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United States v. Arce-Flores

United States District Court, W.D. Washington, Seattle

January 12, 2018



          JAMES L. ROBART United States District Judge


         Before the court are the parties' supplemental briefs regarding Defendant Monica Arce-Flores's motion for writ of error coram nobis (Mot. (Dkt. #317)). (Def. Supp. Br. (Dkt. # 328); Pl. Supp. Br. (Dkt. # 329).) The court ordered the supplemental briefing (see Min. Order (Dkt. # 327)) after the Ninth Circuit Court of Appeals remanded Ms. Arce-Flores's appeal "for the limited purpose of enabling the [] court to consider [her] motion for a writ of error coram nobis" (Remand (Dkt. # 326) at 1). The court has considered the supplemental briefs, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court VACATES Ms. Arce-Flores's six-month sentence, and IMPOSES a sentence of 179 days.


         The court recited most of the operative facts in its first order on Ms. Arce-Flores's motion. (See Order at 2-8.) The court will not repeat the facts except insofar as it is helpful to the final disposition of the motion.

         On August 14, 2017, Ms. Arce-Flores moved for a writ of error coram nobis, alleging a violation of her Sixth Amendment right to counsel. (See Mot.) To qualify for coram nobis relief, a petitioner must establish that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015). On October 16, 2017, the court found that Ms. Arce-Flores's motion demonstrated the first and third Chan factors. (See Order at 11-12, 15-19.) As to the second and fourth factors, however, the court found that the motion only raised a substantial issue. (Id. at 12-14, 19-27.)

         More specifically, regarding the second factor, the court concluded that the Government's presentation precluded the court from determining whether Ms. Arce-Flores's motion was unreasonably delayed. (Id. at 12-14.) Regarding the fourth factor, the court analyzed whether Ms. Arce-Flores's prior counsel provided ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) (explaining that a petitioner seeking to establish ineffective assistance of counsel must prove (1) that "counsel's performance was deficient, " and (2) that "the deficient performance prejudiced the defense"). Under Strickland, the court found counsel's performance "was deficient in the plea process" because he misadvised Ms. Arce-Flores on the immigration consequences of pleading guilty to an offense with a maximum sentence of more than 180 days, despite clear law on this issue. (Id. at 22-23); 8 U.S.C. § 1107(f) (explaining that a person who is imprisoned for more than 180 days as a result of a conviction cannot demonstrate "good moral character" and therefore cannot qualify for cancellation of removal under 8 U.S.C. § l229b(b)(1)). In addition, the court found that counsel's deficient performance during the plea process prejudiced Ms. Arce-Flores. (Order at 26.)

         The parties, however, did not address "the interplay between [counsel's] performance at sentencing-both the hearing and the subsequent motion to clarify-and his deficiency during the plea process." (Id. at 23.) The parties also failed to address the "the appropriate standard for evaluating [counsel's] performance at the sentencing stage." (Id.) Similarly, the parties did not discuss "how the sentencing phase affects, if at all, a finding of prejudice arising from the plea process, " including whether the court's clarification of Ms. Arce-Flores's sentence cured the prejudice from the plea process. (Id. at 27; see also Order Clarifying Sentence (Dkt. # 304).) Therefore, the court was unable to make a final determination on whether Ms. Arce-Flores had demonstrated she suffered prejudice from counsel's deficient performance. (See Order at 27.)

         After the Ninth Circuit remanded Ms. Arce-Flores's appeal, the court ordered the parties to file supplemental briefing regarding three outstanding issues from the underlying motion:

(1) whether Ms. Arce-Flores had sound reasons for not filing a motion for writ of error coram nobis sooner;
(2) whether Ms. Arce-Flores's previous counsel was ineffective during the sentencing phase of the criminal matter, the standard for evaluating any such ineffectiveness, whether the court must consider any alleged ineffectiveness at sentencing if the court finds that previous counsel was ineffective during the plea process, and whether the sentencing phase affected prejudice arising from the plea process; and
(3) the proper remedy for any ineffective assistance of counsel.

(Min. Order at 1-2 (internal citations omitted).) The court now addresses these topics.

         III. ...

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