Thomas v. United States

Background

Kenneth Thomas, representing himself, asked the court for a writ of error coram nobis, an exceptional procedure used to challenge a past criminal conviction when continuing legal consequences remain. He sought to vacate his November 13, 2001 guilty plea to one count of access device fraud under 18 U.S.C. §§ 1029(a)(2) and 2.

The criminal case alleged that Thomas used other people’s bank-account and routing information to transfer approximately $13,000 to PayPal accounts under his control. The Government relied on evidence from Thomas’s computer, a matching internet address, evidence from his former employer, witness statements, and statements by Thomas. Thomas pleaded guilty before Judge Michael B. Mukasey. He received 36 months of probation, including six months of home confinement, and was ordered to pay $12,000 in restitution; the Government dismissed the remaining counts.

In 2018, immigration officials apprehended Thomas after he returned to the United States from abroad. In 2019, he was served with a notice to appear for an immigration violation and detained while removal proceedings were pending. He filed this petition in June 2019.

Thomas’s claims

Thomas argued that his lawyer, the prosecutor, and Judge Mukasey did not advise him about the immigration consequences of his guilty plea. He also claimed that his lawyer did not explain the evidence or possible defenses and that the Government threatened his family before the plea.

Immigration-related ineffective-assistance claim

The court applied the two-part test for ineffective assistance of counsel. Thomas had to show both that his lawyer’s performance was objectively unreasonable and that the performance caused prejudice, meaning a reasonable probability of a different result.

The court held that the lawyer’s alleged failure to explain immigration consequences did not satisfy the first part of the test. In 2001, controlling law did not require a defense lawyer to advise a client about the immigration consequences of a guilty plea. The later Supreme Court decision requiring such advice did not apply retroactively to Thomas’s plea. The court also noted that Thomas did not claim, and the record did not suggest, that his lawyer made an affirmative false statement about immigration consequences.

The court separately held that Thomas did not show prejudice. He did not identify contemporaneous evidence that immigration consequences were important to his decision in 2001. His later statement that he would have gone to trial was not enough by itself. The court also found no basis to conclude that Thomas could have negotiated a plea without immigration consequences or that he had a non-frivolous defense at trial. The guilty plea gave him a substantial benefit because it allowed a non-custodial sentence instead of the then-mandatory imprisonment range the court described.

Other claims and delay

The court did not decide whether Thomas’s allegations about his lawyer’s failure to discuss evidence and defenses or the alleged threats to his family were true. Instead, it held that these claims were untimely because Thomas first raised them 17 years after the plea and offered no explanation for the delay. The court also noted that Thomas’s sworn statements during the plea hearing—that he had discussed the case and possible defenses with his lawyer, was satisfied with the lawyer’s representation, and had not been threatened—were inconsistent with these allegations.

Disposition

The court denied Thomas’s petition for a writ of error coram nobis. It declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, and denied permission to proceed without paying fees for an appeal. The clerk was directed to close the case.