United States v. Maureen Chan

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-1

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

2 UNITED STATES V. CHAN

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 basis for an ineffective assistance of

counsel claim), survives Padilla v. Kentucky, 559 U.S. 356

(2010) (holding that in order to satisfy the Sixth Amendment,

defense counsel must inform her client whether his plea

carries a risk of deportation), and did not establish a new rule

of criminal procedure under Teague v. Lane, 489 U.S. 288

(1989). The panel thus held that Kwan applies retroactively

to Chan’s case, and remanded for the district court to evaluate

the merits of the petition in the first instance.

Judge Bybee concurred. He agreed with the majority

opinion that Kwan did not create a new rule under Teague.

But in his view, the panel should reverse for an independent,

more compelling reason: Chan’s coram nobis petition is on

all fours with Kwan, in which this court granted coram nobis

relief.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CHAN 3

Dissenting, Judge Ikuta wrote that Kwan created a new

rule, and cannot be applied retroactively to Chan’s case,

because the result in Kwan was not dictated by precedent

existing at the time Chan’s conviction became final and

would not have been apparent to all reasonable jurists.

COUNSEL

Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena,

California, for Defendant-Appellant.

André Birotte, Jr., United States Attorney, Robert Dugdale,

Chief, Criminal Division, Jean-Claude Andre (argued) and

Wilson Park, Assistant United States Attorneys, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

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 (2010), and did not establish a new rule of

criminal procedure under Teague v. Lane, 489 U.S. 288

(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.

4 UNITED STATES V. CHAN

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 release, and a special assessment of $150. Chan

is a British citizen but has been a lawful permanent resident

of the United States since 1973.

Prior to pleading guilty, Chan alleges that she consulted

with her attorney and specifically asked him whether a guilty

plea would affect her immigration status. She further alleges

that her attorney assured her that she would not face any

adverse immigration consequences.

Chan states that on February 28, 2012, she was stopped

by U.S. Customs and Border Protection agents at Los

Angeles International Airport, who then confiscated her

passport and permanent resident card. On November 15,

2012, the Department of Homeland Security initiated removal

proceedings against Chan and served her with a Notice to

Appear, charging her as inadmissible under

§ 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act

as an immigrant convicted of a crime involving moral

turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I).

On May 15, 2013, Chan brought a petition for writ of

error coram nobis in the district court. Chan sought to

withdraw her guilty plea and supported her petition with one

claim of ineffective assistance of counsel (“IAC”), alleging

that defense counsel affirmatively misrepresented the adverse

immigration consequences of her conviction. Chan claimed

that, had she known the true nature of the immigration

UNITED STATES V. CHAN 5

consequences of her potential convictions, she would have

requested a different plea deal or gone to trial.

On September 24, 2013, the government filed a motion to

dismiss the petition. The district court granted the

government’s motion to dismiss, concluding that Kwan

established a new rule of criminal procedure under Teague

and, therefore, did not have retroactive effect. Chan timely

appealed the district court’s dismissal to this court.

II. Standard of Review

“A district court’s denial of a petition for a writ of error

coram nobis is reviewed de novo.” United States v. Riedl,

496 F.3d 1003, 1005 (9th Cir. 2007).

III. Discussion

“[T]he writ of error coram nobis is a highly unusual

remedy, available only to correct grave injustices in a narrow

range of cases where no more conventional remedy is

applicable.” Id.; see also United States v. Morgan, 346 U.S.

502, 511 (1954) (describing the writ of error coram nobis as

an “extraordinary remedy” available “only under

circumstances compelling such action to achieve justice”). In

order to establish that she qualifies for coram nobis relief, the

petitioner must show the following four factors:

(1) a more usual remedy is not available;

(2) valid reasons exist for not attacking the

conviction earlier;

6 UNITED STATES V. CHAN

(3) adverse consequences exist from the

conviction sufficient to satisfy the case or

controversy requirement of Article III; and

(4) the error is of the most fundamental

character.

Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United

States, 828 F.2d 591, 604 (9th Cir. 1987)).

The district court dismissed Chan’s petition under—and

the parties only dispute—the fourth factor. Specifically, the

district court concluded that because Kwan established a new

rule under Teague and, thus, does not apply retroactively,

Chan had failed to state a claim for IAC and could not show

that there was an error of “the most fundamental character.”

To determine whether Chan may proceed with her IAC

claim under Kwan, we first look to whether Kwan survives

Padilla.1 We then turn to whether this case is controlled by

Chaidez v. United States, 133 S. Ct. 1103 (2013), which

concluded that Padilla does not apply retroactively, and

whether Kwan established a new rule of criminal procedure

under Teague.

A. Whether Padilla abrogates Kwan

In Kwan, we held that affirmatively misleading a client

regarding the immigration consequences of a conviction

1

The government made this argument before the district court, but has

not pursued it on appeal. Although the government has thus waived this

argument, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), we find

it a necessary starting point for our analysis.

UNITED STATES V. CHAN 7

could constitute the basis for an IAC claim. 407 F.3d at

1015. We noted that our holding was notwithstanding our

earlier-espoused rule that “an attorney’s failure to advise a

client of the immigration consequences of a conviction,

without more, does not constitute ineffective assistance of

counsel.” Id. (citing United States v. Fry, 322 F.3d 1198,

1200 (9th Cir. 2003), abrogated by Padilla, 559 U.S. 356).

Five years after Kwan, the Supreme Court changed the

landscape of IAC claims and held that, in order to satisfy the

Sixth Amendment, defense counsel “must inform her client

whether his plea carries a risk of deportation.” Padilla,

559 U.S. at 374. This holding abrogated the existing rule in

all ten courts of appeals that had reached this

issue—including ours, Fry, 322 F.3d 1198—as the courts of

appeals had uniformly concluded that the mere failure to

advise regarding the possibility of deportation could not

establish an IAC claim. Chaidez, 133 S. Ct. at 1109 & n.7.

Padilla was simultaneously broader and narrower than

our decision in Kwan: broader in that Padilla reached

affirmative misrepresentations and failure to advise, but

narrower in that Padilla concerned only deportation whereas

Kwan considered all “immigration consequences.” Compare

Padilla, 559 U.S. at 364–66, 369–74, with Kwan, 407 F.3d at

1015–17. Further, the crux of Padilla’s holding was to reject

the direct/collateral consequence distinction in the context of

deportation to “conclude that advice regarding deportation is

not categorically removed from the ambit of the Sixth

Amendment right to counsel.” 559 U.S. at 366. Kwan,

though, concerned itself more with the fact that an attorney

misadvised his client about a matter material to the client’s

decision to enter into a plea agreement. See 407 F.3d at 1016

(“[C]ounsel made an affirmative representation to Kwan that

8 UNITED STATES V. CHAN

he had knowledge and experience regarding the immigration

consequences of criminal convictions; as a result, counsel had

a professional responsibility to [correctly] inform himself and

his client . . . .”). Thus, while Padilla clearly abrogated Kwan

to the extent that Kwan reaffirmed the rule in Fry, see Kwan,

407 F.3d at 1015, Kwan’s holding that affirmative

misrepresentations by counsel regarding immigration

consequences constitutes deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984), clearly

survives Padilla.

B. Whether Chaidez controls Kwan

We next turn to the government’s argument that Kwan is

controlled by Chaidez. The government contends that for the

same reasons Chaidez concluded Padilla announced a new

rule and was not retroactive, Kwan must also have announced

a new rule and not be retroactive. Because we find Kwan

sufficiently distinguishable from Padilla, we conclude Kwan

is not controlled by Chaidez.

In Chaidez, the Supreme Court held that Padilla did not

have retroactive effect. 133 S. Ct. at 1105. In evaluating

Padilla under the Teague framework, the Court explained

that Padilla had not simply applied the “general standard” for

IAC in Strickland, but rather “did something more.” Chaidez,

133 S. Ct. at 1107, 1108. That “something more” was

answering a threshold question: whether Sixth Amendment

protections governing the competence of defense counsel

extended to advice regarding deportation. Id. In concluding

that they did, the Court answered in part a question left

explicitly open in Hill v. Lockhart, 474 U.S. 52 (1985),

whether the Sixth Amendment covered so-called “collateral

consequence[s]” of a conviction. Chaidez, 133 S. Ct. at 1108

UNITED STATES V. CHAN 9

(citing Hill, 474 U.S. at 60). Importantly, as we noted above,

the Court answered this question in Padilla by rejecting the

direct/collateral consequence distinction, declining to label

deportation as either and, instead, identifying it as “unique.”

Id. at 1110 (quoting Padilla, 130 U.S. at 365) (internal

quotation marks omitted). As such, Padilla fundamentally

altered Sixth Amendment jurisprudence in at least partially

breaking down the distinction between direct and collateral

consequences. Id. at 1110–11.

Kwan’s much narrower holding instead focused on

whether counsel’s performance was deficient. See 407 F.3d

at 1015–17. Kwan did not assert Padilla’s holding that

attorneys could be liable for failing to advise about adverse

immigration consequences; rather, Kwan merely held that

attorneys’ affirmative misrepresentations—or incorrect

answers to direct questions from clients—regardless of their

subject matter would be deficient performance under

Strickland. Id. Thus, Kwan’s analysis rested on the

distinction between failure to advise and affirmative

misadvice, not on the direct/collateral/unique nature of the

consequence faced by the petitioner. While there is some

language in Chaidez that appears to cover both failure to

advise and affirmative misrepresentations, see 133 S. Ct at

1110 (“Padilla . . . made the Strickland test operative . . .

when a criminal lawyer gives (or fails to give) advice about

immigration consequences.”), Chaidez also recognized that

prior to Padilla, certain circuits “recognized a separate rule

for material misrepresentations,” which “lived in harmony

with” other precedent excluding claims based on failure to

advise, id. at 1112.

Because Chaidez focused on the novelty of Padilla’s

threshold inquiry as to whether the Sixth Amendment ever

10 UNITED STATES V. CHAN

applies to advice regarding deportation advice—an analysis

absent from Kwan—we conclude that Kwan is not controlled

by Chaidez and thus proceed with our own analysis of Kwan

under Teague.

C. Kwan Under the Teague Framework

Lastly, we must determine whether, as the district court

concluded and the government argues, Kwan constituted a

new rule of criminal procedure under Teague and thus cannot

be applied retroactively. We agree with Chan that Kwan did

not establish a new rule under Teague, and we reverse the

district court on that basis.

The framework we proceed under to determine

retroactivity under Teague is clear: first,2 we determine “the

date upon which the defendant’s conviction became final.”

Lambrix v. Singletary, 520 U.S. 518, 527 (1997). Second, we

“survey the legal landscape as it then existed and determine

whether a . . . court considering the defendant’s claim at the

time his conviction became final would have felt compelled

by existing precedent to conclude that the rule he seeks was

required by the Constitution.” Id. (internal quotation marks,

brackets and citations omitted). Finally, if the rule is a “new

rule,” we must determine “whether the relief sought falls

within one of the two narrow exceptions to nonretroactivity.”

Id.

2

Of course, there is a threshold determination as to whether the rule

presented is “a substantive rule or a procedural rule” as “‘Teague by its

terms applies only to procedural rules.’” Hayes v. Brown, 399 F.3d 972,

982 (9th Cir. 2005) (en banc) (quoting Bousley v. United States, 523 U.S.

614, 620 (1998)). Neither party has argued that the rule in this case is

substantive, and we conclude that because it “does not affect the scope of

a substantive criminal statute,” the rule here is clearly procedural. See id.

UNITED STATES V. CHAN 11

In this case, Chan’s conviction became final in 2000.

Accordingly, we are required to “survey the legal landscape”

at that time to determine whether Chan would have been

vindicated in seeking to apply the rule in Kwan to her case.

“[A] case announces a new rule if the result was not

dictated by precedent existing at the time the defendant’s

conviction became final.” Chaidez, 133 S. Ct. at 1107

(quoting Teague, 489 U.S. at 301) (internal quotation marks

omitted). Further, “a holding is not so dictated . . . unless it

would have been ‘apparent to all reasonable jurists.’” Id.

(quoting Lambrix, 520 U.S. at 527–28). However, “‘[w]here

the beginning point’ of [the court’s] analysis is a rule of

‘general application . . . designed for . . . evaluating a myriad

of factual contexts, it will be the infrequent case that yields a

result so novel that it forges a new rule.’” Id. (first alteration

in original) (quoting Wright v. West, 505 U.S. 277, 309

(1992) (Kennedy, J., concurring)).

We find that many factors weigh in favor of concluding

that Kwan did not announce a new rule of criminal procedure.

First, the language of both Chaidez and Padilla indicates that

a court would not be creating a new rule by holding only that

defense counsel’s affirmative misrepresentations regarding

immigration consequences could constitute an IAC claim. In

response to Justice Sotomayor’s dissent in Chaidez, which

argued that Padilla itself was not a new rule based on cases

such as Kwan, Chaidez, 133 S. Ct. at 1118 (Sotomayor, J.,

dissenting), the Chaidez majority explained that “those

decisions reasoned only that a lawyer may not affirmatively

misrepresent his expertise or otherwise actively mislead his

12 UNITED STATES V. CHAN

client on any important matter, however related to a criminal

prosecution,” id. at 1112 (majority op.). The Court described

the rule barring affirmative misrepresentations under

Strickland—“regardless whether they concerned deportation

or another collateral matter”—as a “limited” rule, which, it

concluded, did not apply to Chaidez’s failure-to-advise case.

Id. Finally, the Chaidez majority noted that “Padilla would

not have created a new rule had it only applied Strickland’s

general standard to yet another factual situation—that is, had

Padilla merely made clear that a lawyer who neglects to

inform a client about the risk of deportation is professionally

incompetent.” Id. at 1108. Justice Sotomayor explained that

“[t]he majority believes that [Kwan and related cases] did not

meaningfully alter the state of the law in the lower courts

before Padilla, because they merely applied the age-old

principle that a lawyer may not affirmatively mislead a

client.” Id. at 1119 (Sotomayor, J., dissenting).

The distinction between affirmative misrepresentations

and failure to advise also is reflected in Padilla. There, the

Solicitor General argued that the Court should adopt a more

narrow rule, similar to Kwan, whereby counsel’s performance

would only be deficient under Strickland if the attorney gave

“misadvice” about collateral/immigration consequences.

Brief for United States as Amicus Curiae Supporting

Affirmance, Padilla v. Kentucky, 559 U.S. 356 (2010) (No.

08-651), 2009 WL 2509223, *6–7, 22–25. Although the

Padilla majority rejected this position, 559 U.S. at 369–74,

Justice Alito advocated for the adoption of this narrower rule

in his concurrence, id. at 384–87 (Alito, J., concurring).

Justice Alito characterized the majority’s rule as a “dramatic

departure from precedent,” a “major upheaval in Sixth

Amendment law,” and a “dramatic expansion of the scope of

criminal defense counsel’s duties under the Sixth

UNITED STATES V. CHAN 13

Amendment.” Id. at 377, 383. By contrast, Justice Alito

explained the Solicitor General’s narrower rule would “not

require any upheaval in the law.” Id. at 386. He additionally

noted that “the vast majority of the lower courts considering

claims of ineffective assistance in the plea context have

distinguished between defense counsel who remain silent and

defense counsel who give affirmative misadvice.” Id.

(internal quotation marks and brackets omitted). Read

together, Chaidez and Padilla thus strongly indicate that the

Court would not have considered the rule in Kwan to be a

new rule.

Second, at the time Chan’s conviction became final there

was ample support in federal courts for the Kwan rule. By

2000, both courts of appeals to reach the issue had concluded

that affirmative misrepresentations regarding immigration

consequences could support an IAC claim in certain

circumstances. See Downs-Morgan v. United States,

765 F.2d 1534, 1540–41 (11th Cir. 1985); United States v.

Briscoe, 432 F.2d 1351, 1353–54 (D.C. Cir. 1970).

Additionally, many district courts had reached the same

conclusion. See, e.g., United States v. Khalaf, 116 F. Supp.

2d 210, 215 (D. Mass. 1999); see also United States v.

Abramian, No. CR 02-00945 MMM, 2014 WL 2586666, at

*5 (C.D. Cal. June 10, 2014) (compiling cases). Several of

our sister circuits had also concluded that affirmative

misrepresentations regarding parole consequences, also

considered to be a “collateral consequence” of a conviction,

could establish an IAC claim. See James v. Cain, 56 F.3d

662, 667–69 (5th Cir. 1995); Holmes v. United States,

876 F.2d 1545, 1551–53 (11th Cir. 1989); Sparks v. Sowders,

852 F.2d 882, 885 (6th Cir. 1988); Strader v. Garrison, 611

F.2d 61, 65 (4th Cir. 1979). As such, “the [Kwan] rule was

indicated, and was awaiting an instance in which it would be

14 UNITED STATES V. CHAN

pronounced.” Kovacs v. United States, 744 F.3d 44, 50 (2d

Cir. 2014). Moreover, we need not cite to a particular pre-

2000 case stating that affirmative misadvice constitutes IAC

for Kwan to not be a new rule under Teague because Kwan

merely asserted an “age-old principle” that attorneys can be

held liable if they affirmatively misadvise their clients. See

Chaidez, 133 S. Ct. at 1119 (Sotomayor, J., dissenting); Dyer

v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc)

(“[A] rule needs to be announced for purposes of Teague only

if it’s new. What we have here is the antithesis of Teague—a

rule so deeply embedded in the fabric of due process that

everyone takes it for granted.”).

Although we join our colleagues on the Second Circuit in

finding pre-Padilla circuit precedent on affirmative

misrepresentations to be retroactive, see Kovacs, 744 F.3d at

50–51, we acknowledge that our conclusion puts us at odds

with the Seventh Circuit’s ruling in Chavarria v. United

States, 739 F.3d 360 (7th Cir. 2014). There, the Seventh

Circuit rejected “affirmative misadvice . . . under pre-Padilla

law” as a basis for an IAC claim for two reasons: “[F]irst, . . .

the distinction between affirmative misadvice and non-advice

was not a relevant factor in Padilla,” and “[s]econd, the

precedent, pre-Padilla, supporting the application of

Strickland in this context is insufficient to satisfy Teague.”

Id. at 362.

We respectfully disagree with both of these points. First,

while Padilla certainly breaks down the barrier between

affirmative misrepresentations and failure to advise—at least

as to deportation advice—henceforth, Justice Alito’s

concurrence and Chaidez strongly suggest that the impact of

Padilla would have been far different had the Supreme Court

simply adopted the narrower Kwan rule. As such, while the

UNITED STATES V. CHAN 15

distinction may be “irrelevant” for future IAC claims, the

distinction is relevant for our Teague analysis above. Second,

as we explain above, we find ample support in the federal

courts pre-Padilla for the rule that affirmative

misrepresentations regarding immigration consequences

could support IAC claims. As Chaidez noted, Kwan and

similar cases “existed happily with precedent” that denied

IAC claims based on failure to advise. 133 S. Ct. at 1112.

Ultimately, we read the language in Chaidez differently

than the Seventh Circuit did in Chavarria, and we agree with

the Second Circuit’s analysis in Kovacs. We thus conclude

that Kwan did not announce a new rule of criminal procedure

under Teague and that the rule in Kwan—affirmative

misrepresentations by defense counsel regarding immigration

consequences is deficient under Strickland—can support

Chan’s IAC claim.

IV. Conclusion

The district court dismissed Chan’s petition because it

concluded that Kwan was a new rule of criminal procedure

under Teague and did not apply retroactively. Because we

conclude otherwise, we reverse the district court’s dismissal.

However, the district court did not consider the merits of

Chan’s petition because it was dismissed on this ground

alone. Accordingly, we remand the case to the district court

to evaluate the merits of Chan’s petition in the first instance.

REVERSED and REMANDED.

16 UNITED STATES V. CHAN

BYBEE, Circuit Judge, concurring:

I concur in Judge Nelson’s majority 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 (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 Teague: 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 (1914)). When we granted

coram nobis relief to Kwan, we determined that counsel’s

affirmative misrepresentation regarding Kwan’s immigration

consequences constituted an “error . . . of the most

fundamental character.” Kwan, 407 F.3d at 1011–12 (quoting

Estate of McKinney ex. rel. McKinney v. United States,

71 F.3d 779, 781–82 (9th Cir. 1995)). The Supreme Court

has held that such fundamental errors exist only in

“‘extraordinary’ cases presenting circumstances compelling

its use ‘to achieve justice.’” United States v. Denedo,

556 U.S. 904, 911 (2009) (quoting United States v. Morgan,

UNITED STATES V. CHAN 17

346 U.S. 502, 511 (1954)).1 If an error is so fundamental as

to warrant coram nobis relief, doesn’t that mean that the

principle is not new? Or put differently, is a finding of

“fundamental error” for coram nobis purposes automatically

“not-new” for Teague purposes because of its fundamental

status? I think the answer to both questions must be yes.

Under Teague, a case “announces a new rule if the result

was not dictated by precedent existing at the time the

defendant’s conviction became final.” Teague v. Lane,

489 U.S. 288, 301 (1989). Such “a holding is not so dictated

. . . unless it would have been ‘apparent to all reasonable

jurists’” at the time that the defendant’s conviction became

final. Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013)

(quoting Lambrix v. Singletary, 520 U.S. 518, 527–528

(1997)). It seems obvious to me that an error of such

fundamental character as to warrant coram nobis relief is one

that all reasonable jurists would agree is an error.

Although I think the principle is obvious, neither the

Supreme Court nor we have spoken to whether we must apply

Teague where the case establishing the rule was an action in

1

Historically, we have granted coram nobis relief only in very extreme

and narrow circumstances. See, e.g., United States v. McClelland,

941 F.2d 999, 1001–02 (9th Cir. 1991) (granting coram nobis relief where

defendant had been convicted without proof beyond a reasonable doubt of

an essential element of the offense); United States v. Walgren, 885 F.2d

1417, 1423–24 (9th Cir. 1989) (finding fundamental error where

Walgren’s mail fraud conviction rested upon a commission of fraud that

was not criminal); Hirabayashi, 828 F.2d at 608 (granting coram nobis

relief to vacate Hirabayashi’s convictions for failure to report under the

Civilian Exclusion Order 57 and for a wartime curfew violation,

convictions which were later deemed unjust by both the legislative and

executive branches).

18 UNITED STATES V. CHAN

coram nobis. Cf. id. at 1106 n.1 (assuming without deciding

that there was no meaningful difference between a coram

nobis petition and a habeas petition in determining whether

Padilla had retroactive effect under Teague). In Chaidez, the

Court decided whether a prior, non-coram nobis case applied

retroactively for the benefit of the coram nobis petitioner. Id.

at 1106, 1110–11. In that case, using Teague to decide

whether the error was so obvious to be “fundamental” makes

sense. By contrast, here we have a coram nobis petitioner

seeking to use a prior coram nobis case retroactively for her

own relief.

Chan’s case is distinguishable from the principal decision

noted by the dissent, Ortega v. Roe, for the same reason. See

Dissent at 25–26. In Ortega (a 28 U.S.C. § 2254 habeas and

pre-AEDPA case), we considered whether a habeas petitioner

could rely on our decision in United States v. Stearns (a

§ 2255 case) for his own habeas relief, and we conducted a

Teague analysis of Stearns. Ortega v. Roe, 160 F.3d 534,

535–36 (9th Cir. 1998) (citing United States v. Stearns,

68 F.3d 328, 329 (9th Cir. 1995)), vacated on other grounds

by Roe v. Flores-Ortega, 528 U.S. 470 (2000). It makes

sense that we would conduct a Teague analysis in Ortega

because Stearns treated the Sixth Amendment question before

it as a straight-up Strickland question. In Stearns, we did not

have to conclude that the petitioner’s proceedings exhibited

an “error of the most fundamental character.” Accordingly,

it makes sense to require a petitioner—whether proceeding

under § 2254, § 2255, or coram nobis—who is seeking the

benefit of a decision made retroactive in a prior habeas case,

to satisfy Teague’s “new rule” analysis. But not so here. We

have already held the error in Chan’s case to be “of the most

fundamental character,” and it strikes me as illogical to

require her to repeat the same arguments for the purposes of

UNITED STATES V. CHAN 19

satisfying Teague. We need not use Teague to decide if we

find an error to be “fundamental” when Kwan has already so

concluded. This case turns out to be a straightforward

application of stare decisis.

I would reverse the district court’s order dismissing

Chan’s petition because we are bound by Kwan’s finding of

“fundamental error” and its implicit holding that it was not

creating a new rule under Teague.

IKUTA, Circuit Judge, 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,

133 S. Ct. 1103, 1107 (2013) (quoting Teague v. Lane,

489 U.S. 288, 301 (1989) and Lambrix v. Singletary, 520 U.S.

518, 527–28 (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 (2010). As

indicated in Chaidez, reasonable jurists would have

interpreted that rule to mean that Strickland v. Washington,

466 U.S. 668 (1984), was simply not “operative” and did not

apply “when a criminal lawyer gives (or fails to give) advice

about immigration consequences.” Chaidez, 133 S. Ct. at

1110. In 2005, we made an exception to this general rule,

20 UNITED STATES V. CHAN

and held that Strickland does apply to a lawyer’s affirmative

misadvice about immigration consequences. United States v.

Kwan, 407 F.3d 1005, 1015 (9th Cir. 2005), abrogated in part

by Padilla, 559 U.S. 356. Because this exception was not

dictated by precedent, Kwan established a new rule. In order

to reach the opposite conclusion, the majority adopts the

reasoning of the dissent in Chaidez. Maj. Op. at 10–12, 14.

Because I think we should follow the Supreme Court’s

majority, not the dissenters, I decline to go along.

I

Before pleading guilty to three counts of perjury in 2000,

Maureen Chan asked her attorney about the immigration

consequences of her plea. According to Chan, the attorney

told her that there would be no adverse immigration

consequences. In 2012, the Department of Homeland

Security initiated removal proceedings against Chan,

charging her as being inadmissible under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) as an alien convicted of a crime

involving moral turpitude. Chan brought a petition for writ

of error coram nobis, seeking to withdraw her guilty plea on

the ground that her counsel in 2000 gave her ineffective

assistance by misadvising her of the immigration

consequences of her plea. She claims that the exception

stated in Kwan applies retroactively to her conviction in 2000.

If Kwan created a new rule, it cannot be applied

retroactively to cases on collateral review. See Teague,

489 U.S. at 307, 310. Our reasoning in Fry indicates that our

pre-Kwan precedent did not dictate the result in Kwan, and

such a result would not have been apparent to all reasonable

jurists at the time of Chan’s conviction. See Chaidez, 133 S.

Ct. at 1107. In Fry, we considered whether a habeas

UNITED STATES V. CHAN 21

petitioner’s claim that his Sixth Amendment right to effective

assistance of counsel was violated when his counsel failed to

inform him that he could be deported if convicted. 322 F.3d

at 1199–1200. Fry pointed to our long-standing precedent

that “deportation is a collateral, not direct, consequence of the

criminal process,” id. at 1200 (citing Fruchtman v. Kenton,

531 F.2d 946, 949 (9th Cir. 1976)), and that failure to advise

a defendant of collateral consequences is not ineffective

assistance of counsel, id. (citing Torrey v. Estelle, 842 F.2d

234, 237 (9th Cir. 1988)). Citing cases from the First,

Second, Fifth, Fourth, Seventh, Tenth, Eleventh and D.C.

Circuits, Fry also noted that “[a]ll other circuits to address the

question have concluded that deportation is a collateral

consequence of the criminal process and hence the failure to

advise does not amount to ineffective assistance of counsel.”

Id. (internal quotation marks omitted). Fry concluded,

consistent with both Ninth Circuit precedent and our sister

circuits, “that counsel’s failure to advise a defendant of

collateral immigration consequences of the criminal process

does not violate the Sixth Amendment right to effective

assistance of counsel.” Id. Fry did not suggest there was any

distinction between lack of advice about deportation and

misadvice about deportation. Nor would it have been

apparent to all reasonable jurists that we intended such a

distinction, given the general principle (subsequently spelled

out by the Supreme Court) that “there is no relevant

difference between an act of commission and an act of

omission” for purposes of ineffective assistance of counsel,

and thus a lawyer’s advice includes a lawyer’s “affirmative

misadvice.” Padilla, 559 U.S. at 370.

By concluding that the petitioner could not raise an

ineffective assistance of counsel claim because deportation is

a collateral consequence of the criminal process, Fry

22 UNITED STATES V. CHAN

effectively recognized, in keeping with our sister circuits, that

“advice about matters like deportation, which are ‘not a part

of or enmeshed in the criminal proceeding,’ does not fall

within the [Sixth] Amendment’s scope.” Chaidez, 133 S. Ct.

at 1109 (quoting United States v. George, 869 F.2d 333, 337

(7th Cir. 1989)). This conclusion derives from the more

general principle that if a defendant has no constitutional

right to effective assistance of counsel with respect to a

collateral matter, an attorney’s error with respect to such a

matter could not violate the defendant’s Sixth Amendment

right. Cf. Coleman v. Thompson, 501 U.S. 722, 752–53

(1991) (where there is no constitutional right to counsel, there

is no deprivation of effective assistance regardless whether

the attorney makes a serious error in representing the client).

Accordingly, before Kwan was decided, a reasonable jurist

could conclude that an attorney’s “advice about collateral

matters” was “excluded . . . from the Sixth Amendment’s

ambit,” and therefore Strickland did not apply “when a

criminal lawyer gives (or fails to give) advice about

immigration consequences.” Chaidez, 133 S. Ct. at 1110.

Indeed, nothing in our case law would have precluded us

from reaching such a conclusion.

We decided to take a different approach. In 2005, Kwan

distinguished Fry and held for the first time that Strickland

applied to an affirmative misrepresentation regarding

immigration consequences. See Kwan, 407 F.3d at 1015

(citing United States v. Couto, 311 F.3d 179, 187–88 (2d Cir.

2002)). While other circuits had reached this conclusion as

well, no Ninth Circuit case had previously adopted this

exception to the collateral consequences rule.

Did Kwan announce a new rule? Chaidez strongly

indicates it did so. As explained in Chaidez, making an

UNITED STATES V. CHAN 23

exception to the collateral consequences rule that advice

regarding deportation is “‘categorically removed’ from the

scope of the Sixth Amendment right to counsel,” 133 S. Ct.

at 1108, requires a court to breach “the previously

[fissure]-free wall between direct and collateral

consequences” and establish that Strickland did apply to

claims of ineffective assistance of counsel relating to

deportation matters, id. at 1110. Such a breach in the wall

between direct and collateral consequences constitutes

“‘breaking new ground’ or ‘imposing a new obligation,’” and

therefore creates a new rule that is not retroactively

applicable. Id. (alterations omitted). In reaching this

conclusion, Chaidez rejected the defendant’s argument that a

breach in the wall between direct and collateral consequences

(made by Padilla) did not constitute a new rule because it

“did no more than apply Strickland to a new set of facts.” Id.

at 1111. Rather, the Court explained, before considering the

applicability of Strickland, Padilla had to determine “whether

Strickland applied at all.” Id. at 1110.

We should reach the same conclusion here. Because we

adopted the collateral consequences rule based on our long-

standing precedent, see Fry, 322 F.3d at 1200, a jurist could

reasonably conclude that Strickland didn’t apply at all to “a

lawyer’s advice (or non-advice) about a plea’s deportation

risk,” Chaidez, 133 S. Ct. at 1110. Two years later, Kwan

created a “separate rule,” id. at 1112, by distinguishing Fry

and holding that the Sixth Amendment applied to affirmative

misadvice by counsel regarding the collateral matter of

deportation, see Kwan, 407 F.3d at 1015–17. As explained in

Chaidez, such a rule had to first breach “the previously

[fissure]-free wall between direct and collateral

consequences” and establish that Strickland applied to

collateral deportation matters, when the attorney gives

24 UNITED STATES V. CHAN

affirmative misadvice. Chaidez, 133 S. Ct. at 1110. Kwan’s

exception was not dictated by Strickland, because Kwan first

had to reach the conclusion that “Strickland applied at all.”

Id. Accordingly, we should conclude that Kwan was not the

mere application of Strickland, but rather created a new rule

that is not retroactively applicable. See Teague, 489 U.S.

288.

II

The majority’s arguments regarding why Kwan did not

create a new rule are not persuasive. Like the defendant in

Chaidez, Chan and the majority here argue that Kwan was a

simple application of Strickland. Maj. Op. at 11–12. But this

is the very argument rejected by Chaidez. Indeed, in

concluding that Kwan was just an application of Strickland,

the majority is forced to rely on the language of Chaidez’s

dissent. Maj. Op. at 14 (quoting Chaidez, 133 S. Ct. at 1119

(Sotomayor, J., dissenting)) (“Kwan merely asserted an ‘age-

old principle’ that attorneys can be held liable if they

affirmatively misadvise their clients.”).

Second, the majority argues that Kwan’s rule is not new

because it can be retrospectively supported by Strickland.

Maj. Op. at 11–12. Of course at some level of generality

even a new rule can be justified by reference to prior case

law. See, e.g., Saffle v. Parks, 494 U.S. 484, 489–90 (1990)

(concluding that extending the reasoning of two prior cases

resulted in the creation of a new rule). But the correct inquiry

is whether the Kwan rule was dictated by our precedent, see

Teague, 489 U.S. at 301, and the majority cites no Ninth

Circuit cases that would suggest that all reasonable jurists at

the time of Chan’s conviction would predict the

announcement of a rule that affirmative misadvice about

UNITED STATES V. CHAN 25

immigration consequences would be exempt from the firm

barrier that existed between direct and collateral

consequences. See Chaidez, 133 S. Ct. at 1110. Rather, a

jurist could have reasonably concluded that an attorney’s

error with respect to collateral immigration matters was

simply outside the scope of the Sixth Amendment.

Finally, the majority defends its position that Kwan did

not create a new rule by pointing to the other circuits and out-

of-circuit district courts that had adopted a similar exception

for affirmative misrepresentations prior to Kwan. Maj. Op.

at 13–14. But Chaidez made clear that the fact that “a

minority of courts recognized a separate rule for material

misrepresentations,” Chaidez, 133 S. Ct. at 1112, was

insufficient to establish that all reasonable jurists would have

concluded that the Sixth Amendment applied to the collateral

consequence of deportation, id. In other words, the existence

of these out-of-circuit decisions does not establish that all

reasonable Ninth Circuit judges, “prior to [Kwan], thought

they were living in a [Kwan]-like world.” Id. As noted

above, we had adopted the collateral consequences rule, see

Fry, 322 F.3d at 1200–01, and made no mention of the

separate material misrepresentation rule later adopted in

Kwan. More to the point, Chaidez indicates that the

exception to the collateral consequences rule that Kwan

ultimately adopted constituted a “separate rule,” not simply

an application of Strickland. 133 S. Ct. at 1112.

III

The concurrence similarly misses the mark in concluding

that when a court announces a rule in the course of deciding

a coram nobis petition, that rule is binding on all subsequent

coram nobis petitions. This argument is in tension with our

26 UNITED STATES V. CHAN

case law, which properly adheres to Teague. Thus in Ortega

v. Roe, rather than apply a rule announced in a prior habeas

case without considering whether that rule existed at the time

Ortega’s conviction became final, we instead considered

whether the rule was in fact “new,” as defined by Teague.

See 160 F.3d 534, 536 (9th Cir. 1998), vacated on other

grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000). This

same approach would apply in coram nobis proceedings,

because in determining whether a rule applies retroactively,

we do not distinguish between habeas and coram nobis. See

United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.

1991); United States v. Walgren, 885 F.2d 1417, 1421 (9th

Cir. 1989).

Finally, the concurrence’s argument that any rule

announced in the course of deciding a coram nobis petition

must be applied to subsequent coram nobis cases is contrary

to Teague, which made clear that a new rule may be applied

retroactively to cases on collateral review only “if it places

‘certain kinds of primary, private individual conduct beyond

the power of the criminal law-making authority to

proscribe,’” or “if it requires the observance of ‘those

procedures that . . . are implicit in the concept of ordered

liberty.’” 489 U.S. at 307, 310, quoting Mackey v. United

States, 401 U.S. 667, 692–93 (1971) (Harlan, J., concurring).

Not all new rules in coram nobis cases will pass such a high

bar, and the rule announced in Kwan does not come close. Of

course, the question whether a rule announced in a federal

habeas or coram nobis proceeding is a “new rule” should

seldom arise, since the Supreme Court has banned using

habeas corpus (and by extension, other collateral proceedings

such as coram nobis) to create new constitutional rules of

criminal procedure unless the rules meet the two exceptions

described in Teague. See 489 U.S. at 316. But as explained

UNITED STATES V. CHAN 27

above, Chaidez requires us to conclude that the rule

announced in Kwan was a new rule, and therefore we must

comply with Teague in considering whether it is applicable

here.

IV

Although Chan’s case is sympathetic, the result in Kwan

“was not dictated by precedent existing at the time [Chan’s]

conviction became final” and would not “have been apparent

to all reasonable jurists.” Chaidez, 133 S. Ct. at 1107

(internal quotation marks omitted). As such, Kwan created a

new rule and cannot be applied retroactively to Chan’s case.

See Teague, 489 U.S. at 301, 310. I would affirm the district

court.