The opinion of the court was delivered by: Wayne R. Andersen United States District Court
Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the petition of defendant Dapo Emmanuel Adeyeye ("Adeyeye") to vacate his conviction pursuant to a writ of coram nobis. Adeyeye alleges that his attorney in the above-captioned case, Andrea E. Gambino, did not inform him that entering a plea of guilty could affect his immigration status, and that such an omission constitutes ineffective assistance of counsel in violation of the Fifth and Sixth Amendments of the United States Constitution. Adeyeye relies on the All Writs Act, 28 U.S.C. §1651, in his petition for a writ of coram nobis. For the reasons set forth below, the court denies Adeyeye's petition.
In 1991, Adeyeye emmigrated to the United States from Nigeria to live with his sister in New York. In 1996, Adeyeye became a permanent legal resident of the United States. On March 29, 2000, United States Customs' agents (now known as United States Immigration and Customs Enforcement)("ICE") received an anonymous tip that a Nigerian national named Melvin Reynolds was flying into O'Hare International Airport from the United Kingdom and that Reynolds would be staying at the Heart of Chicago Hotel during his stay in Chicago. The agents knew that the Heart of Chicago Hotel was a notorious location for narcotics trafficking and believed that Reynolds would be carrying narcotics.
The agents called the Heart of Chicago Hotel to see if Reynolds had checked in, which he had not. The agents then asked if any Nigerian nationals had checked into the hotel and the hotel employee informed them that a Nigerian national by the name of Dapo Adeyeye had checked in earlier that day. Believing that Reynolds had checked in under the alias of Dapo Adeyeye, the agents went to the hotel to see if Adeyeye was actually the individual known as Melvin Reynolds. Upon arriving at the hotel, the agents went to the room where Adeyeye was staying and identified themselves as police officers. Adeyeye opened the door and identified himself. He did not produce any form of identification. Adeyeye then gave the agents permission to search the hotel room. During the search, the agents found 1.06 kilograms of heroin in a suitcase on the bed.
After losing a contentious suppression hearing regarding the search of the hotel room, Adeyeye pled guilty to possessing heroin with intent to distribute. On October 17, 2002, this court sentenced him to the statutory minimum of 120 months of incarceration. Adeyeye appealed the sentence and the Seventh Circuit affirmed the decision of this court on February 20, 2004. United States v. Adeyeye, 359 F.3d 457 (7th Cir. 2004). A year later, Adeyeye filed a habeas corpus petition pursuant to 28 U.S.C. § 2255. In that petition, Adeyeye alleged that the sentencing procedures in his case were conducted incorrectly, that his counsel, Ms. Gambino, was ineffective because she failed to ask for various downward departures during the sentencing phase, and that the government failed to adhere to its agreements for certain downward departures. Adeyeye v. United States, No. 05 C 1087, 2006 U.S. Dist LEXIS 10503 (N.D. Ill. Mar. 20, 2006). We denied Adeyeye's habeas petition on March 20, 2006. Id.
On December 16, 2008, the Bureau of Prisons remanded Adeyeye into ICE custody. Adeyeye is currently detained in ICE custody while awaiting a deportation hearing. In an attempt to avoid deportation, Adeyeye filed the instant petition for a writ of coram nobis, which seeks to vacate his 2002 conviction. Adeyeye asserts two grounds as to why his conviction should be vacated: 1) his attorney, Ms. Gambino, failed to provide him with effective assistance of counsel because she did not advise him that pleading guilty could affect his immigration status, and 2) the court did not advise him at sentencing that his plea of guilty could affect his immigration status. Therefore, Adeyeye alleges that he entered into his guilty plea without knowledge that the conviction might lead to his deportation. (Pet.'s Mot. to Vacate at 8.)
A petition for a writ of coram nobis is a remedy available at common law, preserved by the All Writs Act, 28 U.S.C. § 1651, which is intended to correct fundamental errors of fact. United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed. 2d 805 (1979). However, the All Writs Act is only a residual source of authority. Thus, when "a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed. 2d 613 (1996). The writ of coram nobis is intended to be "limited to defects that sap the proceeding of any validity." United States v. Doe, 867 F.2d 986, 988 (7th Cir. 1989) (citing United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988)). The writ of coram nobis cannot be used to reach issues that could have been raised on direct appeal. Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997). Moreover, as the court explained in Keane, the remedy of coram nobis is restricted because, "the reason to bend the usual rules of finality is missing when liberty is not at stake. Courts must conserve their scarce time to resolve the claims of those who have yet to receive their first decision." Keane, 852 F.2d at 203.
To justify granting the writ of coram nobis, Adeyeye must show that (1) the claim could not have been raised on direct appeal, (2) the conviction resulted in "lingering civil disabilities," and (3) the error is such that it "would have justified habeas corpus relief pursuant to 28 U.S.C. § 2255." Doe, 867 F.2d at 988. Consequently, as a threshold matter, Adeyeye must demonstrate that he could not have raised his claims in the habeas corpus petition he filed pursuant to Section 2255. If Adeyeye is able to demonstrate that he surpasses this threshold question, thus giving this court jurisdiction over his petition, he must then show that his claims meet the above three-prong standard articulated by the Seventh Circuit in Doe in order to be entitled to relief. Doe, 867 F.2d at 988.
Adeyeye filed the instant petition for a writ of coram nobis, claiming that his 2002 conviction should be vacated on the grounds that his attorney did not inform him of the possibility of deportation back to Nigeria as a result of his guilty plea. We deny Adeyeye's petition for three reasons: 1) Adeyeye is still "in custody" for purposes of collateral attack and, therefore, this court lacks jurisdiction over this petition; 2) even if we did have jurisdiction over this matter, the record is replete with evidence demonstrating that he was aware of the possibility of deportation throughout the proceedings in his criminal case; 3) even if he was not aware of the possibility of deportation, there are many collateral consequences to ...