[00:00:00] Speaker 00:
Morning, Your Honors.

[00:00:02] Speaker 03:
Morning.

[00:00:02] Speaker 00:
Erin Radekin for Appellant Philip Garcia.

[00:00:07] Speaker 00:
May it please the Court?

[00:00:09] Speaker 00:
The issue before the Court today is an extremely important issue.

[00:00:14] Speaker 00:
As you're aware, in the federal system, the remedies for getting a conviction vacated or overturned so that you could get rid of immigration consequences are extremely limited.

[00:00:28] Speaker 00:
Mr. Garcia came to the United States when he was five years old.

[00:00:33] Speaker 00:
He's been a legal permanent resident since he was nine years old.

[00:00:36] Speaker 00:
He has seven U.S.

[00:00:37] Speaker 00:
citizen children.

[00:00:39] Speaker 00:
He owns a business that employs 12 employees.

[00:00:43] Speaker 00:
He cooperated.

[00:00:44] Speaker 00:
He served his time, completed his probation, and did this and completed the sentence that the government thought was appropriate in this case.

[00:00:56] Speaker 00:
What we're asking is that the court

[00:00:58] Speaker 00:
Kwon does leave open the possibility to excuse delay where counsel misadvised a petitioner as to the available remedies.

[00:01:10] Speaker 00:
Unfortunately, the first district court decision should have been appealed or there should have been a motion for reconsideration.

[00:01:21] Speaker 00:
The court should have, Mr. Evazian, post-conviction counsel and the first

[00:01:26] Speaker 00:
quorum nobis petition should have asked for an evidentiary hearing.

[00:01:30] Speaker 00:
The government did suggest and say to the court, he may be able to convince you of the credibility of his claim, which was essentially asking for an evidentiary hearing.

[00:01:43] Speaker 00:
So Mr. Garcia, his only option at that point,

[00:01:50] Speaker 00:
was to file after Mr. Avazian did not advise him of the right to appeal, did not seek a motion for reconsideration.

[00:01:58] Speaker 00:
His only option is to file another petition.

[00:02:01] Speaker 00:
So the issues are, can you file a successive Quam Nobis petition?

[00:02:05] Speaker 00:
Under what circumstances?

[00:02:08] Speaker 00:
And how can Quam be extended to excuse delay where the petitioner delayed because he was pursuing remedies that counsel told him to pursue?

[00:02:21] Speaker 05:
Counsel I think part of the problem here is that even assuming we could extend one to the extent You know his quorum Novus council is Misadvising him you know failed to Failed to file the appeal then pursued other remedies.

[00:02:39] Speaker 05:
There's you know then file the second quorum Novus petition.

[00:02:43] Speaker 05:
There are still some Dential amounts of delay that are essentially unexplained, and I'm looking at

[00:02:49] Speaker 05:
the time period between, I guess, even if I assume after the failure to appeal the denial of the first quorum nobis petition.

[00:02:58] Speaker 05:
And let's say Quan can be extended to the period of time where instead of appealing, Avazian applies for immigration relief, then we have the hiring of a new lawyer in September 2021.

[00:03:12] Speaker 05:
And essentially nothing, as far as I can tell from

[00:03:16] Speaker 05:
2021 to 2023.

[00:03:18] Speaker 05:
Then there's a referral recommendation to see another lawyer.

[00:03:24] Speaker 05:
And then again, nothing, essentially for another period of months until the second coronobus petition is filed.

[00:03:32] Speaker 05:
So I have an unexplained delay from September 2021 to August 2023.

[00:03:40] Speaker 00:
So I had it, the petition for the second petition, and it was only a delay of three months to get it together and file it.

[00:03:49] Speaker 05:
So that's your saying from May 2023 to August 2014?

[00:03:56] Speaker 05:
Right, right.

[00:03:57] Speaker 05:
Retention of you and the preparation and that was a preparation for me September 2021 to the time that you were retained, right?

[00:04:04] Speaker 03:
So it's the judge The district court talked about because the district court talked about I think going to the timing that judge sung talked about the district judge IDR 5 talked about When summing up an unexplained 22 months delay, which I believe corresponds to the dates judge sung was mentioning and

[00:04:24] Speaker 00:
The reason is because Mr. Garcia was unaware of the availability of a remedy, of the possibility of filing a second Karmanobis petition.

[00:04:35] Speaker 04:
Okay, but the delay clock starts with when he's aware that his conviction will make him deportable.

[00:04:42] Speaker 00:
That's true.

[00:04:44] Speaker 00:
And I think it's clear from the record he was aware of that in 2016 or 2017.

[00:04:49] Speaker 00:
So he hires counsel to file a quorum nobis petition.

[00:04:52] Speaker 00:
What should have happened is that counsel should have asked for an evidentiary hearing.

[00:04:56] Speaker 00:
so that Mr. Garcia could testify.

[00:04:58] Speaker 00:
And I think it's reasonably probable he would have succeeded, and the Quarminobus petition would be granted.

[00:05:05] Speaker 00:
It is true that there's a delay period between 2021 and 2023, but it's Mr. Garcia's averse.

[00:05:14] Speaker 00:
He was unaware of the remedy until Sabrina Demast advised him, you should just go to another post-conviction counsel.

[00:05:26] Speaker 05:
essentially almost two years to give him that advice.

[00:05:30] Speaker 00:
Should that be held against Mr. Garcia?

[00:05:32] Speaker 05:
I mean, it seems it is extremely unfair.

[00:05:41] Speaker 05:
It seems that Mr. Garcia has been receiving almost nothing but ineffective assistance to the council, but his constitutional right to effective assistance to the council does not extend to every single proceeding that he's in.

[00:05:54] Speaker 00:
It doesn't.

[00:05:57] Speaker 00:
The re- Kwon leaves open the possibility that that can be a valid reason for delay.

[00:06:01] Speaker 04:
And when- Kwon pretty quickly filed for Corum Nobis after the immigration efforts failed, correct?

[00:06:10] Speaker 04:
Almost immediately.

[00:06:12] Speaker 04:
Whereas here in your brief you are acknowledging that your client knew that he had no defense in the immigration process.

[00:06:18] Speaker 00:
But he also was unaware that there was any remedy.

[00:06:22] Speaker 04:
But he'd already tried Corum Nobis.

[00:06:24] Speaker 00:
Yes.

[00:06:26] Speaker 00:
As far as he was unaware that there, he did apply immigration remedies and eventually he did get prosecutorial discretion.

[00:06:35] Speaker 04:
I'm very sympathetic.

[00:06:36] Speaker 04:
You've described the equities.

[00:06:37] Speaker 04:
It's difficult, but the quorum know this timeliness is because as in this case, we have really no record now 20 years after the conviction of what was advised.

[00:06:48] Speaker 04:
That's the crucial inquiry.

[00:06:50] Speaker 04:
So the timeliness is that we don't end up in a situation where there's no transcript,

[00:06:55] Speaker 04:
The guilty plea does suggest that he has to be deported.

[00:06:58] Speaker 04:
So immigration came up in the Rule 11 context, correct?

[00:07:02] Speaker 00:
No.

[00:07:02] Speaker 04:
You're shaking your head?

[00:07:03] Speaker 04:
I thought the guilty plea in 20,000 said it had a probation condition that would contemplate possible deportation.

[00:07:10] Speaker 04:
Wrong?

[00:07:11] Speaker 00:
I don't.

[00:07:11] Speaker 00:
My understanding was at that time there wasn't immigration advisements in the plea agreement or during the... So it was in the PSR?

[00:07:20] Speaker 00:
Or was it a condition of probation?

[00:07:22] Speaker ?:
Yes.

[00:07:23] Speaker 04:
I thought, but I may be wrong.

[00:07:24] Speaker 04:
It's not that significant.

[00:07:25] Speaker 04:
My larger point is just quorum nobis, it does, can cause great harshness.

[00:07:30] Speaker 04:
It's denial of Thomas, but it's for a reason that we don't end up in a situation where Judge Klausner just has no records.

[00:07:37] Speaker 04:
If we were to get to an evidentiary hearing, it's really hard.

[00:07:40] Speaker 04:
The lawyer's saying, I may not have given any advice.

[00:07:43] Speaker 04:
Your client's saying, oh yeah, he'd misadvised me.

[00:07:46] Speaker 04:
He said, I won't be.

[00:07:47] Speaker 04:
And yet, maybe the probation condition implies that everyone did know there could be immigration context.

[00:07:53] Speaker 00:
I mean, Eaglin filed a declaration saying I didn't put anything in my file indicating I advised him to emigrate.

[00:07:59] Speaker 04:
But that wouldn't be enough, right?

[00:08:01] Speaker 04:
I didn't advise him.

[00:08:02] Speaker 04:
That wouldn't be enough.

[00:08:03] Speaker 00:
That wouldn't be enough.

[00:08:04] Speaker 00:
Yes, it has to be affirmative misadvice.

[00:08:06] Speaker 03:
Does it matter at all that the government would be prejudiced by having to try your client 25 years after the crime if you got quorum nobis relief?

[00:08:19] Speaker 00:
I think that

[00:08:21] Speaker 00:
The value to the government of an old conviction where the defendant has served the time sought by the prosecutor

[00:08:31] Speaker 00:
Like in California, for example, there are statutes that allow defendants to come back, even if there's been a delay and they're not in custody, to seek to set aside the conviction.

[00:08:42] Speaker 00:
So the value to the government of a conviction for which a sentence he served long ago, for someone who has shown rehabilitation, I don't think, I think that should not be weighed.

[00:08:55] Speaker 03:
So it's not relevant.

[00:08:57] Speaker 03:
that the government might not be able 25 years later to go the route that they would have gone presumably in 2000 if your client had gotten the advice you say he should have and gone to trial because the advice would have included but if you're convicted after trial, it's the same, right?

[00:09:20] Speaker 03:
You face the same immigration consequences so what your client,

[00:09:25] Speaker 03:
in your view should have been told is whether you plead guilty or if you go to trial unless you can beat it, you're going to face these immigration consequences.

[00:09:34] Speaker 00:
Well, there were other solutions.

[00:09:37] Speaker 00:
He could have paid the restitution off.

[00:09:39] Speaker 00:
He could have pled to misprision.

[00:09:42] Speaker 00:
There were other solutions.

[00:09:43] Speaker 03:
Well, I mean, but is there any evidence the government offered a lesser deal that he turned down, a different plea that he turned down?

[00:09:53] Speaker 00:
there's no evidence of that, but the government was okay with probation in this case.

[00:09:57] Speaker 00:
And to me, that is important.

[00:10:00] Speaker 00:
But I don't think that the government's interest in preserving an old conviction under circumstances where the person has served his time and now is facing deportation to a country that is completely alien, I think that deserves more weight and consideration, that there should be a remedy for him.

[00:10:18] Speaker 00:
Right now, he got prosecutorial discretion.

[00:10:22] Speaker 00:
But of course, with the Trump administration, he could be detained at any time.

[00:10:27] Speaker 00:
So there's just very limited remedies in the federal system.

[00:10:30] Speaker 00:
And to me, I think that the equities are so strong that it makes sense to extend QAM to excusing delay, or at least sending it back to the district court to perhaps allow him to testify and to

[00:10:47] Speaker 00:
maybe explain that period of delay.

[00:10:49] Speaker 00:
But the reason for the delay was that he didn't know there was a remedy.

[00:10:54] Speaker 03:
All right.

[00:10:54] Speaker 03:
Thank you, counsel.

[00:11:03] Speaker 02:
Good morning, your honors.

[00:11:05] Speaker 02:
May it please the court, Hava Morel, on behalf of the United States.

[00:11:09] Speaker 02:
The district court properly denied this second petition for quorum nobis relief.

[00:11:15] Speaker 02:
And I want to begin with the issue of delay.

[00:11:17] Speaker 02:
Judge Sung is correct that there is just no explanation for the delay with respect to Mr. Mast, the second immigration attorney from September 2021 to at the very least May of 2023.

[00:11:32] Speaker 02:
Defendant has urged this blanket reliance.

[00:11:36] Speaker 02:
She wants to be able to say, well, so long as there's an attorney, I can claim that I've relied on that attorney.

[00:11:44] Speaker 02:
But that's not reasonable and that's not sound.

[00:11:47] Speaker 02:
At the very least, to demonstrate reliance on an attorney's advice, you need to identify at least what that advice was and when it was provided.

[00:11:55] Speaker 02:
And here we have no suggestion from Ms.

[00:11:57] Speaker 02:
DeMass of when she provided advice, what it was, and that the defendant actually relied on it.

[00:12:04] Speaker 04:
I'm a little lost on your calculation of delay.

[00:12:07] Speaker 04:
In your brief, are you actually saying that delay is up to 17 years?

[00:12:11] Speaker 01:
You mean with respect to 2000 to 2017?

[00:12:17] Speaker 04:
Well, you tell me, because I thought you were arguing for the first time on appeal, contrary to the first district court's quorum nobis ruling, and without any objection saying the same to the second district judge, now to us you're actually arguing over a dozen years of delay.

[00:12:35] Speaker 04:
Am I correct?

[00:12:36] Speaker 04:
Am I correct that this is an argument you're making for the first time in front of us?

[00:12:41] Speaker 02:
That is correct, Your Honor.

[00:12:43] Speaker 02:
This is the first time that we are making this argument.

[00:12:46] Speaker 04:
And it would be inconsistent with the District Court's initial Corum Nobis ruling when he found that it was timely, it just didn't rise, correct?

[00:12:55] Speaker 02:
Yes, it would be inconsistent.

[00:12:57] Speaker 04:
That's a pretty significant government argument.

[00:12:59] Speaker 04:
Can you back that up?

[00:13:00] Speaker 02:
Well, I want to kind of break down the time periods that we're really focusing on here.

[00:13:05] Speaker 02:
Our brief obviously argues from the time of the plea until 2014 as one time period.

[00:13:11] Speaker 02:
I want to focus on the time periods that actually I think are more substantive here or that have a greater likelihood of success.

[00:13:19] Speaker 04:
But you can tell, I'm asking you to justify a position you urged us to take in your brief from the guilty plea.

[00:13:25] Speaker 04:
How can the government pursue that?

[00:13:27] Speaker 02:
From the point of the guilty plea, I think the cases we cite, for example, Bonilla v. Lynch, albeit it arises in an equitable tolling case for a motion to reopen, but the gist of those cases is that the defendant still has an independent obligation to exercise personal diligence.

[00:13:44] Speaker 05:
But it's a little bit.

[00:13:46] Speaker 05:
ironic for the government to be raising that issue for the very first time now.

[00:13:51] Speaker 05:
I mean, why isn't that just completely forfeited or waived at this point because the government didn't raise it in the opposition to the first Quorum Novus petition?

[00:14:05] Speaker 02:
I'm not here to, first of all, defend the government's gross oversight in failing to respond to the second petition.

[00:14:11] Speaker 02:
And with respect to the first petition, I don't think the argument was waived or conceded as defense counsel suggests.

[00:14:19] Speaker 02:
I think what we did was we addressed the time periods that we had based on the exhibits that were appended to the defendant's petition.

[00:14:25] Speaker 02:
and argued from there.

[00:14:27] Speaker 02:
We didn't consider the whole record.

[00:14:30] Speaker 02:
We didn't consider the 2000 to 2014.

[00:14:32] Speaker 02:
But this court can affirm on any basis supported by the record, and the government is entitled to help the court identify those bases that would support the performance.

[00:14:46] Speaker 04:
When did the government charge him with being deportable?

[00:14:49] Speaker 04:
and I don't understand how the clock can start before that time.

[00:14:53] Speaker 04:
So my record question to you is when did you charge Garcia as deportable?

[00:14:57] Speaker 02:
He received a notice to appear in August of 2014.

[00:15:00] Speaker 02:
How can any day before that count as delay?

[00:15:04] Speaker 02:
Given the cases from the immigration context, including Bonia v. Lynch, they suggest that even regardless of the formal notice to appear, you're expected to exercise reasonable diligence.

[00:15:16] Speaker 02:
Now I recognize Joe Jigginson

[00:15:18] Speaker 02:
that that's not the most persuasive argument.

[00:15:20] Speaker 02:
So I'd like to focus on actually what are unquestionably sound delays that occurred after the notice to appear.

[00:15:28] Speaker 04:
Yeah, and you're just hearing sometimes when an argument is strained against a district court's ruling, against logic, against law, it's sort of a distraction in the brief for the government to urge that argument.

[00:15:39] Speaker 04:
But if you have a better argument, go ahead.

[00:15:42] Speaker 02:
I began with the September, 2021 to at the very least May, 2023.

[00:15:47] Speaker 02:
There's no explanation there.

[00:15:49] Speaker 02:
Also with respect to the August, 2014, that's when he receives the notice to appear.

[00:15:55] Speaker 02:
And in the second declaration, Mr. Garcia says in his own words that the notice to appear alleged that he was removable based on his federal conviction because it was an aggravated felony.

[00:16:07] Speaker 02:
And he describes himself as being stunned.

[00:16:10] Speaker 02:
Now, I think somewhere in the district court proceedings, the date changed to 2016 because someone submitted a declaration saying that was the clearest date.

[00:16:20] Speaker 02:
But if we're just going based on Mr. Garcia's declaration and his own words, it's August 2014, which starts the clock.

[00:16:29] Speaker 02:
And then he didn't hire Mr. Avazian until

[00:16:32] Speaker 02:
some indeterminate point in 2016.

[00:16:35] Speaker 02:
He doesn't specify.

[00:16:35] Speaker 05:
And did you make this particular argument about the 2014 to 2016 period before?

[00:16:42] Speaker 02:
below.

[00:16:42] Speaker 02:
We did make it with respect to the first petition.

[00:16:45] Speaker 02:
However, it's a little complicated, Judge Sung, because with respect to the first petition, there was actually a lot of confusion in the defendant's petition about the significance of the 2014 date.

[00:16:56] Speaker 02:
He had argued that in 2014 he was denied naturalization, and that's what gave him notice.

[00:17:01] Speaker 02:
There was no mention aside from

[00:17:05] Speaker 02:
the actual exhibit of the I-261 from June 2016 that suggested that there was an August 2014 notice to appear, but that was not discussed in the substance of the brief or in the declarations.

[00:17:16] Speaker 02:
It was just part of the, I think it was exhibit seven to the petition.

[00:17:20] Speaker 02:
So there was confusion about the significance of the 2014 date, but nevertheless, the government said, look, the delay here can be anywhere from one year, 2016, or three years, 2014, and it's up to the court to decide.

[00:17:34] Speaker 02:
So we did make that argument, at least with respect to the first petition.

[00:17:38] Speaker 04:
Let's say that the criminal defense attorney had submitted in a declaration, I affirmatively told him he'll never be deported, therefore he should take this plea.

[00:17:47] Speaker 04:
That would be fundamental error.

[00:17:49] Speaker 04:
The original Quorum Novus denial would have been wrong, and it would be then error ineffective for the defense attorney not to have appealed it.

[00:17:57] Speaker 04:
You agree with all that?

[00:17:58] Speaker 02:
Just to clarify your hypothetical here.

[00:17:59] Speaker 02:
Those aren't the facts.

[00:18:00] Speaker 02:
The defense counsel submits an affidavit that says, I affirmatively advised him.

[00:18:05] Speaker 04:
And I looked at it, I didn't know immigration law, and I said, take this plea, you'll never get deported.

[00:18:10] Speaker 02:
Well, that would be ineffective performance.

[00:18:12] Speaker 02:
We'd still have to evaluate prejudice, which I know Judge Bennett had some questions about.

[00:18:17] Speaker 04:
You're right.

[00:18:17] Speaker 04:
Yes, you're right.

[00:18:18] Speaker 04:
OK.

[00:18:18] Speaker 04:
Thanks.

[00:18:19] Speaker 04:
May I ask one legal question?

[00:18:20] Speaker 04:
Because Corum Nobis law is not that well developed.

[00:18:24] Speaker 04:
A lot borrows from habeas.

[00:18:26] Speaker 04:
So could you speak just quickly to our standard of review as to untimeliness?

[00:18:32] Speaker 02:
On delay, it was the de novo review of denial on that basis, but clear error for factual findings with respect to what periods were delay.

[00:18:41] Speaker 04:
OK.

[00:18:42] Speaker 04:
So abuse, I'm sorry, de novo review of the element of time?

[00:18:46] Speaker 02:
The denial based on delay, but clear error with respect to the judge's factual findings.

[00:18:51] Speaker 04:
And the best authority is habeas, or you have a quorum nobis case?

[00:18:55] Speaker 02:
I'd have to go back to our brief in terms of what we cite, Your Honor.

[00:19:01] Speaker 02:
I can also address the last period of delay here, or I can also address the abuse, which is August 2017 to May 2019.

[00:19:09] Speaker 02:
And that's about 21 months.

[00:19:12] Speaker 02:
And that accounts for the time after the district court denied the petition to when Mr. Avazian started taking alternate remedies.

[00:19:20] Speaker 02:
And this is similar to the Demast argument, where really he claims he's relying on Mr. Avazian.

[00:19:27] Speaker 02:
But he's not actually saying what advice Mr. Avazian provided.

[00:19:31] Speaker 02:
when that advice was provided.

[00:19:33] Speaker 02:
And so there's just no reason to give him credit for actually relying on it.

[00:19:38] Speaker 02:
It's not enough to say, I had an attorney retained, and therefore all of my delay is excused.

[00:19:42] Speaker 05:
I thought there was a declaration from Avazian saying, I made a mistake.

[00:19:47] Speaker 05:
I should have told them to appeal, but I didn't.

[00:19:49] Speaker 02:
Yes.

[00:19:50] Speaker 02:
But we have no sense of timeline, Your Honor, with respect to that.

[00:19:53] Speaker 02:
And this, mind you also, that declaration occurred with respect to the second petition.

[00:19:58] Speaker 02:
That happens after the defendant is already aware of this delay issue.

[00:20:02] Speaker 02:
He's represented by competent counsel both here in the courtroom and he has some read and amassed who spent a page of her declaration saying that she's an expert in criminal immigration law and she knows full well how hard relief is to secure in this context and that time is of the essence.

[00:20:18] Speaker 02:
and no one provides explanations for why there were delays.

[00:20:22] Speaker 02:
And so there's no reason why the defendant should be benefiting when he knew full well, given that this was a successive petition, the burden that he bore.

[00:20:30] Speaker 04:
What's his current status?

[00:20:32] Speaker 02:
I don't believe it's in the record.

[00:20:34] Speaker 02:
I think that defense counsel mentioned that there was an exercise of prosecutorial discretion with respect to his immigration proceedings, but it's not in the record.

[00:20:46] Speaker 00:
Unless the court has any further questions we'd ask that this court affirm the denial of the quorum vote second quorum that was petition Council will give you a minute for a bottle So regarding I just asked that you look carefully at mr. Garcia's declaration with regard to delay he was unaware of That he could file a notice of appeal or motion for reconsideration and was really unaware of having any remedy for

[00:21:16] Speaker 00:
And that was the reason for the delay.

[00:21:20] Speaker 00:
And he was acting pursuant to the advice of counsel.

[00:21:24] Speaker 00:
And I think the record is clear that they were just trying different remedies, but the immigration remedies were very unlikely to succeed.

[00:21:33] Speaker 00:
And Mr. Garcia was simply unaware of the possibility of trying a second quorum nobis petition.

[00:21:39] Speaker 00:
That was really his only remedy.

[00:21:41] Speaker 00:
So the remedies are just, it's just very stark and I think the equitable considerations here should, there should be more room in Corum Nobis procedural law to allow defendants who reasonably rely on the advice of counsel to seek a remedy from a constitutional violation.

[00:22:03] Speaker 03:
All right.

[00:22:04] Speaker 03:
We thank counsel for their arguments.

[00:22:05] Speaker 03:
The case just argued is submitted and with that we are adjourned for the day.

[00:22:21] Speaker 01:
This court for this session stands adjourned.