 466 U.S. 668, 687–88, 693–94 (1984); accord Bennett v. United States, 663

F.3d 71, 84 (2d Cir. 2011). In concluding that Asan could not carry his burden on the

first requirement, the district court conducted a thorough hearing at which it received

telephonic testimony from Asan and live testimony from his wife, his former counsel,

and the former prosecutor in the case. In a 38-page opinion, the district court carefully

reviewed the evidence and convincingly explained why it credited counsel’s account that,

far from misrepresenting to Asan that he would not be deported, counsel was “absolutely

certain” that he “conveyed to [Asan] a very high likelihood of deportation” that he faced

“whether or not he cooperated, but the chance that he could avoid it, if at all, would be

greater if he cooperated than otherwise.” Asan v. United States, 907 F. Supp. 2d 426,

444 (S.D.N.Y. 2012) (quoting counsel’s testimony).




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       We review a district court’s findings of fact relevant to an ineffective assistance

claim only for clear error, giving due regard to its unique opportunity to judge the

credibility of witnesses it observes firsthand. See Bennett v. United States, 663 F.3d at

85; see also Fed. R. Civ. P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 574 (1985);

Amalfitano v. Rosenbert, 533 F.3d 117, 123 (2d Cir. 2008). The record admits no clear

error here, and the district court’s credibility finding defeats Asan’s Sixth Amendment

claim. Even if the Asans themselves misconstrued counsel’s statements to signal that

there would be no deportation, the district court correctly concluded that their mistake

could not be attributed to counsel so as to demonstrate objectively ineffective assistance.

       In urging otherwise, Asan submits that, given the dangers he would face upon

deportation in light of his cooperation, counsel was under a “heightened duty” to ensure

Asan’s clear understanding of the likelihood of deportation, making it objectively

unreasonable for counsel not to have secured the assistance of an immigration attorney or

an interpreter for discussions with Asan. The argument fails because Asan does not to

show what more an immigration lawyer could have said to him in light of the district

court’s finding that defense counsel told Asan he faced likely deportation. As for an

interpreter, the district court found that “the services of an interpreter were not required,”

Asan v. United States, 907 F. Supp. 2d at 443, and we cannot identify clear error in that

determination given Asan’s own declination of the district court’s offer of an interpreter

at his plea allocution. In that allocution, moreover, Asan stated, under oath, that he was

guilty of the charged crime, that he had read the cooperation agreement and reviewed it

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with counsel, that he was satisfied with counsel, and that no promises had been made to

induce his guilty plea other than those contained in the agreement. Although Asan now

denies each of these statements, the law accords great weight to such solemn, sworn

pronouncements. See United States v. Hyde, 520 U.S. 670, 676–77 (1997); accord

United States v. Arteca, 411 F.3d 315, 319–20 (2d Cir. 2005).

       In sum, we accept the district court’s findings of fact, which manifest no clear

error, and, on de novo review of the application of relevant legal standards to those facts,

we conclude, as the district court did, that Asan has failed to demonstrate his asserted

Sixth Amendment violation and therefore warrants no relief from conviction.

       We have considered Asan’s remaining arguments on appeal, and we conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.1

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




1
  Consistent with the government’s representation at oral argument that it would be in
communication with the appropriate immigration officials, we expect it will transmit a
transcript of oral argument in this case, as well as Judge Haight’s order, and whatever
documents Asan’s counsel may provide.

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