Fernandez v. Johnson

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Immigration Law

New York Law Journal

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Magistrate Judge James Francis

Represented by his codefendant's lawyer, Fernandes pleaded guilty to attempted criminal possession of a controlled substance. He was sentenced to five years of probation and a fine. The immigration consequences of conviction were not discussed at his plea or sentencing hearing. In 2003, Fernandes was ordered deported, and in 2011 he was charged with illegal entry violating 8 USC §1326. A state appeals panel denied leave to appeal the September denial of his March 2011 motion to vacate his 1995 conviction under New York Criminal Procedure Law §440.10. Discussing Camara v. New York, the magistrate judge recommended dismissal of Fernandes' petition seeking error coram nobis relief. Fernandes claimed his 1995 conviction should be vacated due to ineffective assistance of counsel under Padilla v. Kentucky because counsel did not advise him of the potential immigration consequences of his guilty plea. Noting that Fernandes attacked his state conviction in federal court, the magistrate judge observed that the Camara court held that it lacked jurisdiction to issue a writ of error coram nobis because the petitioner's conviction took place in state court, notwithstanding the fact that he alleged a claim under Padilla.

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