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Dorfmann v. United States

United States District Court, Second Circuit

January 23, 2014

MARKUS DORFMANN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM AND ORDER

JAMES C. FRANCIS, IV, Magistrate Judge.

Markus Dorfmann is facing removal from the United States as a consequence of his having been convicted some 14 years ago on a plea of guilty to possessing a false identification document with the intent to defraud the United States, in violation of 18 U.S.C. § 1028(a)(4). Mr. Dorfmann now seeks to challenge his conviction on the ground that he received ineffective assistance of counsel because, prior to entering his plea, his attorney misled him with respect to the possible immigration consequences of a conviction. Because he completed his sentence of probation and is not in custody, Mr. Dorfmann has sought relief by means of a petition for a writ of error coram nobis.[1]

Background

Markus Dorfmann was born and raised in Italy. (Letter of Daniel M. Felber dated Jan. 14, 1999 ("Felber Letter"), attached as Exh. B to Petition, at 1). Trained as a musician specializing in percussion, he entered the United States on a tourist visa in 1995 to further his career by studying at the Drummers Collective in New York and playing with various performers. (Felber Letter at 1-2; Affidavit of Markus Dorfmann dated Sept. 5, 2012 ("Dorfmann Aff."), attached as Exh. C to Petition, at 1).[2] Prior to expiration of his visa, Mr. Dorfmann explored ways to extend it or to become a permanent resident of the United States. (Felber Letter at 2; Dorfmann Aff. at 1). He was only able to obtain a three-month extension of the visa, after which it expired. (Felber Letter at 2; Dorfmann Aff. at 1).

Following a friend's advice, Mr. Dorfmann applied for a United States passport, using a birth certificate that indicated that he had been born in Augusta, Georgia, a social security card, and a New York State driver's license. (Dorfmann Aff. at 1; Criminal Complaint dated Nov. 19, 1998 ("Cr. Compl."), attached as Exh. D to Petition, ¶ 2). Because the application and supporting documents appeared fraudulent, the authorities investigated further and determined that the Georgia Bureau of Vital Statistics had no record of Mr. Dorfmann having been born in that state. (Cr. Compl, ¶¶ 3-4). On November 19, 1998, a special agent of the Diplomatic Security Service of the United States Department of State met with Mr. Dorfmann at the New York Passport Office. (Cr. Compl., ¶ 5). After waiving his Miranda rights, the petitioner stated that he had been born in Italy, had purchased the fake birth certificate, and then had used it to obtain the social security card and driver's license, all of which he submitted with his passport application. (Cr. Compl., ¶¶ 5-6).

On the basis of this information, the Government issued a criminal complaint charging Mr. Dorfmann with making a false statement in connection with a passport application in violation of 18 U.S.C. § 1542 (Cr. Compl.), and he was arrested. In the course of negotiating with the prosecutor, Mr. Dorfmann's attorney, Daniel M. Felber, submitted a letter in which he stated in part:

In light of Mr. Dorfmann's background and the circumstances surrounding this incident, it is clear that this was an isolated incident and not a reflection of a criminal character. He asks your office for a second chance which would allow him to contribute to society. A felony conviction would unduly punish a person in Mr. Dorfmann's position. It should be noted in the first instance that Markus is applying for residency in this country and would undoubtedly be rejected by INS in the event of a conviction. Secondly, Markus' years of hard work to attain his dream of becoming a "New York musician" will have been in vain.
Accordingly, for the reasons set forth above, it is respectfully requested that Mr. Dorfmann be given a second chance in the form of a deferred prosecution or, in the alternative, a misdemeanor disposition.

(Felber Letter at 3). The Government ultimately agreed to allow Mr. Dorfmann to plead guilty to a misdemeanor, and on January 20, 1999, a criminal information was filed, charging him with possessing a false identification document with the intent to defraud the United States, in violation of 18 U.S.C. § 1028(a)(4). (Information, attached as part of Exh. E to Petition). The maximum penalty under this section is a term of imprisonment of up to one year, a fine of up to $100, 000, and a $25.00 special assessment. 18 U.S.C. §§ 1028(b)(6), 3571(b)(5).

On March 4, 1999, Mr. Dorfmann pled guilty to the information. (Transcript of Plea dated March 4, 1999 ("Plea Tr."), attached as Exh. A to Petition). As part of the allocution, he stated, "In November of '98, I knowingly purchased a false American birth certificate, with the intent of getting an American passport." (Plea Tr. at 7). He further acknowledged that he presented the birth certificate to the passport office in Manhattan. (Plea Tr. at 7). The petitioner was convicted on the basis of his plea and sentenced to a term of probation of one year and a $25.00 special assessment, and judgment was entered accordingly. (Judgment in a Criminal Case dated April 22, 1999, attached as part of Exh. E to Petition).

Mr. Dorfmann completed his probation without incident and subsequently married an American citizen. (Dorfmann Aff. at 2; Psychosocial Assessment, attached as part of Exh. F to Petition, at 2). He currently works as general manager of a restaurant and hopes to open his own establishment. (Dorfmann Aff. at 2). On October 9, 2009, the United States Department of Homeland Security initiated removal proceedings against Mr. Dorfmann, asserting that he is removable based on the conviction at issue here. (Affirmation of Samuel M. Braverman dated July 17, 2013 ("Braverman Aff, "), ¶ 7). The Immigration Judge presiding over the removal proceeding has apparently indicated that deportation is imminent, but granted Mr. Dorfmann the opportunity to file the instant petition. (Braverman Aff., ¶ 8).

Mr. Dorfmann contends that his attorney affirmatively misled him with respect to the possibility that he would be subject to removal as a result of his conviction and argues that this advice violated his Sixth Amendment right to effective assistance of counsel. Accordingly, on July 18, 2013, Mr. Dorfmann filed this petition for a writ of error coram nobis seeking to vacate his conviction.

Discussion

A. The Legal Landscape and the ...


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