United States v. Maureen Chan

Opinion by Judge D.W. NELSON; Concurrence by Judge BYBEE; Dissent by Judge IKUTA.

OPINION

Appellant Maureen Elaine Chan, a/k/a Maureen Ridley (“Chan”), appeals the district court’s dismissal of her petition for a writ of error coram nobis. This case requires us to determine,the retroactivity of our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir.2005). Because we conclude that Kwan both survives Padilla v. Kentucky, 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), and did not establish a new rule of criminal procedure under Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), we thus hold that Kwan applies retroactively to Chan’s case. Accordingly, we reverse the district court’s order dismissing Chan’s petition and remand for further proceedings consistent with this opinion.

I. Background

On June 22, 1993, Chan was charged with six counts of perjury under 18 U.S.C. § 1623 . Chan pleaded guilty pursuant to a plea agreement to three counts of perjury and was sentenced to two months imprisonment, three years of supervised re *1153 lease, and a special assessment of $150. Chan is a British citizen but has been a lawful permanent resident…

concurring:

I concur in Judge Nelson’s njajority opinion that our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir.2005), did not create a new rule under Teague. For reasons Judge Nelson explains, the duty under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 .(1984), not to make affirmative misrepresentations (whatever their subject matter) is not “new.” But in my view, we should reverse the district court for an independent reason, one that I find even more compelling than applying Teag-ue: We granted coram nobis relief in Kwan , and Chan’s coram nobis petition is on all fours with Kwan . This case is governed by stare decisis.

In order to grant coram nobis, we must find the error alleged to be “of the most fundamental character, that is, such as [would] render[ ] the proceeding itself invalid.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987) (internal quotation marks omitted) (quoting United States v. Mayer, 235 U.S. 55, 69 , 35 S.Ct. 16 , 59 L.Ed. 129 (1914)). When we granted coram nobis relief to Kwan, we determined that counsel’s affirmative misrepresentation regarding Kwan’s immigration consequences constituted an…

dissenting:

As the Supreme Court made clear, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. And a holding is not so dictated ... unless it would have been apparent to all reasonable jurists.” Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1107 , 185 L.Ed.2d 149 (2013) (quoting Teague v. Lane, 489 U.S. 288, 301 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) and Lambrix v. Singletary, 520 U.S. 518, 527-28 , 117 S.Ct. 1517 , 137 L.Ed.2d 771 (1997)) (internal quotation marks and citation omitted). Relying on our precedents and those of other circuits, we held in 2003 that counsel’s failure to advise a defendant of collateral immigration consequences of a criminal conviction did not violate the Sixth Amendment. See United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003), abrogated by Padilla v. Kentucky, 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010). As indicated in Chaidez , reasonable jurists would have interpreted that rule to mean that Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), was simply not “operative” and did not apply “when a criminal lawyer…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-55239 Plaintiff-Appellee, D.C. No. v. 2:93-CR-00583-

RGK-

MAUREEN ELAINE CHAN, AKA

Maureen Ridley, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted February 2, 2015—Pasadena California

Filed July 9, 2015

Before: Dorothy W. Nelson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge D.W. Nelson; Concurrence by Judge Bybee; Dissent by Judge Ikuta SUMMARY*

Coram Nobis

The panel reversed the district court’s dismissal of a petition for a writ of error coram nobis in a case in which Maureen Elaine Chan sought to withdraw her guilty plea on the ground that defense counsel affirmatively misrepresented the adverse immigration consequences of her conviction.

The panel held that United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (holding that affirmatively misleading a client regarding the immigration consequences of a conviction could constitute the…