Kovacs v.

13-0209
Kovacs v. United States
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2013 5
6
7
(Argued: November 21, 2013 Decided: March 3, 2014) 8
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Docket No. 13-0209 10
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STEPHEN KOVACS, 14
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Petitioner-Appellant, 16
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- v.- 18
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UNITED STATES OF AMERICA, 20
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Respondent-Appellee. 22
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Before: KEARSE, JACOBS, and PARKER, Circuit 26
Judges. 27
28
Appeal from a judgment of the United States District 29
Court for the Eastern District of New York, denying Stephen 30
Kovacs’ petition for a writ of error coram nobis to vacate 31
his 1999 guilty plea to misprision of felony. We reverse 32
and order the granting of the writ. 33
NICHOLAS A. GRAVANTE, JR. 34
(Thomas Ling, on the brief), 35
Boies, Schiller & Flexner LLP, 36
New York, N.Y., for 37
Appellant. 38

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MICHAEL H. WARREN (Peter A. 1
Norling, on the brief), for 2
Loretta E. Lynch, United States 3
Attorney for the Eastern 4
District of New York, Brooklyn, 5
N.Y., for Appellee. 6
7
The Opinion of the Court is filed by Judge JACOBS. Judge 8
KEARSE concurs except for Part I.B.1. 9
10
DENNIS JACOBS, Circuit Judge: 11
12
Petitioner Stephen Kovacs appeals from a judgment of 13
the United States District Court for the Eastern District of 14
New York (Wexler, J.), denying his petition for a writ of 15
error coram nobis. Kovacs was convicted for misprision of 16
felony, in violation of 18 U.S.C. § 4, and seeks the writ on 17
the ground that his lawyer rendered ineffective assistance 18
by giving erroneous advice concerning the deportation 19
consequences of pleading guilty to that offense, with the 20
result that he is at risk of detention and deportation if he 21
reenters the United States. The district court denied the 22
petition without an evidentiary hearing. For the reasons 23
that follow, we reverse and order the granting of the writ. 24
25
BACKGROUND 26
Stephen Kovacs is an Australian national who became a 27
permanent resident of the United States in 1977. While 28
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here, Kovacs founded International Bullion and Metal 1
Brokers, Inc., an importer and distributor of gold and metal 2
jewelry. After Kovacs’ company lost $250,000 in a 1991 3
burglary, Hanover Insurance Company dispatched a public 4
adjustor named Eliot Zerring to assess the loss. Zerring, 5
who was corrupt, see Chubb & Son Inc. v. Kelleher, No. 92 CV 6
4484, 2010 WL 5978913 (E.D.N.Y. Oct. 22, 2010), purportedly 7
convinced Kovacs to inflate the claim to $850,000. The 8
claim was submitted in September 1991 and paid later that 9
month. Kovacs ultimately took $400,000 of the $850,000, and 10
Zerring kept the rest. 11
Kovacs was charged in October 1996 with wire fraud and 12
conspiracy to commit wire fraud, in violation of 18 U.S.C. 13
§§ 371 and 1343. Kovacs instructed his lawyer, Robert Fink, 14
to negotiate a plea that would have no immigration 15
consequences. Fink advised Kovacs that a conviction for 16
misprision of felony, 18 U.S.C. § 4, would not impact his 17
immigration status. Fink allegedly conveyed these 18
immigration concerns to the Government, which agreed to the 19
misprision of felony charge. 20
On November 24, 1999, Kovacs pled guilty to a single 21
count of misprision of felony. Kovacs’ immigration concerns 22
were aired during the plea hearing. At the outset, Fink 23
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sought to seal the minutes of the guilty plea so immigration 1
officials could not see them. The district court warned 2
Kovacs that immigration consequences were not in its control 3
and that it would give no such assurance. Fink, however, 4
responded that he “researched it and we feel comfortable 5
that this is not a deportable offense.” Special App. at 12, 6
ECF No. 31 (transcript of plea proceeding). At the 7
conclusion of the proceeding, Fink again stated that 8
“misprision of felony is not deportable.” Id. at 16. The 9
court accepted the plea. 10
Kovacs was sentenced on December 17, 2001 to five 11
years’ probation and restitution of $600,000. The district 12
court granted a downward departure for extraordinary 13
acceptance of responsibility in view of Kovacs’ decision to 14
forgo an available defense based on the five-year statute of 15
limitations. Kovacs paid the restitution in full by August 16
8, 2002. In 2006, the district court granted a motion to 17
terminate Kovacs’ probation early. 18
Kovacs continued his regular international travel until 19
April 2009, when immigration officials questioned Kovacs’ 20
eligibility for reentry on the ground that misprision of 21
felony is considered a crime of moral turpitude. At that 22
point, immigration officials directed him to appear for an 23
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interview to evaluate his immigration status. Kovacs 1
discussed his options with his lawyers, but allegedly none 2
of them advised him to seek vacatur of his conviction. 3
Before his scheduled interview, on the advice of 4
counsel, Kovacs returned to Australia, where he currently 5
resides. His wife and children, all United States citizens, 6
remain here. Kovacs’ children have had to adjust their 7
lives to carry on the family business. 8
Kovacs alleges that, notwithstanding his efforts to 9
seek counsel earlier, he first became aware of the 10
possibility of coram nobis relief in October 2011. At about 11
that time, his counsel asked the Government to negotiate an 12
agreed-upon motion for a writ of error coram nobis. 13
Negotiations failed, and Kovacs submitted a petition for the 14
writ in May 2012. The district court denied the petition on 15
the ground that Kovacs could not show prejudice within the 16
framework established by Strickland v. Washington, 466 U.S. 17
668 (1984). Because the court denied the petition on those 18
grounds, it did not reach the merits of the Government’s 19
other arguments: that the petition was untimely, and that 20
Kovacs could not show Fink’s advice was objectively 21
unreasonable at the time the conviction became final. 22
Kovacs now appeals the denial of his petition. 23
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DISCUSSION 1
A writ of error coram nobis is an “extraordinary 2
remedy,” United States v. Morgan, 346 U.S. 502, 511 (1954), 3
typically available only when habeas relief is unwarranted 4
because the petitioner is no longer in custody. See 5
Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). 6
We review the legal standards applied by the district court 7
de novo. Id. 8
A petitioner seeking coram nobis relief “must 9
demonstrate that 1) there are circumstances compelling such 10
action to achieve justice, 2) sound reasons exist for 11
failure to seek appropriate earlier relief, and 3) the 12
petitioner continues to suffer legal consequences from his 13
conviction that may be remedied by granting of the writ.” 14
Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996) 15
(internal citations and quotation marks omitted). There is 16
no doubt that Kovacs’ likely ineligibility to reenter the 17
United States constitutes a continuing consequence of his 18
conviction. The remaining questions are whether Fink’s 19
misadvice warrants granting the writ, and whether the 20
petition was timely. 21
22
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I 1
“Defendants have a Sixth Amendment right to counsel, a 2
right that extends to the plea-bargaining process.” Lafler 3
v. Cooper, 132 S. Ct. 1376, 1384 (2012). Thus, ineffective 4
assistance of counsel is one ground for granting a writ of 5
coram nobis. See Chhabra v. United States, 720 F.3d 395, 6
406 (2d Cir. 2013). A claim of ineffective assistance 7
entails a showing that: 1) the defense counsel’s performance 8
was objectively unreasonable; and 2) the deficient 9
performance prejudiced the defense. Strickland, 466 U.S. 10
at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) 11
(holding Strickland test applies to guilty plea challenges); 12
Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011). 13
14
A 15
The performance component of the Strickland test asks 16
whether a “counsel’s representation fell below an objective 17
standard of reasonableness.” Strickland, 466 U.S. at 688. 18
A defense counsel’s performance is unreasonable when it is 19
so deficient that it falls outside the “wide range of 20
professionally competent assistance.” Id. at 690. 21
22
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As the district court observed, “there is no dispute 1
that Fink misadvised Kovacs regarding the immigration 2
consequences of his plea.” Memorandum and Order, Kovacs v. 3
United States, No. 12-cv-02260, at 3 (E.D.N.Y. Jan. 2, 2013, 4
ECF No. 18). The transcript of the plea allocution reflects 5
repeated erroneous assurances by Fink that misprision of 6
felony was not a deportable offense. We held in United 7
States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), that an 8
affirmative misrepresentation of the deportation 9
consequences of a guilty plea falls outside this range of 10
professional competence. However, Couto was decided the 11
year after Kovacs’ 2001 conviction became final. If Kovacs 12
had entered his plea after Couto was decided, there is 13
little doubt Fink’s performance would be deemed 14
unreasonable. Kovacs seeks to apply Couto retroactively. 1
15
The retroactive application of case law is governed by 16
the rule set forth in Teague v. Lane, 489 U.S. 288 (1989), 17
1 Because the district court ruled Kovacs could not
make a showing of prejudice, the court did not decide
whether Couto retroactively applies. However, this issue
has been argued by the parties and presents a pure question
of law. See Hartford Courant Co. v. Pellegrino, 380 F.3d
83, 90 (2d Cir. 2004) (“In general, we refrain from
analyzing issues not decided below, but we have the
authority to decide issues that were argued before but not
reached by the district court.”).
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which looks to a decision’s novelty. If a decision 1
announces a new rule, “a person whose conviction is already 2
final may not benefit from the decision in a habeas or 3
similar proceeding.” Chaidez v. United States, 133 S. Ct. 4
1103, 1107 (2013). Only if the Court applies a settled rule 5
“may a person avail herself of the decision on collateral 6
review.” Id. “[A] case announces a new rule if the result 7
was not dictated by precedent existing at the time the 8
defendant’s conviction became final.” Teague, 489 U.S. at 9
301 (emphasis in original). Such a holding must have been 10
“apparent to all reasonable jurists.” Chaidez, 133 S. Ct. 11
at 1107 (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 12
(1997)). 13
We have little trouble concluding that, by the time 14
Kovacs’ conviction became final, the Couto rule was 15
indicated, and was awaiting an instance in which it would be 16
pronounced. Courts had concluded similar misadvice was 17
objectively unreasonable as far back as the 1970s 2; our 18
decisions reflected this trend long before Kovacs’ 19
2 See, e.g., United States v. Briscoe, 432 F.2d 1351,
1353-54 (D.C. Cir. 1970); Downs-Morgan v. United States, 765
F.2d 1534, 1538-41 (11th Cir. 1985); United States v.
Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich. 1987);
United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173
(D. Kan. 1999).
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conviction. See United States v. Santelises, 509 F.2d 703, 1
704 (2d Cir. 1975) (per curiam) (“Since [defense counsel] 2
does not aver that he made an affirmative misrepresentation, 3
[petitioner] fails to state a claim for ineffective 4
assistance of counsel.”); Michel v. United States, 507 F.2d 5
461, 465 (2d Cir. 1974) (“While recognizing that deportation 6
was a serious sanction, this court . . . [noted] that there 7
was before it no allegation of misleading by counsel.”); see 8
also United States v. Zilberov, 162 F.3d 1149, 1998 WL 9
634211, at *1 (2d Cir. 1998) (unpublished summary order) 10
(“[T]rial counsel’s alleged warning of ‘possible’ 11
deportation may have been inaccurate and, arguably, 12
objectively unreasonable.”). 13
The Government observes that these statements were 14
dicta, not holdings; but if there had been holdings, there 15
would be no occasion now to consider retroactivity. Couto 16
did nothing more than apply the “age-old principle that a 17
lawyer may not affirmatively mislead a client.” Chaidez, 18
133 S. Ct. at 1119 (Sotomayor, J., dissenting). At the time 19
Kovacs’ conviction became final, no reasonable jurist could 20
find a defense counsel’s affirmative misadvice as to the 21
immigration consequences of a guilty plea to be objectively 22
reasonable. 23
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B 1
Once a petitioner shows deficient performance of 2
defense counsel, the inquiry shifts to the prejudicial 3
effect of that performance. To establish prejudice, a 4
petitioner “must show that there is a reasonable probability 5
that, but for counsel’s unprofessional errors, the result of 6
the proceeding would have been different. A reasonable 7
probability is a probability sufficient to undermine 8
confidence in the outcome.” Strickland, 466 U.S. at 694. 9
In determining whether a different outcome sufficiently 10
demonstrates prejudice, we must keep in mind that “a 11
defendant has no right to be offered a plea, nor a federal 12
right that the judge accept it.” Missouri v. Frye, 132 S. 13
Ct. 1399, 1410 (2012) (internal citations omitted). 14
Notwithstanding the prevalence of pleas in the criminal 15
justice system, see id. at 1407, the Supreme Court has not 16
often had occasion to consider Strickland prejudice in the 17
plea negotiation context. The Government, relying on Hill, 18
474 U.S. 52, contends Kovacs can succeed only if he shows he 19
would have gone to trial absent his attorney’s unreasonable 20
performance. While Kovacs contends he has made that 21
showing, he also argues that he can demonstrate prejudice by 22
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showing his ability to negotiate an alternative plea based 1
on the holding of Frye, 132 S. Ct. 1399. 2
In Hill, the petitioner sought habeas relief to 3
challenge his guilty plea to first-degree murder. Hill, 474 4
U.S. at 54. He alleged that his attorney’s misadvice about 5
when he would become eligible for parole caused his plea to 6
be involuntary. See id. at 56. In that context, the Court 7
stated that prejudice is shown when “there is a reasonable 8
probability that, but for the counsel’s errors, he would not 9
have pleaded guilty and would have insisted on going to 10
trial.” Id. at 59. Because the petitioner there did not 11
allege that he would have insisted on trial or that he 12
placed “particular emphasis on his parole eligibility in 13
deciding” to plea, the Court denied his petition. Id. at 14
60. 15
Frye opened another avenue to showing prejudice in the 16
pretrial process. Frye’s lawyer failed to tell him of a 17
proposed plea that would have resulted in a reduced 18
sentence. 132 S. Ct. at 1404-05. The plea lapsed and Frye 19
argued that he would have accepted the better offer but for 20
his attorney’s performance. Id. Prejudice can arise under 21
Frye if a petitioner can “demonstrate a reasonable 22
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probability [he] would have accepted the earlier plea offer 1
had [he] been afforded effective assistance of counsel.” 2
Id. at 1409. In addition, a petitioner must show “a 3
reasonable probability that the end result of the criminal 4
process would have been more favorable by reason of a plea 5
to a lesser charge or a sentence of less prison time.” Id. 6
Acknowledging that there is no right to a plea, the Court 7
also required “a reasonable probability neither the 8
prosecution nor the trial court would have prevented the 9
offer from being accepted or implemented.” Id. at 1410. 10
The Government contends that Frye is limited to lapsed 11
pleas and that Kovacs must satisfy the Hill standard. We 12
disagree. “Hill . . . applies in the context in which it 13
arose.” Id. at 1409. “Hill does not . . . provide the sole 14
means for demonstrating prejudice arising from the deficient 15
performance of counsel during plea negotiations.” Id. at 16
1409-10.3 The proper focus is not on the specific test 17
applied in Hill or Frye; each case is a context-specific 18
application of Strickland directed at a particular instance 19
of unreasonable attorney performance. See Hare v. United 20
3 As the Supreme Court noted, “it is insufficient
simply to point to the guarantee of a fair trial as a
backstop that inoculates any errors in the pretrial
process.” Frye, 132 S. Ct. at 1407.
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States, 688 F.3d 878, 879 (7th Cir. 2012) (“Both Hill and 1
Frye apply Strickland’s inquiry . . . .” (internal quotation 2
marks omitted); see also Lafler v. Cooper, 132 S. Ct. 1376 3
(2012) (developing different test for prejudice when 4
attorney misadvice leads to standing trial instead of 5
accepting a plea offer). 6
We conclude that a defense lawyer’s incorrect advice 7
about the immigration consequences of a plea is prejudicial 8
if it is shown that, but for counsel’s unprofessional 9
errors, there was a reasonable probability that the 10
petitioner could have negotiated a plea that did not impact 11
immigration status or that he would have litigated an 12
available defense. 4 See United States v. Kwan, 407 F.3d 13
1005, 1017-18 (9th Cir. 2005) (“Kwan could have gone to 14
trial or renegotiated his plea agreement to avoid 15
deportation.”). The petitioner must clearly demonstrate 16
“that he placed particular emphasis on [immigration 17
consequences] in deciding whether or not to plead guilty.” 18
Id. at 1017 (internal quotation marks omitted). 19
4 See also Sasonov v. United States, 575 F.Supp.2d 626,
639 (D.N.J. 2008) (immigration consequences “may have been
enough to . . . have allowed [petitioner] to negotiate a
more favorable plea agreement with the Government.”); United
States v. Shaw, No. Civ.A. 03-6759, 2004 WL 1858336, at *11
(E.D. Pa. 2004) (“Defendant could have negotiated with the
government in such a way as to produce a sentence that would
not have triggered the INA mandatory removal provisions.”).
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Strickland prejudice focuses on the outcome of the 1
proceeding rather than a defendant’s priorities or desires. 2
“[B]ecause a defendant has no right to be offered a plea,” 3
Frye, 132 S. Ct. at 1410, the ultimate outcome of a plea 4
negotiation depends on whether the government is willing to 5
agree to the plea the defendant is willing to enter. To 6
prevail on that ground, a petitioner must therefore 7
demonstrate a reasonable probability that the prosecution 8
would have accepted, and the court would have approved, a 9
deal that had no adverse effect on the petitioner’s 10
immigration status. Cf. id. (“reasonable probability 11
neither the prosecution nor the trial court would have 12
prevented the offer from being accepted or implemented”); 13
Lafler, 132 S. Ct. at 1385 (“the prosecution would not have 14
withdrawn it in light of intervening circumstances”); United 15
States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (“He 16
alleges no facts that would suggest that his attorney could 17
have successfully negotiated a plea agreement . . . .”) 18
(emphasis added). 19
We conclude 1) that Kovacs has sufficiently shown that 20
he could have negotiated a plea that would not have impaired 21
his immigration status, and 2) that even if he could not, he 22
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would have litigated an available defense. Judge Kearse 1
would decide this appeal on the second ground only, under 2
Hill, and does not subscribe to our discussion of the first. 3
4
1 5
Kovacs has sustained the very considerable burden of 6
establishing prejudice under the principles reviewed above. 7
It is apparent from the transcript of the Rule 11 hearing 8
that Kovacs’ single-minded focus in the plea negotiations 9
was the risk of immigration consequences. The declaration 10
submitted by Fink stated that the misprision of felony 11
charge was settled on in the plea negotiation for the sole 12
reason that Fink believed it would not impair Kovacs’ 13
immigration status–-a view Fink conveyed to the prosecution. 14
Kovacs has thus shown a reasonable probability that he could 15
have negotiated a plea with no effect on his immigration 16
status. The Government’s arguments on appeal are directed 17
at contesting the applicable legal standard rather than the 18
factual premise: the reasonable probability that the 19
prosecution would have accepted a plea to an offense that 20
would have left Kovacs’ immigration status intact. 21
22
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Consequently, we find that Kovacs has made a showing of 1
prejudice based on his ability to negotiate an alternative 2
plea. 3
4
2 5
Alternatively, Kovacs demonstrates prejudice under the 6
standards set forth in Hill. Kovacs’ petition alleges he 7
would have litigated a meritorious statute of limitations 8
defense. When a petitioner claims that he would have 9
pursued an affirmative defense but for his lawyer’s 10
erroneous advice, “the resolution of the ‘prejudice’ inquiry 11
will depend largely on whether the affirmative defense 12
likely would have succeeded at trial.” 5 Hill, 474 U.S. at 13
59. At sentencing, Kovacs requested a downward departure 14
for extraordinary acceptance of responsibility on the basis 15
that he waived this potential meritorious defense, and the 16
district court granted it. The request itself demonstrates 17
Kovacs’ awareness of the defense prior to the plea becoming 18
final. See Fed. R. Crim. P. 11(d)(2). More importantly, 19
5 The Government argues that this language applies only
when the unreasonable performance impairs the defense. This
portion of Hill, though, merely provides examples of how its
rule might apply, and does not suggest a limitation. See
Hill, 474 U.S. at 59-60.
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the district court’s grant of Kovacs’ request in the course 1
of a conscientious and searching sentencing process 2
implicitly acknowledged that the defense had weight. As a 3
result, Kovacs has shown a reasonable probability that he 4
would have proceeded to trial. 5
The Government contests the merit of the defense, 6
citing a fax sent after Kovacs received the final payment in 7
his fraudulent scheme, a document that is not in the present 8
record. In any event, the question is not whether the 9
defense would ultimately have been successful. Rather, the 10
inquiry is whether the defense was viable and sufficiently 11
promising that Kovacs would have litigated the defense to 12
avoid immigration consequences. There is no doubt that (fax 13
or no fax) the defense was sufficient trouble for the 14
Government that Kovacs would have been foolish to forgo it 15
at trial or as a means of softening the Government’s 16
position in plea bargaining. 17
18
II 19
The Government urges affirmance on the ground that the 20
petition was untimely. The district court did not reach 21
that issue; but we do, insofar as timeliness bears on 22
possible prejudice to the Government. 23
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No statute of limitations governs the filing of a coram 1
nobis petition. See Foont, 93 F.3d at 79. At the same 2
time, the petitioner must demonstrate “sound reasons” for 3
any delay in seeking relief. Id. “The critical inquiry . . 4
. is whether the petitioner is able to show justifiable 5
reasons for the delay.” Id. at 80. 6
Kovacs has supplied sufficient reasons to justify the 7
delay. He avers that he has diligently pursued ways to 8
reenter the country, but was unaware that a writ of coram 9
nobis existed until October 2011--and contacted the 10
Government soon thereafter. The Government is skeptical 11
about the recent discovery of a writ so “ancient.” Morgan, 12
346 U.S. at 506. When such a disputed issue of fact arises, 13
we typically remand for a hearing. Under present 14
circumstances, however, no hearing is needed because it is 15
improbable that Kovacs (or whatever attorney he consulted) 16
would have promptly thought about coram nobis, which is as 17
arcane as it is ancient. The writ is an “extraordinary 18
remedy” available only in rare cases. Id. at 511. Further, 19
the Government does not suggest any tactical reason Kovacs 20
would have delayed pursuit of the writ until 2011 if he had 21
learned of it earlier. Lastly, the focus on the filing date 22
of the petition insufficiently accounts for Kovacs’ efforts 23
19

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to negotiate for an agreed-upon motion in 2011. We conclude 1
that Kovacs’ petition was timely. 2
3
For these reasons, Kovacs has established his claim of 4
ineffective assistance of counsel and satisfies the 5
requirements for coram nobis relief. Therefore, we reverse 6
and remand to the district court with instructions to issue 7
the writ and vacate Kovacs’ conviction. 8
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