FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph A. DiClerico, U.S. District Judge]
Bertollini, with whom Law Offices of Simone Bertollini was on
brief, for appellant.
R. Aframe, Assistant United States Attorney, with whom Emily
Gray Rice, United States Attorney, was on brief, for
Lynch, Baldock, [*] and Kayatta Circuit Judges.
BALDOCK, Circuit Judge.
little over sixteen years ago, Petitioner Sunday Williams, a
Nigerian citizen by birth, attempted to secure his United
States citizenship. Unfortunately, the way he did so was less
than ideal: in lieu of utilizing any legal means at his
disposal, he instead submitted a false application for a
United States passport wherein he claimed that he was an
American citizen hailing from Brooklyn. Federal authorities
caught him in the act and eventually charged him with making
a material false statement in a matter within the
jurisdiction of the United States government in violation of
18 U.S.C. § 1001. Petitioner pleaded guilty, and the
district court sentenced him to three years' probation.
nearly a decade after his probationary sentence ended,
Petitioner seeks a writ of error coram nobis-"a remedy
of last resort for the correction of fundamental errors of
fact or law, " United States v.
George, 676 F.3d 249, 253 (1st Cir. 2012)-that
vacates or, at the very least, allows him to revise the
factual basis of his § 1001 conviction. Such a writ
obviously could not remedy the direct consequences of that
conviction (i.e., his already-completed sentence).
Petitioner, however, hopes it could remedy the collateral
consequences he still suffers to this day. Specifically,
because the underlying facts of his § 1001 guilty plea
and conviction involved a false claim of United States
citizenship, Petitioner is now "ineligible to receive
visas and ineligible to be admitted to the United
States." See 8 U.S.C. § 1182(a)(6)(C)(ii).
Further, no waiver or exception is available that could
rescue him from that status. See id. Petitioner is
therefore not only permanently barred from obtaining lawful
permanent resident status, see id., but also subject
to deportation at any moment, see id. §
1227(a)(3)(D). Vacating his conviction or revising its
underlying factual basis would thus leave open the
possibility that he could obtain a green card and remain in
the United States.
is the supposed fundamental error that would justify granting
Petitioner this "extraordinary" and
"hen's-teeth rare" writ? George, 676
F.3d at 253-54. In Petitioner's opinion, it was the
performance of his attorney, which he claims was
constitutionally deficient under Sixth Amendment standards,
during the proceedings for his long-since-passed conviction.
See generally Strickland v.
Washington, 466 U.S. 668 (1984). To be sure, such
constitutionally deficient representation, if true, can
function as the rock upon which a petitioner can build her
coram nobis church. See United States v.
Castro-Taveras, 841 F.3d 34, 36-37, 52-53 (1st Cir.
2016) (allowing a defendant to premise his coram nobis
petition on a Sixth Amendment
ineffective-assistance-of-counsel claim); Murray
v. United States, 704 F.3d 23, 28 (1st Cir.
2013) (noting that writs of coram nobis are "meant to
correct errors 'of the most fundamental character; that
is, such as render[ ] the proceeding itself irregular and
invalid'" (alteration in original) (emphasis
added) (quoting United States v.
Mayer, 235 U.S. 55, 69 (1914))).
demonstrate his attorney's allegedly deficient
performance, Petitioner first points to his change-of-plea
hearing from July 29, 2004. As is relevant here, when
Petitioner walked into that hearing to plead guilty, he had
not yet been charged under § 1001; instead, he had been
charged under 18 U.S.C. § 1542 with the crime of
passport fraud. And in fact, Petitioner had filed motions to
dismiss the passport fraud indictment for improper venue and
to transfer the case to the Eastern District of New York,
where Petitioner had actually made his false citizenship
claims and where he lived at the time, from the District of
New Hampshire, where his passport application had been
processed and where the indictment was currently pending. The
district court had initially denied both motions but changed
course at the hearing after recognizing that our then-recent
decision in United States v.
Salinas, 373 F.3d 161 (1st Cir. 2004), mandated that
venue did, in fact, lay in the Eastern District of New York.
And in light of that recognition, the district court asked
Petitioner whether he wished to waive venue and proceed with
his guilty plea in the District of New Hampshire.
speaking with Petitioner, Petitioner's counsel replied
that Petitioner no longer wished to "go through with
this proceeding today" and wanted the case to be
dismissed. In response, however, the prosecutor requested
that the district court delay dismissing the case so that the
United States could file a superseding indictment instead
charging Defendant with making a material false statement in
violation of § 1001. In the government's view, this
course of action was the most practical and expeditious
route, for venue over a § 1001 indictment would still
lay in the District of New Hampshire. Id. at 166-67.
counsel agreed with the government's new, alternative
suggestion. Without consulting anew with Petitioner to see
whether he wanted to proceed with the government's
suggested course of action or still hoped to have the case
dismissed, counsel stated that
[t]ime is important for [Petitioner] regarding immigration,
what's going to happen with that, so I suppose we
don't have an objection to a superseding indictment.
counsel also observed that a superseding indictment would
"avoid [Petitioner] being re-arrested."
Petitioner went along with his counsel's conduct at the
time and, as we noted above, eventually pleaded guilty to the
§ 1001 charge, Petitioner now claims that his
"[c]ounsel sua sponte changed [his] plea by
agreeing to allow the government to file a superseding
indictment-instead of having the charge dismissed-without
asking [him] or explaining what that meant." Because a
defendant is guaranteed effective assistance of counsel
during the "plea process, " Hillv.Lockhart, 474 U.S. 52, 57 ...