The opinion of the court was delivered by: William W. Caldwell United States District Judge
On July 27, 2006, Defendant, Baldwin N. Foster, a citizen and resident of Jamaica, filed a pro se motion for coram nobis relief, seeking to vacate his July 1994 conviction for distribution of crack cocaine. Defendant has already served his sentence and, according to the motion, was deported to Jamaica in June 2000. Nonetheless, Defendant pursues this motion, arguing that his removal from the United States is a continuing collateral consequence that permits him to litigate the validity of his conviction by seeking a writ of coram nobis.*fn1
We will deny the motion because Defendant failed to raise the claims presented here during proceedings in this court, on direct appeal or in the motion he filed under 28 U.S.C. § 2255.
In April 1994, Defendant and two co-defendants were named in a four-count indictment. The defendant was charged: (1) in Count I with conspiracy to distribute and possess with intent to distribute "a mixture or substance containing cocaine base, known as 'crack' cocaine"; and (2) in Count III with distributing and possessing with the intent to distribute "50 grams or more of a mixture or substance containing cocaine base, known as 'crack' cocaine."
In July 1994, under a written plea agreement, he pled guilty to count III. In October 1994, he filed a motion to withdraw the plea. As part of this motion, he sought a psychiatric evaluation on the basis that his extensive use of crack cocaine caused him to suffer auditory and visual hallucinations. In February 1995, a hearing was held on the motion. It was decided that Defendant would be given a psychiatric examination.
Two psychologists working for the Bureau of Prisons concluded that the defendant was feigning mental illness and that he was competent to stand trial, to enter into a plea agreement and to participate in sentencing proceedings. In light of the report, we scheduled a hearing on the motion to withdraw the plea or to sentence Defendant, depending on whether Defendant wanted to pursue his motion.
The hearing was held on June 30, 1995. Defendant stated that he wanted to withdraw his motion to withdraw his guilty plea and that he would "continue" with the plea of guilty that he had "initially" entered. (Doc. 110, sentencing transcript, p. 4). During the sentencing hearing, defense counsel argued for either probation or a downward departure because Defendant was "subject to an NIS (sic) detainer that will be filed against him" and that the "taxpayer" should not "have to pay for incarcerating him for any long period of time if in fact he may wind up being deported." (Id., p. 9). In rejecting the argument, the court commented that it did not "make sense to pay to keep people in jail for years if they are going to be deported as soon as they are released," (id., p. 12), but that it was a common situation. The court sentenced defendant to 36 months' imprisonment (id., p. 13-14) and also orally pronounced that if Defendant were deported, he shall remain outside the United States and that supervised release would be on a non-reporting basis. (Id., p. 15). The judgment of sentence also provided that "[i]f order[ed] deported, the defendant shall remain outside the United States and supervision will be on a non-reporting basis." (Doc. 105, p. 3).
Defendant took a direct appeal which the Third Circuit denied in an unpublished judgment order. See United States v. Foster, No. 95-7363 (3d Cir. Mar. 22, 1996). In July 1996, Defendant filed a motion under 28 U.S.C. § 2255.*fn2 In August 1996, we denied the motion and were affirmed on appeal. See Foster v. United States, No. 96-7618 (3d Cir. April 1, 1997). In January 1998, Defendant filed a petition under 28 U.S.C. § 2241 which we dismissed because his remedy under section 2255 was not inadequate or ineffective. In September 1998, the Third Circuit denied approval to file a second 2255 motion. See In re Foster, No. 98-8140 (3d Cir. Sept. 16, 1998). In November 1998, Defendant filed a motion for audita querela relief setting forth grounds challenging his conviction almost identical to those presented in the instant coram nobis motion, which are listed below. In December 1998, we denied relief because an audita querela motion could not substitute for a 2255 motion.
Defendant then filed the instant coram nobis motion.*fn3
The motion makes the following claims. First, the court violated Defendant's right to due process by failing to advise him during his guilty-plea colloquy of the adverse immigration consequences of his guilty plea, i.e., that Defendant could be deported as a result of the plea. Second, the court violated Fed. R. Crim. P. 11 by not advising Defendant of the elements of the crime, the maximum and minimum sentence, and by allowing Defendant to accept a recommended sentence that was illegal. The court also misstated the maximum sentence as forty years when it was really thirty years. Third, the court failed to hold a hearing on Defendant's motion to remove his counsel.*fn4 Fourth, Defendant's counsel was ineffective. Fifth, the government breached the plea agreement by remaining silent at Defendant's sentencing rather than call attention to its motion to reduce sentence. Sixth, Defendant's right to effective assistance of counsel on direct appeal was violated when counsel failed to perfect the appeal. Seventh, the plea was involuntary because Defendant was on a potent hallucinogenic drug at the time and because his then-counsel told him his jury would be white, from the Klu Klux Klan and would find him guilty because he was black and from Jamaica. Eighth, trial counsel was ineffective in not requesting a hearing on Defendant's motion to remove him as counsel. Ninth, trial counsel was ineffective in not seeking an independent psychiatric examination of Defendant. Tenth, trial counsel failed to investigate and prepare a defense when the only witnesses against Defendant were those who were naming him as a way of helping themselves. Additionally, a co-defendant had admitted in a letter that he had falsely testified against Defendant.
A defendant in a criminal case may use coram nobis to challenge ...