NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0690n.06 No. 10-2079
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

MI CHAEL

J . HADDA D, Petitioner-Appellant,

v. UNI TED STATES OF AMERI CA, Respondent-Appe llee.

______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI T E D STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OPI NI ON

Before: COLE and STRANCH, Circuit Judges; CARR , District Judge. *
JANE B. STRANCH, Circuit Judge. Petitioner Michae l Hadda d, a citizen of Sy ria, pled
g uilty in 1997 to possessing a controlled substance (L SD), see 21 U.S.C. § 844(a)

. Be cause of this
g uilty plea, the g overnme nt is authorized to deport Hadda d. See 8 U.S.C. § 1227(a) (2)( B) (i). During the plea proce ss, Hadda d believes that he was repr esente d by a court-a ppointed attorney who did not advise him of the immigr ation conseque nces of pleading g uilty

. Three y ear s afte r the g overnme nt beg an proc eeding s in 2004 to remove Hadda d—based in part on Hadda d’s conviction of possessing drug s—Hadda d petitioned the district court for a writ of

coram nobis , arg uing that the conviction should be vacated beca use, among other things, his counsel provided inef

fec tive assistance . The district cour t denied Ha ddad’s pe tition.

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation.Haddad v. United States

10-2079 Pag e 2 Hadda d appea ls, contending that his attorney provided ineffe ctive assistance by not advising him that pleading g uilty would make him deporta ble. For the rea sons set forth below, we AFF I RM the judg ment of the district cour t. I. BACKG ROUND Haddad was admitted to the United States in 1991 as a resident alien. He pled g uil t y t o a
state and fede ral offe nse, resulting in two criminal convictions that make him deporta ble. I n October 1996, he pled g uilty to the first offe nse: stealing /retaining a fi n an cial transac tion device without consent, a felony under Michig an law, see Mich. Comp. L aws § 750.157n. The resulting judgme nt of convic tion was enter ed in Marc h 1997. The second offe nse of possessing L SD occur red in Dec ember 1996. W h i l e Hadda d was
enter ing Canada , a customs ag ent sear ched him and found three piece s of paper that tested positive for L SD. I n J uly 1997, he appea red befor e a mag istrate and pled g u i l t y t o this offe nse. The judgme nt of conviction wa s enter ed the same day

. He was fined $1000 and order ed to pay a $25
assessment fee

. Ne ither a transcr ipt nor rec ording of the proce eding exis ts. (The rec ording was destroy ed in acc ordanc e with judicial policy afte r one y ear .) Ot h er than the mag istrate judge ’s docket sheet for that day , the only other acc ount of what transpi re d when Hadda d pled g uilty to
p o s s essi ng drug s comes from his J une 2007 aff idavit. I n it, Hadda d states his belief that he wa s
repr esente d by a court-a

ppointed attorney who, among other t h i n gs , d id not advise him of the immigra tion consequenc es of plea ding g uilty

. The Depa rtment of Homeland Security (DHS) beg an proce eding s to remove Hadda d in J une 2004. They soug ht to remove him based on the following two g rounds, eac h of which alone wouldHaddad v. United States

10-2079 Pag e 3 authorize removing him: he was an alien who had been convicted of (1) a crim e i n v o l v i n g m oral turpitude committed within five y ear s afte r being admitted for which a sentenc e of one y ear or longe r
may be im posed (the financ ial-transa ction-devic e offense) , and (2) a contr olled-substance offe nse (possessing L SD). Hadda d admitted DHS’s alleg ations and conce ded remova bility at a heari n g b efor e an I mmigra tion J udg e (I J ) in October 2004. His attorney reque sted and rec eived an extension of time
to apply for canc ellation of remova l. But his attorney failed to apply for this relief

. So in Fe bruar

y 2005, the I J order ed that Hadda d b e re moved from the United States. The I J denied Hadda d’s motion to reope n in J une 2005, a decision that the Boa rd of I mmigra tion Appea ls (B I A) aff irmed in
J anuar y 2006. Hadda d appea led to this court, but we ruled in April 2007 that we lacke d jurisdiction to consider his petition for re view.
I n J une 2007, Ha ddad filed the petition f or writ of coram nobis that lies at the hea rt of this
appea l. He asked the d i s trict court to vacate his 1997 conviction for possessing L SD for sever al

rea sons, including that he rec eived ineffe ctive assistance of counsel. Specifica lly , he arg ued that this attorney never prop er ly advised him of the trial rig hts, possible defe nses, and alterna tives to
sentenc ing (such as the discretionar y prejudg ment probation under 18 U.S.C. § 3607) that he had. Hadda d unambig u ously decla red that he was “not asser t[ ing] that his counsel was ineffe ctive for failing to advise him about the deporta tion conseque nces of his g uilty plea.” This is understanda ble beca use that arg

ument was not y et rec og nized by courts. See Padilla v. Kentucky , 130 S. Ct. 1473, 1481, 1484, 1486 (2010).Haddad v. United States

10-2079 Pag e 4 The mag istrate judg e re commended tha t the petition be denied in his October 2007 Report and Recommenda tion. Reg arding Hadda d’s ineffe ctive-a ssistance-of -counse l claim, the mag istrate judge sug g ested that it had no merit beca use attorney s wer e n o t o b liga ted, constitutionally or otherwise, to infor

m their clients that they

may be depor ted if convic ted. The district court adopted the Report and Re commendation and de nied the petition in J uly 2010. By that time, Padilla had set forth the rule that at t orney s perf orm defic iently when they do
not inform t heir clients whether their pl ea car ries a r isk of deporta tion. 130 S. Ct. at 1483, 1486.
But the district court held that Hadda d had not established an ineffe ctive-a ssistance claim based on that rule for five rea sons: (1 ) l ac h es bars the claim, (2) Hadda d likely could not show that an attorney ’s failure to discuss the i m m i gra tion conseque nces of pleading g uilty “would violate the profe ssional norms that preva iled in 1997,” (3) Padilla ’s rule probably didn’t apply retroa ctively to old convictions under collater al attack, (4) Hadda d likely could not demonstrate the prejudice

nece ssary for an ineffe ctiv e- as s i stance claim beca use his state conviction for stealing /retaining a financ ial transac tion device makes him deporta ble even without his conviction for possessing drug s, and (5) a writ of co r a m n o b i s does not eliminate a conviction for immigra tion purposes when the conviction i s vaca

ted “for reasons solely re l at ed t o reha bilitation or t o avoid adverse imm igr ation hardships, ra ther than on the basis of a pr ocedur al or substantive de fec t in the underly ing c riminalHaddad v. United States

10-2079 Pag e 5
proce eding s.” Haddad v. United States , No. 07-12540, 2010 WL 2884645, at*5-6 (E.D. Mich. J uly

1 20, 2010) (quoting Picke ring v. Gonzales , 465 F.3d 263, 266 ( 6th Cir. 2006)). On appea l, Hadda d argue s t h at his attorney provided ineffe ctive assistance by failing to advise him of the immigr ation conseque nces of pleading g uilty

. II. ANALYSIS A. Stand ard of review
We revie w a district court’s decision deny ing a “wr it of coram nobis de novo, but uphold the court’s fac tual finding s unless they are clea rly err oneous.” Pilla v. United States , 668 F.3d 368, 372 (6th Cir. 2012).
B. Is Hadd ad entitled to the writ of coram nobis ? Coram nobis is an extraordinary writ used to vac ate a

fede ral sentenc e or conviction “only ‘whe n a § 2255 motion is unava i l ab l e— generally when the petitioner has serve d his sentenc e completely and thus is no longe r in custody .’” United States v. Johnson , 237 F.3d 751, 755 (6th Cir.

The deter mination be low is c orre ct but not on the bases ref ere nced in r easons (4) and (5). 1 As explained more fully below, the prejudice prong of an ineffe ctive-a ssistance claim in the context of a g uilty plea require s Hadda d to “show that there is a rea sonable probability that, but for counsel’s err ors, he would not have pleade d g uilty and would have insisted on g oing to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). But the questi o n u n derly ing the analy sis in rea son (4)—whe ther Haddad would still have been deporta ble even witho u t h i s co n v iction for possessing drug s beca use of his other state conviction—thoug h g erma ne to the case i s not direc ted t o prejudice in the context of a g uilty plea. The fl aw i n rea son (5) is that when a conviction is vacated beca use the Six th Amendment rig ht to counsel was violated, that conviction would not be vaca ted “for rea sons solely rela ted t o reha

bilitation or to avoid adver se immigra tion hardships,” Picke ring , 465 F.3d at 266. I nstead, that conviction would be vacated beca use counsel’ s err ors wer e so g rave that there is a rea sonable probability that the result of th e p r ocee ding would have been differ ent absent those err ors, Strickland v. W

as h i n g t on , 466 U.S. 668, 686-87, 691-92, 694 (1984). This is the very ty pe of “p ro ce d u ral or substantive defe ct in the underly ing criminal proce eding s” that does eliminate a conviction for immig ration purpose s under Picke ring . 465 F.3d a t 266.Haddad v. United States

10-2079 Pag e 6 2001) (quoting Blanton v. United States , 94 F.3d 227, 231 (6th Cir. 1996)). The Supreme Court has limit ed the writ’s use to “circ umstances c ompelling suc h action to ac hieve justice.” United States

v. Morgan , 346 U.S. 502, 511 (1954). For this court to g rant the writ, a petitioner m u s t “demonstra te[] a factual error tha t was unknown a t the time of t rial and that is of a fundame ntally unjust char acte r which probably would have altere d the outcome of the challeng ed proce eding if it had bee n known.” Pilla , 668 F.3d a t 372 (internal quotation mar ks omitt ed). Hadda d contends that he is entitled to the writ beca use he rec eived ineffe ctive assistance of counsel during the plea proce ss. Specific al l y , he arg ues that his attorney provided ineffe ctive assistance by not advising him that pleading g uilty to possessing L SD would au t h o ri z e t h e
g overnme n t t o d ep o rt h im. This arg ument beca me viable afte r Padilla set forth the rule that attorney s perf

orm defic iently when they do not inform their clients whether their plea car ries a risk of deporta tion. 130 S. Ct. at 1483, 1486. Even assuming that Hadda d did not waive this arg ument, that lache s does not bar it, and that Padilla ’s rule retroa ctively applies to Hadda d’s plea proce eding , he ca nnot establish the prejudice nece ssary for a n ineffe ctive-a ssistance c laim.
To prove an ineffe ctive-a ssistance claim, Hadda d must show that his attorney perf ormed defic iently and that he was prejudice d by the attorney ’s err or. See Strickland , 466 U.S. at 687. To establish prejudice , Hadda d “must show that there is a rea sonable probability that, but for counsel’s

err ors, he would not have pleade d g uilty and would have insisted on g oing to trial.” Hill , 474 U.S.
at 59. This “is never an easy task.” Padilla , 130 S. Ct. at 1485. Strickland imposes a “hig h bar” that “must be applied with scrupulous car e lest intrusive post-trial inquiry threa ten the integ rity of theHaddad v. United States

10-2079 Pag e 7
very adver sary proce ss the rig ht to counsel is meant to serve .” Premo v. Moore , 131 S. Ct. 733, 739- 40 (2011) ( internal quotation marks omitted). More over, [h] indsight and second g uesses are al s o inappropria te, and often more so, wher e a plea has been enter ed without a full trial

. . . . There is a most substantial burden on the claimant to show ineffe ctive assistance

. The plea proce ss bring s to the criminal justice sy stem a stability and a cer tainty that must not be undermined by the prospec t of collater al challeng es in ca s es not only wher e witnesses and evidenc e have disappea red, but also in case s whe re witnesses and evidenc e were not prese nted i n the first plac e. Id. at 745-46. Hadda d there fore cannot establish prejudice mere ly by stating now that he would have g one
to tr ial then if he had be en told that his ple a would authorize the g overnme nt to deport him. Pilla , 668 F.3d at 373. “The test is objective, not subjective” : to preva il, “‘a petitioner must convince the
court that a decision to reje ct the plea barg ain would have been rational under the circ umstances.’ ” Id. (quoting Padilla , 130 S. Ct . at 1485). This in turn require s a “pr ediction of the likely outcome
at trial.” Dando v. Y

ukins , 461 F.3d 791, 798 (6th Cir. 2006); see Pilla , 668 F.3d at 373 (ana ly zing Pill a’s chanc e of succe ss at trial to deter mine whether she was prejudice d). I n many case s, “this inquiry will be dispositi ve.” Maples v. Ste gall , 340 F.3d 433, 440 ( 6th Cir. 2003). Pilla is such a case . Pill a profe ssed that she would have g one to trial if her attorney had

corr ectly told her that pleading g uilty would authorize the g overnme nt to deport her. Pilla , 668 F.3d
at 373. But this court reje cted that profe ssion as inadequa te, instead rea soning that she “fa ced

overw helming evidence of her g uilt,

. . . had no rational defense , would have been convicted, and would have fac ed a longe r t erm of incar cer ation.

. . . And had Pilla been c onvicted af ter trial, sheHaddad v. United States

10-2079 Pag e 8 would have been just as remova ble as she was afte r her g uilty plea.” Id. Acc ording ly , “no rational defe ndant in Pill a’s position would have pr ocee ded to trial.” Id. The same logic applies in the prese nt case . L ike Pill a, Hadda d states now that he would have
g one to trial if his attorney had advise d him that pleading g uilty would make him depor

table. B ut this statement is not enoug h to establish prejudice

. Id. And the evidenc e ag ainst Hadda d is strong

. He wa s caug ht red- handed: while Haddad w as ente ring Canada from the United States, a customs
ag ent sea rche d Hadda d and found thre e piec es of pa per tha t tested positive for L SD. Hadda d also has no rational defe nse to the crime of possessing drug s. Be fo re t h e d i strict court, he asser

ted that he would have raised the fol lowing three possible defe nses: the sear ch or seizure was illega l, he did not possess the substances found during the sear ch, and the g overnme nt could not prove that those substances wer e actua lly illega l drug s. But he offe rs no rea son to believe that these defe nses had any chanc e of succe ss, let alone that they wer e rational. And there are g ood

rea sons for discounting eac h defe nse, which we addre ss in turn. The Supreme Court has he ld that routine border sear ches of persons enter ing the country do not require rea sonable suspicion, probable

cause , or a war

rant. United States v. Montoya de Hernande z , 473 U.S. 531, 538 (1985); see United States v. Flores-Montano , 541 U.S. 149, 152-55 (2004). And althoug h this court has not specific ally decide d the question whether that doctrine extends to border sear ches of persons leaving the country , Six th Circuit prec edent sug g ests that the doctrine does. See United States v. Boumelhe m , 339 F.3d 414, 420-423 (6th Cir. 2003) (holding t hat t he doctrine ex t en d s t o sear ches of article s leaving the country ). The lang uag e Boumelhe m used in a section heading supports t h i s p o i n t : “The Bor der Searc h E x ce p t i o n Applies to Persons and Articles L eaving the Country , and Not Only to ThoseHaddad v. United States

10-2079 Pag e 9 Entering the Country .” Id. at 420 (empha sis added) ; accord United States v. Humphries , 308 F. App’x 892, 896 (6th Cir. 2009) (citing Boumelhe m for the proposition that “[w]e have extended the rational underly ing the suspicionless sear ch of persons and eff ects enter ing the country to situations wher e persons or article s attempt t o ex it the country as well” (empha sis remove d)). The last two defe nses—that Hadda d did not possess the substances fo u n d d u ri ng the sear ch and that the
g overnme nt could not prove that those substances wer e illega l drug s—are frivolous beca use Hadda d

was caug ht persona lly possessing a substance that tested positive for L SD, which is a controlled substance under fede ral law, see 21 U.S.C. §§ 802(6), 812 Schedule I (c) (9). The mag istrate’s Report and Recomme n d a

ti o n , w h ic h th e d is tr ict court adopted, implicitl y rea ched the same conclusion about the def enses that Ha ddad asse rts he would have raised—na mely , that they

are not rea listi c. I n addition to the strong evidenc e ag ainst him and his lack of viable defe nses, another weig ht tipping the scale in favor o f Ha d d ad p l eading g uilty is the benef it he rec eived by doing so. He

rec eived the minimum fi n e ($1000) and no prison time. Had he g one to trial and been convicted,

as seems highly likely , he would be just as deporta ble as he was afte r pleading g uilty and he would have f ace d imprisonment for up to one y ear or a hig her f

ine, or both, 21 U.S.C. § 844(a). The only counter

weig ht Hadda d points to in support of his claim that he would have insisted

on g oing to trial is the afte r-the- fac t a lleg ation in his aff idavit; in other words, all Hadda d offe rs to support his claim i s the claim itself. Not only is that claim insufficient to s how prejudice because the test is objective, see Pilla , 668 F.3d at 373, but the entire rec ord g oes ag ai nst it. L ike Pill a, Ha ddad fac ed strong evidenc e of his g uilt, and if he had g one to trial, he had no rational defen s e, would have been convicted, would have fac ed time in prison, and would have been d ep o rt ab leHaddad v. United States

10-2079 Pag e 10
any way . See id. “[N]o ra tional de fenda nt in [Haddad’s] position would have pr ocee ded to trial.” Id. Hadda d there fore cannot show the prejudice nece ssary for an ineffe ctive-a ssistance claim. This conclusion is buttre ssed by the fac t tha t H addad does not e ven arg ue on appea l that he satisfies the prejudice prong . Be cause Hadda d’s ineffe ctive-a ssistance claim fails, he cannot show that his attorne y ’s advice was a “fu n d am entally unjust” err or that “proba bly altere d the outcome of the challeng ed
proce eding , as re quired for a wr it of coram nobis .” Pilla , 668 F.3d a t 372-73 (ellipses omitted).

III. CONCLUSION
For all of the re asons set for

th above, we AFF I RM the judgment of the district court.