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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Yordania HERRERA-CLETO, Defendant-Appellant.


Decided: December 09, 2020

PRESENT: ROBERT D. SACK, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York. FOR DEFENDANT-APPELLANT: ELIZABETH M. JOHNSON, Law Office of Elizabeth M. Johnson, New York, New York.


Defendant-appellant Yordania Herrera-Cleto appeals the district court's decision and order, entered April 9, 2019, denying her petition for a writ of error coram nobis. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In April 2014, Herrera-Cleto was charged with the offense of bringing an alien into the country in violation of 8 U.S.C. § 1324(a)(2)(A). On August 5, 2014, Herrera-Cleto appeared before a magistrate judge to plead guilty to the charged offense. At the hearing, the magistrate judge called for a break to allow Herrera-Cleto to speak with her attorney regarding her plea. Following the break, her attorney stated for the record that the deportation consequence of Herrera-Cleto's sentence “was not a concern of hers [that day],” that they had “been working with an immigration attorney,” and that “a plea of guilty to this particular charge would make her deportable, although it doesn't necessarily mean she would be deported.” App'x at 46. The record contains a letter from an immigration attorney informing Herrera-Cleto's criminal defense attorney that if Herrera-Cleto chose to plead guilty, she would be subject to mandatory deportation under the Immigration and Nationality Act.

Herrera-Cleto pleaded guilty to the charged offense. She later received notice, dated January 7, 2015, that the government had instituted deportation proceedings against her. On September 13, 2016, Herrera-Cleto filed for a writ of error coram nobis alleging that her conviction was invalid due to ineffective assistance of counsel.

We review de novo whether the district court applied the proper legal standard, but review the district court's “ultimate decision to deny the writ for abuse of discretion.” United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). “To receive coram nobis relief, a petitioner must show 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 [her] conviction that may be remedied by granting of the writ.” Doe v. United States, 915 F.3d 905, 910 (2d Cir. 2019) (internal quotation marks omitted).

“Ineffective assistance of counsel, including during the plea-bargaining process, is a circumstance compelling the grant of a timely application for coram nobis relief.” Id. Assistance is ineffective where 1) the defense counsel's performance was deficient, and 2) that deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's failure to inform his client that a plea will result in mandatory deportation constitutes deficient performance. Padilla v. Kentucky, 559 U.S. 356, 368-69, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The district court below found that defense counsel's performance was deficient because he failed to inform Herrera-Cleto that a guilty plea would make her subject to mandatory deportation. For purposes of this appeal, we assume Herrera-Cleto has shown deficient performance on the part of her attorney. The question is therefore whether she was prejudiced by this deficient advice.

In her affidavit dated August 31, 2016, Herrera-Cleto states that had she known of the deportation consequences of her guilty plea, she would have chosen instead to go to trial. This Court requires that a showing of prejudice be supported by “contemporaneous evidence,” and “post hoc assertions from a defendant about how [s]he would have pleaded but for h[er] attorney's deficiencies” do not suffice. Doe, 915 F.3d at 912 (internal quotation marks omitted). On this record, Herrera-Cleto has failed to demonstrate that ineffective assistance of counsel prejudiced her defense. Indeed, Herrera-Cleto's counsel advised the district court that the immigration consequences were “not a concern of hers [that day].” App'x at 46. Rather, Herrera-Cleto's expectation was that she would be able to avoid a custodial sentence by pleading guilty, and she was in fact sentenced to probation.

Because we hold that Herrera-Cleto has failed to demonstrate prejudice, we need not reach the issue of whether she had sound reasons for her delay in seeking relief. Accordingly, we AFFIRM the judgment of the district court.

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