ORDER ON PETITIONER'S REQUEST FOR WRIT OF CORAM NOBIS
Petitioner Nicholas Levi Rianto ("Petitioner") was convicted in 2001 by plea of guilty to one count of violation of 18 U.S.C. § 1028(a)(7) and one count of 18 U.S.C § 1341 and was sentenced to a total term of imprisonment of twelve months and one day. Following a remand to custody in 2005 for violation of terms and conditions of supervised release, Petitioner's case was terminated 2005. A petition to correct, vacate or set aside the sentence pursuant to 28 U.S.C. § 2255 that was filed by Petitioner on February 7, 2011, was denied as untimely. However, in the order denying Petitioner's 2255 motion, the court granted leave to file a writ of coram nobis. The instant request for writ of coram nobis was filed on April 4, 2012. In his application for writ of coram nobis, Petitioner alleges he suffered ineffective assistance of counsel when his attorney erroneously advised Petitioner that a sentence of less than one year of actual time served would not have negative consequences on Petitioner's alien residence status. Plaintiff also alleges his attorney did not advise that a restitution order in excess of $10,000 would result in a classification of his conviction as an aggravated felony resulting in Petitioner's reclassification as removable. For the reasons that follow, the court will find that Petitioner has stated a claim for relief that is sufficient to require response by the government.
FACTUAL AND PROCEDURAL HISTORY
This case commenced on February 15, 2001, when an indictment alleging 38 counts of identity theft to fraudulently obtain credit was filed. Petitioner was convicted by plea of guilty to two counts of identity theft and two counts of mail fraud on June 4, 2001. Petitioner was sentenced to one year plus one day of imprisonment and was ordered to pay restitution in the amount of $10,555.37. The court's order of judgment and commitment was filed on September 13, 2002. Petitioner alleges the actual time served on his original sentence was less than twelve months. Petitioner was arrested for violation of the terms of supervised release on September 17, 2004, and again on July 13, 2005. With regard to each violation of supervised release Petitioner was remanded to custody for a period of eight months. The last order of judgment and commitment was filed on September 8, 2005. The court calculates Petitioner was finally released from custody arising from his 2001 conviction sometime before the end of May 2006. On February 7, 2011, filed a motion for habeas relief pursuant to 28 U.S.C. § 2255 (the "2255Motion"). On February 22, 2012, the court issued an order denying Plaintiff's 2255 Motion as untimely and granting leave to file a writ of coram nobis (the "February 22 Order").
Petitioner states he applied to renew his Lawful Permanent Resident Card on April 16, 2009, and that the renewal was granted by DHS on July 7, 2009. Petitioner was detained for deportation on October 14, 2010, over one year from the renewal date of his resident card and almost ten years after his conviction. Through the instant motion for relief pursuant to a writ of error coram nobis, Petitioner seeks to essentially modify his sentence after the fact to impose a term of custody equal to the actual time Petitioner was imprisoned, which is less than one year, and to reduce the amount of restitution to less than $10,000. Petitioner's apparent goal is to restructure the sentence imposed so as to remove him from the category of persons now subject to mandatory deportation.
"The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney By & Through McKinney v. United States, 71 F.3d 779, 781 (9th Cir.1995). "The writ provides a remedy for those suffering from the 'lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact' and 'egregious legal errors.'" United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989) (quoting Yasai v. United States, 772 F.2d 1496, 1498, 1499 & n. 2 (9th Cir.1985). The writ permits a court to vacate its judgment when an error has occurred that is of the most fundamental character such that the proceeding itself is rendered invalid. McKinney, 71 F.3d at 781. The Supreme Court and Ninth Circuit have "long made clear that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007).
To qualify for error coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction 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).
The court's February 22 Order briefly addressed the four requirements for error coram nobis relief based on allegations set forth in Petitioner's 2255 Motion and concluded that Petitioner's allegations satisfied the first and third requirements. Those conclusions are incorporated here by reference and need not be discussed further. What remains to be considered is whether a valid reason exists for not attacking the conviction earlier and whether the alleged error is of the most fundamental character. The court addresses the second issue first.
I. Fundamental Legal Error
A coram nobis petitioner may show fundamental error by establishing that he received ineffective assistance of counsel. United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005). In this case, Petitioner alleges he received ineffective assistance of counsel when his attorney failed to warn petitioner that he would likely be subject to deportation if he entered into the plea agreement proposed by the Government. To determine if Petitioner suffered ineffective assistance of counsel, the court applies the standards established by Strickland v. Washington, 466 U.S. 668 (1984). The two-pronged test established by Strickland requires that the petitioner claiming ineffective assistance of counsel show that (1) his counsel's performance fell below an objective standard of reasonableness, id. at 688, and (2) that there exists "a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
In Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473 (2010), the Supreme Court articulated the objective standard pertaining to a counsel's duty to advise the non-citizen client of the risk of deportation. 130 S.Ct. At 1482-1483. At the time Padilla was decided, applicable Ninth Circuit authority held that an attorney did not have the duty to advise his non-citizen client of the possible effects of conviction on his residency status "because deportation was simply a 'collateral consequence' of the plea." United States v. Bonilla, 637 F.3d 980, 982 (9th Cir. 2011) (quoting United States v. Amador-Leal, 276 F.3d 511, 514-515 (9th Cir. 2002)). Thus, for jurisdictions such as the Ninth Circuit, Padilla announced a new constitutional standard with regard to a counsel's duty to inform her client of immigration consequences arising from a proceeding. In Bonilla, the Ninth Circuit applied the standard set in Padilla because the case was pending on direct review at the time Padilla was decided. Bonilla, 637 F.3d at 983. Based on language in Padilla and the Ninth Circuit's application of Padilla in Bonilla, this court has applied the rule in Padilla retroactively. See United States v. Krboyan, 2011 WL 2117023 (E.D. Cal. 2011) at *8 (applying Padilla for purposes of analysis of ineffective assistance of counsel where defendant entered a plea of guilty in 2006). For purposes of this ...