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Chima v. United States

United States District Court, N.D. Texas, Dallas Division

April 15, 2019

GEORGE CHUKWUKA CHIMA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         Petitioner George Chima filed a pro se petition for a writ of coram nobis challenging his 2012 tax fraud conviction. The district court referred the resulting civil action to the United States magistrate judge, pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the petition should be denied.

         I.

         Petitioner is a citizen of Nigeria. On April 2, 2010, he filed an application for naturalization in which he stated orally and in writing that he had never committed a crime or offense for which he had not been arrested. See United States v. Chima, No. 3:16-cv-387-L (N.D. Tex.) (ECF No. 13 at 2). Petitioner knew this information was false because he had assisted in preparing fraudulent tax returns in 2008 and 2009. Id. Petitioner was approved for naturalization, and on July 13, 2010, he became a naturalized United States citizen. Id.

         On November 20, 2012, Petitioner was charged with aiding and assisting in a fraudulent income tax return, in violation of 26 U.S.C. § 7206(2). Petitioner pleaded guilty and admitted he prepared, or assisted in preparing, approximately 505 fraudulent federal income tax returns for the 2008 and 2009 tax years. See United States v. Chima, No. 3:12-cr-383-D (N.D. Tex.) (ECF No. 4 at 4-5). On April 19, 2013, the district court sentenced him to 30 months in prison and ordered him to pay $776, 341 in restitution. On August 7, 2015, Petitioner was released from prison and began serving one year of supervised release. (ECF 32 at 4.)

         On February 11, 2016, the government filed a complaint to revoke Petitioner's naturalization. See United States v. Chima, No. 3:16-cv-387-L (N.D. Tex.) On June 23, 2016, Petitioner filed a joint motion for consent judgment admitting he committed tax fraud and willfully concealed his criminal activity when he applied for naturalization and agreeing to his denaturalization. On June 23, 2016, the district court entered judgment denaturalizing Petitioner.

         On August 3, 2016, the government charged Petitioner as removable and served him at his home with a notice to appear. Chima v. Sessions, No. 17-60409 (5th Cir. 2018) (Resp.'s Mot. to Dismiss, Ex. A.) On April 27, 2017, the Board of Immigration Appeals issued a final order of removal. (ECF No. 32 at 3.) Petitioner appealed, and on June 21, 2018, the Fifth Circuit Court of Appeals dismissed the appeal. Chima v. Sessions, No. 17-60409 (5th Cir. 2018).

         On October 19, 2017, Petitioner filed his coram nobis petition, in which argues he received ineffective assistance of counsel when his criminal trial counsel advised him to plead guilty to the tax fraud charges and informed him that his conviction would not subject him to removal from the United States.

         Petitioner was removed to Nigeria on or about October 25, 2017. (ECF No. 32 at 4 n.2).

         II.

         Petition is seeking a writ of coram nobis. “The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the conviction.” United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004) (quoting Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996)). Here, Petitioner has served his sentence, he has been removed from the United States, and he is unable to travel to the United States because of his conviction.[1] Thus, he satisfies the first two elements for coram nobis relief. See United States v. Castro, 26 F.3d at 557, 559 (5th Cir. 1994) (coram nobis petitioners must be “no longer in custody” and “must be suffering civil disabilities as a consequence of criminal convictions”); see also Esogbue, 357 F.3d at 534 (district court had jurisdiction to hear coram nobis petition when petition was filed in the court of conviction, sentence was served, and petitioner faced consequence of deportation).

         Petitioner, however, must also show that a fundamental error justifies vacating his conviction, and that sound reasons exist for his delay in seeking earlier relief. See United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (quoting United States v. Morgan, 346 U.S. 502, 511-12 (1954)) (coram nobis will issue only to correct errors of “the most fundamental character” and “sound reasons” must exist for failure to seek earlier appropriate relief). Petitioner fails to satisfy these requirements.

         (A) Fundamental Error

         Petitioner fails to show that a fundamental error justifies vacating his conviction. Although “ineffective assistance of counsel, if proven, can be grounds for coram nobis relief, ” Esogbue, 357 F.3d at 534, Petitioner fails to show he ...


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