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United States v. Castro-Taveras

United States Court of Appeals, First Circuit

October 31, 2016

UNITED STATES OF AMERICA, Appellee,
v.
VINCENT F. CASTRO-TAVERAS, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Salvador E. Casellas, U.S. District Judge

          Peter Goldberger, with whom Pamela A. Wilk was on brief, for appellant.

          Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

          Before Barron, Lipez, and Hawkins [*] , Circuit Judges.

          LIPEZ, Circuit Judge.

         In this appeal from a denial of a coram nobis petition, defendant-appellant Vincent F. Castro-Taveras ("Castro") argues that his guilty plea entered more than a decade ago should be vacated because of Fifth and Sixth Amendment violations. Castro asserts that (i) his counsel provided ineffective assistance in erroneously advising him that a guilty plea would not result in any deportation consequences, and (ii) the prosecutor in the case induced him to enter the plea, thereby rendering it involuntary, by making a similar misrepresentation regarding the lack of deportation consequences. Castro also claims that, even if we deny the writ, he is entitled to a remand for an evidentiary hearing for further fact-finding.

         After careful consideration, we conclude that, while his Fifth Amendment claim against the prosecutor lacks merit, Castro's Sixth Amendment claim is not -- contrary to the conclusion of the district court -- barred by the retroactivity doctrine. We, therefore, vacate and remand the case. On remand, the district court should conduct an evidentiary hearing to determine if Castro's ineffective assistance of counsel claim has merit.

         I.

         Castro has been a permanent resident of the United States since November 20, 1995. On July 9, 2002, a grand jury in Puerto Rico returned a twenty-eight-count indictment charging Castro and seventeen co-defendants with offenses arising out of an insurance fraud. Castro was charged in fourteen of those counts, all of which related to insurance and mail fraud.

         With the aid of his attorney, Castro began negotiating with the government for a plea and cooperation agreement ("plea agreement"). The plea agreement stated that Castro would plead guilty to four counts charging conspiracy to commit, and aiding and abetting, insurance and mail fraud. It also contained a standard disclaimer stating that "[t]he United States has made no promises or representations except as set forth in writing in this [plea agreement] and den[ies] the existence of any other term[s] and conditions not stated herein." The agreement contained no information about the deportation consequences of the plea. Castro entered the plea on December 20, 2002. He subsequently cooperated with the government and testified at his co-defendant's trial.

         Following Castro's conviction, the probation officer assigned to his case filed a Pre-sentence Investigation Report ("PSR"), which stated, among other things, that Castro "will face deportation proceedings" as a result of his conviction because of "the nature of the . . . offense" to which he pleaded guilty. Castro's counsel objected to the reference to deportation because "it is not sure if Mr. Castro will be imprisoned as a result of the sentence to be imposed." The probation officer responded in an Addendum to the PSR:

The Court should be aware that whether or not defendant is sentenced to imprisonment term or probation, the defendant will face deportation proceedings. According to the Immigration and Nationality Act, . . . section 101(a)(43)(M)(i) defines defendant's conviction as an aggravated felony since it is an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10, 000. Furthermore, section 237(a)(2)(A)(iii) of the Act states that at any time after admission or conviction of an aggravated felony . . ., any alien is deportable. Therefore, defendant's sentence does not change his deportable status with the Bureau of Immigration and Customs Enforcement Agency . . . . Based on the abovementioned information, it is the understanding of the Probation Officer, that the defendant will face deportation procedures whether or not he is sentenced to imprisonment term or to probation.[1]

         On April 30, 2002, the district court sentenced Castro to three years' probation. His probation was terminated early, in August 2004.

         In June 2011, Castro consulted an immigration attorney to apply for naturalization. The immigration attorney informed him that his guilty plea in 2002 barred him from becoming a U.S. citizen, and that he was subject to mandatory removal based on his conviction.[2] Castro then brought a petition for a writ of coram nobis. He argued that his plea should be vacated because his attorney provided ineffective assistance in erroneously advising him that a probation sentence from his guilty plea would not affect his immigration status.[3] In response to the district court's order to show cause, Castro also alleged that the Assistant United States Attorney ("AUSA") in the case provided a similar assurance during the plea negotiations that he would not face a risk of deportation as a result of his plea. In support, he averred in an affidavit:

I recall that on several occasions during the meetings with [the AUSA], he told me that I was not going to have problems with immigration, and that they were not going to intervene with me; that is how I interpreted it.

         The district court denied Castro's petition. The court found that Castro's Sixth Amendment claim is barred because its success necessarily depends on the retroactive application of Padilla v. Kentucky, 559 U.S. 356, 364-74 (2010), and Padilla does not apply retroactively to Castro's claim in light of Chaidez v. United States, 133 S.Ct. 1103, 1110-12 (2013). In Padilla, the Supreme Court held that an attorney's incorrect advice or failure to advise on the deportation consequences of a criminal conviction provides a basis for an ineffective assistance of counsel claim. See 559 U.S. at 364-71. In so holding, the Padilla Court overturned the prevalent rule in the circuits, including ours, that deportation consequences do not implicate the Sixth Amendment right to counsel -- at least when the claim is one of a failure to advise -- because they are only collateral consequences of a criminal proceeding. See id. at 364-66, 365 n.9 (citing circuit cases, including United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000), that categorized the risk of deportation as a collateral consequence precluded from the Sixth Amendment's protection). A few years later, the Supreme Court decided in Chaidez that Padilla announced a new rule at least as to failure-to-advise claims concerning immigration matters.

         The district court also dismissed Castro's claim against the prosecutor, which the court understood as inextricably linked to his Sixth Amendment claim, consistent with Castro's presentation of the argument. The court found that Castro's claim concerning the prosecutor's misrepresentation lacks merit because the AUSA is "not the defendant's counsel, " and Castro failed to show "how the purported remarks by the AUSA interfered with his lawyer's ability to make independent decisions about his defense." Additionally, the court denied his request for an evidentiary hearing because it would be futile. This appeal followed.

         II.

         In reviewing a district court's decision on a coram nobis petition, "we afford de novo review to [the court's] legal conclusions and clear-error review to its findings of fact." United States v. George, 676 F.3d 249, 256 (1st Cir. 2012). Where, as here, the district court denies the writ as a matter of law without an evidentiary hearing, our review is plenary. Id.

         A writ of coram nobis is "a remedy of last resort for the correction of fundamental errors of fact or law." Id. at 253. To show that the writ is warranted, "a coram nobis petitioner must explain his failure to seek earlier relief from the judgment, show that he continues to suffer significant collateral consequences from the judgment, and demonstrate that the judgment resulted from an error of the most fundamental character." Id. at 254. Additionally, even when the three requirements are satisfied, the court retains discretion to deny the writ if the petitioner fails to show that "justice demands the extraordinary balm of coram nobis relief." Id. at 255. The primary point of dispute in this case is the third requirement of the tripartite test. Castro claims that the alleged violations of his Fifth and Sixth Amendment rights constitute fundamental errors, while the government challenges the existence of any error.

         Specifically, Castro argues on appeal that his Sixth Amendment claim is not governed by Padilla because Padilla announced a new rule only as to an attorney's failure to advise on the deportation consequences of a conviction, whereas his claim is based on counsel's affirmative misrepresentation regarding such matters. Similarly, Castro contends that the district court "misinterpreted" his argument against the AUSA as a Sixth Amendment claim, when the court should have understood it as a direct Fifth Amendment argument separate and apart from his ineffective assistance claim. The government counters that Castro's claims cannot succeed in any event -- regardless of the validity of the district court's analysis -- because the evidence suggests that he knew of the deportation consequences of his conviction prior to entering the plea. To support this contention, the government introduced for the first time on appeal the transcript of a co-defendant's trial at which Castro testified as a government witness.

         We decline to consider the transcript in assessing the merits of Castro's constitutional claims. As a general matter, we "do not consider evidence that was not part of the district court record." United States v. Farrell, 672 F.3d 27, 31 (1st Cir. 2012); Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 22 n.8 (1st Cir. 1982) (noting that courts of appeals "may not ordinarily consider factual material not presented to the court below").[4] Moreover, even if we were to take judicial notice of the transcript, as the government urges us to do, we would not rely on testimony from a different prosecution, untested in this case by the adversarial process, to dispose of Castro's Sixth Amendment claim.[5] Hence, we deem it prudent to remand the case for an evidentiary hearing to determine whether Castro can establish ineffective assistance of counsel, on the basis of all relevant evidence.

         A. Ineffective Assistance of Counsel Claim

         1. Retroactivity

         The retroactivity of a criminal procedure decision by the Supreme Court turns on whether that decision constituted a new rule at the time a defendant's conviction became final. See Teague v. Lane, 489 U.S. 288, 301, 305-10 (1989). Simply put, barring two exceptions not relevant here, [6] a criminal defendant may not benefit from a new rule in a collateral challenge to his conviction. Id. at 310. A decision announces a new rule "when it breaks new ground or imposes a new obligation" on the government. Id. at 301.

         The Teague analysis sets a high bar for retroactivity. A Supreme Court holding will be deemed a new rule -- and, hence, will not apply retroactively to a defendant's collateral challenge -- unless the outcome required by that holding would have been "dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. An outcome is "dictated" only if "it would have been 'apparent to all reasonable jurists.'" Chaidez, 113 S.Ct. at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).

         At times, the nature of the legal principle at issue before the Supreme Court will mean that a "new" Supreme Court holding will not give rise to a "new rule" subject to the retroactivity bar. In particular, a case that merely applies a pre-existing principle to different facts does not create a new rule. See Teague, 489 U.S. at 307; Chaidez, 133 S.Ct. at 1107. Indeed, "'[w]here the beginning point' of [the Court's] analysis is a rule of 'general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.'" Chaidez, 133 S.Ct. at 1107 (quoting Wright v. West, 505 U.S. 277, 309 (1992) (Kennedy, J., concurring in the judgment)) (first alteration in Chaidez). To put it differently, when a holding "appl[ies] a general standard to the kind of factual circumstances it was meant to address, " that holding "will rarely state a new rule for Teague purposes." Id. (emphasis added).

         Even when a Supreme Court holding constitutes a new rule, however, a defendant may still be able to take advantage of the legal principle it articulates in a collateral proceeding. That would be so if the applicable circuit law, at the time the defendant's conviction became final, was consistent with the Supreme Court's subsequently pronounced rule -- i.e., if circuit precedent anticipated the path the Supreme Court would take, even though that law "would [not] have been 'apparent to all reasonable jurists.'" Chaidez, 113 S.Ct. at 1107 (quoting Lambrix, 520 U.S. at 527-28; see, e.g., United States v. Kovacs, 744 F.3d 44, 50-51 (2d Cir. 2014) (identifying the circuit precedents that preceded Padilla).

         In general, then, a defendant in collateral proceedings may benefit from a favorable Supreme Court holding only if he would have been entitled to the same outcome at the time his conviction became final -- either because the holding is not a new rule under Teague or because the holding, even ...


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