                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0034p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                           X
                                                            -
 RAMANI PILLA,
                                                            -
                               Petitioner-Appellant,
                                                            -
                                                            -
                                                                 No. 10-4178
              v.
                                                            ,
                                                             >
                                                            -
                                                            -
 UNITED STATES OF AMERICA,
                                                            -
                     Respondent-Appellee.
                                                           N

                        Appeal from the United States District Court
                       for the Northern District of Ohio at Cleveland.
                              Nos. 07-00228-001; 09-02370—
                             David D. Dowd, Jr., District Judge.
                                      Argued: June 1, 2011
                            Decided and Filed: February 6, 2012
    Before: BOGGS and KETHLEDGE, Circuit Judges; COLLIER, Chief District
                              Judge.*
                                      _________________
                                            COUNSEL
ARGUED: Michael A. Partlow, MORGANSTERN, MacADAMS & DeVITO CO.,
L.P.A., Cleveland, Ohio, for Appellant. Laura McMullen Ford, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Michael A.
Partlow, MORGANSTERN, MacADAMS & DeVITO CO., L.P.A., Cleveland, Ohio,
for Appellant. Laura McMullen Ford, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellee.




        *
        The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of
Tennessee, sitting by designation.


                                                  1
No. 10-4178        Pilla v. United States                                           Page 2


                                  _________________

                                       OPINION
                                  _________________

       KETHLEDGE, Circuit Judge. Ramani Pilla, a citizen and native of India, was
removed from the United States after pleading guilty to making false, misleading, or
fraudulent statements to the FBI, in violation of 18 U.S.C. § 1001. She now seeks a writ
of coram nobis, which is an extraordinary writ sometimes available to federal convicts
who have already completed their prison term. She claims her trial counsel was
ineffective because he gave her bad advice about the immigration consequences of her
guilty plea. The district court denied the writ. We affirm.

                                            I.

       While employed as an assistant professor at Case Western University, Pilla told
the FBI—and the university—that she had received several pieces of hate mail at her
university office. The FBI and the university spent thousands of dollars investigating
Pilla’s report before she admitted to writing and delivering the hate mail herself. After
Pilla pled guilty to violating 18 U.S.C. § 1001, she was sentenced to six months in prison
and ordered to pay more than $66,000 in restitution.

       Steven Bell represented Pilla during her criminal case. He encouraged Pilla to
plead guilty after the government provided him with overwhelming evidence of her guilt.
The evidence included still frames from a surveillance camera that showed Pilla sliding
letters under her office door, copies of the FBI report documenting Pilla’s own
confession to the hoax, and a CD of “telephone conversations or voice mails” between
Pilla and an FBI agent. Bell later testified that, after conducting extensive research, he
thought “the likelihood of having [Pilla’s] confession suppressed [was] close to zero.”

       So Bell researched potential defenses consistent with the confession.            In
particular, he considered a diminished-capacity defense based upon Pilla’s alleged
mental illness and her addiction to a drug called Klonopin. Although Bell found two
psychiatrists to examine Pilla, each of them refused to testify in support of this defense.
No. 10-4178        Pilla v. United States                                           Page 3


Bell also interviewed an expert whom Pilla herself proposed—a medical doctor and ex-
colleague of Pilla’s—but he likewise refused to testify. Pilla also suggested another
defense altogether—that someone had broken into her house and written the letters on
her laptop—but Bell rejected it because “the story didn’t have any credibility” and a
forensic examination of Pilla’s computer would have been too expensive.               Bell
ultimately advised Pilla that she would probably receive a shorter prison sentence if she
pled guilty rather than proceeding to trial.

       Pilla is not a United States citizen, so Bell considered whether a guilty plea might
have immigration consequences for her. He consulted a statute discussing deportation
of non-citizens convicted of “aggravated felonies,” but decided it was “over [his] head,
well beyond [his] expertise.” Thus he contacted Robert Brown, an immigration attorney
who had previously served as an acting regional director for the U.S. Immigration and
Naturalization Service. Bell described the case to Brown and later sent him copies of
the Bill of Information and the government’s restitution calculations. Bell, Brown, and
Pilla thereafter discussed whether the charged conduct would constitute an aggravated
felony for immigration purposes. Brown said that “the charge to which Dr. Pilla was
going to in all likelihood enter a guilty plea was not an aggravated felony,” meaning that
she would not necessarily be deported upon her conviction.

       Brown’s advice turned out to be incorrect. An immigration judge determined
that Pilla’s offense was, in fact, an aggravated felony and that she was therefore
removable under 8 U.S.C. § 1227(a)(2)(A)(iii). The Board of Immigration Appeals
agreed and dismissed Pilla’s appeal. In a companion case to this one, we have agreed
with the immigration judge and the Board. See Pilla v. Holder, No. 09-4577.

       While in federal prison, Pilla challenged her sentence—but not her plea or
conviction—in a motion for habeas corpus relief under 28 U.S.C. § 2255. The district
court denied the motion. Pilla then sought permission to file a second § 2255 motion.
We denied her request because Pilla could not satisfy the second-or-successive
requirements set forth in § 2255(h).
No. 10-4178        Pilla v. United States                                           Page 4


       In September 2009, after completing her prison sentence, Pilla filed a petition for
a writ of coram nobis in the district court. In the petition, she argued that Bell was
ineffective for failing to advise her that a guilty plea would result in automatic
deportation. The district court allowed discovery and granted both parties several
extensions of time to file supplemental briefing. Following a status conference, the court
gave Pilla’s attorney until August 13, 2010 to file a supplemental brief. He did not file
the document in time: instead, he waited until fifteen minutes after the deadline and then
requested a two-week extension. The court granted him one week. When her attorney
missed that deadline as well, the court issued a thorough opinion denying Pilla’s petition.
Pilla’s counsel thereafter filed a motion for relief from judgment and attached a
supplemental memorandum. The court reviewed the memo, found that it would not have
changed the decision, and denied the motion.

       This appeal followed.

                                            II.

       We review the district court’s denial of a writ of coram nobis de novo, but
uphold the court’s factual findings unless they are clearly erroneous. Blanton v. United
States, 94 F.3d 227, 230 (6th Cir. 1996).

       Coram nobis is an extraordinary writ that may be used to “vacate a federal
sentence or conviction when a § 2255 motion is unavailable—generally, when the
petitioner has served his sentence completely and thus is no longer in custody[.]” Id. at
231. We grant the writ only if the petitioner demonstrates a factual error that was
unknown at the time of trial and that is “of a fundamentally unjust character which
probably would have altered the outcome of the challenged proceeding if it had been
known.” United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001).
No. 10-4178        Pilla v. United States                                           Page 5


                                            A.

        Pilla’s claim in seeking the writ—that Bell provided constitutionally ineffective
assistance with respect to her plea—is one that she could have raised in her § 2255
motion. One might argue, therefore, that we should treat her petition for a writ of coram
nobis as a second or successive motion for relief under § 2255. The Seventh Circuit has
held that “[a]ny motion filed in the district court that imposed the sentence, and
substantively within the scope of § 2255 ¶1, is a motion under § 2255, no matter what
title the prisoner plasters on the cover.” Melton v. United States, 359 F.3d 855, 857 (7th
Cir. 2004) (Easterbrook, J.) (emphasis in original). The Supreme Court has likewise
adopted a functional approach in determining whether a motion counts as a successive
application for relief under 28 U.S.C. § 2254. See Calderon v. Thompson, 523 U.S. 538,
553 (1998) (“In a § 2254 case, a prisoner’s motion to recall the mandate on the basis of
the merits of the underlying decision can be regarded as a second or successive
application for purposes of § 2244(b)”).

       We agree with the Seventh Circuit’s holding in Melton. If, in substance, a claim
falls within the scope of § 2255(a), it should be treated as such regardless of any
“inventive captioning” by the prisoner. Melton, 359 F.3d at 857. But part of the
substance of a § 2255 motion is that it is filed by “[a] prisoner in custody under sentence
of a court established by Act of Congress[.]” 28 U.S.C. § 2255(a) (emphasis added); see
also Melton, 359 F.3d at 857. That is why the courts do not consider the merits of
§ 2255 motions filed by persons no longer in custody. See Blanton, 94 F.3d at 231.
Here, Pilla was no longer in custody when she filed her petition for a writ of coram
nobis, which means her petition is not in substance a motion under § 2255. Her petition
is therefore not a second or successive motion for relief under that section; and thus we
proceed to consider its merits.
No. 10-4178         Pilla v. United States                                            Page 6


                                             B.

        To prove a claim of ineffective assistance, Pilla must show that Bell’s
performance was deficient and that his deficient performance prejudiced her defense.
See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). To show prejudice,
Pilla must demonstrate a reasonable probability that, “but for counsel’s errors, [she]
would not have pleaded guilty and would have insisted on going to trial.” See Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Pilla cannot make that showing merely by telling us
now that she would have gone to trial then if she had gotten different advice. The test
is objective, not subjective; and thus, “to obtain relief on this type of claim, a petitioner
must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).

        So we consider whether Pilla can make these showings. Her argument on the
performance prong depends on her contention that, at the time of her criminal case, her
criminal lawyer actually had a duty to provide her with accurate advice regarding the
effect of her criminal conviction upon her immigration status. The Supreme Court first
announced this duty in Padilla, which came years after Bell advised Pilla here. The
United States says the duty cannot be imposed retroactively on Bell; Pilla says it can.

        But we need not decide that issue here, because in any event Pilla cannot show
prejudice. As noted above, Pilla faced overwhelming evidence of her guilt, which
included a video that showed her planting the letters, a CD of incriminating phone
conversations, and FBI interview notes documenting her confession. Given this
evidence, the district court found that Pilla “had no realistic chance of being acquitted
at trial” and that, if she had proceeded to trial, she “had no rational defense, would have
been convicted and would have faced a longer term of incarceration.” Those findings
were not clearly erroneous, or indeed erroneous at all. And had Pilla been convicted
after trial, she would have been just as removable as she was after her guilty plea. The
only consequence of Bell’s inaccurate advice—assuming one believes Pilla’s assertion
that she would have gone to trial had she gotten accurate advice—is that she got a
shorter prison term than otherwise. But more to the point, no rational defendant in
No. 10-4178        Pilla v. United States                                          Page 7


Pilla’s position would have proceeded to trial in this situation. Pilla therefore has not
shown that Bell’s advice created even a “reasonable probability” of prejudice. And thus
she cannot show that Bell’s advice “probably . . . altered the outcome of the challenged
proceeding,” as required for a writ of coram nobis. Johnson, 237 F.3d at 755.

       Pilla separately argues that her guilty plea was unknowing and involuntary. The
district court did not address this argument because Pilla presented it for the first time
in the late reply brief attached to her motion for relief from judgment. Issues so
presented to the district court are not preserved for appeal. See Barany-Snyder v.
Weiner, 539 F.3d 327, 332 (6th Cir. 2008). The argument is forfeited.

       Pilla finally argues that the district court erred in denying her motion for relief
from judgment. Federal Rule of Civil Procedure 60(b)(1) provides that a district court
may, in its discretion, relieve a party from a final judgment on grounds of “mistake,
inadvertence, surprise, or excusable neglect.” The district court did not abuse its
discretion in finding no such grounds here.

       The district court’s judgment is affirmed.
