The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, U.S.D.J.:
This case presents the question of what duty criminal defense
counsel owes to a non-citizen client. Yong Wong Park, a Korean
national, petitions for a writ of error coram nobis to vacate his
conviction for trafficking in counterfeit goods. Mr. Park alleges
that his guilty plea was unconstitutional because it was the
result of ineffective assistance of counsel. The petitioner
claims he would not have pled guilty if he had known that it
would result in his deportation. For the reasons that follow, I
recommend that Mr. Park's petition be denied.
In February 2000, Mr. Park pled guilty to trafficking in
counterfeit goods. (Affidavit of Yong Wong Park, dated January 6,
2005 ("Pet. Aff."), ¶ 2). Based on all relevant sentencing
factors, the petitioner's plea resulted in a sentencing range of
21 to 27 months. (Letter of Marcia S. Cohen dated April 27, 2005
("Cohen Letter") at 3). The Honorable Jed Rakoff, U.S.D.J.
accepted Mr. Park's plea and sentenced him to 21 months of imprisonment, followed by two years of supervised release. (Plea
Allocution, dated February 18, 2000 at 14, attached as Exh. 1 to
Cohen Letter; Sentencing Transcript dated July 5, 2000 ("Sent.
Tr.") at 14-15, attached as Exh. 3 to Cohen Letter). Judge Rakoff
also imposed as a special condition of supervised release that
Mr. Park cooperate with the Immigration and Naturalization
Service (the "INS") in any proceedings regarding his status in
the United States. (Sent. Tr. at 16).
In July 2001, Mr. Park filed a pro se writ pursuant to
28 U.S.C. § 2255, alleging that his sentence should be set aside due
to improper venue, jurisdictional defects, and ineffective
assistance of counsel because his attorney failed to raise these
defenses. (Cohen Letter at 6). Judge Rakoff denied that
application. Since that time, Mr. Park has completed serving his
sentence. (Petitioner's Memorandum of Law ("Pet. Memo."), at 3).
On March 27, 2002, the INS commenced deportation proceedings
against Mr. Park in New Jersey, alleging that he had committed a
crime involving moral turpitude. (Pet. Memo. at 4). An alien
found to have committed such a crime is deportable, but may also
receive discretionary relief from deportation.
8 U.S.C. §§ 1227(a)(2)(A)(i), 1229b. On July 15, 2004, however, the INS
changed its asserted basis for Mr. Park's deportation by alleging
that he had committed an aggravated felony. (Pet. Memo. at 4).
Under current immigration law, aggravated felons cannot receive discretionary relief from deportation. 8 U.S.C. § 1229b(a)(3).
Due to the nature of Mr. Park's crime and the length of his
sentence, he was found to have committed an aggravated felony,
and a final order of removal was entered.*fn1 (Pet. Memo. at
Mr. Park now seeks to overturn the conviction on which his
deportation is based through an application for a writ of error
coram nobis. Mr. Park's affidavit alleges that his attorneys,
Daniel Becker and Joseph Ferriero, did not advise him that he
could be subject to removal as a consequence of his conviction on
a plea of guilty. (Pet. Aff., ¶ 2). Rather, they informed him
that he would not be deported because he had paid his taxes for
five years, had a "green card" (i.e., was a lawful permanent
resident), and had family members who were United States
citizens. (Pet. Aff., ¶ 2). The petitioner claims he would not
have pled guilty if he had known it would result in his removal
because he has lived in this country for over 20 years, his wife
and children have no roots in Korea, and his family members would
be unable to support themselves without his income. (Pet. Aff., ¶
3). I held an evidentiary hearing on July 7, 2005 to evaluate of
Mr. Park's factual allegations.
At this hearing, Mr. Park testified that he first asked his criminal defense counsel, Mr. Becker, about the deportation
consequences of his plea one week before it was entered. (Tr. at
97).*fn2 In contrast to the sworn statements in his
affidavit, the petitioner now claims that Mr. Becker did not
provide him with any advice on the topic and instead told him to
speak with an immigration lawyer or with Mr. Ferriero, who was
Mr. Park's counsel in a related civil matter and a member of the
same law firm. (Tr. at 102-03). Mr. Park went on to testify that,
shortly before his plea, he spoke with Mr. Ferriero, who assured
him there would be no immigration consequences. (Tr. at 99-100).
The respondent, on the other hand, produced evidence that Mr.
Park raised no concerns about deportation until several months
after he pled guilty. Neither Mr. Becker nor Mr. Ferriero have
any recollection of Mr. Park inquiring about removal prior to his
plea. (Tr. at 7, 41). When asked what their responses would have
been had Mr. Park raised the question, both attorneys testified
that they would not have provided him with an answer since they
were not familiar with immigration law. (Tr. at 21, 54).
Several memoranda exchanged between Mr. Park's lawyers in
September 2000 seven months after the plea were also offered
into evidence. In the first such communication, dated September
11, 2000, Mr. Ferriero alerted Mr. Becker's successor, Lori
Grifa, that the petitioner was not a citizen of the United States. (Pet.
Exh. A). Mr. Ferriero recognized that this could have deportation
consequences. (Pet. Exh. A). Ms. Grifa responded to Mr.
Ferriero's concerns on September 18, 2000. (Pet. Exh. B). She
wrote that she did not think that Mr. Park fell within the
criteria for deportation and, in the event that the INS did seek
to deport him, he would be eligible to seek cancellation of
removal. (Pet. Exh. B). Ms. Grifa further explained her research
in an e-mail dated September 26, 2000. (Resp. Exh. 3). In her
opinion, Mr. Park had not been convicted of an aggravated felony
but could be found to have committed a crime involving moral
turpitude. (Resp. Exh. 3). She wrote, however, that Mr. Park was
unlikely to face removal because the crime was committed
substantially after he had been admitted to the United States and
because his family circumstances would qualify as extreme
hardship, meriting discretionary relief. (Resp. Exh. 3). No
evidence was presented to show what precipitated this exchange or
when, if ever, Mr. Park was informed of his counsel's legal
opinions. Mr. Park alleges that these intra-office communications
were fabricated or post-dated to cover up his counsel's previous
errors. (Tr. at 125).
Where extraordinary circumstances are present, a district court
may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Nicks v. United States,
955 F.2d 161, 167 (2d Cir. 1992). However, the proceedings
leading to the conviction are presumed to be correct, and the
burden rests on the petitioner to show ...