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Vukosavljevic v. United States

United States District Court, D. Maine

December 4, 2019



          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Sandro Vukosavljevic moves, pursuant to 28 U.S.C. § 1651, for a writ of error coram nobis[1] vacating his conviction. (Motion, ECF No. 102.) Following a guilty plea, Petitioner was convicted of two counts of the unlawful use of a communication facility; the Court sentenced Petitioner to thirty months in prison. (Judgment, ECF No. 94.)

         Petitioner claims his attorney was ineffective because he failed to advise Petitioner properly of the immigration consequences of his guilty plea. (Motion at 5.) The Government asks the Court to deny the motion because at the plea hearing, the Court advised Petitioner of the immigration consequences and thus Petitioner cannot demonstrate prejudice by counsel's alleged failure to advise. (Answer, ECF No. 105.)

         Following a review of the record and after consideration of Petitioner's motion and the Government's response, I recommend the Court grant the Government's request and deny Petitioner's motion.

         Factual Background and Procedural History

         On March 11, 2014, Petitioner was indicted on one count of conspiracy to distribute and possess with intent to distribute cocaine and three counts of unlawfully using a communication facility in committing, causing, and facilitating the conspiracy. (Indictment, ECF No. 3.)

         On May 27, 2015, the Court held a hearing to address a motion to withdraw as counsel from Petitioner's attorney, among other matters. (Min. Entry, ECF No. 63.) Petitioner explained that there was tension with his attorney because he was “trying to have me plea out” while “I still believe I'm innocent . . . .” (Hearing Transcript at 16-17, ECF Nos. 100, 102-6.) Petitioner reported that friends and family members had shown a willingness to raise money for him to hire an attorney. (Id. at 17-18.) According to Petitioner:

So sometimes I don't know what the best decision is for me to make, so I just feel like maybe if my Bosnian community wants to help me possibly stay in the country and have somebody else represent me because I don't feel comfortable that Mr. Dyhrberg can, you know, take me to where I want to be, the next step . . . .

(Id. at 18-19.) Petitioner reiterated that he did not want to plead guilty and maintained his innocence. (Id. at 19.)

         On May 29, 2015, Petitioner pled guilty to two counts of the indictment (Counts 2 & 3, Unlawful Use of a Communication Facility). (Change of Plea Hearing, ECF No. 71.) At the change of plea hearing, the Court explained, “[I]f you're not a United States citizen, you may be removed from the United States, denied citizenship and denied readmission to the United States in the future; do you understand?” (Change of Plea Hearing Transcript at 6-7, ECF No. 101.) Petitioner replied, “Yes, Your Honor, I do.” (Id. at 7.)

         After the plea and before sentencing, Petitioner told his pretrial services officer that he had become depressed since meeting with an immigration lawyer in early July 2015 because the lawyer told Petitioner that he would be deported. (Presentence Investigation Report ¶¶ 5, 53A, 58.) On October 2, 2015, the Court sentenced Petitioner to thirty months imprisonment followed by one year of supervised release. (Judgment at 2-3.) According to the Government, Petitioner was released from prison and began serving his period of supervised release on November 27, 2017. (Answer at 2.)

         After his conviction, Petitioner asserts that he was classified as an “aggravated felon” subject to mandatory deportation and will be prohibited from returning to the United States. (Affidavit, ECF No. 102-1.)[2] Petitioner, who is a citizen of Bosnia Herzogovina and came to the United States in 1994 as a refugee, filed an application seeking asylum, withholding of removal, and protection under the Convention Against Torture. (Immigration Order at 1-2, ECF No. 102-4) On June 6, 2018, the Department of Justice (DOJ) Immigration Judge denied Petitioner's claims and ordered that he be removed from the United States to Bosnia Herzegovina. (Id. at 15.) The DOJ Board of Immigration Appeals upheld the decision on November 6, 2018. (Immigration Appeal Order, ECF No. 102-5.) Petitioner sought judicial review of the decision; on July 23, 2019, the Third Circuit Court of Appeals found no error with the final removal order. Vukosavljevic v. Attorney General of The United States, 782 Fed.Appx. 192 (3d Cir. 2019).

         On June 3, 2019, Petitioner filed his motion for a writ of error coram nobis. (Motion, ECF No. 102.) Petitioner asserts that counsel informed him that there may be immigration consequences of a guilty plea, and counsel instructed him that he would need to hire a separate immigration attorney after pleading guilty, but counsel did not advise Petitioner that the guilty plea would subject him to mandatory deportation and a ban on re-entry. (Affidavit at 1.) Petitioner maintains that he would not have pled guilty and would have gone to trial if he had been informed that he faced mandatory deportation. (Id.)

         Legal ...

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