United States v. Temitope Akinsade

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-7554

TEMITOPE AKINSADE,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(8:00-cr-00099-AW-1)

Argued: December 9, 2011

Decided: July 25, 2012

Before TRAXLER, Chief Judge, and GREGORY and

WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge Gregory

wrote the majority opinion, in which Judge Wynn joined.

Chief Judge Traxler wrote a dissenting opinion.

COUNSEL

ARGUED: Thomas Kirk Ragland, DUANE MORRIS, LLP,

Washington, D.C., for Appellant. Christen Anne Sproule,

OFFICE OF THE UNITED STATES ATTORNEY, Green-

2 UNITED STATES v. AKINSADE

belt, Maryland, for Appellee. ON BRIEF: Richard S. Basile,

Greenbelt, Maryland, for Appellant. Rod J. Rosenstein,

United States Attorney, Baltimore, Maryland, Jonathan C. Su,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

OPINION

GREGORY, Circuit Judge:

Appellant Temitope Akinsade appeals the district court’s

denial of his petition for writ of error coram nobis pursuant

to 28 U.S.C. § 1651 claiming that he was denied effective

assistance of counsel when he plead guilty to embezzlement

by a bank employee in violation of 18 U.S.C. § 656, a Class

B felony. For the following reasons, we grant the petition and

vacate Akinsade’s conviction.

I.

Now thirty years old, Akinsade is a Nigerian citizen who

legally came to America in July 1988 at the age of seven and

became a lawful permanent resident in May 2000. In 1999, at

the age of nineteen, Akinsade was employed as a teller at a

Chevy Chase bank in Aspen Hill, Maryland. During his

employment, Akinsade cashed checks for several neighbor-

hood acquaintances, who were not listed as payees on the

checks, and deposited a portion of the proceeds from those

checks into his own account. Eventually, Akinsade reported

the transactions to his supervisor, who then contacted the FBI.

When interviewed by the FBI several months later, Akinsade

agreed to cooperate against the individuals for whom he

cashed the checks. Neither arrested nor taken into custody at

that time, Akinsade was ordered to appear in court at a later

date.

UNITED STATES v. AKINSADE 3

On March 1, 2000, Akinsade was charged with embezzle-

ment by a bank employee in the amount of $16,400. 18

U.S.C. § 656 (1948). Considering the Government’s plea

agreement, Akinsade asked his attorney on at least two differ-

ent occasions about the potential immigration consequences

of a guilty plea. Both times his attorney misadvised him that

he could not be deported based on this single offense. His

attorney told him that he could only be deported if he had two

felony convictions. This advice was contrary to the law at that

time. See 8 U.S.C. §§ 1101(a)(43)(M)(i), 1227(a)(2)(A)(iii)

(1952).

Relying on his attorney’s advice that one count of embez-

zlement was not a deportable offense, Akinsade pled guilty.

The plea agreement made no mention that deportation was

mandatory or even possible due to the offense. During the

Rule 11 plea colloquy, the district court reviewed the civil

ramifications of his plea:

The Court: [P]eople who are found guilty of

felonies, often lose their right to

vote, certain professional licenses

may be denied them, may not be

able to serve on a jury. And I

know felons can’t possess fire-

arms. Certain jobs may be denied

you.

If you are on parole or probation with

another system, that can be affected.

Or if you are not a citizen, you could

be deported. All of these things could

be triggered by being found guilty of

a felony. Do you understand that?

Akinsade: Yes, Your Honor.

The Court: Knowing that do you still wish to

plead guilty?

4 UNITED STATES v. AKINSADE

Akinsade: Yes, Your Honor.

Supp. J.A.(I) 1.

On June 5, 2000, the district court sentenced Akinsade to

one month of imprisonment to be served in community con-

finement, a three-year term of supervised release, and a spe-

cial assessment of $100. At sentencing, the district court

recognized that Akinsade had paid the full amount of restitu-

tion, which came to $8,000. The court also determined that

Akinsade’s conduct was "out of character" based on his fam-

ily background. J.A. 41. The court thus gave Akinsade the

minimum sentence under the sentencing guidelines.

After serving his sentence, Akinsade attended the Univer-

sity of Maryland where he received a bachelor’s degree in

computer science. He later earned a master’s degree from the

university, graduating with a 3.9 GPA, and received a fellow-

ship from the National Science Foundation. Akinsade then

entered into a leadership program at General Electric Com-

pany and moved to upstate New York.

Almost nine years after Akinsade’s conviction, on January

8, 2009, immigration authorities arrested him at home and

placed him in detention in Batavia, New York. After seven-

teen months in detention, the immigration authorities released

Akinsade and charged him with removability as an aggravated

felon under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 2000

embezzlement conviction.1

Under threat of deportation,2 Akinsade filed this petition for

1

At oral arguments the Government stated that the reason for the nine-

year delay in Akinsade’s arrest for deportation was due to "the confusion"

arising from his receipt of a green card between the time of the plea agree-

ment and his sentence for embezzlement.

2

Akinsade moved for a stay of his deportation proceedings pending this

appeal. We denied his motion on April 14, 2010. During oral arguments,

the Government informed the Court that Akinsade’s appeal of his deporta-

tion was pending before the Second Circuit.

UNITED STATES v. AKINSADE 5

writ of error coram nobis in federal court alleging a violation

of his Sixth Amendment rights due to his counsel’s misad-

vice. The Government argued that Akinsade was not entitled

to this extraordinary remedy because he alleged "a mere

garden-variety ineffective assistance of counsel claim" that

was not a "fundamental error." J.A. 50.

After conducting a hearing, the district court denied the

petition. The court held that while counsel’s affirmative mis-

representations rendered his assistance constitutionally defi-

cient under the first prong of Strickland v. Washington, 466

U.S. 668, 687 (1984), Akinsade was not prejudiced as

required under Strickland’s second prong. It reasoned that its

admonishment of the potential for deportation during the plea

colloquy cured counsel’s affirmative misrepresentations.

Akinsade timely appeals the denial of the petition.3

II.

This Circuit has not clearly expressed the standard with

which to review a district court’s denial of a petition of writ

of error coram nobis. See United States v. Wilson, No. 94-

7322, 1996 WL 71098, at *2 (4th Cir. Feb. 7, 1996) (finding

3

After Akinsade filed his opening brief, the Government moved to hold

the appeal in abeyance pending the Supreme Court’s decision in Padilla

v. Kentucky, 130 S. Ct. 1473 (2010). We granted the motion and sus-

pended all briefing. On March 31, 2010, the Supreme Court rendered its

decision in Padilla. In May 2010, the case was removed from abeyance

and the parties completed their briefing taking into consideration Padilla.

Having reviewed the Padilla decision and the parties’ briefs, we decline

to address the issue of whether Padilla is retroactively applicable to this

case. Padilla only reached prong one of Strickland and neither party chal-

lenges the district court’s holding that the affirmative misrepresentations

provided by Akinsade’s counsel were constitutionally deficient. Conse-

quently, the Padilla decision is not "a necessary predicate to the resolu-

tion" of the issues raised on appeal and we need not reach the retroactivity

issue. Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (noting that the retro-

activity principle set forth in Teague v. Lane, 489 U.S. 288, 301 (1989),

is not jurisdictional such that it must be raised and decided by the courts).

6 UNITED STATES v. AKINSADE

that the district court did not abuse its discretion when it

denied the petitioner’s writ of error coram nobis without an

evidentiary hearing). Other circuits have applied an abuse-of-

discretion standard in this context. See United States v. Peter,

310 F.3d 709, 711 (11th Cir. 2002); Fleming v. United States,

146 F.3d 88, 90 (2d Cir. 1998) (quoting Foont v. United

States, 93 F.3d 76, 78 (2d Cir. 1996)). We apply the same

standard and thus review "the district court’s ultimate deci-

sion to deny the writ for abuse of discretion." Santos-Sanchez

v. United States, 548 F.3d 327, 330 (5th Cir. 2008), abrogated

on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473,

1481 (2010).

As a remedy of last resort, the writ of error coram nobis is

granted only where an error is "of the most fundamental char-

acter" and there exists no other available remedy. United

States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The

writ is narrowly limited to "‘extraordinary’ cases presenting

circumstances compelling its use ‘to achieve justice.’" United

States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting

United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus,

the writ provides relief in cases where the error "rendered the

proceeding itself irregular and invalid." United States v.

Addonizio, 442 U.S. 178, 186 (1979) (internal quotation

marks and citation omitted) (superseded by statute on other

grounds). A petitioner seeking this relief must show that "(1)

a more usual remedy is not available; (2) valid reasons exist

for not attacking the conviction earlier; (3) adverse conse-

quences 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." Hirabayashi v. United

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

reasons, we hold that Akinsade has met all four requirements.

First, Akinsade cannot seek relief under the typical reme-

dies for a direct or collateral attack of a federal judgment and

sentence because he is no longer in custody. See 28 U.S.C.

§ 2255 (1948); 28 U.S.C. § 2241 (1948). Second, valid rea-

UNITED STATES v. AKINSADE 7

sons exist for Akinsade not attacking the conviction earlier.

Until physically detained by immigration authorities in 2009,

Akinsade had no reason to challenge the conviction as his

attorney’s advice, up to that point in time, appeared accurate.4

With respect to the third coram nobis requirement, the risk of

deportation is an adverse consequence of conviction sufficient

to create a case or controversy as required by Article III of the

Constitution. See United States v. Kwan, 407 F.3d 1005, 1014

(9th Cir. 2005), abrogated on other grounds by Padilla, 130

S. Ct. 1473.

Under the final requirement, we must consider whether

counsel’s misadvice is an error of the "most fundamental

character" such that coram nobis relief is required to "achieve

justice." Denedo, 129 S. Ct. at 2220. To determine this, we

examine the merits of Akinsade’s ineffective assistance of

counsel claim to decide whether Akinsade has been preju-

diced. See Mandel, 862 F.2d at 1074-75.

A.

To show prejudice, Akinsade must demonstrate that but for

his counsel’s error, there is a reasonable probability that he

would not have pled guilty and would have insisted on going

to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). The district

court determined that Akinsade had not been prejudiced

because its admonishment regarding potential immigration

4

The dissent contends that the district court did not make a finding as

to whether valid reasons exist to explain why Akinsade did not seek

appropriate relief sooner. To support this contention, the dissent cites

Nicks v. United States, 955 F.2d 161, 167-68 (2d Cir. 1992). In that case,

the Second Circuit concluded that the record before it was insufficient to

resolve this requirement. Id. As a result, the court remanded the case to

the district court to make any necessary factual findings. In this case how-

ever, the record demonstrates that Akinsade had not discovered that his

counsel misadvised him until he was physically detained by immigration

authorities nine years later. Because the record is sufficient for us to

decide the issue, we need not remand the case.

8 UNITED STATES v. AKINSADE

consequences of the guilty plea and Akinsade’s acknowledge-

ment of that admonishment functioned to correct the error of

his counsel’s affirmative misrepresentations. We disagree in

light of the equivocal nature of the admonishment, counsel’s

affirmative misadvice that is clearly contrary to law, and the

severity of the consequence itself.

A defendant may be unable to show prejudice if at the Rule

11 proceeding the district court provides an admonishment

that corrects the misadvice and the defendant expresses that

he understands the admonishment. United States v. Herandez-

Monreal, 404 F. App’x 714, 715 (4th Cir. 2011) (finding that

the defendant was not prejudiced by counsel’s failure to

advise of deportation consequences when, during his Rule 11

proceeding, the defendant "affirmatively acknowledged his

understanding that his plea ‘could definitely make it difficult,

if not impossible, for [him] to successfully stay legally in the

United States’"); State v. Yahya, No. 10AP-1190, 2011 WL

5868794, at *5 (Ohio Ct. App. Nov. 22, 2011) ("[A] trial

court’s delivery of the warning [that defendant might be

deported] would not necessarily cure her attorney’s specific

error regarding the consequences of a guilty plea."). Thus, in

United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995), this

Circuit determined that the defendant had not been prejudiced

by any allegedly incorrect information counsel gave him

regarding his sentence because of the district court’s "careful

explanation of the potential severity of the sentence" during

the Rule 11 hearing. Id. at 88.5 As part of the "careful expla-

5

The dissent cites United States v. Lambey, 974 F.2d 1389, 1395 (4th

Cir. 1992) (en banc), where this Circuit noted that in the context of decid-

ing whether a defendant has presented a "fair and just reason" for a Rule

32(d) motion to withdraw a guilty plea, a district court may look outside

of the Rule 11 proceeding to events or information that affected the fair-

ness of the proceeding. The Lambey Court reasoned that the outside infor-

mation would not have affected the fairness of the Rule 11 proceeding if

a district court "corrects or clarifies the erroneous information given by the

defendant’s attorney and the defendant admits to understanding the court’s

advice." Id. at 1395. Although Lambey referred to a curative admonish-

UNITED STATES v. AKINSADE 9

nation," the district court "specifically informed [the defen-

dant] of the maximum penalties he faced," and asked whether

he understood that he was exposing himself to "possible max-

imum penalties of up to 20 years in prison" plus "a supervised

release term of as much as five years and at least three years."

Id. The district court further asked whether the defendant

understood that "the extent of [his] involvement in this partic-

ular offense, [and] [his] past record, if any" would affect his

sentence. Id. Since the district court had "properly informed

[the defendant] of the potential sentence he faced," this Cir-

cuit concluded that "he could not be prejudiced by any misin-

formation his counsel allegedly provided him." Id.

The case before us is decidedly different. Unlike Foster,

the district court’s admonishment was far from a "careful

explanation" of the consequences of deportation. Instead, the

district court warned that Akinsade’s plea could lead to depor-

tation. This general and equivocal admonishment is insuffi-

cient to correct counsel’s affirmative misadvice that

Akinsade’s crime was not categorically a deportable offense.6

ment, we should keep in mind that this passage was in the context of a

Rule 32(d) challenge that centers on the fairness of a Rule 11 proceeding.

See id. at 1394 (a Rule 32(d) motion "essentially challenges either the fair-

ness of the Rule 11 proceeding or the fulfillment of a promise or condition

emanating from the proceeding." (emphasis added)). Even in this context,

we found probative the fact that in curing the erroneous, but not constitu-

tionally deficient, information given by counsel, the court’s admonishment

was "clear[ ] and correct[ ]." Id. at 1396 (emphasis added).

6

In other cases in which the district court’s admonishment was found to

have corrected counsel’s ineffective assistance regarding deportation, the

courts inquired into whether the defendant understood the specific warning

pertaining to deportation. See Herandez-Monreal, 404 F. App’x at 715;

Gonzalez v. United States, Nos. 10 Civ. 5463 (AKH), 08 Cr. 146(AKH),

2010 WL 3465603, *1 (S.D.N.Y., Sept. 03, 2010) (The district court twice

advised the defendant that he faced potential deportation and specifically

asked the defendant given that risk whether he still wanted to plead

guilty.); United States v. Cruz-Veloz, Crim. No. 07-1023, 2010 WL

2925048, at *3 (D. N.J. Jul. 20, 2010) (finding the petitioner was not prej-

10 UNITED STATES v. AKINSADE

More importantly, the admonishment did not "properly

inform" Akinsade of the consequence he faced by pleading

guilty: mandatory deportation. Thus, Akinsade could not have

known that deportation was a legally mandated consequence

of his plea. Had he known this, he alleges that he would have

chosen to go to trial rather than plead guilty. J.A. 56 ("Had I

known that my immigration status would be impacted by a

guilty plea, I would not have entered such a plea . . . .")

(emphasis added). Akinsade’s concern over certain deporta-

tion is evident by the fact that he asked his counsel twice if

a plea would affect his immigration status. Kwan, 407 F.3d at

1017 (quoting Hill, 474 U.S. at 60) (explaining that a defen-

dant’s inquiry regarding deportation demonstrates "that he

placed particular emphasis on [immigration consequences] in

deciding whether or not to plead guilty") (internal quotation

marks omitted).

As recognized in Foster, the specificity and breadth of the

district court’s admonishment are important considerations in

deciding whether the defendant is prejudiced. These consider-

ations are equally as important in this case where the advice

given is patently erroneous and the consequences at stake are

"particularly severe," Padilla, 130 S. Ct. at 1481 (quoting

Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)),

and will likely result in the "loss of both property and life, or

of all that makes life worth living," Ng Fung Ho v. White, 259

U.S. 276, 284 (1922). "Preserving the client’s right to remain

in the United States may be more important to the client than

any potential jail sentence." INS v. St. Cyr, 533 U.S. 289, 323

(2001). The severity of the consequence at issue and the clear

error made by counsel in rendering the advice warrants a

udiced by counsel’s failure to advise of deportation consequences because

the district court admonished that he would subject himself to deportation

and further asked whether he understood the deportation consequence and

still wanted to plead guilty). Here, the district court did not elicit a direct

response to the deportation admonishment, but instead asked if Akinsade

understood a list of generalized warnings of which deportation was a part.

UNITED STATES v. AKINSADE 11

curative admonishment that is specific and unequivocal as to

the deportation consequences of Akinsade’s conviction.

Our decision today does not change the role of or impose

any new obligations on the district court in Rule 11 proceed-

ings. A district court’s duty to ensure a knowing and volun-

tary plea arises from the Fifth Amendment’s guarantee of due

process and thus affords defendants a right distinct from the

Sixth Amendment right to effective assistance of counsel.

While we have recognized the inter-relationship between the

two amendments in the context of guilty pleas, see United

States v. Smith, 640 F.3d 580, 582 (4th Cir. 2011), we have

never suggested that the sufficient protection of one right

automatically corrects any constitutional deficiency of the

other. Indeed, the Supreme Court has rejected a very similar

argument. See Missouri v. Frye, 566 U.S. ___ (2012) (slip

op., at 5) (explaining that the Court in Padilla, 130 S. Ct.

1473 (2010), rejected the state’s argument that a knowing and

voluntary plea supersedes defense counsel’s affirmative mis-

advice on deportation consequences). As a result, we in no

way suggest that in performing its role during the proceeding,

a district court needs to be "clairvoyant" or must "guess"

about whether a defendant has been misinformed regarding a

particular consequence of a plea. When, as here, the claim

raised is that of ineffective assistance of counsel, the overall

focus must be on the prejudice arising from counsel’s defi-

cient performance. If a district court’s admonishment so hap-

pens to correct the deficient performance then there is no

prejudice; however, if there is no correction, then our scrutiny

is not directed toward the district court but appropriately to

the constitutional offender.

Finally, we note that requiring a curative admonishment in

this case that properly informed Akinsade that his plea was to

a deportable offense is consistent with the Supreme Court’s

recent decision in Lafler v. Cooper, 556 U.S. ___ (2012) (slip

op., at 7), which explained that for a fair trial to function as

a cure for a pre-trial error such as ineffective assistance during

12 UNITED STATES v. AKINSADE

the plea process, that "particular error" must be addressed at

trial. Similarly, in order for a district court’s admonishment to

be curative, it should address the particular issue underlying

the affirmative misadvice. Here, the district court’s admonish-

ment touches upon the consequence of deportation but does

not correct the particular misadvice given by counsel.

B.

Akinsade still must show that the misadvice is a "but for"

cause of his entering the guilty plea. Under the prejudice

prong of Strickland, "[t]he potential strength of the state’s

case must inform our analysis, inasmuch as a reasonable

defendant would surely take it into account." Ostrander v.

Green, 46 F.3d 347, 356 (4th Cir. 1995) (citing Hill, 474 U.S.

at 59-60) overruled on other grounds by O’Dell v. Nether-

land, 95 F.3d 1214 (4th Cir. 1996) (en banc). Applying this

standard, we have held that counsel’s affirmative misadvice

on collateral consequences to a guilty plea was prejudicial

where the prosecution’s evidence "proved to be more than

enough" for a guilty verdict but was "hardly invincible on its

face." Ostrander, 46 F.3d at 356. We have further found prej-

udice where the defendant, whose counsel misinformed him

of deportation consequences, had significant familial ties to

the United States and thus would reasonably risk going to trial

instead of pleading guilty and facing certain deportation.

United States v. Gajendragadkar, No. 97-7267, 1998 WL

352866, at *2 (4th Cir. June 3, 1998). In Gajendragadkar we

reasoned that "[a]lthough a trial would present the risk of

deportation, it would provide [the defendant] the opportunity

to contest the Government’s evidence, or failing that, to chal-

lenge the Government’s estimate loss." Id.

Our reasoning in Gajendragadkar applies here. Akinsade

pleaded guilty to a deportable offense that "involve[d] fraud

or deceit in which the loss to the victim or victims exceed[ed]

$10,000." 8 U.S.C. § 1101(a)(43)(M)(i) (1952); see also 8

U.S.C. § 1227(a)(2)(A)(iii) (1952). Before the district court,

UNITED STATES v. AKINSADE 13

Akinsade’s counsel asserted that if Akinsade had gone to trial,

he would have argued that the amount of loss was $8,000. His

counsel noted that Akinsade was ordered to pay restitution in

the amount of $8,000, which he had paid in full, and further

that Akinsade would have disputed his involvement with a

third check that placed him over the $10,000 amount. Conse-

quently, the choice to go to trial is rational and we cannot

conclude that "‘a reasonable defendant in [Akinsade’s] shoes,

having asked for, received, and relied upon encouraging

advice’ about the risks of deportation, ‘would have pled guilty

anyway had he known’ that his attorney was mistaken."

Gajendragadkar, 1998 WL 352866, at *2 (quoting Ostrander,

46 F.3d at 356). Thus, we find that counsel’s affirmative mis-

representations that the crime at issue was non-deportable

prejudiced Akinsade. Akinsade has met his burden under

prong two of Strickland. In doing so, he has also demon-

strated that he has suffered a fundamental error necessitating

coram nobis relief. See Kwan, 407 F.3d at 1014 (ineffective

assistance of counsel is a fundamental error); United States v.

Castro, 26 F.3d 557, 559 (5th Cir. 1994) (same).

III.

Accordingly, we grant the petition for writ of error coram

nobis and vacate Akinsade’s conviction.7

7

After oral arguments were heard in this case, the Second Circuit issued

its opinion in Akinsade v. Holder, 678 F.3d 138, 143 (2d Cir. 2012) on

May 1, 2012. In that case, Akinsade challenged the Board of Immigration

Appeals’s ("BIA") decision to affirm an order of removal on the basis that

Akinsade’s embezzlement conviction qualified as a crime of fraud and

deceit, a deportable offense under the Immigration and Nationality Act,

§ 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). The Second Circuit

vacated the order of removal, finding that under a modified categorical

approach, Akinsade’s record of conviction did not support the BIA’s con-

clusion and remanded the case to the BIA for further proceedings consis-

tent with the opinion. 678 F.3d at 147. On May 10, 2012, this Court

requested supplemental briefing, instructing the parties to address what

effect the Second Circuit opinion has on this case. After reviewing the par-

14 UNITED STATES v. AKINSADE

VACATED & REMANDED

TRAXLER, Chief Judge, dissenting:

Temitope Akinsade alleges his lawyer provided ineffective

assistance by telling him if he pled guilty he would not be

deported for his offense. Akinsade claims this advice left him

unaware that he could be deported as a result of pleading

guilty, even though the district judge specifically advised him

that deportation was possible and he acknowledged this fact

on the record before pleading guilty. He nonetheless asks us

to vacate his conviction on the grounds that he would not

have entered the underlying guilty plea had he known that

doing so would subject him to mandatory deportation.

As it turns out, Akinsade’s lawyer correctly predicted that

Akinsade’s guilty plea would not render him deportable.

While this coram nobis appeal was pending before us, the

Second Circuit decided Akinsade’s immigration appeal in his

favor, concluding that he did not plead guilty to a removable

ties’ briefs, this Court concludes that Akinsade v. Holder has no binding

legal effect on our decision and does not guarantee that Akinsade will

never face deportation due to his conviction. The Second Circuit opinion

does not preclude this Court, or any other Court of Appeals, from coming

to a different conclusion on the same legal issue, and the parties have not

directed this Court to any precedent in this Circuit that would prevent the

Department of Homeland Security from initiating new removal proceed-

ings against Akinsade under more favorable law. The Department is clear

that it has not "concede[d] that a conviction for embezzlement by a bank

employee . . . does not establish that the defendant has been convicted of

an aggravated felony offense involving fraud or deceit," and although the

Department has chosen not to seek further judicial or administrative

review on Akinsade’s removal proceedings "at this time," as this Court has

explained, it is not foreclosed from doing so in the future. Appellant’s

Supplemental Br., Ex. 2, p. 2. Finally, this Court cannot ignore the Depart-

ment’s position that the threat of removal would no longer exist in this

case "if [the Fourth Circuit] were to vacate the guilty plea to the embezzle-

ment offense." Id. (emphasis added).

UNITED STATES v. AKINSADE 15

offense. See Akinsade v. Holder, 678 F.3d 138, 143 (2d Cir.

2012). The government has since indicated that it will not

seek review of the Second Circuit’s decision and will not

oppose termination of removal proceedings against Akinsade.

Akinsade cannot and will not be deported as a consequence

of his guilty plea in this case. I therefore dissent from the odd

decision to vacate Akinsade’s plea based on advice from his

lawyer that ultimately proved to be accurate.

I.

A true and complete analysis of Akinsade’s claim for

coram nobis relief is impossible without consideration of the

parallel but intertwined proceedings in this case—the coram

nobis appeal in this circuit, springing from the underlying

criminal proceeding, and the immigration appeal in the Sec-

ond Circuit. Since each proceeding greatly impacts the other,

we cannot ignore Akinsade’s immigration proceeding, or its

ultimate conclusion, any more than we can ignore what

occurred before or during Akinsade’s plea colloquy. Accord-

ingly, what follows is an abridged summary of these related

and overlapping proceedings.

The Underlying Criminal Conviction

In March 2000, Akinsade was charged with embezzlement

by a bank employee in the amount of $16,400. See 18 U.S.C.

§ 656.1 According to Akinsade, his lawyer assured him that he

would not be subject to deportation if he pled guilty to the

embezzlement charge. Ultimately, after discussing his case

with counsel, Akinsade decided to plead guilty. During the

plea colloquy, the district judge told Akinsade, in contrast to

the advice of his attorney, that he could in fact be removed if

1

The criminal information alleged that "Akinsade being an agent and

employee of Chevy Chase Bank . . . did knowingly embezzle, abstract,

purloin and willfully misapply monies and funds entrusted to the custody

and care of such bank in the approximate amount of $16,400." J.A. 6.

16 UNITED STATES v. AKINSADE

he pled guilty. Akinsade indicated that he understood these

consequences but still wished to plead guilty.2 Akinsade was

sentenced to one month imprisonment, which he served in

community confinement. Around this time, Akinsade adjusted

his status to become a lawful permanent resident.

Removal Proceedings in the Second Circuit

In January 2009, immigration authorities detained Akin-

sade and charged him with removability on the basis that the

embezzlement conviction qualified as an aggravated felony.

See 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration and

Nationality Act ("INA") defines an "aggravated felony" to

include any "offense that . . . involves fraud or deceit in which

the loss to the victim or victims exceeds $10,000." 8 U.S.C.

§ 1101(a)(43)(M)(i).3 Akinsade denied that he was removable

and, as an alternative, sought cancellation of removal.

2

The transcript of the plea colloquy provides in relevant part:

THE COURT: You understand that this offense of embezzle-

ment is a felony and if you are found guilty of a felony, there are

certain civil ramifications that flow from this. Let me give you

examples and I don’t know all of the laws in all of the States, but

people who are found guilty of felonies, often lose their right to

vote, certain offices they cannot hold, certain professional

licenses may be denied them, may not be able to serve on a jury.

And I know felons can’t possess firearms. Certain jobs may be

denied you.

If you are on parole or probation with another system, that can

be affected. Or if you are not a citizen, you could be deported.

All of these things could be triggered by being found guilty of a

felony. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Knowing that do you still wish to plead guilty?

THE DEFENDANT: Yes, Your Honor.

S.J.A. 1.

3

The Department of Homeland Security ("DHS") also sought to remove

Akinsade on two additional grounds. First, DHS charged that the embez-

UNITED STATES v. AKINSADE 17

The Immigration Judge sustained the aggravated felony

charge of removal, finding "‘that the information . . . and also

the plea colloquy . . . make it clear that the respondent’s

actions related to a fraud on the bank and not an injury.’"

Akinsade, 678 F.3d at 142. Akinsade appealed to the BIA,

arguing that his record of conviction was insufficient to show

that his embezzlement offense under 18 U.S.C. § 656

involved a specific intent to defraud. The BIA dismissed

Akinsade’s appeal, holding that the record of conviction was

sufficient to show that Akinsade committed an aggravated fel-

ony.

In February 2010, Akinsade petitioned the Second Circuit

Court of Appeals for review of the BIA’s decision, arguing

that he did not plead guilty to a removable offense because

the record of conviction failed to establish that Akinsade

acted with the "intent to defraud" required for an aggravated

felony under 8 U.S.C. § 1101(a)(43)(M)(i). Akinsade’s peti-

tion for review was still pending in the Second Circuit when

this court held oral argument on Akinsade’s coram nobis peti-

tion.

Coram Nobis Proceedings in the Fourth Circuit

In May 2009, while removal proceedings before the Immi-

gration Judge were ongoing, Akinsade filed his coram nobis

petition seeking to vacate his guilty plea, claiming that he

received ineffective assistance of counsel in connection with

his guilty plea. Specifically, Akinsade alleged that before he

entered his guilty plea, his lawyer told him, contrary to law,

that a guilty plea to the embezzlement charge "would not con-

zlement conviction was a removable offense because it constituted a crime

of moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i). Second, DHS charged

that Akinsade was removable because he had adjusted his status by fraud

or willfully misrepresenting a material fact. The Immigration Judge

rejected both grounds, and the government did not pursue them further.

See Akinsade v. Holder, 678 F.3d 138, 142 & n.4 (2d Cir. 2012).

18 UNITED STATES v. AKINSADE

stitute a deportable offense." J.A. 55. Even though the district

judge expressly warned Akinsade that he could be removed if

he pled guilty, Akinsade claimed in his coram nobis petition

that he had never been informed by his "criminal defense

counsel or [the district court] that the guilty plea in this case

would or could affect [his] immigration status," and that

"[h]ad [he] known" he risked removal, he would not have

pled guilty to embezzling more than $10,000 and would have

gone to trial or attempted to plead to a lesser amount. J.A. 56.

The district court concluded that counsel’s performance

was constitutionally deficient, see Strickland v. Washington,

466 U.S. 668, 687 (1984), but determined that Akinsade

failed to establish prejudice resulting from his attorney’s per-

formance because the court specifically advised him during

the plea colloquy that deportation was a potential conse-

quence:

[T]he Court does not find the resulting prejudice

required under the second prong of Strickland. Not-

withstanding counsel’s alleged affirmative misrepre-

sentations, this Court advised Petitioner on March

20, 2000 that Petitioner could be deported if the

Court accepted his guilty plea to the felony charge.

The Court further inquired of Petitioner whether

knowing that his guilty plea could trigger deporta-

tion proceedings, he still wished to plead guilty. Peti-

tioner replied in the affirmative. (Trans. page 13)

Accordingly, . . . the Court finds that Petitioner

made a knowing, understanding and voluntary deci-

sion to plead guilty and . . . the Court does not

believe that Petitioner on this record has presented a

basis for ineffective assistance of counsel . . . .

J.A. 86-87. The district court therefore denied Akinsade’s

request for coram nobis relief from his embezzlement convic-

tion.

UNITED STATES v. AKINSADE 19

Akinsade appealed the district court’s order, arguing that

the district court’s admonishment during the plea colloquy

was insufficient to "cure" counsel’s misadvice because "the

district court . . . did not instruct Akinsade that his guilty plea

would automatically render him . . . deportable." Appellant’s

First Supp. Brief at 13. Akinsade contends on appeal that a

court’s mere warning that deportation is a possibility is not

enough to overcome his attorney’s misadvice; rather, Akin-

sade contends that the prejudice he suffered could only have

been overcome by a warning from the district court "that

deportation would result from the plea." Id. at 22.

The government’s primary argument on appeal—at least

before the Second Circuit’s decision in Akinsade v. Hold-

er—was that Akinsade "cannot establish that he was preju-

diced by counsel’s erroneous advice" in light of the fact that

he had "been warned personally by the district court about

possible deportation based on his guilty plea, and confirm[ed]

his desire to proceed even in light of this possibility." Brief

of Appellee at 6.

The Second Circuit’s Akinsade Decision and Subsequent

Immigration Proceedings

On May 1, 2012, the Second Circuit granted Akinsade’s

petition for review, holding that Akinsade was not subject to

deportation as an aggravated felon. See Akinsade, 678 F.3d at

140, 143. To constitute an aggravated felony, Akinsade’s

embezzlement offense had to "involve[ ] fraud or deceit in

which the loss to the victim or victims exceed[ed] $10,000."

8 U.S.C. § 1101(a)(43)(M)(i). The court treated the statute as

divisible, meaning that Akinsade could have been convicted

either for acting with the intent to defraud or to injure the

bank. See Akinsade, 678 F.3d at 145. Using the modified cate-

gorical approach, the court "examine[d] whether Akinsade’s

record of conviction necessarily admits facts establishing . . .

the intent to defraud rather than the intent to injure." Id. The

Second Circuit concluded that "because Akinsade did not

20 UNITED STATES v. AKINSADE

admit to, was not charged with, and was not required to plead

to, acting with an intent to defraud, his plea does not necessar-

ily rest on facts identifying his conviction as an offense

involving fraud or deceit." Id. at 146 (internal quotation marks

and citation omitted).

The Second Circuit vacated the BIA’s order of removal and

remanded. Since the aggravated felony ground was the only

remaining ground for removal asserted by the DHS, Akinsade

filed a motion with the BIA to terminate removal proceedings.

Akinsade argued that there was nothing for the BIA to do on

remand except enter an order of termination.

The government filed a response indicating that it did not

oppose the motion to terminate removal. Although the gov-

ernment refused to concede that Akinsade’s conviction for

embezzlement in violation of 18 U.S.C. § 656 did not consti-

tute "an aggravated felony offense involving fraud or deceit,"

it explained that, in light of "other considerations . . . . in this

specific case," the government had decided "in the exercise of

prosecutorial discretion" not to seek further judicial review

"of whether the . . . embezzlement conviction [wa]s an aggra-

vated felony."4

This court requested supplemental briefing from the parties

on the effect, if any, of the Second Circuit’s opinion conclud-

ing that Akinsade is not deportable based on this embezzle-

ment conviction. In its supplemental brief, the government

argues that since the Second Circuit’s immigration decision

eliminated DHS’s only grounds for removal and Akinsade is

not facing deportation, he cannot show any adverse conse-

4

The only circumstance expressly noted by the government as militating

against a further challenge to the Second Circuit’s decision was the coram

nobis appeal pending before this court. The government explained that if

Akinsade obtained coram nobis relief, his conviction would be vacated

and he "would no longer be subject to any removal proceedings." Obvi-

ously, such a result could easily undermine the government’s efforts to

challenge the Second Circuit’s decision.

UNITED STATES v. AKINSADE 21

quences or prejudice flowing from his attorney’s perfor-

mance. Furthermore, the government argues that in light of

the Second Circuit’s decision, Akinsade’s lawyer did not mis-

advise him in the first place by telling him that a guilty plea

would not render Akinsade deportable. By contrast, Akinsade

insists the Second Circuit’s decision has no determinative

bearing on his claim for coram nobis relief. Akinsade now

argues a new theory that he still can show prejudice because

he cannot become a naturalized citizen unless his conviction

is vacated and because, as a convicted felon, he is unable to

obtain security clearances or advance his career. Additionally,

Akinsade claims he "arguably" will remain subject to removal

until he receives a grant of coram nobis relief.

II.

A writ of error coram nobis is an "extraordinary" remedy

that may be used to correct "errors of the most fundamental

character" that rendered the underlying proceeding invalid

when no other alternative remedy is available. United States

v. Morgan, 346 U.S. 502, 512 (1954) (internal quotation

marks omitted); see United States v. Denedo, 556 U.S. 904,

917 (2009) ("[C]oram nobis petitions [permit courts] to con-

sider allegations that an earlier judgment of conviction was

flawed in a fundamental respect."); id. at 911 ("Another limit,

of course, is that an extraordinary remedy may not issue when

alternative remedies, such as habeas corpus, are available.");

United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988).

Ineffective assistance of counsel constitutes the kind of funda-

mental defect potentially subject to attack via a writ of error

coram nobis. See United States v. Orocio, 645 F.3d 630, 634

n.4 (3d Cir. 2011) ("The writ is available to persons not held

in custody [to] attack a conviction for fundamental defects,

such as ineffective assistance of counsel." (internal quotation

marks omitted)). Furthermore, in addition to showing a funda-

mental defect is at issue that casts doubt on the validity of the

conviction and that there is no other remedy available, a

coram nobis petitioner must also show that he exercised dili-

22 UNITED STATES v. AKINSADE

gence in seeking the extraordinary writ. See Klein v. United

States, 880 F.2d 250, 253 (10th Cir. 1989). That is, the peti-

tioner must establish that there were "sound reasons" for "fail-

[ing] to seek appropriate earlier relief." Morgan, 346 U.S. at

512.

A reviewing court must presume that the underlying "pro-

ceedings were correct and the burden rests on the accused to

show otherwise." Id.; see Klein, 880 F.2d at 253 ("[T]he bur-

den is on the petitioner to demonstrate that the asserted error

is jurisdictional or constitutional and results in a complete

miscarriage of justice."). The burden of establishing the

requirements for coram nobis relief is a very substantial one,

described by some jurists as exceeding that of an ordinary

habeas petitioner. See United States v. Stoneman, 870 F.2d

102, 106 (3d Cir. 1989).

Although the district court’s order did not explicitly exam-

ine each of the foregoing requirements for coram nobis relief,5

the court implicitly addressed the fundamental-defect require-

ment when it considered Akinsade’s ineffective assistance

claim. To establish a Sixth Amendment claim of ineffective

assistance of counsel, the petitioner must satisfy the familiar

two-prong test set forth in Strickland v. Washington, 466 U.S.

5

For example, the district court never determined whether Akinsade

demonstrated that "sound reasons" existed for not seeking appropriate

relief sooner. See Morgan, 346 U.S. at 512. At the hearing, the district

court hinted that Akinsade articulated an acceptable explanation for the

nine-year delay before attacking the guilty plea. In the written order, how-

ever, the court stated simply that it "recogniz[ed] that the Writ of Coram

Nobis is an extraordinary writ" but decided to "consider the Petition on its

merits." J.A. 86. It is simply not clear whether the district court actually

made a finding that sound reasons for the delay existed or whether the

court simply declined to address the issue in light of the dispositive effect

of its ruling on the ineffective assistance claim. This is a matter that

requires the district court to make a factual determination. See Nicks v.

United States, 955 F.2d 161, 167-68 (2d Cir. 1992). It is not prudent for

an appellate panel to simply decide the issue in the first instance. See

supra at 7.

UNITED STATES v. AKINSADE 23

668 (1984), by showing (1) that defense counsel’s perfor-

mance "fell below an objective standard of reasonableness"

measured by "prevailing professional norms," id. at 688, and

(2) that the "deficient performance prejudiced [his] defense,"

id. at 687. That is, Akinsade must show "that there is a rea-

sonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to

trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Because this

is an objective test, Akinsade "cannot make that showing

merely by telling us now that [he] would have gone to trial

then if [he] had gotten different advice." Pilla v. United

States, 668 F.3d 368, 373 (6th Cir. 2012). Rather, "to obtain

relief on this type of claim, a petitioner must convince the

court that a decision to reject the plea bargain would have

been rational under the circumstances." Padilla v. Kentucky,

130 S. Ct. 1473, 1485 (2010).

As noted previously, the district court concluded that Akin-

sade received deficient legal counsel under Strickland’s first

prong, but determined that Akinsade failed to establish the

prejudice required by Strickland’s second prong because the

district court advised Akinsade during plea proceedings that

he "could be deported if the Court accepted his guilty plea to

the felony charge" and Akinsade indicated that he wanted to

plead guilty even "knowing that his guilty plea could trigger

deportation proceedings." J.A. 87. Thus, the district court

refused to vacate Akinsade’s plea and denied the coram nobis

petition.

III.

A.

Until Akinsade v. Holder was decided, it had been a funda-

mental assumption in this case that the embezzlement offense

to which Akinsade pled guilty was an aggravated felony—a

removable offense—and that Akinsade was actually going to

be deported. Based on this premise, the district court con-

24 UNITED STATES v. AKINSADE

cluded that the polar-opposite advice Akinsade’s attorney

offered was incorrect and amounted to deficient performance

under Strickland’s first prong. The government, too, took no

issue in this appeal with the district court’s conclusion that

counsel’s performance was constitutionally deficient, and

chose instead to focus on Akinsade’s inability to prove preju-

dice in the face of the district court’s accurate recitation of

potentially adverse consequences that could flow from enter-

ing a guilty plea, including deportation for non-citizens.6

The assumption that Akinsade will be deported based on

his guilty plea to an aggravated felony is no longer true after

Akinsade v. Holder. Based on that decision, we now know

that Akinsade did not plead guilty to a removable offense and

will not be deported. And, whether by sheer good fortune or

something else, Akinsade’s lawyer correctly told Akinsade

that he was not pleading guilty to a deportable offense and

that he was not going to be deported.7

Thus, the conclusion that Akinsade established the first step

of his Strickland claim was therefore based on the false under-

lying premise that Akinsade’s embezzlement conviction con-

stituted a deportable aggravated felony and that he faced

mandatory deportation. Although his reasoning was flawed,

6

Although the government did not challenge the district court’s conclu-

sion that the performance of Akinsade’s attorney was objectively unrea-

sonable, following the Second Circuit’s decision the government aptly

noted that "it now has been demonstrated that Petitioner’s attorney in 2000

did not misadvise him: Petitioner’s guilty plea to embezzlement will not

render him deportable." Appellee’s Second Supp. Brief at 4.

7

Counsel’s conclusion was correct that Akinsade was not pleading to a

deportable offense, but his apparent basis for drawing this conclusion was

obviously wrong. Akinsade’s plea counsel believed that a conviction on

the embezzlement charge would not constitute a deportable offense "be-

cause [Akinsade] did not have two felony convictions" on his record. J.A.

57. This reasoning was incorrect since there are various types of offenses

that alone render an alien removable. See 8 U.S.C. § 1227(a)(2). His con-

clusion that Akinsade would not be removable based on this offense, how-

ever, was exactly right.

UNITED STATES v. AKINSADE 25

Akinsade’s lawyer was not wrong when he told him that

pleading guilty would not render him deportable.

B.

Akinsade’s argument that he was prejudiced by his attor-

ney’s performance rests on the same false premise that "not

only did accepting the plea render Akinsade deportable, [but]

it [also] made him an ‘aggravated felon’ . . . , making deporta-

tion a near-certainty barring him from virtually all forms of

relief from removal." Appellant’s First Supp. Brief at 32.

Akinsade alleges that had he been correctly advised by his

lawyer, he would not have pled guilty. Akinsade fails, how-

ever, to explain why it "would have been rational," Padilla,

130 S. Ct. at 1485, to reject the plea bargain and proceed to

trial when deportation was not a consequence of pleading

guilty. Indeed, for someone whose primary concern was to

avoid removal from the United States,8 the suggestion that

Akinsade would have gone to trial on an offense he does not

deny committing even though a guilty plea would not have

resulted in deportation seems dubious at best. As Akinsade

does not suggest that he would have been acquitted of embez-

zlement, the only thing Akinsade might have stood a good

chance of gaining by going to trial was a longer sentence. See

U.S.S.G. § 3E1.1 cmt. n.2. (explaining that the acceptance of

responsibility "adjustment is not intended to apply to a defen-

dant who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt").

As a hedge against the adverse effect of the Second Cir-

cuit’s decision on his prejudice argument, Akinsade in his

supplemental brief puts a new spin on his claim that he can

satisfy Strickland’s prejudice prong. First, he believes he "ar-

guably" remains subject to removal because the DHS "refuses

8

Akinsade asserts that, prior to January 2009, he "had no reason to

believe that [his] conviction would affect [his] immigration status and [he]

therefore did not seek to set aside [his] conviction." J.A. 56.

26 UNITED STATES v. AKINSADE

to concede" that an order from the BIA terminating removal

proceedings will prevent it from continuing to seek removal

based on Akinsade’s embezzlement conviction. Akinsade dis-

torts the government’s position. In fact, the government

acknowledged to our panel that, based on the Second Circuit’s

decision, "the BIA no longer has a basis to remove" Akinsade

and that he is "no longer facing deportation." Appellee’s Sec-

ond Supp. Brief at 3. Moreover, in filing its non-opposition to

the motion to terminate removal proceedings, the government

assured the BIA that, although it disagreed with Akinsade v.

Holder, it would not seek further review of that decision.

Moreover, general res judicata principles preclude the gov-

ernment from initiating subsequent removal proceedings

against Akinsade based on the embezzlement conviction. Res

judicata applies in immigration proceedings and "bars the

government from bringing a second [removal] case based on

evidence . . . that it could have presented in the first case."

Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.

2007). The doctrine of res judicata also prevents claim "split-

ting" or the use of "several theories of recovery as the basis

for separate suits." Alvear-Velez v. Mukasey, 540 F.3d 672,

677 (7th Cir. 2008) (internal quotation marks omitted). Thus,

the government generally cannot initiate a new removal pro-

ceeding based on charges it could have asserted in a prior

removal proceeding. And, finally, Akinsade cannot establish

that he has suffered prejudice based on what the government

might do in the future.

Akinsade also claims that the prejudice he has suffered

includes the possibility that he will be unable to become a citi-

zen through the naturalization process. Throughout this

extended litigation, Akinsade has not raised naturalization as

a central concern. Although Akinsade mentioned in passing

that his attorney advised he "would not be deported and that

[he] would become a naturalized citizen in five years," J.A.

55, Akinsade did not develop his claim that his guilty plea

should be vacated because he was misinformed or uninformed

about his subsequent chances of naturalizing. Only now, after

UNITED STATES v. AKINSADE 27

we requested supplemental briefing on the effect of the Sec-

ond Circuit’s decision, does Akinsade discuss this particular

consequence in detail. He therefore has waived the argument

that he would not have pled guilty had he been properly

informed about the effect of a guilty plea on his plans to

become a naturalized citizen. See United States v. Bowles, 602

F.3d 581, 583 n.* (4th Cir. 2010) (concluding that argument

mentioned for the first time in supplemental briefing is

waived).

In any event, Akinsade fails even to articulate an ineffec-

tive assistance claim with respect to the naturalization conse-

quences of the guilty plea. First, he does not explain whether

his claim is that his attorney failed to advise him about how

a guilty plea might affect naturalization or that he misadvised

him or both. Nor does Akinsade explain how any alleged mis-

advice or failure to advise regarding naturalization affected

his decision to plead guilty. Akinsade speculates that he may

not be able to naturalize with this conviction on his record.

But, he fails to explain why "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 59. Thus, Akinsade falls far short of the showing

required to establish prejudice under Strickland.

IV.

Furthermore, Akinsade v. Holder invalidates my col-

leagues’ conclusion that the district court’s warning "that

Akinsade’s plea could lead to deportation" was too "general

and equivocal" to "‘properly inform’ Akinsade of the conse-

quence he faced by pleading guilty: mandatory deportation."

Ironically, had the district court informed Akinsade that

deportation was a certainty if he pled guilty, it would have

misinformed Akinsade about the consequences he faced and

possibly encouraged him to go to trial unnecessarily.

It is important to note, however, that even if the Second

Circuit had affirmed the BIA’s order of removal, Akinsade

28 UNITED STATES v. AKINSADE

could not, as a matter of law, have established prejudice for

purposes of his ineffective assistance claim. The plea collo-

quy and the findings of fact made in the coram nobis proceed-

ings by the district judge who took the plea establish as a

matter of law that Akinsade knew that he risked removal and

decided to plead guilty anyway. Akinsade acknowledged on

the record that he understood the district court’s warning that

a guilty plea could trigger removal and other consequences

and that he still wished to plead guilty. The district judge con-

firmed this as a fact in his findings made in his order denying

coram nobis relief.

Based on such circumstances, our circuit precedent in

United States v. Foster, 68 F.3d 86 (4th Cir. 1995), precludes

Akinsade from establishing prejudice as a matter of law. In

Foster, we articulated the rule that where "any misinformation

[the petitioner] may have received from his attorney [is] cor-

rected by the trial court at the Rule 11 hearing," there is no

prejudice for purposes of a Strickland claim. Foster, 68 F.3d

at 88. This appeal is very similar to Foster where the peti-

tioner alleged he had been assured by counsel that he would

not be sentenced as a career offender and that "if he had been

correctly told that he could be sentenced as a career offender"

he would have gone to trial instead of pleading guilty. Id. The

district court, however, advised petitioner during the plea col-

loquy that he faced a "possible maximum" prison term of 20

years, and petitioner indicated that he understood that possi-

bility. Id. We concluded that petitioner, having been informed

of the "potential sentence," could not establish prejudice as a

matter of law. Id.

There is no material difference between this case and Fos-

ter. The district court informed Akinsade that he could be

removed; the district court in Foster likewise explained in

conditional language that petitioner could receive up to 20

years. See id. Akinsade is in no different position than the

petitioner in Foster. In fact, the "careful" explanation in Fos-

ter that petitioner potentially faced a 20-year sentence did not

UNITED STATES v. AKINSADE 29

precisely address counsel’s misadvice that petitioner would

not be sentenced as a career offender. The admonishment

given in Foster was arguably more oblique than the one given

to Akinsade.

Clearly, the district court’s statement that removal was a

consequence that "could be triggered" by pleading guilty,

coupled with Akinsade’s admission that he understood the

consequences and still intended to plead guilty, was enough

to show removal was a risk that Akinsade was willing to

accept. Because Akinsade was advised by the district court

that he risked removal by pleading guilty and affirmed his

understanding of the court’s advice, the district court correctly

decided that Akinsade failed, as a matter of law, to satisfy the

prejudice prong of his Strickland ineffective assistance claim.9

V.

For the reasons I have expressed, the district court’s deci-

sion was clearly correct even before the Second Circuit issued

Akinsade v. Holder. Now that it has been established that

9

My concern about the panel’s decision goes beyond my disagreement

with the conclusion that Akinsade is entitled to have his plea vacated

based on advice from his lawyer that ultimately turned out to be accurate.

Because the legal analysis of an ineffective assistance claim is identical

whether it is raised in a coram nobis proceeding or a habeas proceeding,

this decision opens the door for habeas petitioners as well as those in

coram nobis to attack guilty pleas on collateral review simply by showing

that defense counsel possibly gave inaccurate advice about a consequence

of the guilty plea — even when the petitioner was expressly advised by

the court during the plea colloquy that such a consequence was a possible

result of the plea. It will no longer be enough for a court to advise the

defendant that removal or any other consequence is a possibility. A vigi-

lant district court that seeks to ensure the finality of its guilty pleas will

now have to make a precise determination as to whether the consequence

will in fact occur. As this case illustrates, this is often a difficult task and

we may be creating more problems than we solve by requiring this kind

of specificity from a district court to ensure that guilty pleas are not

vacated years later.

30 UNITED STATES v. AKINSADE

Akinsade did not plead guilty to an aggravated felony and will

not be removed, I cannot comprehend how one can still con-

clude that Akinsade is entitled to relief based on his lawyer’s

correct advice that Akinsade would not be deported as the

result of his guilty plea.

I therefore dissent.