The opinion of the court was delivered by: Pisano, District Judge
NOT FOR PUBLICATION CLOSED
This case concerns the imminent removal from the United States of Petitioner Mario Mendoza ("Mendoza"). Mendoza petitions the Court for a writ of coram nobis, seeking to vacate the guilty plea and conviction that may ultimately lead to his removal, based on ineffective assistance of counsel in his underlying criminal case. For the reasons that follow, Mendoza's Petition for a Writ of Coram Nobis is DENIED.
The facts of this case are largely undisputed. Mario Mendoza, born in Ecuador in 1965, resides in Elizabeth, New Jersey with his ex-wife and their four children, all United States citizens. Between approximately 1996 and 2001, Mendoza assisted borrowers in qualifying for FHA-insured mortgages in his capacity as a licensed realtor for Weichert Realtors in Union, NJ. He was charged with conspiracy to fraudulently induce the Federal Housing Authority to insure mortgage loans, in violation of 18 U.S.C. § 371, for acts committed from 1999 to 2001. Mendoza retained counsel Glen Cavanaugh, who advised him that pleading guilty to this crime would not result in a prison sentence, but failed to inform him that as an aggravated felony, it would result in mandatory deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
Mendoza's guilty plea was entered on March 29, 2006. His plea agreement provided that the loss attributable to the offense was between $200,000 and $350,000, based on the profits derived from the conspiracy. It also noted increases in the Guidelines offense level due to more than minimal planning and more than one victim, and a decrease due to Mendoza's acceptance of personal responsibility. Prior to sentencing on September 11, 2006, Mendoza was informed in his Presentence Investigation Report ("PSR") that his felony conviction could subject him to removal proceedings. He was ultimately sentenced to two years' probation with a six-month term of home confinement and ordered to pay $100,000 in restitution. One of the conditions of Mendoza's probation was that he cooperate with Immigration and Customs Enforcement, and if deported, that he not re-enter the United States without permission of the Attorney General.
On January 14, 2010, Mendoza filed a motion to withdraw his guilty plea based on ineffective assistance of counsel, for counsel's failure to inform him of the immigration consequences of his guilty plea. On September 9, 2010, he withdrew the motion. On June 21, 2011, he filed this Petition for a Writ of Error Coram Nobis.
A. Ineffective Assistance of Counsel
The Third Circuit has recognized that persons not "in custody" wishing to challenge a conviction for fundamental defects such as ineffective assistance of counsel may obtain relief through this writ. United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740, 744 (3d Cir. 1979); see also United States v. Golden, 854 F.2d 31, 32-33 (3d Cir. 1988). On an ineffective assistance of counsel claim, the Court is guided by Hill v. Lockhart, 474 U.S. 52 (1985). Hill adopted the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), but tailored the test for ineffective assistance of counsel claims arising out of a guilty plea. Petitioners must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 57; United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (the "prejudice prong").
Judicial scrutiny of counsel's conduct must be highly deferential. Strickland, 466 U.S. at 690. Nevertheless, Mendoza has carried his burden as to the first step of the Strickland/Hill analysis. The United States Supreme Court has held that failing to inform a criminal defendant of the deportation consequences of a guilty plea falls below the standard of reasonableness required of an attorney under the Sixth Amendment right to counsel. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Although Mendoza's conviction became final before Padilla was decided, the Third Circuit has held that Padilla is retroactively applicable. United States v. Orocio, 645 F.3d 630 (3d Cir. 2011). Mendoza's plea was entered in March 2006, making Padilla clearly applicable under Orocio. See id. at 642 n.11 (noting that the plea at issue in Padilla dated back to 2002, thus it was "not unreasonable to apply those same norms to Mr. Orocio's attorney in 2004.").
The Court must then determine whether or not the defendant suffered prejudice. Where a defendant seeks to show prejudice from ineffective assistance at the plea stage, this "will depend in large part," but not exclusively, "on a prediction whether the [errors] likely would have changed the outcome of a trial." Hill, 474 U.S. at 57. See also Padilla, 130 S.Ct. at 1482 (quoting Strickland, 466 U.S. at 694) (the court must determine "whether 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"). The Third Circuit has recognized, however, that a "rational decision not to plead guilty does not focus solely on whether a defendant would have been found guilty at trial- Padilla reiterated that an alien defendant might rationally be more concerned with removal than with a term of imprisonment." Orocio, 645 F.3d at 643-44 (citing Padilla, 130 S.Ct. at 1483).
To support his position, Mendoza submits nothing but his own affidavit stating that, had he known of the potential for deportation, he would have insisted on going to trial. Yet nowhere in the record does Mendoza assert his innocence. See United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (noting that assertion of innocence is one of the factors weighing in favor of withdrawing a guilty plea). In fact, he has pointed to nothing specific suggesting that he had any chance at a better outcome than the one he received in his 2006 plea bargain. Although Mendoza states that, he "would have, at a minimum, attempted to negotiate a pea [sic] that allowed [him] to stay in the country," Pet'r's Br. Ex. A, at ¶ 6, it is highly unlikely that any such plea agreement was available to him. The losses attributable to his crime far exceed the $10,000 aggravated felony threshold. 8 U.S.C. § 1101(a)(43)(M)(i) (defining aggravated felonies); 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony a deportable offense). The full extent of Mendoza's claim is that, had he known of potential deportation, he would have chosen to gamble on a trial.
Nevertheless, the Third Circuit held under similar circumstances that such bare assertions may be sufficient to satisfy the prejudice prong of an ineffective assistance of counsel claim, and remanded to the District Court so that the issue could be decided on a "developed factual record." Orocio, 645 F.3d at 643-45. However, this Court need not engage in further factfinding here, because it denies the Petition on other grounds. As ...