                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         APR 18 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    16-55469

                Plaintiff-Appellee,              D.C. No. 2:93-cr-00583

 v.

MAUREEN ELAINE CHAN, AKA                         MEMORANDUM*
Maureen Ridley

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                        Argued and submitted April 11, 2018
                                  Pasadena, CA

Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge.

      Defendant-Appellant Maureen Elaine Chan, aka Maureen Ridley (“Ridley”)

appeals the district court’s dismissal of her petition for a writ of error coram nobis.

We review de novo a district court’s denial of a petition for a writ of error coram



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
nobis. United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015) (quoting United

States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007)). We have jurisdiction under

28 U.S.C. § 1291, and we reverse.

      Ridley, a native of South Africa, has been a lawful permanent resident of the

United States since 1973. On June 22, 1993, a grand jury returned an indictment

charging Ridley with six counts of perjury. According to Ridley’s declaration filed

in support of the instant petition for a writ of coram nobis, Ridley asked her trial

counsel what immigration consequences a guilty plea might carry. According to

Ridley’s declaration, her counsel’s “response was simply that [Ridley] had nothing

to worry about”: “He assured me that I did not face any adverse immigration

consequences and that I would not be excluded from the United States.” Ridley

pleaded guilty to three of the six counts in the indictment. On May 15, 2000, the

district court sentenced Ridley to two months in prison, three years of supervised

release, and an assessment of $150. In 2012, the Department of Homeland

Security initiated removal proceedings against Ridley based on the 1993 perjury

conviction.

      Ridley petitioned the district court below for a writ of error coram nobis.

“[T]he writ of error coram nobis is a highly unusual remedy, available only to

correct grave injustices in a narrow range of cases where no more conventional

remedy is applicable.” Riedl, 496 F.3d at 1005. “[W]hereas petitions for habeas


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corpus relief and motions for relief under 28 U.S.C. § 2255 may only be filed by

persons who are in government custody, ‘[t]he writ of error coram nobis affords a

remedy to attack a conviction when the petitioner has served his sentence and is no

longer in custody.’” United States v. Kwan, 407 F.3d 1005, 1009 (9th Cir. 2005)

(alteration in original), abrogated on other grounds by Padilla v. Kentucky, 559

U.S. 356 (2010). “Specifically, the writ [of coram nobis] provides a remedy for

those suffering from the lingering collateral consequences of an unconstitutional or

unlawful conviction based on errors of fact and egregious legal errors.” Id. at

1009–10. To establish that she qualifies for coram nobis relief, Ridley must prove

the following four factors: “(1) a more usual remedy is not available; (2) valid

reasons exist for not attacking the conviction earlier; (3) adverse consequences

exist from the conviction sufficient to satisfy the case or controversy requirement

of Article III; and (4) the error is of the most fundamental character.” Id. at 1011

(quoting Estate of McKinney By & Through McKinney v. United States, 71 F.3d

779, 781–82 (9th Cir. 1995)).

      The government concedes that Ridley has met the first three factors.

Therefore, we address only the fourth factor, “error [] of the most fundamental

character.” Id. Ridley “may satisfy the fundamental error requirement by

establishing that [s]he received ineffective assistance of counsel” in her perjury

case. Id. at 1014. To demonstrate ineffective assistance, Ridley “must prove 1)


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that h[er] counsel’s performance fell below an objective standard of

reasonableness, and 2) that the deficiency in h[er] counsel’s performance

prejudiced h[er].” Id. at 1014–15. (citing Strickland v. Washington, 466 U.S. 668,

688, 692 (1984)).

      The government concedes that the district court’s reasoning was erroneous

as to both prongs of Strickland. On the first prong, the district court found that

trial counsel did not provide deficient performance because “even if Defendant’s

counsel failed to disclose the immigration consequences of her plea deal, other

evidence indicates that Defendant was fully aware of such ramifications.” This

was error. “The government’s performance in including provisions in the plea

agreement, and the court’s performance at the plea colloquy, are simply irrelevant

to the question whether counsel’s performance fell below an objective standard of

reasonableness.” United States v. Rodriguez-Vega, 797 F.3d 781, 787 (9th Cir.

2015). On the second prong, the district court erred insofar as it required Ridley to

show that “she would have fared better at trial or successfully negotiated a more

favorable plea deal.” “[W]hen a defendant claims that his counsel’s deficient

performance deprived him of a trial by causing him to accept a plea, the defendant

can show prejudice by demonstrating a ‘reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on




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going to trial.’” Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985)).

      Although it admits the decision below was based on legal error, the

government asks this court to affirm the district court because Ridley supported her

ineffective assistance of counsel claim with only “a self-serving declaration

containing post hoc, conclusory, and uncorroborated assertions.”1 The government

argues that Ridley therefore “failed to prove facts that satisfy either prong of the

Strickland test, and this Court should not permit defendant’s self-serving and

conclusory declaration to upset the finality of three perjury convictions that are

now over 17 years old.”

      Ordinarily, “that an affidavit is selfserving bears on its credibility, not on its

cognizability,” SEC v. Phan, 500 F.3d 895, 909 (9th Cir. 2007), and “[c]redibility

is properly for the judgment of the trier of fact.” Davison v. United States, 368 F.2d

505, 507 (9th Cir. 1966); see also Sch. Dist. No. 1J, Multnomah Cty., Or. v.

ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993) (“The district court must make a

finding of fact that the affidavit was a ‘sham.’”). However, here, the district court

dismissed the petition based on an erroneous application of Strickland. Thus the

trier of fact—the district court—made no findings regarding the credibility of the



1
 This court “may affirm on any basis supported by the record.” United States v.
Pope, 686 F.3d 1078, 1083 (9th Cir. 2012).

                                           5                                     16-55469
assertions in Ridley’s declaration. Rather than do so for the first time on appeal,

we reverse and remand for the district court to complete the necessary fact-finding

and to apply the correct legal standards as set forth in Strickland.

      The government notes that “[c]ourts should not upset a plea solely because

of post hoc assertions from a defendant about how [s]he would have pleaded but

for [her] attorney’s deficiencies.” Lee, 137 S. Ct. at 1967. Rather, “[j]udges

should instead look to contemporaneous evidence to substantiate a defendant’s

expressed preferences.” Id. But here the contemporaneous evidence is

inconclusive. The government argues that the warnings in the plea agreement

“cast substantial doubt on the credibility of defendant’s allegations of misadvice”

because the warnings contradict the purported misadvice of Ridley’s trial counsel.

Surely, the argument goes, counsel would not have assured Ridley that she would

not face immigration consequences in the face of the plea agreement’s

contradictory warnings. But these two facts are not necessarily inconsistent:

counsel may have dismissed what he perceived as boilerplate warnings in the plea

agreement if he sincerely believed—as Ridley now claims—that Ridley would not

in fact face any adverse immigration consequences. On the other hand, it is

undisputed that Ridley has been a legal permanent resident of the United States

since 1973 and has substantial family ties here. These facts tend to corroborate

Ridley’s assertion that she would not have pleaded guilty but for counsel’s claimed


                                           6                                     16-55469
deficient performance. Again, the district court should weigh the evidence in the

first instance.

       Because we conclude that a remand to the district court is necessary in any

case, we do not decide whether the district court abused its discretion by

dismissing the petition without first holding an evidentiary hearing.

       Therefore, we remand for the district court to hold an evidentiary hearing

and assess the credibility and sufficiency of Ridley’s evidence, in view of all the

evidence bearing thereon.

       REVERSED and REMANDED.




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