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Margerita Ewan v. United States of America

August 23, 2012

MARGERITA EWAN, PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

In October 2000, petitioner Margerita Ewan pleaded guilty to one count of bankruptcy fraud pursuant to 18 U.S.C. § 152(3). She was sentenced to probation in March 2001, and the Court ordered her to pay $39,237.97 in restitution. Seeking to vacate the conviction, Ewan has filed a petition for a writ of error coram nobis. For the reasons that follow, the petition is denied with respect to the conviction but granted with respect to the order imposing restitution.

I.

According to the Presentence Investigation Report ("PSR") used at sentencing, Ewan's conviction was related to an uncharged mortgage fraud -- she had an acquaintance sign a residential mortgage as a straw buyer. No payments were made on the mortgage, and the property went into foreclosure. On January 13, 2000, a day before the scheduled foreclosure sale, a bankruptcy petition was filed in the straw buyer's name, staying the sale. The bankruptcy action was dismissed when the petitioner failed to appear. An investigation determined that the straw buyer's signature on the petition was forged and that Ewan had filed it without his consent. Ewan was arrested and, on October 3, 2000, she pleaded guilty. Although her conviction was solely for the bankruptcy fraud, the mortgage lender, Chase Manhattan Bank ("the Bank"), submitted an affidavit of loss in the amount of $39,237.97 for expenses related to the residential mortgage and foreclosure case. The Court imposed restitution in that amount, along with a sentence of probation.

In an affidavit accompanying her coram nobis petition, Ewan asserts that she has resided in the United States since 1982 and became a lawful permanent resident in September 1998. Her attorney in the criminal proceeding, Cyril Baines, was representing her in a civil matter and agreed to take on the additional representation at no charge. He assured her that her guilty plea would not affect her immigration status.

After the conviction, Ewan "took several trips outside the United States," and had no trouble with her immigration status. Ewan Affidavit ¶ 5. In October 2010, however, she was stopped when returning from abroad and placed in immigration proceedings. The Department of Homeland Security charged her with having been convicted of a crime of moral turpitude, which rendered her inadmissible. See 8 U.S.C. § 1182 (a)(2)(A)(i)(I). Moreover, the amount of restitution rendered the crime an aggravated felony, which precludes any possibility of a waiver. See 8 U.S.C. § 1101(a)(43)(M)(i); 18 U.S.C. § 1182(h)(1)(B).

Ewan filed her coram nobis petition in December 2011. She seeks to have her conviction vacated on the grounds that she received ineffective assistance of counsel because her attorney (1) misrepresented that the plea would have no immigration consequences, and (2) failed to object to the Court's unlawful restitution award. The government concedes that the amount of restitution imposed was improper. It argues, however, that the Court should vacate only the restitution portion of the judgment.

II.

A. The standard for coram nobis relief

A petition for a writ of error 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). The Court has authority to issue the writ pursuant to the All Writs Act, 28 U.S.C. § 1651(a), but may do so "only where extraordinary circumstances are present." See Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). The 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) (internal quotation marks, citations, and alterations omitted).

It is undisputed that Ewan continues to suffer legal consequences from her conviction in the form of immigration proceedings. Moreover, sound reasons exist for her failure to seek relief sooner. Ewan first learned that immigration proceedings would be brought against her in October 2010, and the government only amended its charge to assert that the conviction was an aggravated felony in July 2011. At that point, on the advice of her immigration attorney, she consulted a criminal lawyer who commenced an investigation. In light of these facts, her December 2011 coram nobis petition was timely filed. The Court will therefore focus its analysis on the remaining requirement, whether there are circumstance compelling issuance of the writ.

Ineffective assistance of counsel may be so fundamental an error as to justify a writ of error coram nobis. See Matos v. United States, No. 99 Cr. 137, 2012 WL 569360 at *2 (S.D.N.Y. Feb. 16, 2012). To establish that she received ineffective assistance of counsel, Ewan must demonstrate: (1) that her attorney's performance fell below "an objective standard of reasonableness," and (2) that she was prejudiced by this failure. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Prejudice, in the context of a guilty plea, requires "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial."Hill v. Lockhart, 474 U.S. 52, 59 (1985).

B. The guilty plea

Ewan contends that her guilty plea should be vacated because defense counsel, Baines, assured her that it would "not affect [her] immigration status at all" and that "he knew for a fact that [she] would not be deported." Ewan Affidavit ΒΆ 5. Assuming, arguendo, that Baines did in fact make these misrepresentations and that they fell beneath an objective standard of reasonable representation, see United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002) ("an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable"), abrogated on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (holding that even ...


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