A significant case was recently decided by the Pennsylvania Supreme Court restricting the ability of those facing removal from the United States by immigration authorities due to a criminal conviction to challenge the legitimacy of their underlying conviction. The Court’s holding in Commonwealth v. Descardes (— A.3d —, 2016 WL 1249964 (Pa. 2016)) not only left many noncitizens seeking a new trial after having learned they received bad legal advice that led them to enter into a guilty plea without an avenue for relief, but in making its ruling, the Court expressed what appears to be an intent to further limit access to the courts to those who cannot comply with the eligibility requirements of Pennsylvania’s Post-Conviction Relief Act (“PCRA”).
In 2010, the United States Supreme Court in Padilla v. Kentucky held that criminal defense attorneys have an obligation to address with their clients the possible immigration consequences of a plea offer and that the failure to do so constitutes ineffective assistance of counsel. In Pennsylvania, the primary (if not exclusive) mechanism through which a conviction can be challenged based on an allegation of ineffectiveness is through the PCRA. There are rigid jurisdictional requirements in the PCRA that will deny a defendant the ability to challenge their conviction, however, even when his or her claim is otherwise meritorious. Significantly with respect to the Court’s holding in Descardes, in order to pursue a petition under the PCRA, the petitioner (1) must be either in custody or serving a term of probation or parole and (2) the petition must be filed within a year and ninety days of the date the conviction became final.
The dilemma these jurisdictional requirements pose for many facing adverse immigration action because of a conviction is that pleading guilty to relatively minor crimes for which a defendant received a short, non-custodial sentence can result in categorical and permanent removal from the United States. Thus, while a defendant may not have been informed by their attorney that such immigration consequences would result from the plea, they will often not learn of these consequences until a few years later. At that point, however, under the PCRA, the individual will be unable to challenge their conviction because (1) their sentence has ended or (2) because they did not learn that such consequences would result until after the time for filing a PCRA petition has expired.
The en banc Superior Court panel that decidedDescardes recognized the propriety of a noncitizen facing removal due to a criminal conviction challenging their conviction through a writ of coram nobis. InDescardes, the defendant pled guilty to insurance fraud and conspiracy to commit insurance fraud and was sentenced to one-year of probation. Some years later and after he had completed his probationary sentence, the defendant was denied re-entry to the United States because of his criminal convictions. Descardes sought to withdraw his guilty plea based on the fact that when he entered his plea, his criminal defense attorney never advised him of the adverse immigration consequences that would result from it.
As is so often the case, however, the defendant could not challenge his conviction under the PCRA because he had completed his sentence and, thus, could not satisfy the “custodial requirement” of the statute. The Superior Court ruled that because Descardes was not “in custody” and could not, therefore, challenge his conviction under the PCRA, his claim was not cognizable under that statute and he could proceed through a common law writ of coram nobis.
A writ of coram nobis “‘provides a way to collaterally attack a criminal conviction for a person . . . who is no longer ‘in custody’ and therefore cannot seek habeas relief.” Commonwealth v. Descardes, 101 A.3d 105, 109 (Pa. Super. 2014) (quoting Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (2014)). This ancient writ is essentially a writ of habeas corpus – a fundamental right that enables those in custody to challenge their imprisonment – for those who are not imprisoned.
Unfortunately for those who received ineffective assistance of counsel in their underlying criminal case by not having been properly advised of the immigration consequences of their plea, the Supreme Court reviewed and rejected the Superior Court’s reasoning inDescardes and eliminated the writ of coram nobis as a means of challenging their conviction. The Supreme Court held that because the defendant alleged ineffective assistance of counsel, which is a claim normally cognizable under the PCRA, just because he or she cannot satisfy the custodial requirement of the PCRA does not mean they can avoid this jurisdictional limitation by filing a writ of coram nobis.
The Court’s ruling not only left many noncitizens seeking to challenge a conviction and their removal from the United States without a remedy, but also appears to have all but eradicated the further viability of the writ of coram nobis in the Commonwealth.
Cedrone and Mancano has significant experience representing defendants seeking state and federal court post-conviction relief, including cases involving immigration matters. Feel free to reach out to our firm should you encounter any such cases in your practice.