The opinion of the court was delivered by: Robert L. Carter, District Judge
Petitioner was born in India and is a citizen of that country. Chawla became a lawful permanent resident of the United States on August 4, 1978. On March 20, 1989, Chawla was charged in this district in a three-count indictment with violations of the federal Controlled Substances Act. The first count alleged that petitioner had conspired to distribute, and to possess with intent to distribute, approximately two and a half kilograms of heroin. The second and third counts of the indictment charged petitioner with possession of heroin with intent to distribute.
After several days of evidence at trial in June 1989, Chawla pleaded guilty to two counts and was therefore convicted on June 14, 1989 of (1) conspiracy to distribute heroin and to posses heroin with intent to distribute in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute more than one kilogram of mixtures and substances containing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). His guilty plea was sealed and Chawla began cooperating with the law enforcement on a narcotics investigation.
Chawla claims that agents of the then Immigration & Naturalization Service ("INS")*fn1 repeatedly promised that he would not be deported because of his cooperation with the government. Chawla's guilty plea was unsealed on April 3, 1991 and the court sentenced Chawla to a five-year term of imprisonment. While serving his sentence at the Federal Detention Center in Oakdale, Louisiana, Chawla was placed in deportation proceedings and an Immigration Judge ordered him deported on June 23, 1992. On July 19, 1992, Chawla was paroled from serving his criminal sentence and released to INS under an order of supervision. Chawla claims that he continued his cooperation with the government and that the government assured him that the deportation order would not be enforced against him. On September 7, 2006, Chawla was taken into ICE custody in advance of his removal from the United States, and he is currently detained at the Hudson County Correctional Facility in Hackensack, New Jersey.
On September 18, 2006, Chawla filed a petition for a writ of error coram nobis. Chawla amended that petition on October 24, 2006 to add additional defendants and claims under 28 U.S.C. § 2241 and the Suspension Clause, U.S. Const., art. I, § 9, cl. 2. Petitioner argues that at the time of his plea in 1989, neither the government, nor his criminal defense attorney properly advised him of his right to apply for a judicial recommendation against deportation pursuant to 8 U.S.C. § 1251(b)(2) (1988) repealed by Immigration Act of 1990 ("1990 Act"), Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5050 (1990). Petitioner further argues that the Department of Homeland Security has now violated an agreement not to deport him in exchange for his cooperation with the government. Chawla claims that had he been advised of his right to seek judicial recommendation against deportation, he would have done so prior to November 29, 1990, when the Immigration Act of 1990 eliminated such requests. Chawla argues that coram nobis is appropriate based on ineffective assistance of counsel because of his attorney's failure to seek a judicial recommendation against deportation. As relief, Chawla requests that the court either entertain an application for a judicial recommendation against deportation nunc pro tunc or, alternatively, vacate his 1989 conviction.
On September 20, 2006, Judge Lynch, sitting as the Part I Judge entered an order setting a due date by which respondents were required to file opposition or other pleadings and mandating that "movant's removal or deportation is hereby stayed" in order "[t]o preserve the Court's jurisdiction over the case . . . ." (Sept. 20, 2006 Order). On October 3, 2006, the government filed a motion to vacate the stay of removal, which is now pending before this court.
Also currently before the court is Chawla's October 2, 2006 motion for an order releasing him from custody on bail.
Where "extraordinary circumstances" are present, federal courts are authorized to grant the ancient common law writ of error coram nobis under the terms of the All Writs Act, 28 U.S.C. § 1651(a).*fn2 United States v. Morgan, 346 U.S. 502 (1954). Coram nobis is "essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam). To obtain relief under the writ of coram nobis, petitioner must demonstrate that (1) there are circumstances compelling such action to achieve justice, (2) sound reasons exist for failure to seek appropriate earlier relief, and (3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ. Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996); Fleming, 146 F.3d at 90. When reviewing a petition for a writ of corum nobis, courts must "presume that the proceedings were correct" and the "burden rests upon the [petitioner] to show otherwise." U.S. v. Morgan, 346 U.S. at 512; accord Fleming, 146 F.3d at 90; Foont, 93 F.3d at 78-79; Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992);.
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," which caused prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). Under the first prong of the Strickland test, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. With regard to the second prong, the petitioner must show a reasonable likelihood that "but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.
At the time of Chawla's sentencing, 8 U.S.C. § 1251(b)(2) permitted defendants convicted of certain "moral turpitude" offenses to request that the sentencing court make a binding "recommendation" to the Attorney General that the alien not be deported.*fn3 That provision, however, specifically directed that it "shall not apply in the case of any alien who is charged with being deportable from the Untied States under subsection (a)(11) of this section." That provision, 8 U.S.C. § 1251(a)(11) includes "a violation of, or a conspiracy to violate, any law or regulation of a State, the United States, or a foreign country relating to a controlled substance." Chawla, having pleaded guilty and been convicted on June 14, 1989 of (1) conspiracy to distribute heroin and to posses heroin with intent to distribute in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute more than one kilogram of mixtures and substances containing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), was therefore statutorily ineligible to apply for relief under § 1251(b)(2). As such, his counsel's failure to inform him of relief that he was ...