United States District Court, E.D. Wisconsin
ORDER DENYING PETITION FOR WRIT OF CORAM NOBIS AND
CLEVERT, JR. U.S. DISTRICT JUDGE
August 17, 1999, Wissam Gholam was indicted in the Eastern
District of Wisconsin on one count of producing/trafficking
conspiracy, party to a crime, contrary to 18 U.S.C. §
1029(a)(2) and (2). (Doc. 1 at 5; United States v.
Gholam, Case No. 99-CR-164.) After pleading guilty, this
court sentenced Gholam to a term of three-years probation
with six-months home detention and restitution in the amount
of $164, 829.25, joint and several with three co-actors
(George Zeidan, Selim Yacoub, and Ghassan Zeidan). (Doc. 1 at
7, 10.) Gholam did not file a direct appeal or otherwise
challenge the judgment of conviction. On or about June 19,
2003, he was released from probation. By February 10, 2016,
Gholam had paid $30, 975 in restitution and collection was
turned over to the United States Attorney's Office's
Financial Litigation Unit. (Doc. 1 at 8, 9, 11.) On June 24,
2003, he received a notice stating that his restitution
balance was $31, 022.90. (Doc. 1 at 9.) A second notice on
August 11, 2015, stated that the restitution balance was
$134, 904.25. (Doc. 1 at 10.)
February 10, 2016, Gholam filed a petition for writ of coram
nobis pursuant to 28 U.S.C. § 1651, asking the court to
vacate and set aside his conviction based on ineffective
assistance of counsel. (Doc. 1 at 1.) This court entered a
briefing schedule and briefing was completed on May 26, 2016.
On June 8, 2016, petitioner's counsel informed this court
that Gholam's green card status would be up for review in
February of 2017. Then, on August 15, 2016, five agents from
Immigration Customs Enforcement appeared unannounced at
Gholam's home and arrested him. Since that date, Gholam
has been detained at the Bergen County Jail in New York.
court conducted a status conference on August 30, 2016, and
invited the petitioner to file evidence supporting his claim.
Gholam then filed the declaration of David S. Glassman, and
the court heard the testimony of Gholam's wife during a
September 27, 2016, hearing. No other evidence was proffered
or witnesses called.
writ of coram nobis falls within the scope of the All Writs
Act, 28 U.S.C. § 1651, authorizing federal courts to
issue “all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law.” United States v. Bush,
888 F.2d 1145, 1146 (7th Cir.1989) (citing United States
v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248
(1954)). However, because “frequent use of this writ
would discard the benefits of finality, ” “it has
been reserved for compelling events.” United States
v. Keane, 852 F.2d 199, 202 (7th Cir.1988), cert.
denied, 490 U.S. 1084, 109 S.Ct. 2109, 104 L.Ed.2d 670
(1989). Indeed, the Supreme Court wrote that it would be
“difficult to conceive of a situation in a federal
criminal case today where [a writ of coram nobis ] would be
necessary or appropriate.” Carlisle v. United
States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d
613 (1996). The Seventh Circuit Court of Appeals has
explained that “to the extent that the writ of coram
nobis retains vitality in criminal proceedings, ” such
relief is limited to (1) errors “of the most
fundamental character” that render the proceeding
invalid, (2) situations where there are sound reasons for the
failure to seek earlier relief, and (3) instances when the
defendant continues to suffer from his conviction even though
he is out of custody. United States v. Sloan, 505
F.3d 685, 697 (7th Cir. 2007).
Gholam asserts that he was unsophisticated in the criminal
justice system at the time of the conviction and did not
understand the plea agreement fully. He believes his attorney
should have pursued other options aggressively including a
non-prosecution agreement or deferred prosecution.
Specifically, Gholam submits that counsel failed to
adequately explain the plea, the defenses, the potential
consequences that an aggravated felony conviction would have
on his immigration and resident alien status, and the
doctrine of joint and several liability. According to Gholam,
counsel failed to advise “that he could be deported or
he could be denied re-entry if he left the United States for
any reason, that he may not be able to maintain residence
status, and could not pursue United States citizenship."
(Doc. 1 at 22.) His explanation for not raising these
arguments earlier is that he had no reason to investigate his
situation until he received the notification in August of
2015 that he still owed $134, 904.25 in restitution. (Doc. 6
initial matter, Gholam's arguments regarding whether
counsel advised him of the risk of deportation is foreclosed
by Supreme Court precedent. In Padilla v. Kentucky,
the Supreme Court held "that counsel must inform her
client whether his plea carries a risk of deportation, "
and that failure to do so constitutes ineffective assistance
of counsel. Padilla v. Kentucky, 559 U.S. 356, 130
S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). However, after
deciding Padilla, the Supreme Court ruled in
Chaidez v. United States that "a
defendant whose conviction became final prior to
Padilla . . . cannot benefit from its holding."
Chaidez v. United States, 133 S.Ct. 1103, 1113, 185
L.Ed. 149 (2013). Because Gholam pled guilty in December of
1999 and this argument is being raised on collateral review,
he cannot benefit from the holding in Padilla.
Gholam argues that the Chaidez decision created a
watershed rule of criminal procedure, fitting under one of
the two exceptions stated in Teague which would
allow for the rule to be applied retroactively. Gholam points
to footnote three of the Chaidez decision to support
his argument, which states:
Teague stated two exceptions: "[W]atershed
rules of criminal procedure" and rules placing
"conduct beyond the power of the [government] to
proscribe" apply on collateral review, even if novel.
489 U.S., at 311, 109 S.Ct. 1060 (internal quotation marks
omitted). Chaidez does not argue that either of those
exceptions is relevant here.
Chaidez, 133 S.Ct. at 1107, n.3 (quoting Teague
v. Lane, 489 U.S. 288, 311, 109 S.Ct.1060, 103 L.Ed.2d
334 (1989) (plurality opinion). However, Gholam has failed to
cite any precedent that would treat Padilla as a
watershed rule of criminal procedure.
Gholam's arguments are undermined by the court's
recollection of the events surrounding the plea hearing and
the records available to this court. At the time of his plea,
Gholam was just months away from graduating cum laude from
The City University of New Work with a Bachelor of Business
Administration. His 3.45 cumulative grade point placed him in
the upper 15 to 18 percent of his class. Gholam worked for
Carnegie Investor Services, Inc., starting in 1998, and, at
the time of sentencing, had been promoted to Operations
Manager of the firm. (Case No. 99-CR-164, Sent'g Mem. Ex.
retained counsel from New York who negotiated the plea, and a
former assistant United States Attorney from New York to
assist at sentencing. Moreover, a third attorney, David S.
Glassman, filed a letter with this court prior to sentencing
indicating that he had thirty years of experience and was a
specialist in Immigration and Naturalization law. Attorney
Glassman maintained an attorney client relationship with
Gholam, working with Gholam to “get him permanent
residence in the United States.” Attorney Glassman
wrote that he was certain “that if Wissam has the
opportunity to continue to reside in the United States, he
will be a credit to our country . . . .” (Case No.
99-CR-164, Sent'g Mem. Ex. C.)
preparing for sentencing, Gholam informed the United States
Probation Office that he pled guilty because he was guilty of
aiding and abetting the use of unauthorized credit card
account numbers along with the other participants, and felt
terrible about his involvement. (Case No. 99-CR-164,
Sent'g Mem., Ex. E at 5.) Moreover, the presentence
writer noted at paragraph 50 of the presentence report that
Gholam's residence status was verified by the Immigration
and Naturalization Service and INS stated that a conviction
for the instant offense would make him eligible for removal.
(Case No. 99-CR-164, Sent'g Mem., Ex. E at 9.) Gholam
told this court that he had the opportunity to review the
presentence report and discuss the same with defense counsel.
(Doc. 1-3 at 2.)
sentencing memorandum filed by Attorney Gregory J.
O'Connell, argued that the court should grant a downward
departure under the United States Sentencing Guidelines
because he faced the “harsh penalty of deportation and
should Mr. Gholam be sentenced to any term of incarceration,
an INS detainer will be lodged against him and he will remain
in INS custody until his immigration proceedings are
concluded.” (Case No. 99-CR-164, Doc. 18, Sent'g
Mem. at 11.) The sentencing ...