Last Updated: 10.23.2020
What is a Coram Nobis?
Following a trial or guilty plea, and after a direct appeal has been filed and decided, there remain very few options that exist to vacate a conviction or modify one’s sentence. One of these options is arguing a Post-Conviction petition or writ of error Coram Nobis.
In both motions, the lawyer can argue ineffective assistance of counsel. Saying that their attorney’s representation fell below an objective standard of reasonableness.
Post-Conviction and Coram Nobis for Immigration
Specifically, for those people with immigration problems that have started as a result of their guilty finding or conviction, there is a very specific argument pursuant to the Supreme Court’s recent holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
Padilla v. Kentucky,
In Padilla, the Petitioner’s defense attorney, Mr. Defense Attorney, was ineffective in providing proper assistance of counsel. In Padilla, the defendant pleaded guilty to a crime that, unbeknownst to him, subjected him to deportation proceedings.
This is true also of the Petitioner who is in the process of removal proceedings as ordered by ICE. The defense attorney for Mr. Padilla neglected to properly advise him of potential immigration consequences.
Likewise, Mr. Defense Attorney gave improper advice to Petitioner. The transcript of the guilty plea and sentencing reflects the erroneous understanding that this was an immigration-structured plea. A plea that would provide some measure of protection against deportation.
The Court:
“It seems pretty clear that this is an immigration structured plea, am I right?”
(Exhibit 2: Transcript, at 5). Wisely, [JUDGE] ensured that Petitioner understood there were no “guarantees” and that this plea could lead to deportation.
The transcript reflects the Petitioner’s complete misunderstanding of what the immigration consequences, in fact, were. It was Mr. Defense Counsel’s duty to:
- understand exactly what the consequences were and
- inform his client
Neither took place. Instead, Petitioner went forward on the guilty plea with the
understanding that the offense was not considered an aggravated felony for immigration
purposes. (Exhibit 2: Transcript, at 14)
The court in Padilla used the word ‘quintessential’ to describe the importance of advice regarding deportation consequences. Padilla, 130 S. Ct. at 1484. The Petitioner came to the United States at the age of eleven and has resided with his U.S. citizen mother as a legal permanent resident.
The possibility of deportation as a consequence of his guilty plea would have compelled him to pursue every possible plea negotiation to mitigate the severity of deportation. As well as considering the possibility of an acquittal before deciding to waive his right to a trial.
According to Padilla, the Supreme Court held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea, and, absent this advice a non-citizen may claim ineffective assistance of counsel. Id. at 1483.
Recently, the Court of Appeals held that the Padilla standard applies retroactively to all pleas entered after the effective date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Denisyuk v. State, 422 Md. 462 (2011).
Who is eligible for a Coram Nobis?
If you have been convicted of a crime and you are no longer on probation or parole, you can file a Coram Nobis.
Specifically with immigration, if you are planning on filing for permanent citizenship and have been charged with a crime, you may be ineligible for citizenship. Certain criminal charges may prevent you from becoming a naturalized citizen.
At ENLawyers Adam Crandall is an amazing immigration lawyer to produce the very best result possible. Just last week we won a Coram Nobis. It helped a father stay in the country to be with his wife and children, and continue in his employment. Thereby avoiding deportation.
Maryland Post-Conviction Lawyer: I served my sentence but now I want to become a U.S. citizen, what should I do?
If you have completed your sentence and you wish to become a U.S. citizen you need a good lawyer who will work directly with your immigration lawyer to help resolve your case so that you can apply for citizenship. At ENLawyers, we have experience working directly with immigration lawyers to write a Coram Nobis that will allow a person to become a naturalized citizen.
Bottom Line on Post-Conviction and Coram Nobis
If you have been charged with a crime and are not a naturalized citizen, call us immediately. We offer a free, 1-hour consultations to discuss your case and show you how we can help.
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