Difference between revisions of "United States v. Akinsade"

Latest revision as of 00:34, September 11, 2018

In United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), the Fourth Circuit ruled in favor of a petition for coram nobis, which was brought to avoid deportation.

As explained by the West Virginia Supreme Court in West Virginia v. Hutton, No. 14-0603 (June 16, 2015), which cited the Akinsade decision favorably as follows:

The defendant in Akinsade was a Nigerian citizen who came to America in 1988, at the age of seven, and resided in Maryland. He became a lawful permanent resident in 2000. In March 2000, the defendant was charged by the federal government with embezzlement from a bank. While considering a plea agreement with the government, the defendant asked his attorney on at least two different occasions about the potential immigration consequences of a guilty plea. On both occasions, his attorney advised him that he could not be deported based on this single offense. His attorney told him that he could be deported only if he had two felony convictions. This advice was inconsistent with the law at that time. Relying on his attorney’s advice that he could not be deported for a single offense, the defendant pled guilty. The plea agreement made no mention that deportation was mandatory or even possible. During the plea hearing, the district judge warned the defendant that, if he was not a citizen, he could be deported. After the district court accepted the plea, the defendant was sentenced to one month of imprisonment to be served in community confinement, and a three-year term of supervised release. Once the defendant served his sentence, he attended the University of Maryland, where he received a bachelor’s degree in computer science. He later earned a master’s degree from the university and received a fellowship from the National Science Foundation. The defendant later moved to upstate New York.

Almost nine years after the defendant in Akinsade was convicted, immigration authorities arrested him and placed him in detention in Batavia, New York. The defendant later was charged with deportation as an aggravated felon based upon the embezzlement conviction. The defendant filed a petition for a writ of error coram nobis in federal court alleging a violation of his Sixth Amendment right to effective assistance of counsel because of the wrong advice given to him by his trial counsel. After conducting a hearing, the district court denied the petition. The court held that although the defense counsel’s affirmative misrepresentations rendered his assistance constitutionally deficient, the defendant was not prejudiced because the warning of the potential for deportation during the plea colloquy with the judge cured counsel’s affirmative misrepresentations. The defendant appealed to the Fourth Circuit.

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that “[a]s a remedy of last resort, the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy.” Akinsade, 686 F.3d at 252 (internal quotations and citation omitted). The opinion then set out a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitutional legal error:

A petitioner seeking this relief must show that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.

Akinsade, 686 F.3d at 252 (internal quotations and citation omitted). The opinion held that the evidence showed that the defendant satisfied each prong of the test and was entitled to coram nobis relief. It was determined that (1) the defendant could not seek relief under the typical remedies for a direct or collateral attack because he was no longer in custody; (2) until he was physically detained by immigration authorities in 2009, he had no reason to challenge the conviction; and (3) the risk of deportation was a sufficient adverse consequence. As for the fourth prong of the test, the opinion examined the merits of the defendant’s ineffective assistance of counsel claim under the two-part test set out in Strickland. The opinion accepted the district court’s finding that trial counsel was deficient, but rejected the district court’s determination that the defendant was not prejudiced. The opinion set out the following factors that may be considered when reviewing a deportation issue:

Under the prejudice prong of Strickland, the potential strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account. . . . Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence proved to be more than enough for a guilty verdict but was hardly invincible on its face. . . . We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation.

Akinsade, 686 F.3d at 255 (internal quotations and citations omitted). The opinion found that the government’s case against the defendant was not sufficiently strong; therefore, it was reasonable to believe the defendant would have risked going to trial rather than pleading guilty and being deported. See Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) (granting coram nobis relief upon finding defendant established counsel was ineffective because he misinformed the defendant about the possibility of deportation); United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (same), abrogated by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); United States v. Abou-Khodr, No. 99-CV-81073, 2013 WL 4670856 (E.D. Mich. Aug. 30, 2013) (same); Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006) (same).