Mary Colon v. United States, 708 F. App'x 125

Background

Mary Colón pleaded guilty pursuant to a plea agreement to conspiracy to distribute ≥1 kg of heroin and was later subject to removal consequences tied to that conviction.
Colón filed a petition for a writ of error coram nobis alleging ineffective assistance of counsel for failing to advise that the conviction would trigger mandatory removal.
The district court denied the coram nobis petition; Colón appealed.
The Fourth Circuit reviews coram nobis denials for abuse of discretion, factual findings for clear error, and legal questions de novo.
The court emphasized coram nobis’s four prerequisites: lack of other remedies, valid reasons for delay, sufficiently adverse consequences, and an error of the most fundamental character.
The panel found Colón failed to show valid reasons for not earlier challenging the conviction and failed to show prejudice (fundamental error) from counsel’s alleged deficiency.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether coram nobis is available here	Colón argued counsel failed to advise plea would mandate removal, warranting coram nobis	Government argued coram nobis relief is unavailable because Colón could have raised the claim earlier and failed to show fundamental error	Denied: coram nobis unavailable to Colón because she lacked valid reasons for delay and failed to show fundamental error
Whether Colón had valid reasons for delay in seeking relief	Colón contended uncertainty about whether immigration would initiate removal justified waiting	Government contended she could have used pre-sentencing plea withdrawal, direct appeal, or §2255 and that subjective uncertainty is insufficient	Held for government: subjective uncertainty does not excuse a >3-year delay; she could have sought earlier relief
Whether ineffective assistance constitutes a fundamental error here	Colón argued Padilla error (failure to advise of immigration consequences) is fundamental	Government argued Colón failed to show a reasonable probability she would have rejected the plea or obtained a different plea avoiding removal	Held for government: Colón did not show it was rational to reject the plea or a reasonable probability of a different plea; no fundamental error
Whether Colón was prejudiced by counsel’s performance	Colón argued rejection of the plea could have produced a plea avoiding immigration consequences	Government argued there was no reasonable probability of negotiating a plea that avoided immigration consequences	Held for government: no demonstrated prejudice; therefore no coram nobis relief

Key Cases Cited

Bereano v. United States, 706 F.3d 568 (4th Cir.) (sets forth coram nobis four-prerequisite framework)
United States ex rel. Drakeford v. Tuomey, 792 F.3d 364 (4th Cir.) (appellate courts may affirm on any ground apparent in the record)
United States v. Morgan, 346 U.S. 502 (Sup. Ct.) (coram nobis is an extraordinary remedy requiring sound reasons for delay)
United States v. Ubakanma, 215 F.3d 421 (4th Cir.) (pre‑sentence motion to withdraw plea is an avenue to raise ineffective assistance after plea)
United States v. Baptiste, 596 F.3d 214 (4th Cir.) (§2255 may be used to challenge convictions in many circumstances)
Mendoza v. United States, 690 F.3d 157 (3d Cir.) (subjective uncertainty about removal proceedings does not excuse delay)
United States v. Akinsade, 686 F.3d 248 (4th Cir.) (ineffective assistance can be a coram nobis fundamental error)
Padilla v. Kentucky, 559 U.S. 356 (Sup. Ct.) (counsel must advise about immigration consequences in certain contexts)
Pilla v. United States, 668 F.3d 368 (6th Cir.) (analyzing whether rejecting a plea would have been rational under Padilla)
United States v. Swaby, 855 F.3d 233 (4th Cir.) (prejudice shown when reasonable probability exists of negotiating a plea that avoids immigration consequences)