United States v. Yuly Kroytor

                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF                           No. 19-16459
 AMERICA,
      Plaintiff-Appellee,                    D.C. Nos.
                                     2:17-cv-02404-JAM-CKD
              v.                    2:03-cr-00379-JAM-CKD-1

 YULY KROYTOR,
   Defendant-Appellant.                       OPINION

         Appeal from the United States District Court
             for the Eastern District of California
          John A. Mendez, District Judge, Presiding

              Argued and Submitted June 8, 2020
                  San Francisco, California

                      Filed October 14, 2020

 Before: Eric D. Miller and Danielle J. Hunsaker, Circuit
      Judges, and Patrick J. Schiltz, * District Judge.

                   Opinion by Judge Hunsaker




    *
      The Honorable Patrick J. Schiltz, United States District Judge for
the District of Minnesota, sitting by designation.
2                 UNITED STATES V. KROYTOR

                          SUMMARY **


                           Coram Nobis

    The panel affirmed the district court’s denial of a petition
for a writ of error coram nobis brought by Yuly Kroytor, a
lawful permanent resident from Canada, who pleaded guilty
to health care fraud and was convicted in 2005.

    The government seeks to remove Kroytor from the
United States because his conviction is an aggravated felony.
In 2016, Kroytor filed the coram nobis petition, seeking to
withdraw his guilty plea because the attorney who
represented him at sentencing provided ineffective
assistance by misadvising him that he could not withdraw
his plea but could prevent immigration officials from finding
out about his conviction and thereby avoid removal.

    The panel held that Kroytor is not entitled to coram nobis
relief because, after learning that the only way he could
avoid removal was to challenge his conviction, he waited
two years, without a valid reason, before filing his petition
for a writ of error coram nobis. The panel held specifically
that uncertainty or ambiguity in the law is not itself a valid
reason to delay seeking coram nobis relief.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                UNITED STATES V. KROYTOR                     3

                         COUNSEL

Benjamin Lee Coleman (argued), Coleman & Balogh LLP,
San Diego, California; Davina T. Chen, Glendale,
California; for Defendant-Appellant.

Matthew G. Morris (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; McGregor W.
Scott, United States Attorney; United States Attorney’s
Office, Sacramento, California; for Plaintiff-Appellee.


                         OPINION

HUNSAKER, Circuit Judge:

    Yuly Kroytor, a lawful permanent resident from Canada,
pleaded guilty to health care fraud and was convicted in
2005. The government seeks to remove Kroytor from the
United States because his conviction is an aggravated felony.
Over many years, Kroytor tried to overcome the immigration
consequences of his conviction by hiring numerous
attorneys who gave him varying and often erroneous advice
that he followed. In 2016, more than ten years after his
conviction, Kroytor filed a petition for a writ of error coram
nobis, seeking to withdraw his guilty plea because his
criminal defense attorney who represented him at sentencing
provided ineffective assistance of counsel by misadvising
him that he could not withdraw his plea but could prevent
immigration officials from finding out about his conviction
and thereby avoid removal. We conclude that Kroytor is not
entitled to coram nobis relief because, after learning that the
only way he could avoid removal was to challenge his
conviction, he waited two years, without a valid reason,
before filing his petition for writ of error coram nobis.
4               UNITED STATES V. KROYTOR

Specifically, we hold that uncertainty or ambiguity in the law
is not itself a valid reason to delay seeking coram nobis
relief.

                    I. BACKGROUND

A. Kroytor’s conviction

    Kroytor became a lawful permanent resident of the
United States in 1995, and within five years he owned a
medical-supply company. In August 2003, a grand jury
indicted Kroytor for health care fraud and aiding and
abetting the same in violation of 18 U.S.C.
§§ 1347(a)(1),(2). Kroytor’s defense attorney knew he was
a noncitizen and nonetheless urged him to plead guilty
without advising him that a conviction could have adverse
immigration consequences. Kroytor learned for the first time
at his plea colloquy that his conviction could result in his
being removed from the United States.

     After his plea but before his sentencing, Kroytor hired
defense attorney Daniel Behesnilian. Kroytor asked
Behesnilian how his conviction would affect his
immigration status and whether he would be removed.
Behesnilian told Kroytor that it was too late to change his
guilty plea but that he could keep immigration authorities
from finding out about his conviction if he paid his
restitution before sentencing and was not sentenced to jail
time. According to Behesnilian, this would allow Kroytor to
avoid any adverse immigration consequences from his
conviction, including removal. Kroytor paid his restitution
before sentencing and was sentenced to probation with no
jail time, which he completed without incident.
               UNITED STATES V. KROYTOR                    5

B. Kroytor’s immigration proceedings

    In 2007, Kroytor learned that Behesnilian gave him
erroneous advice. As Kroytor returned to the United States
from a trip to Canada, authorities questioned him about his
conviction and told him it made him inadmissible to the
United States. Although he was allowed to return to his
home in California, Kroytor soon received a removal notice.

     Thereafter, Kroytor hired a series of attorneys to
represent him in his immigration proceedings. Behesnilian
referred Kroytor to an immigration attorney who did nothing
on Kroytor’s case for a year. In 2009, Behesnilian referred
Kroytor to a second immigration attorney who sought to
obtain immigration relief for Kroytor based on his family
relationships. In early 2014, Kroytor became concerned
about his second immigration attorney’s representation and
consulted a third immigration attorney who told him, for the
first time, that his conviction was an aggravated felony that
required mandatory removal, and the only way to avoid
removal was to have his conviction vacated. Shortly
thereafter, a fourth immigration attorney confirmed
Kroytor’s removal was “virtually certain” unless his
conviction was vacated.

C. Kwan, Padilla, and Chaidez

    After Kroytor’s conviction became final, we decided
United States v. Kwan, which held that affirmatively
misadvising a client about his conviction’s immigration
consequences could provide a basis for an ineffective
assistance of counsel claim. 

407 F.3d 1005

, 1015 (9th Cir.
2005), abrogated by Padilla v. Kentucky, 

559 U.S. 356

(2010). We did not overturn our earlier-adopted rule that “an
attorney’s failure to advise a client of the immigration
consequences of a conviction, without more, does not
6               UNITED STATES V. KROYTOR

constitute ineffective assistance of counsel.”

Id. (citing United States

v. Fry, 

322 F.3d 1198

, 1200 (9th Cir. 2003),
abrogated by 

Padilla, 559 U.S. at 374

) (emphasis added).

    Five years later, in Padilla v. Kentucky, the Supreme
Court went further than we did in Kwan and held that
defense counsel’s failure to inform a client about his
conviction’s potential immigration consequences constitutes
ineffective assistance of 

counsel. 559 U.S. at 374

. “This
holding abrogated the existing rule in all ten courts of
appeals that had reached this issue—including ours, Fry,

322 F.3d 1198

—as the courts of appeals had uniformly
concluded that the mere failure to advise regarding the
possibility of deportation could not establish an [ineffective
assistance of counsel] claim.” United States v. Chan,

792 F.3d 1151

, 1154 (9th Cir. 2015) (citing Chaidez v.
United States, 

568 U.S. 342

, 350 & n.7 (2013)).

    In 2013, approximately one year before Kroytor learned
that the only way he could avoid removal was by vacating
his conviction, the Supreme Court held in Chaidez v. United
States that, “under the principles set out in Teague v. Lane,

489 U.S. 288

(1989),” Padilla announced a new rule that did
not apply 

retroactively. 568 U.S. at 344

. It was not clear,
however, whether Chaidez’s holding regarding Padilla’s
non-retroactivity under Teague covered both failure-to-
advise claims and affirmative-misadvice claims. See United
States v. Bonilla, 

637 F.3d 980

, 983–84 (9th Cir. 2011)
(characterizing Padilla as deciding that both misadvice and
failure-to-advise claims constitute ineffective assistance of
counsel but not deciding retroactivity).

D. Kroytor’s coram nobis proceedings

    After learning in mid-2014 that he would not be able to
solve his problem through immigration proceedings,
                  UNITED STATES V. KROYTOR                            7

Kroytor retained Clyde Blackmon to investigate whether he
had grounds to challenge his conviction. Blackmon did not
immediately file a coram nobis petition because, in light of
the Supreme Court’s decision in Chaidez, he was uncertain
whether the rule we announced in Kwan—that affirmative
misadvice about the immigration consequences of a criminal
conviction constitutes ineffective assistance of counsel—
applied retroactively to convictions like Kroytor’s that were
final before Kwan. Approximately a year after Kroytor
consulted with Blackmon, we held that the Kwan rule does
apply retroactively, resolving this uncertainty. 

Chan, 792 F.3d at 1155

.

     In May 2016, ten months after we decided Chan and two
years after Kroytor learned his only chance to avoid removal
was vacating his conviction, Kroytor filed a petition for a
writ of error coram nobis in the district court. He sought to
withdraw his guilty plea because his defense counsel
affirmatively misadvised him that the only way he could
avoid the immigration consequences arising from his
conviction was to take steps to prevent the immigration
authorities from finding out about the conviction. 1 Kroytor
claimed that, had he known his conviction meant certain
removal, he would have asked to withdraw his plea before
sentencing and either negotiated a different plea or gone to
trial.

    The district court concluded that Kroytor was not entitled
to coram nobis relief because his delay in filing his petition
    1
       Behesnilian acknowledged that Kroytor’s conviction could have
adverse immigration consequences, but he misadvised Kroytor that steps
could be taken to prevent immigration authorities from finding out about
the conviction. Both Kroytor’s coram nobis petition and appellate
briefing characterize Behesnilian’s incorrect statements as affirmative
misadvice about his conviction’s adverse immigration consequences.
8               UNITED STATES V. KROYTOR

was not justified. Kroytor timely appealed. We have
jurisdiction under 28 U.S.C. § 1291, and we review the
district court’s denial of coram nobis de novo, 

Kwan, 407 F.3d at 1011

.

                      II. DISCUSSION

A. Writ of error coram nobis

    A writ of error coram nobis “affords a remedy to attack
a conviction when the petitioner has served his sentence and
is no longer in custody.”

Id. (internal quotation marks

and
citation omitted). The writ aids “those suffering from the
lingering collateral consequences of an unconstitutional or
unlawful conviction based on errors of fact and egregious
legal errors.”

Id. at 1009–10

(internal quotation marks and
citation omitted). Coram nobis is an “extraordinary remedy”
available “only under circumstances compelling such action
to achieve justice.” United States v. Morgan, 

346 U.S. 502

,
511 (1954). To qualify for this “extraordinary remedy,” the
petitioner must establish four requirements: (1) the
unavailability of a “more usual remedy;” (2) valid reasons
for the delay in challenging the conviction; (3) adverse
consequences from the conviction sufficient to satisfy
Article III’s case-and-controversy requirement; and (4) an
“error . . . of the most fundamental character.” 

Kwan, 407 F.3d at 1011

.

    Here, the district court dismissed Kroytor’s petition
under—and the parties focus their dispute on—the second
factor: whether valid reasons exist for Kroytor’s delay in
challenging his conviction. A coram nobis petition is not
subject to a specific limitations period.

Id. at 1012.

However,
petitioners are entitled to this relief only if they can “provide
valid or sound reasons explaining why they did not attack
their sentences or convictions earlier.”

Id. We have not

                UNITED STATES V. KROYTOR                     9

expressly defined what constitutes a valid or sound reason.
See

id. at 1013.

However, in Kwan we noted that courts have
denied relief for unjustified delay where “the petitioner has
delayed for no reason whatsoever, where the respondent
demonstrates prejudice, or where the petitioner appears to be
abusing the writ.”

Id. Our caselaw further

reflects that whether a petitioner can
reasonably raise a claim is determinative of whether delay is
justified.

Id. That is, where

petitioners reasonably could have
asserted the basis for their coram nobis petition earlier, they
have no valid justification for delaying pursuit of that claim.
See United States v. Riedl, 

496 F.3d 1003

, 1006 (9th Cir.
2007). If, however, petitioners did not have a reasonable
chance to pursue their claim earlier due to the specific
circumstances they faced, delay during the time when such
circumstances existed may be justified. See Hirabayashi v.
United States, 

828 F.2d 591

, 605 (9th Cir. 1987); 

Kwan, 407 F.3d at 1013

–14. Some of our sister circuits have
likewise reasoned that the validity of delay depends on
whether the petitioner had a reasonable opportunity to
present his claims earlier. See, e.g., Ragbir v. United States,

950 F.3d 54

, 65 (3d Cir. 2020) (holding that “[w]hat matters”
in determining whether delay is valid “is whether a claim can
be reasonably raised”); United States v. Castano, 

906 F.3d 458

, 464 (6th Cir. 2018) (noting “coram nobis relief is
generally not appropriate for claims that could have been
raised on direct appeal”).

    Thus, in Reidl we denied coram nobis relief for
unjustified delay where the grounds on which the petitioner
sought relief could have been asserted in earlier 

proceedings. 496 F.3d at 1006

. On the other hand, we have found delay
was justified where a petitioner discovered new evidence
that he could not reasonably have located earlier,
10              UNITED STATES V. KROYTOR

Hirabayashi, 828 F.2d at 605

, and where a petitioner delayed
taking action due to misadvice from his attorney that he had
no reason to know was erroneous, 

Kwan, 407 F.3d at 1013

–
14. We have also found delay justified where the applicable
law recently changed and petitioner did not have a
reasonable opportunity to present the issue advanced in his
coram nobis petition in his direct appeal because, at that
time, the claim did not have a viable basis in view of the
existing law. See United States v. Walgren, 

885 F.2d 1417

,
1421 (9th Cir. 1989).

B. Kroytor’s reason for delay

   Kroytor divides the delay between his conviction and
when he filed his coram nobis petition into three time periods
and argues that there are valid reasons justifying each period.
We conclude that the last period of delay was not justified,
and, therefore, we do not address the other two time periods.

    Kroytor’s last period of delay began in late 2014 when
he learned that his conviction subjected him to mandatory
removal, and that he could avoid removal only by having his
conviction vacated. Rather than filing for coram nobis relief
upon learning this information, Kroytor waited for two
years. He argues this delay was justified because he was
unsure whether the rule we announced in Kwan was
retroactive, which was necessary for him to have a viable
legal basis to challenge his conviction. Kroytor is correct that
it was uncertain in 2014 whether Kwan applied retroactively
and that this uncertainty remained until we issued our
decision in Chan in 2016. See 

Chan, 792 F.3d at 1154

–55.
But uncertainty in the law is hardly unique. Nor does it
prevent petitioners from reasonably asserting a claim for
relief. Cf. Bousley v. United States, 

523 U.S. 614

, 623
(1998). If there is a reasonable basis in existing law for a
claim—as there was here—a petitioner should raise it. Cf.
                  UNITED STATES V. KROYTOR                           11

Reed v. Ross, 

468 U.S. 1

, 15 (1984); see also Engle v. Issac,

456 U.S. 107

, 130 (1982) (holding that “the futility of
presenting an objection to the state courts cannot alone
constitute cause for a failure to object at trial”). Indeed, in
general, litigants may assert “claims, defenses, and other
legal contentions [that] are warranted by existing law or by
a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law.” Fed. R.
Civ. P. 11(b)(2) (emphasis added). 2

    Thus, we join the Third Circuit in holding that a lack of
clarity in the law is not itself a valid reason to delay filing a
coram nobis petition. See 

Ragbir, 950 F.3d at 65

; Mendoza
v. United States, 

690 F.3d 157

, 160 (3d Cir. 2012). The
petitioner in Mendoza was similarly situated to Kroytor and
argued his filing delay was excused because he could not
have known his counsel was ineffective for not advising him
about the collateral immigration consequences of his
conviction until the Supreme Court decided 

Padilla. 690 F.3d at 160

. The Third Circuit rejected his argument
because its circuit precedent had long required criminal
defense attorneys to provide advice about immigration
consequences and the law being “unsettled does not justify a
delay in filing a coram nobis petition.”

Id. Indeed, Chan demonstrates

the efficacy of this rule.
Chan filed her coram nobis petition after the Supreme Court
decided Chaidez, which cast doubt on whether Kwan applied
retroactively. 

Chan, 792 F.3d at 1153

–54. The district court
held that Kwan did not apply retroactively and dismissed her

    2
      We have not resolved whether the civil rules apply to coram nobis
proceedings. See United States v. Taylor, 

648 F.2d 565

, 573 (9th Cir.
1981). That issue was not presented in this case, and we do not decide it
today.
12                UNITED STATES V. KROYTOR

claim.

Id. at 1153.

We reversed, concluding that Chaidez did
not control Kwan and that Kwan did not establish a new rule
of criminal procedure and thus could be applied
retroactively.

Id. at 1155.

The uncertainty that Chan faced
was the same uncertainty on which Kroytor relies. It did not
prevent Chan from reasonably presenting, and prevailing on,
her claim, and it does not justify Kroytor waiting two years
to file his petition after learning that challenging his
conviction was his only option for avoiding removal. 3

    For these reasons, we conclude the district court was
correct that Kroytor failed to satisfy the requirements for
coram nobis relief. We take no pleasure in reaching this
result. The record reflects that virtually every attorney
Kroytor hired failed him in some way. Before he was
sentenced, Kroytor asked his defense attorney what his
options were for avoiding removal, and he followed the
advice given not knowing it was wrong. Once he discovered
that his attorney erred, he sought more advice. It appears at
least one of his attorneys made no effort to help him. He
followed the varying, and incorrect, advice he got from
others. And when Kroytor finally learned that his only option
was to challenge his conviction, his post-conviction attorney
did not act with the necessary expediency. Indeed, even after
Kroytor filed his coram nobis petition, he had to discharge
his first post-conviction attorney and hire a new one because
no action was taken on his petition for a year and he faced
imminent removal. We do not doubt that Kroytor was


     3
      At oral argument, Kroytor’s counsel also tried to justify Kroytor’s
10-month delay after we decided Chan by asserting Kroytor needed this
time to gather declarations to support his coram nobis petition. This is
not a valid justification where nothing in the record indicates that
Kroytor was unable to gather this information sooner.
                 UNITED STATES V. KROYTOR                        13

earnest in trying to resolve his problem, but that is not
determinative under the legal standard we must apply. 4

                     III. CONCLUSION

     Uncertainty in the law itself does not justify delay in
filing a writ of coram nobis petition where such uncertainty
does not prevent a petitioner from reasonably presenting a
claim for relief. Kroytor could have challenged his
conviction after learning this was his only chance for
avoiding removal despite not knowing whether the rule we
announced in Kwan was retroactive because he reasonably
could have advocated for such a ruling in litigating his
petition. Instead he waited for two years before filing his
petition, and nearly a year after we affirmatively held that
Kwan does apply retroactively. This was unjustified delay,
and, therefore, Kroytor does not meet the requirements for
coram nobis relief.

    AFFIRMED.




    4
       Kroytor’s coram nobis petition is based on a claim of
ineffectiveness of the defense attorney who represented him at his
sentencing. We express no opinion about whether he could seek relief
based on the representation he received from any other attorney.

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