UNITED STATES OF AMERICA v. AMIN DE CASTRO, Appellant
No. 21-2817
United States Court of Appeals for the Third Circuit
Argued June 16, 2022; Filed September 27, 2022
Honorable Juan R. Sanchez, District Judge; HARDIMAN, SMITH and FISHER, Circuit Judges
PRECEDENTIAL; On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. No. 2-15-cr-00114-001)
2033 Walnut Street
Philadelphia, PA 19103
Counsel for Appellant
Jennifer Arbittier Williams, United States Attorney
Jessica Rice, Assistant United States Attorney [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
Amin De Castro, a native and citizen of the Dominican Republic, appeals from the United States District Court for the Eastern District of Pennsylvania’s order denying his petition for a writ of error coram nobis. De Castro seeks to vacate his conviction for being an illegal alien in possession of a firearm in violation of
I.
A.
De Castro came to the United States through Puerto Rico around 2002 or 2003 using a Dominican passport. In 2012, he married a U.S. citizen. On his behalf, his spouse submitted Immigration Form I-130, Petition for Alien Relative, in January 2014. The United States Citizenship and Immigration Services approved the petition and sent notice to De Castro’s spouse in June of that same year. This notice stated that “[t]he approval of this visa petition does not in itself grant any immigration status and does not guarantee that the alien beneficiary will subsequently be found to be eligible for a visa [or] for admission to the United States.” App. 90. A month later, the Department of State National Visa Center notified De
In September 2014, a Philadelphia police officer arrested De Castro for being an alien in possession of a weapon under
B.
The grand jury indicted De Castro on one count of possession of a firearm by an illegal alien under
II.
The District Court had jurisdiction under
A writ of error coram nobis is an “extraordinary remedy” that may only be issued in the most limited of circumstances. United States v. Denedo, 556 U.S. 904, 911 (2009). A petitioner may seek a writ of error coram nobis to challenge his federal conviction when he is no longer in custody but still faces consequences from his conviction. Ragbir, 950 F.3d at 62. We recently synthesized decades of coram nobis law into a straightforward, five-part test. See id. We write today to emphasize the need for strict adherence to Ragbir’s five-part test and to announce the applicable standard for assessing its fundamental error element.
A.
The background for our discussion is our decision in Ragbir. So we begin with a brief summary. Ravidath Ragbir was a green card holder from Trinidad and Tobago who was convicted of mortgage fraud with a loss of more than $10,000. Id. at 57–58. Given Ragbir’s immigration status and the extent of his fraud, DHS sought to remove him to his native country. Id. at 58. Trying to avoid removal as a result of his conviction, Ragbir filed a petition for a writ of error coram nobis, which the United States District Court for the District of New Jersey denied. Id. at 57. We affirmed, holding that Ragbir did not meet the necessary conditions for relief. Id.
Because coram nobis petitions are few and far between, we took the opportunity in Ragbir to condense decades of coram nobis law from our Court and the Supreme Court. We explained that this rare remedy may be granted only if five prerequisites are met: “the petitioner (1) is no longer in custody; (2) suffers continuing consequences from the purportedly invalid convictions; (3) provides sound reasons for failing to seek relief earlier; (4) had no available remedy at the
B.
Here, the District Court denied De Castro’s petition for a writ of error coram nobis, but it did not rely on the detailed framework we outlined in Ragbir to do so. Instead, it used this Court’s logic from a recent habeas corpus decision regarding unpreserved Rehaif claims and applied it to the coram nobis context.
When seeking habeas relief, a prisoner may successfully bring a second or successive habeas petition only in the event of a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court.
Although we understand the temptation to analogize to habeas law—as we previously have for coram nobis petitions—second and successive petitions are not sufficiently comparable. Thus, the District Court’s habeas analysis was flawed and unnecessary. Second and successive habeas petitions are governed by statutory language not applicable to coram nobis petitions. See
C.
Anticipating that its reliance on Sampson might be disfavored, the District Court also analyzed De Castro’s petition based on the five prerequisites outlined in Ragbir and found they were met but the petition should still be denied. Although we agree the petition should be denied, we use alternative means to arrive at that conclusion. The Government concedes that De Castro satisfies the first two Ragbir requirements—the petitioner is no longer in custody and is suffering continuing consequences from the purportedly invalid conviction. We find nothing to persuade us otherwise, so we will not address them. The other three conditions, however, require further discussion.
As we stated in Ragbir and other cases before it, a petitioner has no fixed deadline by which he must seek coram nobis relief. Coram nobis is a “remedy of last resort” that requires us to balance the often-conflicting interests of finality and equity. Ragbir, 950 F.3d at 63 (quoting Fleming v. United States, 146 F.3d 88, 89–90 (2d Cir. 1998) (per curiam)). We do not require a petitioner to “challenge his conviction at the earliest opportunity,” but do expect the petitioner to have “sound reasons for not doing so.” Id. (quoting United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010)). But a petitioner should not mistake the standard as easy to meet simply because it permits some flexibility. Indeed, the “‘sound reason’ standard is even stricter than that used to evaluate
De Castro filed his petition thirteen months after the Supreme Court issued its decision in Rehaif. The District Court held that De Castro met the sound reason requirement, finding this delay reasonable because at the time of Rehaif’s issuance De Castro no longer lived in the United States, leaving him without “easy or ready access” to his attorney or other legal resources. App. 9 n.3. The District Court also noted the “unusual and extenuating circumstances” posed by the ongoing Covid-19 pandemic. Id. The Government argues that thirteen months is too long a delay as a matter of law. And even if it is not, De Castro’s knowledge-of-immigration-status argument was available to him at his plea hearing, which occurred before
The Government first argues that regardless of the reasons for De Castro’s delay, thirteen months is too long a delay as a matter of law. Because habeas petitioners must file a petition within one year of the date on which the Supreme Court initially recognized the petitioner’s asserted right, and the coram nobis standard is stricter than the one used to evaluate
Our precedent does not mandate, or even suggest, that thirteen months is too long a delay. In Ragbir, this Court faulted the petitioner for taking six years to file a coram nobis petition. Id. at 64. The petitioner discovered the immigration consequences of his sentence stipulation in 2006, and his immigration attorney advised him to pursue overturning the conviction. Id. at 58. Still, the petitioner did not pursue a coram
De Castro’s thirteen-month delay is significantly less than the six-year gap in Ragbir and the four-year gap in Mendoza. It is also less than the eighteen-month delay we held reasonable in United States v. Cariola, 323 F.2d 180, 183 (3d Cir. 1963). Accordingly, we are unwilling to say the District Court’s factual findings about the difficulties De Castro faced while out of the country and without counsel during a novel global pandemic were clear error.
The Government next argues that De Castro’s knowledge-of-immigration-status argument is five years too late. Specifically, the Government contends that whether
If cause is shown where the argument would require the upending of unanimous lower court authority, we would struggle to find an example better than Rehaif, involving the Supreme Court upending a law that was settled by “a near-unanimous body of lower court authority.” Before Rehaif, “every single Court of Appeals to address the question” had
Ultimately, we find the Supreme Court’s recent decision in Greer v. United States, 141 S. Ct. 2090 (2021), instructive as to whether De Castro lacked cause for his failure to preserve his Rehaif argument. Though Greer concerned Rehaif arguments presented on direct review and subject to plain error analysis, id. at 2099, the standard for coram nobis is even stricter. As the Court stated in Greer, “[a]ll that mattered was that [De Castro] failed to raise a contemporaneous [Rehaif] objection” during his trial and during his subsequent plea proceeding. Id.; cf. United States v. Frady, 456 U.S. 152, 166 (1982) (concluding that a “significantly higher hurdle” than the “‘plain error’ standard” applies to Section 2255 motions). Because the Court in Greer acknowledged that Rehaif undid a “uniform wall of precedent” from the courts of appeals, 141 S. Ct. at 2099, and that did not suffice to show cause, we hold that De Castro’s reference to that same “wall of precedent” is no excuse for his failure to
Since Rehaif, the Eleventh Circuit has held that raising a knowledge-of-immigration-status argument was not “truly novel” so the defendant’s failure to raise it at trial or on direct appeal meant he could not overcome the procedural default bar. United States v. Innocent, 977 F.3d 1077, 1084 (11th Cir. 2020) (quoting United States v. Bane, 948 F.3d 1290, 1296–97 (11th Cir. 2020)). Although neither of these Eleventh Circuit cases acknowledge Reed’s holding that a claim is novel when it challenges “a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved,” 468 U.S. at 17 (citation omitted), we cannot ignore the import of the Supreme Court’s recent decision Greer on our present analysis. Thus, we conclude De Castro did not have sound reason for delay.
Because a petitioner must satisfy each of Ragbir’s five prerequisites to obtain coram nobis relief, we could stop our analysis here. Nonetheless, we continue on to clarify this niche area of the law.
2. Availability of Remedy at the Time of Trial
The fourth element a petitioner must prove is that he had no available remedy at the time of his trial or, in De Castro’s case, guilty plea. Ragbir, 950 F.3d at 63. This requirement “focuses on whether a party was unable to make certain arguments at trial or on direct appeal.” Id. In Ragbir, we highlighted that “[i]n some circumstances, overlap may exist
Because we hold that De Castro’s knowledge-of-immigration-status argument was not futile in 2017—the time of De Castro’s plea deal—and he had no sound reason for delay in raising the issue—like others such as Rehaif—we also hold there was a remedy available to De Castro at that time. Thus, the District Court erred in holding otherwise.
3. Fundamental Error
We end our analysis with the fundamental error element. An error is fundamental if it would result in a “complete miscarriage of justice.” United States v. Woods, 986 F.2d 669, 676, 678 & n.16 (3d Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). A fundamental error is one that usually cannot be remedied simply by a new trial. Ragbir, 950 F.3d at 63; United States v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011). “[T]he defects must completely undermine the jurisdiction of the court, rendering the trial itself invalid.” Ragbir, 950 F.3d at 63. When other remedies are available, coram nobis relief is not appropriate. Id.
But what standard should we use to evaluate De Castro’s fundamental error claim? He argues we should use a plain error standard. Courts typically invoke plain error review on direct appeal for claims not raised at trial. E.g., Frady, 456 U.S. at 164; Greer, 141 S. Ct. at 2100. The District Court reviewed De Castro’s fundamental error argument using this standard.
But De Castro did not raise his Rehaif argument on direct appeal. Rather, he has raised it for the first time as a collateral attack seeking a writ of error coram nobis. As a “general rule,” we do not allow claims not raised at trial or on
De Castro cannot meet this standard’s heavy burden of showing both cause and prejudice. He argues that he could not have known at the time of his trial that the Government needed to prove he knew he was unlawfully in the country. As discussed in Section III.C.1 and III.C.2, De Castro has not shown cause for failing to raise the Rehaif issue. Cause does not exist just because an argument seemed futile to the petitioner at the time of trial or guilty plea.
De Castro also fails at the prejudice step. To show prejudice, he must establish that the Government’s failure to prove an essential element of the claim “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting Frady, 456 U.S. at 170). De Castro’s presentence report states that during his arrest he
The statements he points to in the arrest memo do not negate the statements in the presentence report. De Castro argues that we should ignore the presentence report because he had no reason to challenge it at the time of creation because his conviction did not depend on his knowledge of his immigration status. We disagree. A defendant has a strong interest in ensuring all aspects of his presentence report are accurate because “the court . . . may accept any undisputed portion of the presentence report as a finding of fact.”
Failing to meet the cause and prejudice standard, De Castro’s only option is to make a threshold showing of “actual innocence.” Bousley, 523 U.S. at 622–23. De Castro again falls short. “Actual innocence” requires a petitioner to show that it was “more likely than not that no reasonable juror would have convicted him” had the district court correctly advised him at the plea hearing and given the government the opportunity to adduce evidence of the omitted element. Schlup v. Delo, 513 U.S. 298, 327–28 (1995). But “‘actual innocence’ means factual innocence“; therefore, “the Government is not limited
The Government points to statements in De Castro’s presentence report to support that he knew he was in the country illegally, but has additional support in testimony from the arresting officer about statements De Castro made when he was arrested and De Castro’s sworn statements to an immigration enforcement agent regarding the circumstances of his illegal entry. Critically, De Castro offers no reasonable rebuttal to the Government’s position. Instead, he argues that despite knowing that he entered the country illegally in 2002 or 2003, he “legitimately believed he was not unlawfully in the country but was allowed to remain in the United States while a determination was made of his immigration status” because of the notice he received after submitting Form I-130. Appellant Br. 18. This argument strains credulity. The I-130 form specifically states that “[t]he approval of this visa petition does not in itself grant any immigration status,” and “THIS FORM IS NOT A VISA NOR MAY IT BE USED IN PLACE OF A VISA.” App. 90. The notice also stated that De Castro’s immigration visa petition was merely eligible “for further processing” and other “steps in the immigration process” still must take place. Id. at 92. Considering all of this, De Castro cannot establish actual innocence under the Rehaif standard because he cannot demonstrate it is more likely than not that no reasonable juror would conclude that he knew of his status as an illegal alien at the time he possessed a firearm. Because he has no legitimate claim of actual innocence, he cannot prove fundamental error.
To grant a petition for a writ of error coram nobis, a District Court must find a petitioner has established all five Ragbir prerequisites. De Castro falls short on more than one. For these reasons, we will affirm the District Court’s order denying the writ of error coram nobis.