On March 24, Aguon filed in the U.S. District Court for the NMI a two-page handwritten letter asking for a court-appointed counsel and the possibility of filing for a writ of error of coram nobis on grounds that her court-appointed lawyer failed to advise her that her guilty plea could result in deportation.
As the letter was officially filed, the court construed it as her pro se motion.
Aguon, an immediate relative, or IR, of a U.S. citizen, is now on supervised release after serving her prison term in the states.
The judge said since Aguon is still in custody because she’s serving her supervised release penalty, she cannot seek the writ of error of coram nobis petition.
“As explained above, the court cannot grant the writ of error coram nobis, and the court cannot appoint a lawyer to help defendant file a petition for a writ that the court cannot grant. Even if the defendant were to file a Section 2255 petition, the court still could not grant that relief,” wrote Tydingco-Gatewood in her three-page order.
“A 2255 petition must be filed within one year of the date on which the judgment of conviction became final, unless predicated on a ‘right’ newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,’” she added.
Aguon should have filed the 2255 petition by Oct. 2008.
Aguon cited the ruling in the Padilla v. Kentucky case in which the U.S. Supreme Court ruled that a non-U.S. citizen is entitled to effective assistance of counsel regarding the consequences of criminal proceeding pleas involving or relating to deportation as a consequence of a conviction as defined under the Immigration and Nationality Act.
However, the judge said, “Padilla does not stand for a right ‘newly recognized’ by the Supreme Court, and so defendant [Aguon] could not rely on that case to transform an otherwise untimely 2255 motion into a timely one.”
Further, the judge said court records showed that Aguon understood the consequences of her guilty plea in 2007 in connection with false claims filed with Internal Revenue System on behalf of at least 275 fraudulent tax credit claimants from the CNMI.
“During the plea colloquy in this case, the court asked defendant what country she was a citizen of, learned that she was a citizen of the Philippines, and advised her that, by pleading guilty to a felony, she would imperil her right to remain in the United States, her privilege to enter it in the future and her fitness for becoming a citizen,” the judge said.
