The opinion of the court was delivered by: (Judge Conner)
Presently before the court is a petition for a writ of error coram nobis (Doc. 114) filed by pro se petitioner Kwame Dwumaah ("Dwumaah"). Dwumaah has fully served his sentence and now seeks to vacate his conviction to avoid deportation. For the reasons set forth below, the court will grant an evidentiary hearing.
I. Background and Procedural History
Dwumaah was born in 1960 in Ghana, Africa. (Doc. 1 ¶ 1). On December 9, 1989, Dwumaah entered the United States on a non-immigrant Visa, and remained in the country illegally after his Visa expired. (Doc. 94--2, at 3--4). From 1997 to 2001, Dwumaah enrolled in classes at the Community College of Philadelphia and Villanova University, obtaining a nursing degree. (Id. at 4). Dwumaah, using the alias "Simon Dwumaah," obtained student loans from the federal government to help finance this degree. (Id.)
On or about December 31, 1998, Dwumaah married a United States citizen, and in April, 1999 he applied to the United States Immigration and Naturalization Service ("INS") for Permanent Resident status. (Id.) In December, 1999, the INS granted Dwumaah Conditional Permanent Residency status based upon his marriage. (Id. at 4; Doc. 1 ¶ 19).
In June 2004, the United States Department of Homeland Security ("DHS") determined that Dwumaah's marriage was fraudulent. (Doc. 94--2, at 4). The DHS filed a Notice to Appear against Dwumaah, initiating proceedings in November, 2004, to remove Dwumaah from the country pursuant to 8 U.S.C. § 1227(a)(1)(D)(I). (Id.) On April 27, 2005, a federal grand jury sitting in the Middle District of Pennsylvania returned a twenty-eight count indictment charging Dwumaah with fifteen counts of Mail Fraud in violation of 18 U.S.C. § 1343, and thirteen counts of Higher Education Resources Fraud in violation of 20 U.S.C. § 1097(a). (Id.; Doc. 1).
Dwumaah initially pled not guilty to all counts on May 17, 2005, but subsequently entered into a plea agreement in July 2005. (Doc. 14; Doc. 28). On August 30, 2005, Dwumaah pled guilty to one count of Theft of Public Monies in violation of 18 U.S.C. § 641. (Doc. 33; Doc. 37). On January 19, 2006, the court sentenced Dwumaah to imprisonment for a term of five months and supervised release for a term of one year. (Doc. 43). The court also ordered Dwumaah to pay $75,192 in restitution. (Id.)
Following Dwumaah's guilty plea, the DHS amended its Notice to Appear to include additional grounds for removal, including a false claim of United States citizenship, thereby rendering Dwumaah removable under 8 U.S.C. § 1227(a)(3)(D). (Id. at 5). Ultimately, an immigration judge determined that Dwumaah was not removable under the government's original charge (fraudulent marriage) but was removable under the amended charge of falsely claiming United States citizenship. (Id.) Although the immigration judge noted that Dwumaah's guilty plea did not necessarily establish Dwumaah as removable for falsely claiming United States citizenship, the plea appears to be the chief piece of circumstantial evidence used in the case against Dwumaah. See In re Kwame Dwvmaah, File AO 75 462 772, 2010 WL 1975978 at *1 (B.I.A. Apr. 29, 2010).
On September 18, 2007, Dwumaah filed a petition for a writ of error coram nobis, alleging that counsel did not fully inform him of the deportation consequences of his plea. (Doc. 71). The court subsequently issued an order denying the petition on procedural grounds, as Dwumaah was still in Federal Custody and therefore the proper vehicle to attack his conviction was not a petition for a writ of error coram nobis but a motion to vacate judgment under 28 U.S.C. § 2255.*fn1 (Doc. 79). Pursuant to this order, on February 26, 2007, Dwumaah filed a § 2255 motion to vacate judgment. (Doc. 84). In that motion, Dwumaah once again alleged ineffective assistance of counsel, but only vaguely, stating that "his attorney did not advise him about his not guilty plea but gave him wrong information that led him to plead guilty." (Id. ¶ 11). This court denied Dwumaah's § 2255 motion on December 5, 2007. (Doc. 93).
On April 23, 2010, Dwumaah filed a second § 2255 motion to vacate, asking the court to reconsider his conviction in light of the Supreme Court's ruling in Padilla v. Kentucky, --- U.S. ---, 130 S.Ct. 1473 (2010), decided on March 31, 2010. (Doc. 94). In this second § 2255 motion, Dwumaah elaborated on his earlier claims of ineffective assistance of counsel, stating that his counsel "misinformed him that if he pled guilty to theft of public monies he would not be deported. . . [t]o Dwumaah['s] surprise he is [being] removed under [8 U.S.C. § 1227(a)(3)(D)]." (Id. at 1).
On June 2, 2010, the court denied Dwumaah's motion, noting that a § 2255 motion to vacate was inappropriate as Dwumaah had already filed such a motion and was no longer in custody. (Doc. 100). The court further stated that, even in light of Padilla, which affirmatively established that an attorney's failure to inform his client of likely deportation consequences of a guilty plea satisfies the first prong of the Strickland test for an ineffective assistance of counsel claim, the second prong of the Strickland test was not satisfied, because Dwumaah could not show that he would have been acquitted had he gone to trial rather than plead guilty. (Id.); see Padilla, --- U.S. at ---, 130 S.Ct. at 1478; see also Strickland v. Washington, 466 U.S. 668 (1984). The court's determination was made under the standard articulated in United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989). Finally, the court noted that Dwumaah's only remaining remedy for bringing an ineffective assistance of counsel claim was a petition for a writ of error coram nobis, but cautioned that such a writ would only be granted in extraordinary cases. (Doc. 100, at 2 n.3); see United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988).
On September 6, 2011, Dwumaah filed the instant motion (Doc. 114), a petition for a writ of error coram nobis, seeking to vacate his sentence in light of both Padilla and the June 29, 2011 decision of the United States Court of Appeals for the Third Circuit in United States v. Orocio, 645 F.3d 630 (3d. Cir. 2011). Orocio abrogated the Third Circuit's previous holding in Nino and, according to Dwumaah, alters the analysis of the second prong of the Strickland test in the present case. (Doc. 114); see Orocio, 645 F.3d at 644. Dwumaah filed an Affidavit (Doc. 115) in support of his petition on November 14, 2011. (Doc. 115).
A writ of error coram nobis is available to a criminal defendant no longer in custody as a means by which to attack his conviction and obtain relief therefrom, including "vacating the conviction." Cabrera v. United States, Civ. No. 10-2713, 2011 WL 2784419, at *1 (D. N.J. July 12, 2011). If a petitioner for a writ of error coram nobis can successfully establish a ground for a claim for relief, the court will hold an evidentiary hearing to establish the truth of the petitioner's allegations. Id. at *3. To attain a writ of error coram nobis, "[a] petitioner must show: (1) a fundamental defect occurred; (2) [he] is suffering from continuing consequences of the allegedly invalid conviction; (3) there was no remedy available at the time of trial; and (4) sound reasons exist for failing to seek relief earlier. Id. at *1; see also Mendoza v. United States, --- F.3d ---, 2012 WL 3117259, at *2 (3d Cir. June 28, 2012).
To establish ineffective assistance of counsel in violation of the Sixth Amendment, a defendant must satisfy both prongs of the Strickland test, showing that: (1) counsel's representation was objectively unreasonable; and (2) counsel's deficient performance was prejudicial. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland, 466 U.S. at 668). In the context of cases involving defendants facing almost-certain deportation as a result of a guilty plea, the Supreme Court determined in Padilla that "counsel, in order to be constitutionally competent" under the first prong of the Strickland test "has an obligation to advise criminal defendants whether an offense to which they may plead guilty will result in removal from the United States." Orocio, 645 F.3d at 636 (citing Padilla, --- U.S. at ---, 130 S. Ct. at 1478).
Although Padilla did not address the second prong of the Strickland test in the context of criminal defendants facing deportation, the Third Circuit addressed the issue in its recent decision in Orocio, holding that "in order to satisfy the 'prejudice' requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Orocio, 645 F.3d at 643 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Ultimately, the defendant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Id. (quoting Padilla, --- U.S. ---, 130 S.Ct. at 1485). The Third Circuit noted that "[f]or [an] alien defendant most concerned with remaining in the United States. . . it is not at all unreasonable to go to trial and risk a ...