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Fourth Circuit Grants Coram Nobis for Ineffective Counsel

By Robyn Hagan Cain on August 01, 2012 | Last updated on March 21, 2019

Fourth Circuit jurisprudence states that a writ of error coram nobis is granted only where a more usual remedy is not available, a petitioner has valid reasons for not attacking the conviction earlier, adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III, and the error is of the most fundamental character.

Last week, the Fourth Circuit ruled that a case that seemed like an ordinary ineffective counsel appeal met the four-part test for a writ of error coram nobis.

Temitope Akinsade is a Nigerian citizen who legally came to America at the age 7, and became a lawful permanent resident at 20. While employed as a bank teller at age 19, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account.

Eventually, Akinsade reported the transactions to his supervisor, who then contacted the FBI. Akinsade later agreed to cooperate against the individuals for whom he cashed the checks.

The following year, Akinsade was charged with embezzlement by a bank employee in the amount of $16,400.

Akinsade asked his attorney on at least two different occasions about the potential immigration consequences of a guilty plea. Both times his attorney misadvised him that he could not be deported based on this single offense. His attorney told him that he could only be deported if he had two felony convictions. That advice was wrong.

Relying on his attorney's advice that one count of embezzlement was not a deportable offense, Akinsade pled guilty, served his time, and moved on with his life.

Almost nine years after Akinsade's conviction, immigration authorities arrested him and charged him with removability as an aggravated felon.

Akinsade filed a petition for writ of error coram nobis in federal court, alleging a violation of his Sixth Amendment rights due to his lawyer's bad advice. The government countered that Akinsade was not entitled to coram nobis because he alleged "a mere garden-variety ineffective assistance of counsel claim" that was not a "fundamental error." The district court agreed, and denied his petition.

Last week, the Fourth Circuit Court of Appeals vacated that decision, finding that the attorney's affirmative misrepresentations that the crime was non-deportable prejudiced Akinsade. Since Akinsade met his burden under prong two of the Strickland ineffective counsel test, he demonstrated that he has suffered a fundamental error necessitating coram nobis relief.

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