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Nangia v. United States

October 2, 2012

AMIT NANGIA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Richard M. Berman, U.S.D.J.

OPINION & ORDER

I. Background

On or about August 19, 2011, Amit Nangia ("Nangia" or "Petitioner"), proceeding pro se, filed a petition for a writ of error coram nobis ("Petition") seeking to vacate his September 23, 2003 guilty plea to one count of conspiracy to commit bank, wire, and mail fraud (involving approximately $600 million) in violation of 18 U.S.C. § 371 and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Plea Tr., dated Sept. 23, 2003.) On February 27, 2004, Petitioner was sentenced to twelve months and one day of imprisonment. (Sentencing Tr., dated Feb. 27, 2004, at 11.) And, on April 12, 2005, Nangia was deported to India, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because he was an "alien who [was] convicted of an aggravated fleony." 8 U.S.C. § 1227(a)(2)(A)(iii. See (Govt.'s Mem. of Law in Opp'm to Pet. for Writ of Error Coram Nobis, dated mar. 5, 2012 ("Govt. Mem."), at 6.)

Nangia contends, among other things, that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. (Pet'r's Mem. of Law, dated Aug. 10, 2011 ("Pet. Mem."), at 4.) Specifically, he argues that (1) his trial attorney, Philip R. Edelbaum, who passed away in July of 2004, failed to advise him of "the immigration consequences of pleading guilty"; (2) his Petition is justifiably late filed because the United States Supreme Court did not decide Padilla v. Kentucky, 130 S. Ct. 1473 (2010), until March 2010; and (3) Padilla is an "old rule" and should be given retroactive effect. (Pet. Mem. at 5; Pet'r's Supp. Brief in Supp. to Pet. for Writ of Error Coram Nobis, dated Mar. 30, 2012 ("Pet. Reply"), at 2, 6--13.)*fn1

The Government opposes the Petition and argues that (1) Petitioner cannot demonstrate that he suffered "prejudice" because, among other reasons, the Court specifically allocuted Petitioner regarding possible deportation consequences at his September 23, 2003 guilty plea hearing (see Plea Tr. at 17); (2) "Petitioner offers no sound reason for the seven-year-long delay between the institution of removal proceedings against him and the filing of his petition"; and (3) Padilla announces a "new rule." (Govt. Mem. at 1, 6, 15, 18.)

For the reasons set forth below, Nangia's Petition for a writ of error coram nobis is denied.

II. Legal Standard

A petitioner cannot show prejudice if prior to accepting his plea, he is advised that he could be deported as a result of his guilty plea. Gonzalez v. United States, No. 10 Civ. 5463, 2010 WL 3465603, at *1 (S.D.N.Y. Sept. 3, 2010); United States v. Hernandez, 404 Fed. App'x 714, 715 (4th Cir. 2010).

"When a Petitioner fails to provide a sound reason for delay, courts have held that a coram nobis should be dismissed if its filing has been delayed for more than several years."

Cruz v. New York, No. 03 Civ. 9815, 2004 WL 1516787, at *4 (S.D.N.Y. July 6, 2004) (internal quotations omitted).

"[S]elf-serving allegations of ineffective assistance of counsel are not enough to overturn a knowing and voluntary guilty plea." Eber-Schmid v. Cuomo, No. 09 Civ. 8036, 2010 WL 1650905, at *28 (S.D.N.Y. Apr. 22, 2010) (citing United States v. Gordon, 156 F.3d 376, 380--81 (2d Cir. 1998)).

III. Analysis

(1)Petitioner Was Advised of Deportation at His Plea Hearing

Petitioner argues that "but for trial counsel Mr. Philip R. Edelbaum's ineffective performance [regarding immigration consequences] there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial." (Pet. Mem. at 10.) The Government argues that "Petitioner's assertion that he would have proceeded to trial had he known he faced deportation as a result of his conviction cannot be credited . . . . because, whatever his counsel may or may not have told him, ...


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