United States v. Temitope Akinsade

America, UNITED STATES

Plaintiff-Appellee, AKINSADE,

Temitope Defendant-

Appellant.

No. 09-7554. Appeals, States Court

Fourth Circuit. 9, 2011.

Argued: Dec. July

Decided:

ARGUED: Ragland, Thomas Kirk Morris, LLP, D.C., Duane Washington, for Appellant. Sproule, Christen Anne Office Greenbelt, of the United Attorney, States Maryland, Appellee. ON BRIEF: Basile, Greenbelt, Richard Maryland, S. Rosenstein, for Appellant. Rod J. Attorney, Baltimore, States Maryland, Su, Jonathan C. Assistant United States Attorney, Office of the United States At- Greenbelt, torney, Maryland, for Appellee. TRAXLER, Before Judge, Chief WYNN, Judges. GREGORY and Circuit attorney on at least two different occa- published and remanded Vacated immigration- con- potential sions about the wrote the Judge GREGORY opinion. Both sequences guilty plea. times his Judge opinion, which WYNN majority attorney him that he not a could joined. Judge TRAXLER wrote misadvised Chief deported single on this offense. be based dissenting opinion. only told him that he could attorney His be OPINION felony deported if he had two convictions. contrary This to the law at that advice was GREGORY, Judge: Circuit 1101(a)(43)(M)(i), §§ time. See 8 U.S.C. Temitope appeals Akinsade Appellant (1952). 1227(a)(2)(A)(iii) petition denial of for court’s his the district nobis to 28 pursuant error coram writ of Relying attorney’s advice on his that one claiming that denied § 1651 he was U.S.C. of not a deporta- count embezzlement was of counsel when effective assistance offense, pled guilty. Akinsade The ble a bank plead guilty to embezzlement plea agreement made no mention that de- a in violation of 18 U.S.C. employee portation mandatory possible or even was reasons, For the felony. following B Class During the due to offense. Rule 11 petition and vacate Akin- grant we court plea colloquy, the district reviewed sade’s conviction. plea: civil his ramifications of [Pjeople The who are found Court: I. felonies, guilty right often lose their of old, a Ni- thirty years Akinsade is Now vote, professional to certain licenses gerian legally to America citizen who came them, may may not be denied be able age of July 1988 at the seven and be- I know jury. serve on a And felons permanent May came a lawful resident jobs can’t possess firearms. Certain nineteen, age at the 2000. of may you. be denied as at a employed Akinsade was a teller you probation If parole are on with Hill, Aspen Mary- Chevy Chase bank that can be system, another affected. During employment, his Akinsade land. citizen, you if you Or are not a could neighborhood cashed checks for several things be All of these deported. could pay- who were not acquaintances, listed by being found of triggered checks, deposited portion on the a ees felony. you a Do understand that? of from those into his proceeds checks Yes, Honor. Akinsade: Your Eventually, own account. Akinsade re- ported supervisor, the transactions his Knowing you that do Court: still the FBI. inter- who then contacted When wish plead guilty? later, by the FBI several viewed months Yes, Your Honor. Akinsade: agreed cooperate against Akinsade J.A.(I) Supp. for whom he the checks. individuals cashed custody nor taken Neither arrested into the district court On June sen- time, appear Akinsade was ordered to of impris- tenced to one month Akinsade in court at a later date. community onment served in con- to be finement, three-year supervised of March a term

On release, special em- assessment of charged with embezzlement bank $100. $16,400. recog- At court sentencing, in the amount of ployee (1948). paid nized Akinsade had the full Considering § 656 the Gov- U.S.C. restitution, amount which came to plea agreement, ernment’s Akinsade asked $8,000. The court also determined that Under threat of deportation,2 Akinsade petition filed this writ error coram Akinsade’s conduct was “out of character” nobis in alleging federal court a violation family background. J.A. 41. based on of his Sixth rights Amendment due to his mini- gave The court thus Akinsade the counsel’s misadvice. The Government ar- sentencing mum under sentence gued that Akinsade was not entitled to this guidelines. extraordinary remedy alleged because he sentence, serving After Akinsade at- “a mere garden-variety ineffective assis- University Maryland tended the where tance of counsel claim” that was “fundamental error.” degree comput- he received a bachelor’s J.A. 50.

er science. He later earned a master’s After conducting hearing, a degree university, from the graduating court denied petition. the The court held GPA, with a 3.9 and received a fellowship that while counsel’s affirmative misrepre- from the National Science Foundation. sentations rendered his assistance consti- leadership tutionally Akinsade then entered into a deficient under the first prong of Strickland v. program Washington, Electric 466 Company General U.S. 668, 687, 2052, 104 S.Ct. 80 L.Ed.2d 674 upstate New York. moved to (1984), prejudiced Akinsade was not as years Almost nine after Akinsade’s con- required under Strickland’s second prong. viction, 8, 2009, January immigration It reasoned that its admonishment of the authorities arrested at home and potential for deportation during plea the Batavia, placed him in detention in New colloquy cured counsel’s affirmative mis- detention, York. After seventeen months representations. timely appeals immigration authorities Akin- released petition.3 the denial of the charged removability sade and him with II. aggravated

an felon under 8 U.S.C. 1227(a)(2)(A)(iii) based on his 2000 em- This Circuit has not clearly ex pressed bezzlement conviction.1 the standard with which to review arguments 1. At oral the Government May stated rendered its decision in Padilla. 2010, nine-year delay the reason for the abeyance the case was removed from Akinsade’s arrest for was due to parties completed briefing and the their tak- arising receipt "the confusion” from his of a Having into consideration Padilla. re- green card between the time of the parties’ viewed the Padilla decision and the agreement briefs, and his sentence for embezzle- we decline to address the issue of ment. retroactively applicable whether Padilla is only prong this case. Padilla reached one stay deporta- party challenges 2. Akinsade moved for a of his Strickland and neither proceedings pending appeal. tion holding this We district court’s that the affirmative 14, April During misrepresentations denied his motion on provided by Akinsade's arguments, oral the Government constitutionally informed the counsel were deficient. Con- appeal deporta- Court that sequently, of his the Padilla decision is not "a nec- pending essary tion was before the Second Circuit. predicate to the resolution” of the is- appeal sues raised on and we need not reach Bohlen, brief, retroactivity Caspari v. opening issue. 3. After Akinsade filed his 383, 390, 948, appeal 114 S.Ct. 127 L.Ed.2d 236 Government moved to hold the (1994) (noting abeyance pending Supreme retroactivity principle that the Court's deci- Lane, 288, 301, Teague Kentucky,-U.S.-, set forth in v. sion in Padilla v. 489 U.S. 1473, 1060, (2010). (1989), 176 L.Ed.2d 284 We 109 S.Ct. 103 L.Ed.2d 334 is granted suspended jurisdictional the motion and all brief- not such that it must be raised courts). ing. Supreme On March Court and decided (1979) 186, 2235, 60 L.Ed.2d 805 of writ petition court’s denial district (internal citation marks and quotation States v. See United error coram nobis. omitted) by statute on other (superseded 94-7322, 1996 at *2 Wilson, WL No. 1996) grounds). petitioner seeking this relief (4th (finding Cir. Feb. “(1) must remedy show more usual not abuse its discretion court did (2) available; not valid reasons exist for writ of er petitioner’s when it denied (3) attacking earlier; the conviction evidentiary without an coram nobis ror adverse exist from the con- applied circuits have hearing). Other satisfy viction sufficient to the case or in this con standard abuse-of-discretion controversy requirement III; of Article Peter, F.3d United States text. See (4) the error is of the most fundamen- (11th Cir.2002); v. Unit Fleming Hirabayashi tal character.” v. United (2d Cir.1998) States, 146 F.3d ed Cir.1987). States, (9th 591, 604 States, 93 F.3d Foont v. United (quoting reasons, following we hold that For (2d Cir.1996)). the same apply We requirements. Akinsade has met all four review “the district and thus standard deny the writ ultimate decision court’s First, Akinsade cannot seek relief Santos-Sanchez for abuse of discretion.” remedies for a direct or typical under (5th States, 327, 548 F.3d 330 v. United judgment collateral attack of federal Cir.2008), grounds by other abrogated on longer in custo sentence because he is no - -, 130 Kentucky, v. U.S. Padilla (1948); dy. See 28 U.S.C. 2255 28 (2010). 1481, 1473, 176 L.Ed.2d 284 S.Ct. (1948). Second, § 2241 valid rea U.S.C. attacking sons exist for Akinsade not resort, remedy of last As a physically, conviction earlier. Until de only granted coram nobis is writ of error 2009, by immigration authorities tained an error is “of the most fundamen where challenge Akinsade had no reason and there exists no other tal character” advice, attorney’s up conviction as his remedy. States v. Man available time, appeared accurate.4 point (4th Cir.1988). del, 1067, 862 F.2d 1075 “ to the third coram nobis re respect With narrowly ‘extraor The writ is limited to the risk of quirement, dinary’ presenting cases circumstances ” suffi adverse of conviction justice.’ compelling its use ‘to achieve controversy create a case or cient to Denedo, 904, 129 United States v. 556 U.S. required by Article III of the Constitution. (2009) 2213, 2220, L.Ed.2d 1235 S.Ct. 173 Kwan, 1005, 407 United States v. F.3d See (quoting Morgan, v. 346 United States (9th Cir.2005), abrogated on other 1014 502, 511, 247, L.Ed. U.S. 74 S.Ct. 98 248 Padilla, 130 S.Ct. 1473. grounds (1954)). Thus, provides writ relief pro requirement, Under the final we must cases where the error “rendered whether irregular and invalid.” consider counsel’s misadvice is an ceeding itself Addonizio, 178, 442 “most fundamental character” v. error United States court court remanded the case to the district 4. The dissent contends that the district court any necessary findings. finding factual did not make a as to whether valid to make however, why the record demonstrates explain did not this case reasons exist to appropriate support that Akinsade had not discovered seek relief sooner. To contention, physical- him until he was v. Unit counsel misadvised this the dissent cites Nicks States, 161, Cir.1992). (2d immigration ly detained authorities nine ed F.2d 167-68 case, years record is sufficient later. Because the In that the Second Circuit concluded issue, we need not re- to decide the that the it was insufficient to for us record before result, requirement. mand the case. resolve this Id. As dez-Monreal, (4th required that coram nobis relief is 404 Fed.Appx. such Cir.2011) Denedo, justice.” (finding that the defendant “achieve prejudiced by this, counsel’s failure To determine we examine the to ad of deportation consequences when, vise of Akinsade’s ineffective assistance merits during proceeding, his Rule 11 the defen claim to decide whether Akin of counsel “affirmatively acknowledged dant his un Mandel, prejudiced. has See sade been derstanding that his definitely ‘could F.2d at 1074-75. difficult, make it if not impossible, for successfully A. stay legally [him] in the ”); Yahya, United States’ State v. No. 1 prejudice, To show Akinsade must 0AP1190, (Ohio 2011 WL at *5 that but er demonstrate for his counsel’s 2011) (“[A] Ct.App. Nov. trial court’s ror, probability there is reasonable delivery of the warning defendant [that pled guilty he would not have and would might be deported] would not necessarily going have insisted on to trial. Hill v. attorney’s cure her specific regard error Lockhart, 474 U.S. of a plea.”). (1985). L.Ed.2d 203 The district court Thus, Foster, in United States determined that Akinsade had not been (4th Cir.1995), this Circuit deter prejudiced because its admonishment re mined that the defendant had not been garding potential immigration conse prejudiced by any allegedly incorrect in quences and Akinsade’s gave formation counsel him regarding his acknowledgement of that admonishment sentence because of the district court’s functioned to correct the error of coun “careful explanation potential of the severi affirmative misrepresentations. sel’s We ty of the during sentence” 11 Rule in disagree light equivocal of the nature of hearing. part Id. at 88.5 As of the “care admonishment, counsel’s affirmative explanation,” ful the district court “specifi clearly contrary law, that is misadviee to cally [the informed of the maxi defendant] severity consequence and the of the itself. faced,” mum penalties he and asked may defendant be unable to show whether he understood that he expos was prejudice proceeding if at the Rule 11 “possible penal himself to maximum provides district court an admonishment of up years prison” ties to 20 in “a plus that corrects the misadviee and the defen supervised release term of as much as five expresses dant years he understands the years.” and at least three Id. The admonishment. United States v. Hernan district court further asked whether the Lambey, Although The dissent cites United States v. Id. Lambey at 1395. referred to a 1389, (4th Cir.1992) (en banc), admonishment, keep curative we should in passage where this Circuit noted that in the context of mind that this was in the context of a deciding 32(d) whether a presented challenge defendant has Rule that centers on the fair- 32(d) just "fair and proceeding. reason” for a Rule motion ness of a Rule 11 See id. at 1394 (a 32(d) guilty plea, may “essentially to withdraw a a district court challenges Rule motion proceeding look outside of the Rule 11 proceeding either the fairness of the Rule 11 promise events or information that affected the fair- fulfillment of a or condition proceeding. Lambey emanating proceeding.” ness of the Court (emphasis from added)). context, reasoned that the outside pro- information Even in this we found erroneous, curing not have affected the fairness of the Rule 11 bative the fact that in deficient, proceeding constitutionally if a district court "corrects or but not information counsel, given by given by clarifies erroneous information the court’s admonishment (em- attorney the defendant's and the defendant was "clear and correct Id. at [] [].” added). understanding phasis admits the court’s advice.” Kwan, 407 immigration affect his status. that “the extent understood

defendant Hill, offense, (quoting 474 U.S. F.3d at particular in this involvement [his] 366) record, that a defen- any” (explaining would affect if S.Ct. past [and] [his] court dem- inquiry regarding deportation the district dant’s Id. Since his sentence. em- placed particular defendant] “that he [the informed onstrates “properly had faced,” in consequences] he this Cir- phasis [immigration sentence potential preju- guilty”) that “he could not be not to deciding plead whether or cuit concluded omitted). (internal counsel by any quotation misinformation marks diced him.” Id. provided allegedly Foster, specificity recognized As of the district court’s admon- and breadth decidedly is dif before us The case Foster, important are considerations court’s ishment Unlike ferent. preju- is deciding whether the defendant far from a “careful ex admonishment equally are diced. These considerations deporta planation” of the advice Instead, this case where important the district court warned tion. and the conse- deporta given patently erroneous plea could lead to that Akinsade’s severe,” “particularly at stake are equivocal quences admon general tion. This Padilla, (quoting Fong at 1481 counsel’s 130 S.Ct. is insufficient to correct ishment States, Ting v. 149 U.S. that Akinsade’s Yue affirmative misadvice (1893)), 37 L.Ed. 905 categorically deportable crime was not likely of both and will result the “loss importantly, More the admonish offense.6 life, or of all that makes life property inform” Akinsade “properly ment did not White, Fung by pleading living,” Ng worth Ho v. he faced consequence Thus, Ak 66 L.Ed. 938 mandatory deportation. guilty: (1922). “Preserving right the client’s deporta not have known that insade could may in the be more mandated remain United States legally tion was a this, than alleges important potential to the client plea. of his Had he known jail Cyr, trial sentence.” INS v. St. 533 U.S. go that he would have chosen to (“Had 289, 323, I 121 150 L.Ed.2d 347 plead guilty. rather than J.A. 56 S.Ct. (2001). consequence at my immigration severity would known that status by I and the clear error made counsel impacted by guilty plea, be a would issue ....”) a cura- (emphasis rendering a in the advice warrants plea have entered such added). specific and un- over certain admonishment is Akinsade’s concern tive deportation the conse- equivocal the fact that he as to deportation is evident of conviction. plea quences counsel twice if a would asked his 07-1023, 2925048, at *3 court's Crim. No. 2010 WL In other cases in which the district (D.N.J. 2010) to have (finding petitioner admonishment was found corrected Jul. regarding counsel's ineffective assistance de prejudiced counsel’s failure to was not portation, inquired the courts into whether deportation consequences of because advise specific warning the defendant understood he would the district court admonished that pertaining deportation. See Hernandez deportation subject and further himself to -Monreal, 715; Fed.Appx. 404 Gonzalez deportation asked whether he understood the States, 5463(AKH), United Nos. 10 Civ. 08 Cr. plead guilty). consequence wanted to and still 146(AKH), (S.D.N.Y. 2010 WL *1 Here, elicit a direct the district court did not 03, 2010) (The Sept. twice ad district court admonishment, response deportation to the potential vised the defendant that he faced a asked if Akinsade understood but instead specifically the defen and asked warnings deporta- generalized of which list of given wanted to dant that risk whether still part. tion was a Cruz-Veloz, guilty.); plead United Stales v.

255 today change -, does not v. Cooper, Our decision 556 U.S. Lafler 1376, 1386, (2012), S.Ct. impose any obligations new 182 L.Ed.2d 398 role of or explained which that for a fair trial proceedings. court in Rule 11 pre-trial function as cure for a error such duty knowing court’s to ensure a as ineffective assistance during voluntary plea arises from the Fifth process, that “particular error” must be process due guarantee Amendment’s of Similarly, addressed at trial. in order for right and thus affords defendants a dis- a district court’s admonishment to cura- right tinct from the Sixth Amendment tive, it particular should address the issue of counsel. While we effective assistance underlying affirmative misadvice. recognized inter-relationship have be- Here, the district court’s admonishment tween the two amendments the context upon touches deporta- Smith, see States v. guilty pleas, but particular tion does not correct the (4th Cir.2011), 640 F.3d we have given by misadvice counsel. protec- suggested never the sufficient automatically right tion of one corrects B. In- deficiency constitutional of the other. Akinsade still must show that the deed, rejected Supreme Court has misadvice is a “but for” cause of his enter very argument. similar See Missouri v. ing guilty plea. prejudice Under the U.S.-, Frye, 566 Strickland, prong of potential “[t]he (2012)(explaining L.Ed.2d 379 that the strength of the state’s case must inform Padilla, (2010), 130 S.Ct. 1473 Court analysis, our inasmuch as a de reasonable rejected argument the state’s a know- surely fendant take into account.” voluntary plea supersedes defense (4th Green, Ostrander v. affirmative misadvice on deporta- counsel’s Cir.1995) Hill, 59-60, (citing 474 U.S. at result, consequences). tion As a we in no 366) grounds overruled on other way suggest performing its role Netherland, (4th by O’Dell v. F.3d during proceeding, a district court Cir.1996) (en banc). Applying this stan “clairvoyant” “guess” to be or must needs dard, we have held that counsel’s affirma about whether a defendant has been misin- tive misadvice on collateral consequences regarding particular consequence formed prejudicial to a where the When, here, plea. of a the claim raised prosecution’s “proved evidence to be more counsel, that of ineffective assistance enough” than for a verdict but was prejudice the overall focus must be on the Ostrander, “hardly invincible on its face.” arising from perform- counsel’s deficient at 46 F.3d 356. We have further found If a ance. district court’s admonishment defendant, prejudice where the whose happens per- so to correct the deficient counsel misinformed him of deportation prejudice;

formance then there is no how- consequences, significant had familial ties ever, correction, if there is no then our to the United States and thus would rea scrutiny is not directed toward the district sonably going risk to trial instead of plead court but appropriately to the constitution- ing guilty and certain facing deportation. al offender. Gajendragadkar, United States v. No. 97- Finally, (4th we note that requiring 7267, 352866,at *2 1998WL Cir. June 1998). 3, curative admonishment in this case that Gajendragadkar In we reasoned properly informed Akinsade that his “[although that present trial would deportable to a was offense is consistent it deportation, provide risk would [the Supreme opportunity with the Court’s recent decision defendant] contest 256 at- that, anyway had he known’ that his evidence, failing or

Government’s Gajendragadkar, torney was mistaken.” loss.” challenge the Government’s estimate Ostrander, 352866, *2 (quoting at 1998 WL Id. 356). Thus, that coun- at we find 46 F.3d Gajendragadkar ap- reasoning Our misrepresentations that affirmative sel’s guilty to a pleaded AMnsade plies here. non-deportable issue was the crime fraud that deportable “involve[d] offense met Akinsade. Akinsade has prejudiced or the loss to the victim deceit in which or prong two of Strickland. his burden under $10,000.” 8 U.S.C. exceeded] victims so, has demonstrated that doing also see also (a)(43)(M)(i) (1952); § 1101 a fundamental error neces- he has suffered (1952). 1227(a)(2)(A)(iii) § Before U.S.C. Kwan, sitating coram nobis relief. See court, counsel as- Akinsade’s (ineffective F.3d at 1014 assistance trial, gone if AMnsade had serted error); is a fundamental counsel argued that the amount of he would have Castro, (5th States v. F.3d $8,000. His counsel noted loss (same). Cir.1994) pay ordered to restitution AMnsade was $8,000, paid amount of which he had III. full, have and further Akinsade would petition Accordingly, grant we with a third disputed his involvement and vacate AMn- writ of error coram nobis $10,000 placed check that over the conviction.7 sade’s go the choice to Consequently, amount. VACATED & REMANDED rational and we cannot conclude trial is “ ‘a reasonable defendant [AMn- TRAXLER, dissenting: Judge, Chief for, received, shoes, having asked sade’s] lawyer upon encouraging Temitope alleges advice’ about Akinsade and relied by telling deportation, pled provided the risks of ‘would have ineffective assistance arguments opinion preclude 7. After were heard in this ond Circuit does not this oral case, Court, opinion in Appeals, the Second Circuit issued its other Court of from Holder, (2d coming to a different conclusion on the same case, Cir.2012) May 2012. In that Akin- issue, legal parties and the have not directed challenged Immigration sade the Board of any precedent this Court to in this Circuit that ("BIA”) Appeals's decision to affirm an order prevent Department of Homeland of removal on the basis that Akinsade’s em- Security initiating pro- from new removal qualified bezzlement conviction as a crime of ceedings against Akinsade under more favor- deceit, deportable under fraud and offense Department able law. The is clear that has Act, Immigration Nationality that a conviction for embez- “concede[d] 101(a)(43)(M)(i), § U.S.C. employee ... zlement a bank does not 1101(a)(43)(M)(i). The Second Circuit va- convict- establish that the defendant has been removal, finding cated the order of that under involving aggravated felony offense ed of categorical approach, a modified deceit,” although Depart- fraud or support the record of conviction did not BIA’s judicial ment has chosen not to seek further BIA conclusion and remanded case to the or administrative review on Akinsade’s re- proceedings with the for further consistent time,” proceedings moval "at this as this May opinion. F.3d at 147. On explained, Court has it is not foreclosed from supplemental briefing, requested this Court doing Appellant's Supple- so in future. instructing parties to address what effect Br., 2, p. Finally, mental Ex. this Court opinion case. the Second Circuit has on this position ignore Department's that cannot briefs, reviewing parties’ After this Court longer no exist in the threat of removal would v. Holder no concludes that Akinsade has Fourth were to va- [the Circuit] this case binding legal on our decision and does effect “if guilty plea the embezzlement of- guarantee cate the to not that Akinsade will never face added). deportation (emphasis due to his conviction. The Sec- fense.” Id. guilty he would not be I. pled him if he Akinsade claims for his offense. deported Akin- complete analysis true and of him unaware that he could this advice left sade’s claim for coram relief im- nobis is pleading guilty, as a result of deported be possible paral- without consideration of the though judge specifically the district even lel proceedings but intertwined in this possible was deportation him that advised case—the appeal coram nobis this cir- cuit, acknowledged springing fact on the rec- from the underlying and he this crimi- proceeding, immigration nal and the ap- pleading guilty. He nonethe- ord before peal in the Second Circuit. Since each vacate conviction on the less asks us to his other, proceeding greatly impacts the we have grounds he would not entered ignore cannot immigration pro- Akinsade’s had underlying guilty plea he known conclusion, ceeding, or ultimate its subject him to manda- doing so would ignore more than we can what occurred tory deportation. or during plea colloquy. before Akinsade’s out, lawyer As it turns cor Accordingly, what follows an abridged rectly predicted guilty plea that Akinsade’s summary of these related and overlapping him deportable. would not render While proceedings. appeal pending be

this coram nobis Underlying The Criminal Conviction us, fore the Second Circuit decided Akin In March charged Akinsade was favor, immigration appeal sade’s con with employee embezzlement bank cluding plead guilty that he did not to a $16,400. the amount of See 18 U.S.C. removable offense. See Akinsade v. Hold Akinsade, According 656.1 lawyer (2d Cir.2012). er, F.3d subject assured him that he would not be government has since indicated that will pled guilty if he to the not seek review of the Second Circuit’s charge. Ultimately, embezzlement after oppose decision and will not termination of counsel, discussing his case with proceedings against Akinsade. removal plead guilty. During plea decided to not deported Akinsade cannot and will be Akinsade, colloquy, judge told as a of his in this attorney, contrast to the advice of his I therefore from the odd case. dissent pled that he could in fact be removed if he to vacate Akinsade’s based on decision guilty. Akinsade indicated that he under- ultimately lawyer advice from his stood these but still wished proved plead guilty.2 to be accurate. Akinsade was sentenced States, alleged "Ak- all 1. The criminal information all of the laws in of the but felonies, being agent employee Chevy guilty people of who are found insade embezzle, vote, knowingly right ... Chase Bank did ab- often lose their certain offices stract, hold, purloin willfully misapply they professional monies cannot certain li- them, custody and funds entrusted to the and care may may denied censes not be approximate of such bank in the amount of jury. able to serve on a And I know felons $16,400.” J.A. 6. possess jobs may can’t firearms. Certain you. be denied transcript plea colloquy provides 2. The parole you probation If are on with part: in relevant system, another that can be affected. Or if citizen, you you deport- are could be COURT: You understand that THE this of- things triggered ed. All these could be felony you fense of embezzlement is a and if by being guilty felony. you felony, found Do are found of a there are cer- that? tain civil ramifications that flow from this. understand Yes, give you examples Let me and I don’t know THE DEFENDANT: Your Honor. February petitioned In which he Akinsade imprisonment, to one month Appeals Circuit the Second Court community confinement. served decision, that arguing review of the BIA’s time, adjusted his Akinsade Around this to a removable plead guilty he did not permanent resi- to become lawful status conviction offense because the record of dent. to that Akinsade acted with failed establish Proceedings in the Second Cir- Removal required “intent to defraud” for an cuit aggravated felony under 8 U.S.C. (a)(43)(M)(i). petition § 1101 authori- January immigration In in the pending for review was still Second charged Akinsade and ties detained argument this court held oral Circuit when that removability on the with basis petition. coram nobis on Akinsade’s qualified conviction as an embezzlement Proceedings Coram Nobis in the Fourth felony. aggravated See U.S.C. Circuit 1227(a)(2)(A)(iii). Immigration § The May proceedings while removal (“INA”) “aggra- an Nationality Act defines Judge ongo- Immigration before the were that felony” to include “offense vated ing, peti- Akinsade filed his coram nobis ... or deceit in which the involves fraud seeking guilty plea, tion to vacate his loss to the victim or victims exceeds that he received ineffective claiming assis- 1101(a)(43)(M)(i).3 $10,000.” § 8 U.S.C. tance of counsel in connection with his Akinsade denied that he was removable guilty Specifically, alleged Akinsade plea. alternative, and, cancellation sought guilty plea, that before he entered his of removal. him, law, lawyer contrary told to that a Immigration Judge sustained the guilty plea charge to the embezzlement removal, aggravated felony charge of find- a deportable “would not constitute of- “ ‘that ... the information and also the though fense.” 55. Even J.A. ... plea colloquy make it clear that the judge expressly warned Akinsade respondent’s actions related to a fraud on pled guilty, could be removed if he Akin- ” Akinsade, injury.’ and not an the bank petition sade claimed his coram nobis appealed F.3d at 142. Akinsade to the that he had never been informed BIA, arguing that his record of conviction “criminal defense counsel or [the was insufficient to show that his embezzle- in this case court] § in- ment offense under 18 U.S.C. immigration would or could affect [his] intent specific volved to defraud. The status,” and that known” he “[h]ad [he] BIA appeal, holding removal, dismissed Akinsade’s pled risked he would not have $10,000 that the record of conviction was sufficient than embezzling more committed an ag- gone show Akinsade and would have to trial or attempted gravated felony. plead lesser amount. J.A. 56. Knowing you turpitude. THE COURT: that do still crime of moral See 8 U.S.C. plead guilty? Second, 1227(a)(2)(A)(i). wish to charged DHS Yes, THE DEFENDANT: Your Honor. because he Akinsade removable had S.J.A. 1. adjusted willfully his status fraud or mis- representing Immigra- a material fact. The Department Security 3. The of Homeland Judge rejected grounds, tion both and the ("DHS”) sought also to remove Akinsade on government pursue did them See further. First, grounds. charged two additional DHS Holder, 142 & n. 4 that the embezzlement conviction was a re- Cir.2012). (2d movable because it constituted a offense prejudice The district court concluded that coun- contends that he suffered constitutionally only was defi- could have performance sel’s been overcome a warn- cient, ing from the district court Washington, deporta- see Strickland v. “that tion- result from plea.” 80 L.Ed.2d would Id. at (1984), but determined that Akinsade 22. prejudice resulting failed to establish from government’s primary argument The attorney’s performance his because the least before the appeal Second Cir- —at specifically during court advised cuit’s decision in Akinsade v. Holder —was plea colloquy deportation poten- was a that Akinsade “cannot establish tial consequence: prejudiced by was counsel’s erroneous ad- resulting Court does not find the [T]he light vice” in the fact that he had “been prejudice required under the second personally by warned the district court prong Notwithstanding of Strickland. possible deportation about based on his alleged misrepre- counsel’s affirmative guilty plea, and confirm[ed] his desire to sentations, this Court Petitioner advised proceed light even in possibility.” of this on March 2000 that Petitioner could Brief of Appellee deported accepted if the Court his The Second Circuit’s Akinsade Decision guilty plea felony charge. to the and Subsequent Immigration Proceedings inquired Court further of Petitioner knowing guilty plea whether that his May On the Second Circuit trigger deportation proceedings, could granted petition review, for plead guilty. he still wished to Petition- holding that subject Akinsade was not (Trans, replied er in the affirmative. deportation aggravated as an felon. See 13) page Akinsade, 678 F.3d at 143. To consti- ... Accordingly, the Court finds that aggravated felony, tute an Akinsade’s em- a knowing, Petitioner made understand- bezzlement offense had to ] fraud “involve[ voluntary plead decision to or deceit in which the loss to the victim or guilty and ... Court does be- $10,000.” victims exceeded] U.S.C. lieve that Petitioner on this record has 1101(a)(43)(M)(i). The court treated the presented a basis ineffective assis- divisible, meaning statute as that Akinsade tance of counsel.... could have acting been convicted either for J.A. 86-87. The district court therefore with injure the intent to defraud or to request denied Akinsade’s for coram nobis Akinsade, bank. See 678 F.3d at 145. relief from his embezzlement conviction. Using categorical the modified approach, appealed the district court’s the court whether Akinsade’s “examine[d] order, arguing that the district court’s ad- record of necessarily conviction admits during plea colloquy monishment establishing facts ... the intent to defraud to “cure” -counsel’s injure.” misadvice rather than the intent to Id. The insufficient because “the district ... court did not Second Circuit concluded that “because to, instruct Akinsade that his Akinsade did not admit was not automatically with, him ... charged render de- and was not required to portable.” to, Appellant’s Supp. plead acting defraud, First Brief with intent to at 13. Akinsade contends on that a appeal necessarily does not rest on facts warning identifying court’s mere is a as an offense in- conviction (inter- possibility enough is not volving overcome his fraud or deceit.” Id. at 146 misadvice; rather, omitted). attorney’s quotation Akinsade nal marks and citation 260 bearing on his no determinative BIA’s sion has vacated the

The Second Circuit Since nobis relief. Akinsade and remanded. claim for coram order of removal only was the felony ground theory that he still can aggravated argues the a new now by for removal asserted remaining ground he cannot become prejudice show because with the DHS, filed a motion Akinsade the unless his conviction a naturalized citizen proceedings. removal terminate BIA to because, a convicted vacated and as is nothing there was argued Akinsade felon, security clear- he is unable to obtain enter except to do on remand BIA for the Additionally, advance career. ances or termination. ah order of “arguably” claims he will remain Akinsade subject to removal until he receives response filed a indicat- government The relief. grant the motion to of coram nobis oppose that it did ing govern- the Although terminate removal. to concede that Akinsade’s

ment refused II. in violation of for embezzlement conviction an of error coram nobis is “ex writ “an not constitute 656 did 18 U.S.C. traordinary” may be used to remedy felony involving offense fraud aggravated “errors of the most fundamental correct that, deceit,” light of explained or underlying the character” that rendered specific .... in this “other considerations invalid when no other alterna proceeding “in the case,” had decided government the remedy is States v. tive available. United discretion” not to prosecutorial of exercise 502, 512, 247, 74 98 Morgan, 346 U.S. S.Ct. “of whether judicial further review seek (1954) (internal marks quotation L.Ed. 248 ... conviction [wa]s embezzlement 4 Denedo, omitted); see United States v. 556 felony.” aggravated 173 L.Ed.2d U.S. requested supplemental This court brief- (2009) (“[C]Joram petitions [per 1235 nobis effect, any, if parties from the on allegations mit that an courts] consider concluding opinion Circuit’s Second judgment earlier of conviction was flawed deportable is not based 911, 129 respect.”); in a fundamental id. at sup- In its this embezzlement conviction. (“Another limit, course, S.Ct. brief, government argues plemental extraordinary remedy may not is that an immigration that since Second Circuit’s remedies, alternative such as sue when only grounds eliminated DHS’s decision available.”); corpus, habeas are facing for removal and Akinsade is not (4th Mandel, States any he cannot show adverse deportation, Cir.1988). Ineffective assistance of coun flowing from his prejudice sel constitutes the kind of fundamental Furthermore, attorney’s performance. potentially subject defect to attack via a government argues light writ of error coram nobis. See United decision, law- Second Circuit’s (3d Orocio, F.3d n. 4 States v. place him in the first yer did not misadvise (“The Cir.2011) persons writ is available to him that a would not telling contrast, custody attack a conviction By [to] not held deportable. render Akinsade defects, fundamental such as ineffective Akinsade insists the Second Circuit’s deci- expressly vacated and he “would no only circumstance noted viction would be The militating against government proceed- a further longer subject removal challenge decision to the Second Circuit's easily Obviously, ings.” such a result could pending appeal was the before coram nobis government’s efforts to chal- undermine government explained that if this court. lenge the Second Circuit’s decision. relief, Akinsade obtained coram nobis his con- (internal quotation petitioner satisfy must of counsel.” the familiar assistance omitted)). Furthermore, in addi- two-prong test set forth in Strickland v. marks defect is at showing Washington, tion to fundamental (1) validity of (1984), that casts doubt on the the by showing

issue 80 L.Ed.2d 674 that and that there is no other reme- conviction counsel’s performance defense “fell below available, petitioner a coram nobis dy objective an standard of reasonableness” diligence that he must also show exercised by “prevailing professional measured extraordinary writ. seeking (2) the See norms,” 688, 2052, at id. 104 S.Ct. States, 250, 880 F.2d Klein United performance that the “deficient prejudiced Cir.1989). (10th is, petitioner That the defense,” 687, id. at [his] S.Ct. 2052. that “sound must establish there were rea- is, That Akinsade must show “that there is “fail[ing] appropriate for to seek ear-

sons” that, probability a reasonable for but coun at Morgan, lier relief.” 346 U.S. errors, sel’s he would not have pleaded S.Ct. guilty going and would have insisted on to Lockhart, trial.” Hill v. 474 U.S. reviewing presume court must that (1985). L.Ed.2d 203 Be underlying “proceedings were correct the test, objective cause this is an the accused to and the burden rests on showing merely by “cannot make that tell Id.; Klein, otherwise.” see 880 F.2d show gone us now that would have to (“[T]he [he] petitioner at 253 burden is on trial if gotten then had different ad [he] that the asserted error is to demonstrate States, vice.” Pilla v. United 668 F.3d or constitutional and results jurisdictional (6th Cir.2012). Rather, “to obtain justice.”). complete miscarriage in a claim, type petitioner relief on this establishing require The burden must court that a convince the decision to very ments for coram nobis relief is reject plea bargain have been one, jurists some substantial described rational under the circumstances.” Padil exceeding ordinary that of an habeas — -, Kentucky, la v. petitioner. See United States v. Stone (2010). 1473, 1485, 176 (3d Cir.1989). L.Ed.2d 284 man, 102, 106 870 F.2d previously, As noted the district court Although the order district court’s did concluded Akinsade received deficient explicitly forego- examine each of the relief,5 legal counsel under Strickland’s first ing requirements for coram nobis but prong, determined Akinsade failed implicitly the court addressed the funda- prejudice required by to requirement mental-defect when it consid- establish prong second the dis- ered Akinsade’s ineffective assistance Strickland’s because during plea trict court advised Akinsade claim. To establish a Sixth Amendment counsel, proceedings deported claim of ineffective assistance of that he “could be if example, simply never deter- It whether 5. For district court J.A. 86. not clear actually finding mined whether Akinsade demonstrated that district court made a seeking ap- delay "sound reasons” existed for not sound reasons for the existed or wheth propriate Morgan, simply relief sooner. See 346 U.S. er the court declined to address the hearing, light dispositive 74 S.Ct. 247. At the issue in effect of its ruling court hinted that Akinsade articulated on the ineffective assistance claim. acceptable explanation nine-year requires This is a matter that the district court an plea. delay attacking In the a factual determination. See Nicks v. before to make States, order, however, (2d written the court stated sim- 167-68 Cir. 1992). “recogniz[ed] prudent ply appellate that it that the Writ of Co- It is not for an simply extraordinary panel but de- decide the issue in the first ram Nobis is writ” supra merits.” instance. See at 252-53. cided to “consider Petition on its that deci- the Akinsade v. Holder. Based on accepted guilty plea the Court sion, we now know that Akinsade did not and Akinsade indicated felony charge” offense and “knowing plead guilty to removable plead guilty even he wanted And, whether trigger deporta- deported. will not be that his could else, Thus, Ak- good something sheer fortune or J.A. 87. the dis- proceedings.” tion lawyer correctly told Akinsade insade’s trict court refused vacate to a de- pleading guilty that he was not petition. and denied the coram nobis going offense and that he was not portable III. deported.7 to be Thus, that Akinsade the conclusion es- A. step tablished the first his Strickland decided, it Akinsade v. Holder was Until claim was therefore based on the false assumption had been a fundamental underlying premise that Akinsade’s em- this that the embezzlement offense to case a bezzlement conviction constituted de- pled guilty aggra- was an which Akinsade aggravated felony and that he portable felony removable offense—and vated —a mandatory deportation. Although faced his actually going that Akinsade was to be flawed, reasoning lawyer was Akinsade’s deported. premise, Based on this the dis- wrong was not when he told polar-oppo- trict that the court concluded pleading guilty would not him de- render attorney site advice Akinsade’s offered portable. was incorrect and amounted to deficient performance under first Strickland’s B. too, prong. government, The took no is- appeal sue this with the district court’s argument preju- Akinsade’s that he was performance conclusion counsel’s was by attorney’s performance diced rests deficient, constitutionally and chose in- premise only on the same false that “not inability on stead to focus accepting plea did render Akinsade prove prejudice in the face of deportable, it him an made [but] [also] potentially court’s accurate recitation of ..., ‘aggravated making deportation felon’ adverse that could flow from near-certainty barring virtually a him from entering guilty plea, including a deporta- all Appel- forms of relief from removal.” tion for non-citizens.6 at Supp. lant’s First Brief 32. Akinsade assumption alleges correctly that Akinsade will be that had he been advised deported guilty plea lawyer, pled based on his to an he would not have felony fails, however, aggravated longer guilty. explain is no true after Akinsade Although government challenge apparent drawing 6. did not but his basis for this con- per- the district court's conclusion that obviously wrong. clusion was Akinsade's attorney objec- formance of Akinsade's was plea counsel believed that a conviction on the unreasonable, tively following the Second Cir- charge not a embezzlement would constitute government aptly cuit's decision the noted deportable [Akinsade] offense "because did that “it now has been demonstrated that Peti- felony not have two convictions” on his rec- attorney tioner’s in 2000 did not misadvise reasoning ord. J.A. 57. This was incorrect guilty plea him: Petitioner's to embezzlement types there are various of offenses that since deportable.” Appellee's will not render him render an alien removable. See 8 alone Supp. Second Brief at 1227(a)(2). § His that Akin- U.S.C. conclusion on sade would not be removable based this 7. Counsel's conclusion was correct that Akin- offense, however, exactly right. was offense, pleading deportable sade a was not Padilla, that, rational,” although disagreed the BIA it sured have been why it “would Holder, not with Akinsade would seek reject bar- at Moreover, further review of decision. to trial when proceed gain judicata principles preclude guilty. general res pleading not a subsequent government initiating con- from Indeed, primary whose for someone against Akinsade proceedings from the United removal avoid removal was to cern Akinsade on the embezzlement conviction. States,8 based suggestion judicata applies immigration pro he Res to trial on an offense gone have though ceedings government and “bars the from deny committing even does not case bringing [removal] in de- second based would not have resulted presented Akin- ... that it could have As evidence seems dubious best. portation case.” Bravo-Pedroza v. suggest that he would have the first Gon does sade (9th Cir.2007). zales, embezzlement, only acquitted been good judicata prevents The doctrine of res also might have stood thing “splitting” to trial was a claim or the use of “several gaining going chance of recovery sepa 3E1.1 theories of as the basis for longer sentence. See U.S.S.G. acceptance Mukasey, rate suits.” Alvear-Velez v. (explaining n. 2. that the cmt. (7th Cir.2008) (internal “adjustment quo is not intend- F.3d responsibility omitted). Thus, govern the puts a who the tation marks apply to defendant ed a proof generally at trial ment cannot initiate new re government to its burden proceeding charges factual elements moval based on denying the essential in a prior could have asserted removal guilt”). And, finally, proceeding. Akinsade cannot effect of hedge against a the adverse As that he prejudice establish has suffered preju- Circuit’s decision on the Second government might do in based on what supplemen- Akinsade in his argument, dice future. claim that puts spin tal a new on his brief prejudice Akinsade also claims that the satisfy prejudice Strickland’s he can First, possibility includes the “arguably” he believes he he has suffered prong. subject that he will be unable to become citizen to removal because remains through process. an order naturalization “refuses to concede” that DHS Akin- pro- Throughout litigation, this extended terminating the BIA removal from has not raised naturalization as a continuing will it from sade ceedings prevent Although concern. Akinsade men- based on embez- central seek removal attorney passing tioned in that his advised conviction. Akinsade distorts zlement fact, deported and that gov- [he] In he “would not be government’s position. that, in five panel would become a naturalized citizen acknowledged ernment to our decision, develop Akinsade did not years,” J.A. based on the Second Circuit’s guilty plea that his should be to remove” his claim longer “the BIA no has basis or longer facing vacated because he was misinformed Akinsade and that he is “no subsequent uninformed about his chances Appellee’s Supp. Second deportation.” now, we Moreover, naturalizing. Only after re- filing its non- of Brief at 3. briefing on the ef- quested supplemental terminate re- opposition to the motion to decision, does of the Second Circuit’s government as- fect proceedings, moval that, January did not seek to set aside prior [he] tus and therefore asserts 8. Akinsade that [his] he "had no reason to believe J.A. 56. conviction.” [his] immigration sta- would affect [his] conviction note, however, particular important conse- It is Akinsade discuss this therefore waived quence detail. He has even Second Circuit had if affirmed argument pled that he would not have removal, the BIA’s order of Akinsade guilty properly had he been informed not, law, could as matter of have estab- about the effect of a on his prejudice purposes lished of his ineffec- plans to become a naturalized citizen. See tive assistance claim. plea colloquy Bowles, United States findings and the of fact made in the coram * (4th Cir.2010) (concluding argu- n. proceedings by nobis judge sup- ment mentioned for the first time in plea who took the establish a matter of waived). plemental briefing is law that Akinsade knew that he risked event, plead guilty any- removal and decided to Akinsade fails even to way. acknowledged articulate an ineffective assistance claim Akinsade on the rec- respect with to the naturalization conse- ord that he understood the district court’s First, quences guilty plea. he does warning that a trigger could not explain whether his claim is that his removal and other and that attorney failed to advise about how a plead guilty. he still wished to The dis- guilty plea might affect naturalization or judge trict confirmed this as a fact in his he misadvised him both. Nor does findings denying made his order coram explain any alleged Akinsade how misad- nobis relief. or failure to regarding

vice advise natural- circumstances, Based on such our circuit plead guilty. ization affected his decision to Foster, precedent United States v. may speculates not be (4th Cir.1995), precludes F.3d 86 able to naturalize with this conviction on from establishing prejudice as a matter of But, his explain why record. he fails to Foster, In law. we articulated the rule that, probability “there is reasonable but “any peti that where misinformation [the errors, for counsel’s he would not have may have received from his tioner] attor pleaded guilty and would have insisted on ney by corrected the trial court at [is] Hill, going to trial.” hearing,” prejudice Rule 11 there is Thus, no S.Ct. 366. Akinsade falls far short Foster, purposes of a Strickland claim. showing required preju- to establish appeal very dice under F.3d at 88. This Stñckland. similar to petitioner alleged Foster where the he had IV. been assured counsel that he would not be sentenced as a career offender and that Furthermore, Akinsade v. Holder invali- “if correctly he had been told that he could my colleagues’ dates conclusion that be sentenced as a career offender” he warning district court’s “that Akinsade’s gone plead would have to trial instead of deportation” could lead to was too “ court, ing guilty. however, Id. The district “general equivocal” ‘properly in- petitioner during plea colloquy advised form’ Akinsade of the he that he a “possible prison faced maximum” faced pleading guilty: mandatory de- years, petitioner term of 20 indicated portation.” Ironically, had the district that he that possibility. understood Id. court informed Akinsade that petitioner, having We concluded that been certainty was a if pled guilty, it would sentence,” “potential have misinformed informed could Akinsade about the con- sequences possibly prejudice he faced and encour- not establish as a matter of law. aged go unnecessarily. to trial Id. Ak the Second Circuit issued between even before difference no material

There is court Now that it been The district insade v. Holder. has and Foster. this case could be re- plead Akinsade that he did not that Akinsade informed established like- moved; court in Foster aggravated felony and will not guilty to language in conditional explained wise removed, comprehend I cannot how one years. to 20 up receive could petitioner conclude that Akinsade is entitled can still position in no different Akinsade is id. See lawyer’s correct ad to relief based on fact, the Foster. petitioner than the deported Akinsade would not be vice that peti- in Foster that explanation “careful” guilty plea. the result of his as sentence 20-year faced a potentially tioner I therefore dissent. misad- address counsel’s not precisely did not be sentenced petitioner vice The admonishment a career offender. oblique more arguably in Foster was

given Akinsade. given one

than the statement the district court’s

Clearly, consequence that was a removal guilty, triggered” by pleading

“could be that he Akinsade’s admission coupled with America, UNITED STATES of in- and still understood Petitioner-Appellant, enough to show guilty, was plead tended to that Akinsade was was a risk removal accept. Because Akinsade

willing to FRANCIS, Respondent- Robert Sean that he risked by the district court advised Appellee. affirmed by pleading guilty and removal No. 12-1205. advice, the understanding of the court’s that Akin- correctly decided court Appeals, United States Court law, failed, satisfy as a matter of sade Fourth Circuit. of his inef- prejudice prong Strickland claim.9 fective assistance Argued: May 2012. July 2012. Decided:

V. expressed, the reasons I have For clearly correct

district court’s decision colloquy goes during a conse- panel's that such My decision concern about disagreement beyond my possible plea. with the conclusion It quence was a result of the plea va- Akinsade is entitled to have his that longer enough to advise will for court no lawyer advice from his cated based on other con- the defendant removal ultimately accurate. Be- turned out to be possibility. vigilant district sequence is a analysis legal of an ineffective assis- cause finality of its court that seeks ensure raised in claim is identical whether tance precise guilty pleas will now have to make pro- proceeding or a habeas a coram nobis as to whether the determination opens for ha- ceeding, this decision the door illustrates, this will in fact occur. Asthis case in coram petitioners as well as those beas may and we be creat- is often a difficult task guilty pleas re- to attack on collateral nobis requiring problems we ing more than solve simply by showing defense counsel view specificity court to kind of from a district this possibly gave a con- inaccurate advice about years guilly pleas vacated are not ensure sequence when the —even later. expressly by the court petitioner was advised

Case Details

Case Name: United States v. Temitope Akinsade

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 25, 2012

Citation: 686 F.3d 248

Docket Number: 09-7554

Court Abbreviation: 4th Cir.