Mendoza v. United States, No. 11-3958; Third Circuit; opinion by Aldisert, U.S.C.J.; decided June 28, 2012. Before Judges Ambro, Vanaskie and Aldisert. On appeal from the District of New Jersey. [Sat below: Judge Pisano.] DDS No. 14-8-7382 [8 pp.]

Mario Mendoza, who was born in Ecuador and lives in New Jersey, was charged with fraudulently inducing the Federal Housing Authority to insure mortgage loans. His counsel, Glen Cavanagh, explained he could avoid prison by pleading guilty. Cavanagh did not apprise Mendoza that, as an aggravated felony, his crime would lead to mandatory deportation.

Mendoza pleaded guilty. Prior to sentencing in September 2006, he learned from his presentence investigation report that his conviction might result in removal.

Sometime after sentencing, the government instituted removal proceedings. In January 2010, after completing his sentence, Mendoza filed a motion pursuant to 28 U.S.C. § 2255 and Rule 32(d) of the Federal Rules of Criminal Procedure to vacate his sentence and withdraw his plea, arguing that Cavanagh did not warn him of the immigration implications of pleading guilty to an aggravated felony and that it was an open question whether a lawyer renders constitutionally deficient assistance by failing to highlight a plea’s immigration consequences. In March 2010, the Supreme Court answered that question in the affirmative.

Nine months later, Mendoza filed a petition for a writ of error coram nobis, arguing that had he been aware that a guilty plea would subject him to deportation, he would not have pleaded guilty but would have attempted to negotiate a better deal or risked trial. The district court denied his petition on the alternative grounds that he filed after an unreasonable delay and did not assert his innocence. Mendoza timely appealed.

Held: Mendoza’s delay in filing his coram nobis petition, in which he sought to vacate his plea due to his counsel’s failure to apprise him that his conviction would lead to deportation, was unreasonable and forestalls his efforts to seek relief.

The court says the rare remedy of a writ of error coram nobis may be used to attack allegedly invalid convictions that have continuing consequence when the petitioner has served his sentence and is no longer in custody for purposes of 28 U.S.C. § 2255. Such relief is appropriate only to correct errors for which there was no remedy available at the time of trial and where sound reasons exist for failing to seek relief earlier.

The court then says that although Mendoza’s counsel’s deficient performance may have precluded him from seeking relief at the time of his plea, he cannot show any sound reasons for his lengthy delay in seeking relief. He became aware of his plea’s deportation consequences in September 2006 yet did not allege until 2010 that his counsel was ineffective. He attributes the delay to a combination of his mistaken belief that his cooperation with immigration officials would stave off his deportation and the absence of U.S. Supreme Court precedent regarding a counsel’s duty to warn of a plea’s immigration consequences.

The court concludes these are not sound reasons. Mendoza’s cooperation was a condition of his probation, not of his remaining in the country. Further, Padilla did not create a “new rule” for retroactivity purposes because lawyers in the Third Circuit have long been expected to advise clients of a plea’s deportation implications. Mendoza has known of the threat of removal since 2006, and his § 2255 motion to vacate his conviction because of ineffective assistance — filed six months before Padilla and a full year-and-a-half before his present petition showed that he did not need the U.S. Supreme Court’s clarification to have raised his present contentions. That the law is unsettled does not justify a delay in filing a coram nobis petition, nor does the record reveal any other sound reason for waiting so long to seek relief.

Finally, even if Mendoza had properly and timely raised his claim of ineffective assistance, his efforts to withdraw his plea would almost certainly fail. To withdraw a plea of guilty, a defendant must (1) show reasons for the withdrawal, (2) assert his innocence, and (3) show that the withdrawal will not unduly prejudice the government. Cavanagh’s egregious error and Mendoza’s looming removal constitute a strong reason to withdraw the plea. But Mendoza has not asserted his innocence; rather, he has claimed merely that he would have sought a more favorable plea deal or risked trial. It does not appear that such a speculatively favorable plea deal existed, nor that a trial would have resulted in anything less than a conviction. More important, the government would certainly be unduly prejudiced by the reprosecution of a case involving facts nearly a decade dormant.

For appellant — Thomas R. Ashley. For appellee — Paul J. Fishman, U.S. Attorney, and Norman Gross, Assistant U.S. Attorney (Mark E. Coyne, Chief of Appeals Division; Office of the U.S. Attorney).