Jose Carlos Gonzales v. United States

         USCA11 Case: 19-11182       Date Filed: 11/20/2020   Page: 1 of 17



                        FOR THE ELEVENTH CIRCUIT

                                 No. 19-11182

          D.C. Docket Nos. 1:17-cv-23920-JAL; 1:00-cr-00584-JAL-10






                   Appeal from the United States District Court
                       for the Southern District of Florida

                               (November 20, 2020)

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.


      This appeal turns on the timeliness of a petition for a writ of error coram

nobis. Jose Carlos Gonzalez faces mandatory removal from the United States

because he pleaded guilty to attempted alien smuggling in 2002. In February 2016,
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the government started a proceeding to remove Gonzalez from the United States,

but in October 2017, Gonzalez filed a petition to vacate his conviction. He alleged

that he received bad legal advice about the effect of his guilty plea on his

immigration status. The district court denied Gonzalez’s petition as untimely

because he failed to provide sound reasons for not seeking relief earlier. We affirm.

                                I. BACKGROUND

      Gonzalez is a Cuban national who entered the United States in 1993 and

obtained permanent residency in 1998. In 2000, a federal grand jury charged

Gonzalez with attempting and conspiring to bring aliens into the United States for

profit. 8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. §§ 2, 371. The government later

filed a second superseding information charging Gonzalez only with attempted

alien smuggling. 8 U.S.C. § 1324(a)(2)(A); 18 U.S.C. § 2. Attempted alien

smuggling is a misdemeanor. Compare 18 U.S.C. § 3559(a)(6) with 8 U.S.C.

§ 1324(a)(2)(A).

      On August 27, 2002, Gonzalez pleaded guilty. During the change-of-plea

hearing, the district court discussed with Gonzalez and his attorney whether

Gonzalez understood the implications of his guilty plea for his immigration status.

Gonzalez’s criminal defense attorney, Allen Kaufman, told the district court that

the possibility of immigration consequences was a “sticking point” for Gonzalez,

but that Gonzalez had consulted with an immigration attorney. That attorney was

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Ana Jhones. Kaufman also told the district court at the plea hearing that he had

represented to Gonzalez that the guilty plea would not affect his immigration status

because the charged offense was not for-profit alien smuggling.

      The district court informed Gonzalez that immigration authorities might

decide to commence removal proceedings against him based on his plea. The

district court stated that it did not know whether immigration authorities would

institute removal proceedings against Gonzalez nor what the outcome of those

proceedings would be. But the district court wanted Gonzalez to be aware that his

plea might subject him to removal. Gonzalez confirmed that he understood and

pleaded guilty. That November, the district court sentenced Gonzalez to one year

of probation and 100 hours of community service.

      Gonzalez’s legal residency expired in 2015. He applied for citizenship, and

immigration officials reviewed his case.

      On February 24, 2016, the Department of Homeland Security served

Gonzalez a notice to appear on a charge of removal that, after being admitted to the

United States, he was convicted of an aggravated felony under the Immigration and

Nationality Act. 8 U.S.C. § 1227(a)(2)(A)(iii). Although attempted alien

smuggling is a misdemeanor, it satisfies the statutory definition of “aggravated

felony,” with limited exceptions that do not apply here. 8 U.S.C. § 1101(a)(43)(N);

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see Biskupski v. Att’y Gen. of the United States, 

503 F.3d 274

, 277–81 (3d Cir.


      About a week after receiving the notice to appear, Gonzalez consulted

Eduardo Soto, an immigration lawyer. Soto explained to him that any advice he

received that his alien-smuggling conviction would not subject him to removal was

wrong. Gonzalez retained Soto’s firm on March 23, 2016, and the firm assigned

Alanna McCoy as his attorney. Gonzalez later received a notice of an initial

hearing before an immigration judge on October 19, 2016. At that hearing, the

government submitted documentary evidence of Gonzalez’s conviction to satisfy

its burden of proving his removability. Gonzalez’s attorneys began to research

possible avenues of relief.

      McCoy would later testify that “at the back of everyone’s mind” was the

notion that if there were no options for relief in the immigration proceeding,

Gonzalez could “take a deportation order . . . and essentially not be in any danger

of being deported.” This fallback option was available because a deportation order

“wasn’t a big deal” then for Cubans, and even with an order, “he would be

perfectly fine.” That attitude changed the following January. On January 12, 2017,

the United States and Cuba announced that the United States would end its policy

of not removing Cuban nationals and that Cuba would accept Cubans with

deportation orders from the United States.

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      In March 2017, McCoy consulted criminal defense attorney Jeffrey Feiler

about filing a motion to vacate on Gonzalez’s behalf. Then, on June 23, 2017, the

Supreme Court decided Jae Lee v. United States, 

137 S. Ct. 1958

(2017), which

confirmed for Gonzalez’s counsel that a vacatur of their client’s conviction would

provide the best chance for him to stay in the United States as a permanent

resident. In Jae Lee, the Court held that a convict may prove prejudice for an

ineffective-assistance claim based on counsel’s erroneous advice about removal

consequences if he establishes a reasonable probability that he would not have

pleaded guilty had he known it would lead to mandatory 

removal. 137 S. Ct. at 1962

, 1969.

      Gonzalez’s next immigration hearing was scheduled for August 30, 2017, so

he hired Feiler that month. Feiler provided McCoy with an opinion letter to request

additional time from the immigration judge based on the view that Gonzalez had a

strong chance of being able to vacate his conviction. The immigration judge

granted Gonzalez a continuance.

      Gonzalez filed a petition for a writ of error coram nobis on October 25,

2017. He sought to vacate his alien-smuggling conviction on the ground that he

received ineffective assistance of counsel when deciding to plead guilty. The

government opposed the petition as untimely and unmeritorious, and it asserted

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laches. A magistrate judge held a two-day evidentiary hearing in which Gonzalez

and three attorneys—McCoy, Kaufman, and Jhones—testified.

      McCoy testified about the events transpiring between February 2016 and

October 2017, and Kaufman testified about the circumstances surrounding

Gonzalez’s guilty plea in 2002. Kaufman’s memory was hazy, but he testified that

he would not have advised Gonzalez to plead guilty unless he was certain that

Gonzalez would not face any consequences to his immigration status. He also

described the prosecution’s offer to reduce the felony charges against Gonzalez to

a misdemeanor as a “great plea offer” that was “extremely rare” in federal court.

Kaufman believed that he referred Gonzalez to Jhones for advice on the

immigration question.

      Gonzalez testified that he consulted with Jhones, and that she told him either

that there was a “good possibility” or that it was certain that his guilty plea would

not affect his immigration status. According to Gonzalez, while he was in her

office, Jhones called Kaufman over the phone to explain her assessment to him

directly. Jhones did not recall meeting Gonzalez and had no record of his having

retained her, but she left open the possibility that he may have seen her for a

consultation. She testified that if she had been brought a proposed alien-smuggling

plea offer, she would have said that pleading guilty to alien smuggling subjected

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the person to removal, but that in every consultation with Cubans then, she would

have explained that “in all probability” the person would not be removed.

      The magistrate judge found that Gonzalez had consulted with Jhones, and he

concluded that Gonzalez received ineffective assistance of counsel and was

prejudiced by it. The magistrate judge acknowledged that a coram nobis petitioner

bears the burden of providing valid reasons for not having sought relief earlier, in

contrast to a laches defense, for which the party asserting the defense bears the

initial burden of proving prejudice as a result of the delay. But instead of

concluding that Gonzalez had satisfied his burden, after a brief discussion of

Gonzalez’s reasons for delay, the magistrate judge turned to the analysis of laches

and determined that the government failed to prove prejudice. He recommended

granting Gonzalez’s petition. The government objected on the grounds that

Gonzalez failed to establish sound reasons for failing to seek relief earlier and

failed to prove prejudice from the ineffective assistance of counsel.

      The district court rejected the report and recommendation. Because the

timeliness issue was dispositive, the district court did not reach any other issue.

The district court found that Gonzalez “was aware of the deportation consequences

of his guilty plea at the latest when [the Department of Homeland Security] served

him with a Notice to Appear in removal proceedings on February 24, 2016,” yet he

“filed the instant Petition over twenty months later on October 25, 2017.” It

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explained that the magistrate judge “did not make any findings as to whether

[Gonzalez] established sound reasons for the delay,” and instead mistakenly

“applied the laches standard.” And it rejected Gonzalez’s argument that his 20-

month delay was justifiably explained by his lack of sophistication and lack of

awareness of the coram nobis remedy until he retained Feiler. The district court

denied Gonzalez’s petition.

                              II. STANDARDS OF REVIEW

      We review for abuse of discretion the treatment of a magistrate judge’s

report and recommendation, Stephens v. Tolbert, 

471 F.3d 1173

, 1175 (11th Cir.

2006), and a denial of a petition for a writ of error coram nobis, Alikhani v. United


200 F.3d 732

, 734 (11th Cir. 2000). An error of law is an abuse of


Id. And a district

court abuses its discretion if it makes a finding of fact

that is clearly erroneous. Diveroli v. United States, 

803 F.3d 1258

, 1262 (11th Cir.

2015). “For a factual finding to be clearly erroneous, this Court, after reviewing all

of the evidence, must be left with a definite and firm conviction that a mistake has

been committed.” United States v. Matchett, 

802 F.3d 1185

, 1191 (11th Cir. 2015)

(alteration adopted) (internal quotation marks omitted).

      We have not previously decided, in an appeal of a denial of a petition for a

writ of error coram nobis, the standard of review for a subsidiary finding of undue

delay. This issue requires inquiry into “the circumstances surrounding the

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petitioner’s failure to raise the issue earlier,” Foont v. United States, 

93 F.3d 76

, 80

(2d Cir. 1996), and is similar to the inquiry about whether a federal prisoner who

moves to vacate his sentence, 28 U.S.C. § 2255, could have discovered earlier,

through the exercise of due diligence, the facts supporting his motion, see Aron v.

United States, 

291 F.3d 708

, 711 (11th Cir. 2002). We review that finding for clear


, id., as we ordinarily

would other factual issues of timeliness, see Drew v.

Dep’t of Corr., 

297 F.3d 1278

, 1287 & n.2 (11th Cir. 2002) (explaining that in

various contexts we treat a finding regarding diligence as a finding of fact subject

to clear error review), overruled on other grounds as recognized by Jones v. Sec’y,

Fla. Dep’t of Corr., 

906 F.3d 1339

, 1351 (11th Cir. 2018); see also United States

v. Villarreal, 

613 F.3d 1344

, 1351 n.4 (11th Cir. 2010) (explaining that a finding

regarding the government’s proffered reason for delay where the defendant asserts

a violation of his speedy-trial rights is a finding of fact, which we “review for clear

error” or “with considerable deference”) (internal quotation marks omitted). So we

will treat this determination of a petitioner’s reasons for delay too as a finding of

fact and review it for clear error.

                                  III. DISCUSSION

      The writ of error coram nobis is “an extraordinary remedy of last resort

available only in compelling circumstances where necessary to achieve justice.”

United States v. Mills, 

221 F.3d 1201

, 1203 (11th Cir. 2000). Because “the results

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of [a] conviction may persist,” the writ makes relief available to a petitioner who

has served his sentence and is no longer in custody. United States v. Peter, 

310 F.3d 709

, 712 (11th Cir. 2002) (internal quotation marks omitted). To obtain coram

nobis relief, a petitioner must “present[] sound reasons for failing to seek relief


Mills, 221 F.3d at 1204

. Further, “the writ may issue only when the error

involves a matter of fact of the most fundamental character which has not been put

in issue or passed upon and which renders the proceeding itself irregular and


Alikhani, 200 F.3d at 734

(internal quotation marks omitted). We have

assumed but not decided that ineffective assistance of counsel may constitute an

error so “fundamental” as to warrant coram nobis relief. Moody v. United States,

874 F.2d 1575

, 1577 n.3 (11th Cir. 1989). Because Gonzalez’s petition is untimely,

we need not resolve that issue now.

      We divide our discussion in two parts. We first address Gonzalez’s

challenge to the rejection of the magistrate judge’s report and recommendation.

Then, we address whether Gonzalez failed to provide sound reasons for his delay.

        A. The District Court Did Not Abuse its Discretion by Rejecting the
                  Magistrate Judge’s Report and Recommendation.

      Gonzalez argues that the district court abused its discretion by rejecting the

magistrate judge’s report and recommendation. Under the Federal Magistrates Act,

a district judge may designate a magistrate judge to conduct hearings and to submit

proposed findings of fact and recommendations for the disposition of motions,

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with certain exceptions. 28 U.S.C. § 636(b)(1)(B). But the district judge retains

“ultimate adjudicatory power over dispositive motions” and the “widest discretion”

over how to treat a report and recommendation of a magistrate judge. Williams v.


557 F.3d 1287

, 1291 (11th Cir. 2009) (internal quotation marks omitted).

The district judge must review de novo “those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1).

      The district court did not abuse its discretion. After the government objected

to the report and recommendation on the ground that Gonzalez’s petition was

untimely, the district court reviewed that issue de novo. Section 636 gives no

presumptive weight to a magistrate judge’s recommendation. Mathews v. Weber,

423 U.S. 261

, 271 (1976). The district court was free to disregard the magistrate

judge’s conclusion. Moreover, the district court was undoubtedly correct that the

magistrate judge did not actually decide whether Gonzalez had satisfied his burden

of proving that his reasons for delay were sound; the magistrate judge instead

skipped resolving that issue and conducted a laches inquiry.

   B. The District Court Did Not Err in Ruling that Gonzalez Failed to Provide
                           Sound Reasons for His Delay.
      Gonzalez argues that the district court erred when it calculated his delay

from the time he learned of possible deportation consequences to file his petition—

for a total of 20 months—because his petition was not ripe until October 2016

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when removal proceedings officially commenced against him. He contends that a

petitioner cannot seek coram nobis relief unless he establishes that he continues to

suffer legal consequences from his conviction and that until October 2016, it was

unclear whether removal proceedings would actually commence against him, so he

“could not have shown that he suffered any concrete injury” until then. Gonzalez

likely forfeited this argument because he did not clearly raise it below, Access

Now, Inc. v. Sw. Airlines Co., 

385 F.3d 1324

, 1331 (11th Cir. 2004), but it is

meritless in any event.

      The risk of removal is an adverse consequence of conviction sufficient to

create an actual or imminent injury for a case or controversy under Article III.

United States v. Akinsade, 

686 F.3d 248

, 252 (4th Cir. 2012); see also Fiswick v.

United States, 

329 U.S. 211

, 220–22 (1946). Gonzalez began suffering that injury

as soon as his aggravated-felony conviction became final. His underlying claim—

that alleged ineffective assistance of counsel led him to plead guilty, which

subjected him to removal—has been justiciable since 2002. There was no need for

removal proceedings against Gonzalez to begin or even for immigration officials to

serve him with a notice to appear to make his risk of removal a real and concrete

injury. The case-or-controversy requirement posed no barrier of justiciability to

Gonzalez filing a coram nobis petition in February 2016, and the district court

committed no error in calculating his delay from that date at the latest.

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      Whether he delayed for 20 months or 15 years, Gonzalez lacks sound

reasons for his delay. “A defendant seeking to avoid the collateral consequences of

a conviction cannot postpone seeking relief until it appears that a collateral

consequence is imminent.” Ragbir v. United States, 

950 F.3d 54

, 63 (3d Cir. 2020).

Gonzalez waited not only until the possibility of immigration consequences

became imminent, but for another 20 months afterward before seeking relief. We

need not decide whether Gonzalez had sound reasons for not seeking relief before

February 2016. The district court did not clearly err in finding that he failed to

establish sound reasons for waiting to file his petition until October 2017.

      The law does not require a coram nobis petitioner to challenge his

conviction “at the earliest opportunity,” but he must have “sound reasons for not

doing so.”

Id. (internal quotation marks

omitted). The district court stressed that

Gonzalez knew about his deportation consequences “at the latest . . . on February

24, 2016,” and calculated his delay from that date. Perhaps having “no reason” to

question bad legal advice because it “appeared accurate” is a valid excuse for not

seeking relief earlier. See 

Akinsade, 686 F.3d at 252

; see also United States v.


407 F.3d 1005

, 1013–14 (9th Cir. 2005), abrogated on other grounds by

Padilla v. Kentucky, 

559 U.S. 356

(2010). But undoubtedly, after a petitioner

becomes aware that he received incorrect advice about the immigration

consequences of his guilty plea, that is, “aware of the true basis of [his]

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Moody, 874 F.2d at 1578

, he cannot wait to file a coram nobis petition

without a sound reason. 

Ragbir, 950 F.3d at 64

; Mendoza v. United States, 

690 F.3d 157

, 159–60 (3d Cir. 2012). Gonzalez became aware in early 2016 that he had

received incorrect advice but waited to seek relief until October 2017.

       According to Gonzalez, he did everything he knew he could do after he

received the notice to appear in February 2016, and the ensuing delay was only the

result of his attorneys’ formulating a legal strategy. But the government points out

that Gonzalez and his counsel decided “not to do anything for almost a year”

because until January 2017 his counsel calculated that Gonzalez would not actually

be removed even if he received a removal order. McCoy’s testimony makes it

apparent that Gonzalez and his counsel did not even begin to consider seeking to

vacate his conviction until after the January 2017 policy change. That tactical

reason for delay provides the fatal blow to Gonzalez’s petition.

       The district court committed no clear error when it rejected as a valid reason

for delay Gonzalez’s assertion that he did not know about the potential for coram

nobis relief until August 2017 when he retained Feiler. After all, “procedural

ignorance” is not “an excuse for prolonged inattention” when the law calls for

diligence. Johnson v. United States, 

544 U.S. 295

, 311 (2005). Gonzalez failed to

exercise it.

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      Gonzalez encourages us to follow the Second Circuit in accepting an excuse

similar to his. In Kovacs v. United States, the Second Circuit reasoned that “it is

improbable that [a petitioner] (or whatever attorney he consulted) would have

promptly thought about coram nobis, which is as arcane as it is ancient.” 

744 F.3d 44

, 54 (2d Cir. 2014). But there is a problem with Gonzalez’s reliance on that


      Gonzalez fails to mention that in Kovacs our sister circuit made clear that the

government did not suggest “any tactical reason” that the petitioner would have

delayed pursuit of the writ, had he learned of it sooner.

Id. Here, the government

does. And it makes all the difference.

      Gonzalez also points to Doe v. United States, 

915 F.3d 905

(2d Cir. 2019),

and asks us not to blame him for his attorneys’ delay. In Doe, the petitioner sought

to vacate his conviction after he became aware that he was removable, but was

actively dissuaded from doing so by officials who assured him that they would

procure him citizenship.

Id. at 908–09, 915.

Again, in forgiving that petitioner’s

delay, the Second Circuit explained that there was no suggestion of a tactical

reason for not seeking relief earlier.

Id. at 915.

      Doe is distinguishable for the same reason as Kovacs. Being actively

dissuaded by officials from seeking to vacate a conviction is materially different

from one’s own counsel deciding to wait and see. See Howell v. Crosby, 

415 F.3d 15

         USCA11 Case: 19-11182       Date Filed: 11/20/2020    Page: 16 of 17

1250, 1251–52 (11th Cir. 2005) (rejecting federal habeas petitioner’s argument that

his petition was timely because it was his attorney’s fault that it was late). That

Gonzalez’s attorneys may have thought it best not to challenge his conviction—the

result of a “great plea offer”—until the United States changed its policy toward the

removal of Cubans is not a sound reason for delay. See Nicks v. United States, 

955 F.2d 161

, 167 (2d Cir. 1992).

      Gonzalez also contends that he did not file his petition until after the

Supreme Court decided Jae Lee in June 2017, because it was not until then that his

attorneys were confident that he had “a substantial likelihood of success.” But Jae

Lee did not provide the basis for Gonzalez’s claim; it instead strengthened the

argument for it. Cf. Bereano v. United States, 

706 F.3d 568

, 576 (4th Cir. 2013).

Waiting until a claim is more likely to succeed does not justify a delay in filing a

coram nobis petition. 

Mendoza, 690 F.3d at 160


      The district court did not clearly err in finding that Gonzalez failed to justify

his delay. And we cannot say it was a mistake to view 20 months as too long to

wait without good reason, especially when many years had passed since he could

have first brought his claim. See, e.g., United States v. Riedl, 

496 F.3d 1003

, 1005–

07 (9th Cir. 2007).

         USCA11 Case: 19-11182        Date Filed: 11/20/2020    Page: 17 of 17

      Gonzalez strategically waited to cry foul. We will not avert our eyes from

that tactic to excuse his delay. The district court did not abuse its discretion by

denying Gonzalez’s petition as untimely.

                                 IV. CONCLUSION

      We AFFIRM the denial of Gonzalez’s petition.


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