United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABEITI ERNY FOOTE UNITED STATES DISTRICT JUDGE
Babar Khan ("Khan") petitions for a writ of
coram nobis. [Record Document 74]. In Khan's
case, the writ may issue only if the holding of Padil/a
v. Kentucky, 559 U.S. 356 (2010), applies retroactively
to cases on collateral review. Because the Supreme Court has
held that Padilla's holding does not,
Chaidez v. United States, 568 U.S. 342 (2013),
Khan's petition is DENIED.
2004, Khan, a Pakistani national living in the United States,
pleaded guilty to one count of Trafficking in Counterfeit
Goods in violation of 18 U.S.C. § 2320. [Record
Documents 1 and 57]. He was sentenced to three years of
supervised probation and a $1, 000 fine. [Record Document
63]. Khan neither appealed nor pursued collateral review.
[Record Document 74 at 2]. In 2013, the Department of
Homeland Security initiated removal proceedings. [Record
Document 69]. Because Khan's conviction provides grounds
for his removal, he seeks to vacate his guilty plea via a
writ of coram nobis. [Record Document 74 at 3- 4].
Khan argues that his attorney's failure to warn him that
a guilty plea might result in deportation deprived him of
effective assistance of counsel. [Id. at 6-8].
of coram nobis is an "extraordinary-
remedy/' United States v. Esogbue, 357 F.3d 532,
534 (5th Or. 2004) (citing United States v. Morgan,
346 U.S. 502, 512 (1954)), that may issue "only when no
other remedy is available and when 'sound reasons existf]
for failure to seek appropriate earlier relief,"
United States v. Dyer, 136 F.3d 417, 422 (5th Cir.
1998) (quoting Morgan, 346 U.S. at 512). Although
"traditionally available only to bring before the court
factual errors 'material to the validity and regularity
of the legal proceeding itself, "' Carlisle v.
United States, 517 U.S. 416, 429 (1996) (quoting
United States v. Mayer, 235 U.S. 55, 68 (1914)), the
writ may also be sought by a petitioner who is not in custody
but who faces collateral consequences of a criminal
conviction, Escogbue, 357 F.3d at 534 (quoting
Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.
1996)). Here, Khan faces removal, a significant collateral
consequence. See Chaidez 568 U.S. at 352 (citing
Padilla, 559 U.S. at 365-66). Because he is not in
custody, both parties agree that a writ of coram nobis
is the proper procedural vehicle. [Record Documents 74
at 3 and 83 at 3].
Padilla, the Supreme Court held that the Sixth
Amendment right to counsel includes the right of non-citizens
to be advised of the possible immigration consequences of a
guilty plea. 559 U.S. at 366. Khan maintains that his
attorney did not advise him that by pleading guilty he risked
deportation and argues that Padilla requires
vacating his plea. [Record Document 74 at 4-6]. However, Khan
pleaded guilty in 2004; Padilla was decided in 2010.
Hence, as both parties agree, the writ can issue only it
Padilla applies retroactively to Khan's case.
[Record Documents 74 at 5-6 and 83 at 4].
Khan creatively argues for Padilla's retroactive
application, [Record Document 74 at 8-18], the Supreme Court
has reached the opposite conclusion. In Chaidez v. United
States the Court affirmed the denial of a petition for a
writ of coram nobis seeking to vacate a guilty plea
that now exposed the petitioner to deportation. 568 U.S. at
345. To reach its decision, the Court applied the principle
of Teague v. Lane: when the Supreme Court
"announce[s] a 'new rule/ a person whose conviction
is already final may not benefit from the decision in a
habeas or similar proceeding." Id. at 347
(citing Teague v. Tane, 489 U.S. 288 (1989)). The
Court concluded that Padilla had announced a new
rule of criminal procedure and, as a result, did not apply to
cases that were final before Padilla was handed
down. Id. at 344.
claims that the Chaidez Court "reserved the
question-and directed lower courts to consider-whether
Padilla applies retroactively in a particular subset
of cases: those in which a defendant challenges a federal
conviction in a properly filed first post-conviction
motion." [Record Document 74 at 5]. This is a misreading
of Chaidez. Chaidez did not concern whether the
constitutional challenge was raised in a first or a second
petition for post-conviction relief. Rather, the case
concerned timing, i.e., whether a Padilla challenge
could be raised on collateral review against a conviction
that became final before Padilla was handed down.
Chaidez 568 U.S. at 344.
situation neatly mirrors Chaidez's. Like Chaidez,
id. at 345, Khan was a non-citizen convicted of a
non-violent federal offense, [Record Document 74 at 2]. Like
Chaidez, Chaidez 568 U.S. at 345, he pleaded guilty
and was sentenced to probation, [Record Document 74 at 2].
Like Chaidez, see United States v. Chaidez No. 03 CR
636-6, 2010 WL 2740282, at *1 (N.D. 111. July 8, 2010), he
never challenged his sentence on either direct or collateral
review, [Record Document 74 at 2]. Like Chaidez,
Chaidez 568 U.S. at 345, he was placed in removal
proceedings at some point after he had completed his term of
probation, [Record Document 74 at 1]. Like Chaidez,
Chaidez 568 U.S. at 345, he petitioned for a writ of
coram nobis on grounds that his attorney did not
alert him to the immigration consequences of his guilty plea,
[Record Document 74 at 3-4]. Because the Supreme Court
determined that Chaidez could not use a writ of coram
nobis to avail herself of the holding of Padilla,
Chaidez 568 U.S. at 344, 358, this Court feels
constrained to reach the same conclusion in Khan's
factually identical case. The petition for a writ of
coram nobis [Record Document 74] is