Lorna Clarke v. United States
2013 U.S. App. LEXIS 502
| 7th Cir. | 2013Background
- Petitioner, a lawful permanent resident but non-citizen, pleaded guilty to a single fraud count connected to a broader scheme that defrauded Wal‑Mart of over $250,000; total loss exceeded $10,000, making her conduct an aggravated felony under immigration law.
- Removal proceedings began in August 2011, after she completed her prison term; an immigration judge ordered removal to Jamaica and the order was executed.
- Petitioner filed a §2255 motion in October 2011 seeking to set aside her conviction on the theory that her counsel failed to advise her of potential removal consequences; her lawyer had noted “immigration consequences” but gave no specifics.
- She had been sentenced in 2010 to 14 months’ imprisonment, followed by two years of supervised release, and restitution; she did not appeal.
- Section 2255’s one-year limitations typically runs from final judgment, but tolling can occur under §2255(f)(4) if the claim could be discovered later with due diligence; she argued tolling applies due to discovery of immigration consequences.
- The court ultimately held the §2255 motion untimely and denied relief, distinguishing Padilla and finding no effective assistance that would warrant tolling or coram nobis relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to advise on removal was ineffective assistance | Petitioner argues lack of explicit removal advice violated duties | Lawyer’s warning of immigration consequences sufficed to put her on notice | No relief; timely inquiry existed and Padilla distinguished |
| Whether the §2255 statute of limitations was tolled | Due diligence should permit discovery of immigration consequences | Notice occurred when counsel mentioned possible immigration consequences; no tolling | Not tolled; filing was more than a year after final judgment and plea notice. |
| Whether equitable tolling applies | Despite diligence, tolling should permit relief | Diligence lacking; no equitable tolling | Equitable tolling not available |
| Whether coram nobis was available | Coram nobis could be used since §2255 time bar | Coram nobis unavailable where §2255 remedy exists | Not available; §2255 adequate and petition filed during supervised release |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (aggravated felony definition includes fraud losses over threshold)
- Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010) (advising client on immigration consequences matters)
- Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000) (ineffective assistance can rely on failure to advise; but context matters)
- Johnson v. United States, 544 U.S. 295 (2005) (gives framework for notice of immigration consequences)
- Allen v. Hardy, 478 U.S. 255 (1986) (timeliness standards for §2255 filings)
- Moshier v. United States, 402 F.3d 116 (2d Cir. 2005) (analysis of finality and timing for §2255)
- Holland v. Florida, 130 S. Ct. 2549 (U.S. 2010) (equitable tolling principles in §2255 context)
- Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006) (duty to inquire about immigration consequences at plea)