LAW.coLAW.co

Morillo v. United States

2026-10-16

Authorities cited

Opinion

majority opinion

United States Court of Appeals

For the First Circuit

No. 25-2027

MARA MORILLO,

Petitioner, Appellee,

v.

UNITED STATES,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Stephen J. McAuliffe, U.S. District Judge]

Before

Gelpí, Thompson, and Dunlap,

Circuit Judges.

Michael A. Rotker, Attorney, with whom Joshua A. Goldfoot,

Deputy Assistant Attorney General, Criminal Division, A. Tysen

Duva, Assistant Attorney General, Criminal Division, Erin Creegan, United States Attorney, District of New Hampshire, and Matthew

Vicinanzo, Assistant U.S. Attorney, District of New Hampshire were on brief, for appellant.

Stephanie Mc Clure, with whom Law Office of Stephanie Mc Clure

LLC was on brief, for appellee.

October 16, 2026

GELPÍ, Circuit Judge. Mara Morillo ("Morillo") sought

a writ of coram nobis after discovering that her counsel's

assurances that she could "work out" any immigration issues after

pleading guilty and serving her sentence were wrong. In reality,

her guilty plea rendered her presumptively removable. The district

court reviewed Morillo's coram nobis petition and found that she

had met all the requirements for relief: she sufficiently explained

her delay in seeking relief, her counsel's advice had been

constitutionally deficient, and she would not have pleaded guilty

but for that misadvice. Thus, it granted her the writ. After

careful review, we affirm.

I. Background

Morillo was born in Venezuela in 1975, but spent most of

her early years in Colombia, where she suffered from sexual abuse

by multiple men, including some of her relatives. While she was

in college, she became pregnant by her then-boyfriend, who later

abandoned her and their child. As a result, Morillo dropped out

of school to care for her son. In 1996, she came to the United

States on a one-year travel visa, which she later overstayed. She

traveled between New York and Florida before eventually settling

in Massachusetts.1 During that time, she met Franklyn Morillo (her

1The district court found that Morillo came to the United

States on a travel visa "[i]n 2016," but that finding is clearly

erroneous: Morillo acknowledged that she first came to the United

- 2 -co-defendant, and hereinafter "Frank"),2 with whom she began a

relationship. Frank initially appeared very charming, and the two

eventually married and had a daughter together. But their

relationship deteriorated as Frank abused drugs and alcohol and

became increasingly physically and psychologically abusive toward

Morillo, conduct that ultimately led to assault charges and

restraining orders against him. Frank ran a drug business, with

which Morillo eventually became involved. That involvement

eventually resulted in federal charges against both of them.

A grand jury sitting in the District of New Hampshire

charged Morillo and Frank with one count of conspiracy to

distribute, and to possess with intent to distribute, controlled

substances in violation of 21 U.S.C. §§ 846 and 841(a)(1). Morillo

was appointed a Federal Public Defender ("counsel"), with whom she

discussed a plea agreement offered by the government. She

explained to counsel that her priority throughout the criminal

process was staying in the United States. After all, she has two

children who are U.S. citizens and, at that point, had been in the

United States for almost two decades. Counsel assured her that

"if she took the plea agreement, she would do some time but that

States in 1996, and the conduct leading to her criminal charges

occurred in 2014 and 2015.

2 We use Frank's first name to more easily distinguish between

him and Morillo because they share the same last name. See, e.g., United States v. Gonzalez, 184 F.4th 23, 26 n.1 (1st Cir. 2026).

- 3 -she would be able to stay in the United States and work out her

immigration situation once she got out." So, Morillo pled guilty.

As relevant here, the plea agreement stated that she "may be

removed from the United States, denied citizenship, and denied

admission to the United States in the future as a consequence of

her conviction." And at the change-of-plea hearing, the district

court told Morillo that her guilty plea "could result in

immigration consequences that may include deportation." But in

fact, her conviction rendered her immediately and presumptively

removable and permanently inadmissible to the United States.

The case proceeded to sentencing, where Morillo's

counsel sought a downward variance based on several mitigating

circumstances, including the physical and emotional abuse Morillo

had endured. In urging the court to impose a more lenient

sentence, counsel argued that Morillo was "going to be deported"

and asked the court to take that consequence into account. The

district court ultimately varied downward and sentenced Morillo to

84 months' imprisonment followed by three years of supervised

release.

In August 2021, after completing both her prison

sentence and term of supervised release, Morillo received a Notice

of Intent to Issue a Final Administrative Removal Order ("removal

notice"). Certain it was a mistake, she attempted to contact her

counsel from her criminal case. After her attempts failed, she

- 4 -contacted two different attorneys and, when they finally explained

the immigration consequence of her plea and she was able to gather

the necessary funds, she retained new counsel in February 2025.

Morillo filed a petition for a writ of error coram nobis,

alleging that counsel prejudicially misadvised her regarding the

deportation consequences of her guilty plea, in violation of

Padilla v. Kentucky, 559 U.S. 356, 374 (2010), and Lee v. United

States, 582 U.S. 357 (2017). In support of her petition, she

submitted an affidavit detailing what counsel had told her -- that

she could "work out" her immigration status -- and explaining that

she would never have accepted the plea had she known that it would

render her removable.

The district court held an evidentiary hearing during

which Morillo's family friend and daughter corroborated Morillo's

impression of counsel's advice, testifying that Morillo frequently

spoke about her plan to address her immigration status upon release

from prison. Additionally, Morillo's counsel from her criminal

case testified. He said he had "no specific recollection of

Morillo, her case, or the advice he provided to her," but that

"his typical practice was to explore the potential immigration

consequences of a client's guilty plea and routinely shared those

findings with his clients so they would be fully informed when

making any decision about accepting a plea offer." The next day,

the district court entered an order granting Morillo's petition

- 5 -and vacating her conviction. In a second order, the district court

explained that Morillo had met all the requirements for coram nobis

relief. She had adequately justified her delay because she did

not understand that her plea rendered her removable until after

having served her sentence; counsel performed deficiently by

advising her that she could remain in the United States; and

counsel's advice prejudiced her because she had viable defenses

and had shown that remaining in the United States was her paramount

concern. Finally, the court concluded that equitable

considerations weighed in favor of granting the writ.

The government timely appealed.

II. Discussion

We review the district court's legal conclusions de

novo, its findings of fact for clear error, and its ultimate

decision to grant the writ for abuse of discretion. Aceituno v.

United States, 132 F.4th 563, 569 (1st Cir. 2025).

Coram nobis is an ancient common-law writ that allows a

petitioner who is no longer in custody -- and therefore cannot

seek relief under habeas statutes -- to collaterally challenge a

conviction. Chaidez v. United States, 568 U.S. 342, 345 n.1

(2013). Given the societal interest in finality, it is an

"extraordinary remedy," United States v. Denedo, 556 U.S. 904, 916

(2009), and a petitioner seeking such relief must sufficiently:

(1) "explain [her] failure to seek earlier relief from the

- 6 -judgment," (2) "show that [she] continues to suffer significant

collateral consequences from the judgment," and (3) "demonstrate

that the judgment resulted from an error of the most fundamental

character." Aceituno, 132 F.4th at 569 (quoting Woodward v. United

States, 905 F.3d 40, 43 (1st Cir. 2018)). Moreover, even if a

petitioner can make that showing, she must also persuade the court,

in light of the equities of the case, that "justice demands the

extraordinary balm of coram nobis relief." United States v.

Castro-Taveras, 841 F.3d 34, 39 (1st Cir. 2016) (quoting United

States v. George, 676 F.3d 249, 255 (1st Cir. 2012)).

We will walk through these requirements in turn, except

the second, because the government concedes that Morillo's

conviction carries ongoing collateral consequences (it renders her

both mandatorily removable and permanently inadmissible to the

United States). Ultimately, we conclude that the district court

did not commit legal error or abuse its discretion in granting

Morillo's petition for a writ of coram nobis.

A. Timely Relief

Let us start with the first requirement for coram nobis

relief: showing that "sound reasons exist[ed]" for "fail[ing] to

seek appropriate earlier relief," for example, by moving to

withdraw a guilty plea under Fed. R. Crim. P. 11(d)(2), or by

filing a Section 2255 petition while still in custody. United

States v. Morgan, 346 U.S. 502, 512 (1954). This inquiry focuses

- 7 -not on how promptly the petitioner moved once she sought coram

nobis relief, but on whether her failure to raise the claim earlier

can be excused. See id.

The district court concluded that Morillo's delay in

seeking relief was justified. It reasoned that, while

incarcerated, Morillo had no reason to challenge her conviction

because she remained unaware that counsel had misadvised her about

the immigration consequences of her guilty plea. Moreover, the

district court concluded that, after Morillo received the removal

notice, she acted promptly to retain counsel once she learned that

she had received incorrect advice and was able to gather the

necessary funds. Thus, Morillo did not "sle[ep] on her rights" or

"delay taking action once she fully and properly

appreciated . . . the mandatory consequences of her guilty plea."

The government sees it differently. It maintains that

Morillo's delay in seeking relief was "excessive and unjustified"

because she knew that she "may" be removed as early as 2016, when

she pleaded guilty. And she knew that deportation was mandatory

by 2017 because counsel told the court -- in his written sentencing

memorandum and orally at the sentencing hearing -- that she was

"going to be deported."

We do not think the district court abused its discretion

in concluding that neither event was sufficient to put Morillo on

notice that her guilty plea made deportation effectively

- 8 -mandatory. The warnings in the plea agreement and the plea

colloquy that Morillo "may be deported" did not necessarily alert

Morillo that counsel's assurances were wrong. After all, those

warnings were consistent with what counsel had told her -- that

deportation was a possible consequence of her plea, but not an

inevitable one because she could "work out" any issues after her

release. The district court could therefore reasonably find that

these warnings did not give Morillo reason to question counsel's

advice or pursue relief before her release. In fact, the Fourth

Circuit reached the same conclusion in nearly identical

circumstances. In United States v. Akinsade, the court held that

"the district court's admonishment . . . that [defendant's] plea

could lead to deportation" was too "general and equivocal . . . to

correct counsel's affirmative misadvise that [defendant's] crime

was not a categorically deportable offense." 686 F.3d 248, 254

(4th Cir. 2012).

Counsel's subsequent statement at sentencing that

Morillo was "going to be deported" does not change our conclusion.

Counsel made that statement while urging the court to impose a

more lenient sentence, not while advising Morillo about the

immigration consequences of her plea. And he invoked removal

alongside several other adverse consequences that Morillo faced in

an effort to persuade the court that additional punishment was

unnecessary. Nothing in that argument indicated to Morillo that

- 9 -counsel was retracting his earlier advice that she would be able

to "work out" her immigration situation after serving her sentence

and remain in the United States. Against that backdrop, the

district court could reasonably find that those statements did not

put Morillo on notice that counsel's advice was erroneous.3

The 2021 removal notice does not change our conclusion

either. While the dissent correctly observes that receipt of a

similar document provided notice of immigration consequences in

Aceituno, 132 F.4th at 567, Morillo's circumstances are crucially

different in two ways. First, in Aceituno, the notice did not

contradict attorneys' previous advice on the immigration

consequences of the plea, meaning that the petitioner there had no

reason to think the notice was a mistake. Id. Second, the

petitioner in Aceituno "did not attempt to contact his criminal

defense attorney or his immigration lawyer" after he received the

notice. Id. In contrast, Morillo acted upon the notice she

received (which she thought was a mistake) and attempted to contact

her defense attorney from the prior criminal case. She also sought

3 Our dissenting colleague is not persuaded that this context

makes a difference because "counsel owes the court a duty of

candor." Counsel, of course, had such a duty. But, as we'll discuss forthwith, he also had a duty to warn Morillo of the

certain deportation consequences of her plea under Padilla v.

Kentucky, 559 U.S. 356 (2010). Instead, he provided her with

affirmative misadvice. We do not think the district court abused

its discretion by not finding this statement put Morillo on notice of the deportation consequences of her plea when that statement

directly contradicted his own advice.

- 10 -assistance regarding her immigration status from two different

attorneys.4 And thus, the district court could reasonably conclude

that Morillo sufficiently explained her failure to seek relief

from judgment after any of these events.5

B. Fundamental Error

The second requirement for coram nobis relief is

properly showing that the conviction resulted from a fundamental

error. To make that showing, Morillo argued that her guilty plea

4 The dissent takes issue with the district court's reference

to Morillo's lack of financial resources, which was only

substantiated by the statements of Morillo's attorney, who was not a sworn witness. And the dissent cites to Garuti v. Roden, 733

F.3d 18, 25 n.4 (1st Cir. 2013), in support of its disagreement

with the district court’s reliance upon counsel’s representation. However, we do not think the evidentiary issue is as

straightforward as the dissent suggests. In Garuti, this Court

observed that the trial court's reliance on an unsubstantiated

letter defendant presented from his trial attorney was probably an error and noted that "[t]he Judicial Code concerning habeas corpus makes provisions for the admission of certain evidence such as

affidavits, 28 U.S.C. § 2246, and full transcripts, 28 U.S.C. §

2247, but unsworn statements are not made admissible by the

statute." Id. But the Garuti court was not asked, and did not

hold that unsworn statements in every instance are inadmissible or beyond consideration in a habeas proceedings (and just to remind, the petition here sounds in coram nobis, not habeas). Be that as

it may, as relevant here, the government did not object to that

representation as lacking evidentiary support below, and it has

not made that argument on appeal. Any such argument would,

therefore, be waived. United States v. Sacko, 247 F.3d 21, 24

(1st Cir. 2001).

5 By contrast, in Aceituno, which the government and the

dissent rely on to suggest Morillo's petition was not timely, it

was uncontested that the petitioner learned no less than four years before he filed his petition that "he would be permanently barred as a consequence of his conviction from reentering the United

States." Aceituno, 132 F.4th at 570.

- 11 -resulted from ineffective assistance of counsel, which this Court

has recognized may warrant coram nobis relief. See Williams v.

United States, 858 F.3d 708, 712 (1st Cir. 2017). Ineffective

assistance of counsel claims are analyzed under the familiar

two-part test set out in Strickland v. Washington, under which a

petitioner must show both that counsel's performance fell below an

objective standard of reasonableness (in other words, that said

performance was deficient) and that "the deficient performance

prejudiced [her] defense." 466 U.S. 668, 687 (1984). We review

each prong in turn.

1. Deficient Performance

Morillo argued that her counsel's performance was

deficient because Padilla v. Kentucky, 559 U.S. 356 (2010),

required him to explain that she would, without a doubt, be removed

if she pleaded guilty to her charged offense. We agree.

Let us start by reviewing the Supreme Court's decision

in Padilla. In that case, Padilla, a noncitizen, pleaded guilty

to a deportable drug offense after his counsel advised him that he

"did not have to worry about immigration status since he had been

in the country so long." Padilla, 559 U.S. at 359. But in fact,

a federal statute -- the same one that applies to

Morillo -- clearly established that a person convicted of the

charged offense was deemed "deportable." Id. at 368 (quoting 8

U.S.C. § 1227(a)(2)(B)(i)). His case went all the way to the

- 12 -Supreme Court, which ultimately held that his counsel had been

constitutionally deficient.

The Court began by recognizing that the immigration

consequences of a conviction can "be more important to [a] client

than any potential jail sentence" and that preserving the

possibility of discretionary relief from deportation is often "one

of the principal benefits sought by defendants deciding whether to

accept a plea offer or instead to proceed to trial." Id. (quoting

INS v. St. Cyr., 533 U.S. 289, 323 (2001)). Then, it noted that

"[t]he weight of prevailing professional norms support[ed] the

view that counsel must advise her client regarding the risk of

deportation." Id. at 367 (collecting authorities). And it

reasoned that because the immigration consequences of Padilla's

guilty plea were clear and could have easily been determined by

reading the relevant removal statute, Padilla's counsel had been

constitutionally deficient. Id. at 369.

We think that case directly maps on to Morillo's. The

district court made a factual finding, after considering Morillo's

"unambiguous and essentially uncontested testimony," that counsel

"assured her that her conviction would not make her deportable and

she could, upon release from prison, make the necessary

applications to alter her immigration status." The government did

not present evidence to contradict that testimony (save for

counsel's testimony that he did not remember Morillo's case, but

- 13 -his "customary practice" was to advise clients of a "risk" of

deportation) and the district court found Morillo credible. So,

just as in Padilla, counsel affirmatively misadvised Morillo about

clear6 immigration consequences, and that misadvice fell below the

standard that the Sixth Amendment requires.

The government asks us to read Padilla more narrowly.

In its view, Padilla merely held that the Sixth Amendment requires

counsel to advise a defendant about the immigration consequences

of a guilty plea, but not to provide a technically precise account

of immigration law. Thus, the government suggests that counsel

could satisfy Padilla by conveying that a guilty plea exposes the

defendant to a risk of deportation, even if counsel did not explain

that the conviction makes deportation mandatory. We are not

convinced.

As an initial matter, the district court did not make a

factual finding that counsel advised Morillo that she "may" be

deported. Counsel could not remember anything about Morillo's

6 The government argues that it is not clear that Morillo's

conviction rendered her removable because, although "some courts

had held at the time of the events in this case a Section 846

conviction is an aggravated felony, . . . this Court had not

addressed the issue at that time (and has not done [so even]

today)." But the government raised this issue for the first time

on appeal. "Arguments raised for the first time on appeal are

considered waived." United States v. Wallace, 573 F.3d 82, 96

n.13 (1st Cir. 2009).

- 14 -case and testified only about his "customary practice." But even

assuming he gave such a warning, Padilla required more here.

It is true that the Kentucky Supreme Court (the court

that issued the opinion that the Supreme Court reviewed) had

rejected Padilla's claim because, in its view, advice concerning

deportation fell "outside the scope of representation required by

the Sixth Amendment" altogether. Padilla, 559 U.S. at 365 (quoting

the Kentucky Supreme Court). And the Court first rejected that

premise. Id. at 367 ("[A]dvice regarding deportation is not

categorically removed from the ambit of the Sixth Amendment right

to counsel."). But it did not stop there. It went on to define

the scope of the constitutional right it had just recognized.7 The

Court acknowledged that "immigration law can be complex" and it

drew a distinction based on the clarity of the governing law. Id.

at 369. When the immigration consequences are unclear and

uncertain, counsel need only advise the defendant that the pending

criminal charges "may carry a risk of adverse immigration

consequences." Id. (emphasis added). And that it is only when

7The government suggests that this portion of Padilla was

dicta. Even if those statements were not strictly necessary to

the Court's resolution of the case, they represent the Court's

considered explanation of the constitutional duty it had just

recognized. At a minimum, they are highly persuasive, and we see

no reason to depart from them here. "[F]ederal appellate courts

are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings[.]" In re Fin. Oversight &

Mgmt. Bd. for P.R., 178 F.4th 747, 758 (1st Cir. 2026) (quoting

McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)).

- 15 -the immigration consequences of a conviction are "succinct, clear,

and explicit" that counsel must give correspondingly clear advice.

Id. at 368-69. The latter was the case in Padilla and is also the

case here. Thus, we think the district court got it right when it

concluded that Morillo's counsel's performance had been deficient.

2. Prejudice

Deficient performance, of course, is only half of the

ineffective-assistance inquiry. Morillo must also show that

counsel's deficient performance prejudiced her. In the plea

context, that requires her to demonstrate a "reasonable

probability that, but for counsel's error[], [she] would not have

pleaded guilty and would have insisted on going to trial." Lee,

582 U.S. at 364-65 (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)). This standard demands a "case-by-case examination" of

the "totality of the evidence." Id. at 367 (quoting Williams v.

Taylor, 529 U.S. 362, 391 (2000)).

Before we apply that standard, let us review one more

Supreme Court case, Lee v. United States, which will guide most of

our analysis. Lee also involved a claim that counsel performed

deficiently by incorrectly assuring the defendant that he would

not be deported if he pleaded guilty, even though his conviction

made deportation mandatory. 582 U.S. at 360–61. The government

conceded deficient performance, leaving only whether Lee had

established prejudice. Id. at 364.

- 16 -Lee argued that he never would have accepted a guilty

plea had he known that he would be deported as a result. Id. at

366. The government countered that Lee's argument was insufficient

to establish prejudice because he had no viable defenses at trial.

Id. The Court sided with Lee. It explained that the absence of

a viable defense, though relevant, was not dispositive:

"[D]efendants obviously weigh their prospects at trial in deciding

whether to accept a plea . . . . But common sense (not to mention

our precedent) recognizes that there is more to consider than

simply the likelihood of success at trial." Id. at 367. In

particular, the immigration consequences of a guilty plea may

matter so much to a defendant that he would "reject[] any plea

leading to deportation -- even if it shaved off prison time -- in

favor of throwing a 'Hail Mary' at trial." Id. 367-68.

Central to the Court's finding of prejudice was the

evidence that "[t]here [wa]s no question that 'deportation was the

determinative issue in Lee's decision whether to accept the plea

deal.'" 582 U.S. at 369 (emphasis added). Lee had strong ties to

the United States, repeatedly expressed concerns about deportation

to his counsel, and testified that he would have gone to trial had

he known that pleading guilty would make deportation certain. Id.

at 369–71. Had Lee been properly advised, the Court reasoned, he

would have understood that pleading guilty would "certainly lead

to deportation," whereas proceeding to trial would "[a]lmost

- 17 -certainly" produce the same result. Id. at 371. And for a

defendant whose overriding concern was avoiding deportation, that

distinction could "make all the difference." Id.

The Court emphasized, however, that Lee presented

"unusual circumstances," and it cautioned that "[c]ourts should

not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney's

deficiencies." Id. at 369. Rather, "[j]udges should . . . look

to contemporaneous evidence to substantiate a defendant's

expressed preferences." Id.

Now let us return to the facts of our case. The

government argues that Morillo, like Lee, also lacked a viable

defense at trial. And that what is left of her argument is exactly

the sort of post hoc assertions about which the Lee court expressed

concern. We disagree on both fronts.

To begin, from Morillo's perspective, trial was not the

"Hail Mary" it was for Lee. In order for Morillo to have been

found guilty at a trial, the government would have had to prove,

beyond a reasonable doubt, that: "(1) a conspiracy existed;

(2) [Morillo] had knowledge of the conspiracy; and (3) [Morillo]

knowingly and voluntarily participated in the conspiracy." United

States v. Corbett, 870 F.3d 21, 27–28 (1st Cir. 2017) (quoting

United States v. Rivera-Ruperto, 846 F.3d 417, 432 (1st Cir.

2017)). This third element would have required the government to

- 18 -show that Morillo "intended to join the conspiracy and that [s]he

intended for its goals to be accomplished." Id. (quoting United

States v. Paz-Alvarez, 799 F.3d 12, 25 (1st Cir. 2015)).

Morillo had evidence to contest the third element. In

her affidavit, Morillo attested that her husband and co-defendant

"ruled [her] life" and she "felt [she] was a slave in th[e]

relationship and couldn't escape." She further attested that she

"never had any intention of assisting him in any way with his

business," that she was "terrified of him," and that he

consistently threatened to kill her family and friends if she ever

left him. Her daughter corroborated much of this account, stating:

"[M]y mother did not do anything of her own mind during this time.

[Frank] ruled her and everything in our home. She was literally

like a captive slave to his violence." She wrote that "Frank told

her he was going to kill her all the time. I believed that any

day -- he would and could. She lived life in fear for her life

and for mine." Both women swore that Frank abused Morillo

physically and emotionally, tracked her, and "manipulat[ed]" her

"to make [her] feel scared and alone." Based on this evidence,

Morillo may have believed that a jury, hearing of her husband's

attempts to kill, control, and track her, might not have found

beyond a reasonable doubt that her participation in the conspiracy

was intentional. See, e.g., United States v. López-Correa, 537 F.

Supp. 3d 169, 181 (D.P.R. 2020) (vacating habeas petitioner's

- 19 -conviction based on actual innocence after concluding that, "as a

victim and a sex slave . . . , she did not have the mens rea to

commit the offense").8

The government's response is that Morillo's defense

would have failed at trial. But Morillo does not have to convince

us that she would have been acquitted. While her chances of

success bear on her decision calculus (and thus on our read of

whether she would have proceeded to trial), it is not itself the

test -- a defendant may rationally choose to go to trial even

facing long odds, for reasons having nothing to do with the

probability of acquittal. See Lee, 528 U.S. at 367-68 ("When

[other] consequences are, from the defendant's perspective,

similarly dire . . . the possibility of even a highly improbable

result may be pertinent to the extent it would have affected his

decisionmaking.").

That takes us to our second point. Morillo, like Lee,

presented other such reasons why she would have rejected the plea

8 In making this argument, the government keys into the

viability of a possible affirmative defense of duress or coercion, but the district court also noted that Morillo had argued that "a plethora of available evidence of extreme and unrelenting domestic abuse negated a conspiracy and the requisite elements of mens rea" and observed that "what evidence exists lends credence to

defendant's assertion that she would have gone to trial had she

known of the Padilla consequences of her plea, and would have a

plausible defense to assert." We further note that the

government's insistence in a Fed. R. App. P. 28(j) letter that

Morillo waived any argument regarding a mens rea defense is

incorrect.

- 20 -and proceeded to trial. She attested that, "[she] would never

have taken the plea deal" and "would have gone to trial" if she

had "known that [she] would be 100% unquestionably deportable and

could never get lawful status in the United States." She further

affirmed that "[she] made it clear to [counsel] that staying in

the United States was [her] only concern" and that she "had

defenses [she] wished to pursue but did not know [her] rights or

how the procedure worked." She only took the plea due to her

reliance on counsel's advice that it would not render her

mandatorily removable, and she could work out her immigration

status after serving her sentence.9

And, unlike in Lee, Morillo's account did not stand

alone. Morillo's daughter and her family friend testified at the

evidentiary hearing that Morillo's plan had always been to resolve

her immigration status after serving her sentence and that Morillo

was under the impression that she could do so. The government

neither called Morillo to the stand for cross-examination nor

9 We note that the Fourth Circuit recognized that "[a]

defendant may be unable to show prejudice if at the Rule 11

proceeding the district court provides an admonishment that

corrects the misadvice and the defendant expresses that he

understands the admonishment." Akinsade, 686 F.3d at 253 (citation omitted). While we take no position on that now, we note that

this case is distinct. Both the plea agreement and the district

court told Morillo that a conviction "may" lead to deportation,

which, if anything, further entrenched Morillo's belief that

counsel's advice had been accurate. "This general and equivocal

admonishment [was] insufficient to correct counsel's affirmative

misadvice." Id. at 254.

- 21 -introduced evidence contradicting these accounts or otherwise

calling their credibility into question. So, this evidence stood

uncontested and the district court found it credible.

To be sure, the government is right to point out that

Morillo did not produce the same kind of contemporaneous evidence

presented in Lee, where the defendant had told the district court

during the plea proceeding itself that deportation would affect

his decision to plead guilty. Id. at 369. But the Court's

insistence on contemporaneous evidence in Lee arose in the context

of cautioning courts against upsetting pleas "solely" based on

defendants' post hoc assertions that, but for counsel's error,

they would have gone to trial. Id. (emphasis added). Recall that

Lee had nothing more to show for his prejudice analysis. Here, in

contrast, Morillo offered more. She introduced corroborating

testimony from other witnesses and a potential defense that gave

her a concrete reason to take her chances at trial. In this

context, we think the absence of contemporaneous evidence bears on

the weight and credibility of Morillo's account, but it does not

categorically defeat her showing of prejudice.

Taken together, Morillo's credible account of her

overriding interest in remaining in the United States and the

availability of a defense sufficiently convince us of a "reasonable

probability" that she would have proceeded to trial had she been

adequately counseled. Hill, 474 U.S. at 59; see Lee, 582 U.S. at

- 22 -371 ("Not everyone in [petitioner's] position would make the choice

to reject the plea. But we cannot say it would be irrational to

do so."). Thus, the district court did not abuse its discretion

in finding prejudice.

C. Equitable Considerations

On to our last point. "When all is said and done,

issuing or denying a writ of error coram nobis must hinge on what

is most compatible with the interests of justice, and [a district

court's] discretion must be guided by that inquiry." George, 676

F.3d at 258-59 (citation omitted). In turn, our review of the

district court's discretion is highly deferential. See, e.g.,

Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 44 (1st

Cir. 2020).

In what it acknowledged was a "rare" case, the district

court held that the circumstances here warranted issuance of the

writ because "[t]he very prejudice [Morillo] sought to avoid at

all costs -- deportation -- was rendered mandatory by her plea, a

plea she would not have offered had she been correctly advised of

its mandatory consequences." The government argues that the

district court abused its discretion by failing to consider

Morillo's concession of guilt, the equities of requiring the

government to retry the case now, and the government's interest in

the finality of its convictions. We do not see it that way.

- 23 -We note that all of the government's stated interests

are legitimate and weighty. And we acknowledge that we have said

that "when a defendant seeks to vacate a guilty-plea conviction by

way of coram nobis," not only do "red flags accompany that

request," but "great caution is warranted." Williams, 858 F.3d at

718 (citation modified). Still, we are not convinced that the

government's interests compel reversal.

These considerations, alone, do not render the grant of

the writ an abuse of discretion. With respect to Morillo's

concession of guilt, courts have issued writs even after a

defendant has entered a guilty plea and therefore conceded guilt.

See, e.g., United States v. Kwan, 407 F.3d 1005, 1018 (9th Cir.

2005) (granting coram nobis relief on a pre-Padilla

ineffective-assistance claim based on counsel's advice regarding

the deportation consequences of a guilty plea); Akinsade, 686 F.3d

at 250 (granting coram nobis relief on a post-Padilla

ineffective-assistance claim following a guilty plea). And as to

the government's latter two concerns, the prospect of retrying a

years-old case and its interest in finality, those are implicated

in virtually every coram nobis petition.10 Were those

We note that Padilla itself grappled with the government's

10

interests in the finality of convictions obtained through guilty

pleas. 559 U.S. at 371-73. The Court observed, however, that

collateral attacks on guilty pleas have a built-in constraint -- namely, the risk of a successful challenge

"result[ing] in a less favorable outcome for the

- 24 -considerations alone enough to foreclose relief, the writ would

offer little recourse to the very petitioners for whom it remains

available -- those who have completed their sentences but continue

to suffer the consequences of fundamentally flawed convictions.

That is not to say those interests are irrelevant. They

form part of the interests-of-justice inquiry and may, in an

appropriate case, counsel against relief. But the district court

would have been entitled to weigh them against the fundamental

constitutional error it found here and the consequences flowing

from that error. Once again, Morillo pleaded guilty based on

constitutionally deficient advice about the one thing that

mattered most to her -- staying in the United States -- when she

would have otherwise pursued trial.11 On this record, we cannot

say that the district court exceeded the bounds of its discretion

in concluding that the interests of justice favored relief.

defendant" -- whereas a collateral attack to a conviction

resulting from a jury trial "has no similar downside potential."

Id. at 373. The same is true when a defendant seeks coram nobis

relief from a guilty plea.

11 This distinguishes Morillo's case from Aceituno. There,

this Court found no Padilla error and emphasized this when it

determined that equitable considerations did not favor granting

the writ, cautioning that "[e]quity also requires that the finality of a great number of cases not be put at risk by extending Padilla beyond its requirements." Aceituno, 132 F.4th 572-73. (internal

citation omitted).

- 25 -III. Conclusion

For the foregoing reasons, we affirm the district

court's grant of the writ of coram nobis.

–Dissenting Opinion Follows–

- 26 -DUNLAP, Circuit Judge, dissenting. The majority today

holds that petitioner Mara Morillo ("Morillo") can obtain a writ

of error coram nobis eight years after she was informed that her

conviction would result in her deportation. Because I conclude

that -- under our case law -- Morillo did not challenge her

conviction in a timely manner, I must part ways with my colleagues.

The writ of coram nobis is "a remedy of last resort for

the correction of fundamental errors of fact or law," United States

v. George, 676 F.3d 249, 253 (1st Cir. 2012), reserved for

"'extraordinary' cases presenting circumstances compelling its use

'to achieve justice,'" United States v. Denedo, 556 U.S. 904, 911

(2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954));

see George, 676 F.3d at 253. Coram nobis is "strong medicine, not

profligately to be dispensed," and "successful petitions

are . . . hen's-teeth rare." George, 676 F.3d at 254.

Given the extraordinary nature of coram nobis relief, it

is a fundamental principle that such relief can be granted only if

there is an adequate explanation for failing to seek earlier relief

from judgment via withdrawal of a guilty plea or filing of a

petition for habeas relief pursuant to 28 U.S.C. § 2255. Id.;

Aceituno v. United States, 132 F.4th 563, 569–71 (1st Cir. 2025).

A petitioner seeking a writ of coram nobis must act with reasonable

diligence. Aceituno, 132 F.4th at 570 (citing Foont v. United

States, 93 F.3d 76, 80-81 (2d Cir. 1996)); see United States v.

- 27 -Salgueido, 185 F.4th 1067, 1073–74 (10th Cir. 2026); United States

v. Lockhart, 165 F.4th 933, 936–37 (5th Cir. 2026). We have said

that, in judging the timeliness of a petition for the writ of coram

nobis, we will take into account when the petitioner was informed

of the collateral consequences of the conviction, Aceituno, 132

F.4th at 570 -- as have other circuits, see Salgueido, 185 F.4th

at 1073-74 (stating that a petitioner must be diligent in pursuing

coram nobis after learning of the relevant facts); United States

v. Delhorno, 915 F.3d 449, 455 (7th Cir. 2019) (same). And we

have further held -- most recently in Aceituno v. United

States -- that a lengthy delay between a conviction and

petitioner's effort to challenge the conviction may justify a

finding of untimeliness. 132 F.4th at 570-71 (finding a delay of

ten years to be an "extraordinary" delay); see Thornburg v. United

States, 574 F.2d 33, 36-37 (1st Cir. 1978) (petition untimely after

a delay of almost three years). Again, our cases are consistent

with the holdings of other circuits. See Lockhart, 165 F.4th at

937 (six-year delay); United States v. Kroytor, 977 F.3d 957, 959,

962-63 (9th Cir. 2020) (two-year delay).

Here, the district court found that Morillo "was

certainly informed -- on two occasions [in 2017] -- that her

guilty plea would almost certainly lead to her deportation: in the

sentencing memorandum counsel prepared on her behalf and at her

sentencing hearing." In the sentencing memorandum, defense

- 28 -counsel wrote that "Morillo is facing a lengthy prison sentence,

with almost certain deportation at the end of that sentence. She

will be deported to Venezuela with three small children."

(Emphasis added.) Then, at the sentencing hearing, defense counsel

noted that "she's going to be deported" after the sentence had

been served and "she's not going to have any choice but to go" to

Venezuela. (Emphasis added.) As counsel further stated, "that's

some additional punishment that will be imposed upon her."

(Emphasis added.) Although the district court did not make a

finding that Morillo read the sentencing memorandum, it did

find -- and there is no dispute -- that she was present at the

sentencing hearing.12

These statements put Morillo on notice that she would be

deported -- placing upon her the obligation to take timely steps

to seek relief from her guilty plea. See Aceituno, 132 F.4th at

570 (considering whether the petitioner acted promptly upon

learning of the consequence of the conviction). Yet Morillo did

not seek to withdraw her guilty plea; nor did she seek habeas

relief under § 2255. See id. (noting the petitioner "took no steps

to challenge that conviction though he could have done so").

Aceituno thus squarely controls this case. By waiting eight years

12Further, these statements followed the Presentence

Investigation Report ("PSR"), which stated that Morillo "will face deportation proceedings due to her conviction for the instant

offense." Defense counsel had reviewed the PSR with Morillo.

- 29 -(until 2025) to seek coram nobis relief, Morillo waited too long.

See id. at 571 (citing Ragbir v. United States, 950 F.3d 54, 64

(3d Cir. 2020); Thornburg, 574 F.2d at 36-37; Kroytor, 977 F.3d at

959, 960-61; Delhorno, 915 F.3d at 455; and Mendoza v. United

States, 690 F.3d 157, 159-60 (3d Cir. 2012)); see also Lockhart,

165 F.4th at 937.

Both the district court and my colleagues in the majority

emphasize the fact that Morillo had previously been informed of

the possibility of deportation in conditional, not certain, terms.

Morillo's written plea agreement noted that she "may be removed"

from the United States as a consequence of her guilty plea.

(Emphasis added.) And at the change of plea hearing, the district

court noted that her plea "could result in immigration consequences

that may include deportation." (Emphasis added.) This language

echoed advice apparently provided to her by counsel. According to

the district court and my colleagues, these statements meant that

Morillo had no reason to pursue relief until she was informed by

an immigration lawyer in 2025 that she was subject to mandatory

deportation.

I disagree. Had these conditional statements been the

only information presented to Morillo, this case would be

different. But Morillo was also correctly informed of the

consequences of her plea, given counsel's unequivocal statements

at sentencing. At the very least, Morillo had a duty -- upon

- 30 -hearing information that directly contradicted the information

previously provided to her -- to investigate whether she had

initially been misinformed. See Salgueido, 185 F.4th at 1073-74

(suggesting that a petitioner must act once "he or she could

reasonably have known the relevant facts"); Delhorno, 915 F.3d at

455 (noting that petitioner should have pursued relief after "he

knew or should have known about his immigration issues"); Foont,

93 F.3d at 80 (same). My colleagues reason otherwise because

counsel's statements were made in the context of urging a more

lenient sentence. But counsel owes the court a duty of candor,

see United States v. Pomales-Lebron, 513 F.3d 262, 270 (1st Cir.

2008), so I see no reason for discounting the statement on that

basis.13 And although counsel did not "retract[]" his earlier,

more ambiguous statements, his subsequent statements did furnish

Morillo with the correct information that she alleges her counsel

should have provided. In Aceituno, we held that the receipt of

correct information clarifying an issue on which petitioner had

13 My colleagues conclude that, in light of counsel's

prior -- assertedly misleading -- advice, the district court acted within its discretion by "not finding this statement put Morillo

on notice of the deportation consequences of her plea." But that

conclusion seems to vitiate the requirement for a petitioner to

act with reasonable diligence. Aceituno, 132 F.4th at 570 (citing Foont, 93 F.3d at 80-81). It is hard to imagine anything more

directly relevant to the inquiry regarding whether a petitioner

"could reasonably have known the relevant facts," Salgueido, 185

F.4th at 1073-74, than the fact that the petitioner heard an

undisputedly correct statement of the deportation consequences of her plea.

- 31 -received inadequate advice puts the petitioner on notice -- even

without any correction by counsel. 132 F.4th at 567-68, 570.

Having received notice of the consequences of her conviction (or

at least having reason to inquire further), Morillo delayed too

long by failing to challenge her conviction for eight years.

That should end the inquiry. Even if the majority were

right, however, that the statements she heard at sentencing in

2017 were not enough, Morillo's petition is still untimely.

Morillo received a notice of intent to issue a final administrative

removal order in 2021, which gave Morillo further cause to exercise

due diligence. The notice informed her that she was deportable

because she had "been convicted of an aggravated felony." A final

removal order issued shortly after. Although Morillo apparently

talked to some additional lawyers at some unspecified later date,

it took her another four years to seek relief even though it was

clear at that point that her removal -- far from contingent -- was

inevitable. In Aceituno, we found that receipt of such a document

is sufficient notice of immigration consequences. 132 F.4th at

567, 570. This four-year delay by itself suffices to establish

that her petition is untimely. Id. (discussing four-year delay

between receiving ICE notice and taking any steps to reenter the

United States); see Lockhart, 165 F.4th at 937; Kroytor, 977 F.3d

at 959, 962-63.

- 32 -The majority dismisses the relevance of the notice for

two reasons. Neither is persuasive.

First, the majority notes that in Aceituno, unlike here,

the notice did not contradict any prior statement by counsel

regarding the immigration consequences of the plea. See 132 F.4th

at 567. But I do not read Aceituno so narrowly; instead, it stands

for the reasonable proposition that, where a petitioner receives

an immigration notice clarifying the consequences of a conviction

as to which the petitioner had assertedly been inadequately

informed by counsel, the petitioner must promptly seek relief from

the conviction after receipt of that notice. Reading Aceituno as

the majority does essentially eliminates petitioner's duty to

pursue relief after she "knew or should have known about [her]

immigration issues." Delhorno, 915 F.3d at 455 (emphasis added).

Second, the majority notes that Morillo "acted upon the

notice she received" by contacting counsel. But what is missing

here is critical: a basis to find timely action. The district

court did not find, and the record does not state, that Morillo

acted promptly after receiving the notice. As the government

points out, we do not know when Morillo sought advice from new

counsel after receiving the notice. Because Morillo bears the

burden to obtain coram nobis relief, see Murray v. United States,

704 F.3d 23, 29 (1st Cir. 2013); George, 676 F.3d at 254–55, this

deficiency in her efforts to establish that she acted diligently

- 33 -is fatal. And even if she did promptly seek out lawyers after

receiving the deportation notice, it is doubtful that initially

failing to identify the correct legal path for obtaining relief is

a valid excuse. See Salgueido, 185 F.4th at 1074 ("[I]t is well

established that ignorance of the law, even for an incarcerated

pro se petitioner, generally does not excuse prompt filing."

(quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)));

Kroytor, 977 F.3d at 959, 962-63 (delay in challenging conviction

not excused by efforts to obtain advice from multiple attorneys,

even when that advice was incorrect).14

Because I find Morillo's petition to be untimely, I would

go no further in resolving close questions regarding whether

Morillo suffered prejudice from the alleged ineffective assistance

of counsel, Lee v. United States, 582 U.S. 357, 368–71 (2017), and

14 Finally, although not determinative, it is also worth

noting how far afield the district court went to explain Morillo's apparent delay by blaming lack of financial resources. Morillo's

affidavit does not suggest any such limitation, and Morillo did

not testify at the evidentiary hearing held by the district court. Morillo's attorney was the only one to mention a lack of financial resources, but she only mentioned it in argument. Even if she had been a sworn witness, it is doubtful that her say-so would be

admissible to prove Morillo's financial condition or ability to

obtain funds to pay an attorney over the intervening years, as

there is no suggestion that counsel had direct knowledge of those facts. Fed. R. Evid. 801(c); see Garuti v. Roden, 733 F.3d 18, 25 & n.4 (1st Cir. 2013) (applying the Federal Rules of Evidence and rejecting the district court's consideration of unsworn hearsay in the analogous habeas context). Nor does counsel's statement

address the availability of pro bono representation or other

alternatives.

- 34 -whether -- assuming Morillo can cross the threshold showing of

entitlement to coram nobis relief -- "justice demands the

extraordinary balm of coram nobis relief," George, 676 F.3d at

255. I nevertheless note two further reservations.

First, I am concerned that the majority finds that

Morillo suffered prejudice from counsel's asserted ineffective

assistance based solely on post-hoc, self-serving testimony by

Morillo, her daughter, and a family friend, together with a

retrospective assessment of a potential defense available at

trial -- a finding in some tension with the Supreme Court's mandate

that courts "look to contemporaneous evidence" that the petitioner

would have proceeded to trial absent the erroneous advice.15 Lee,

582 U.S. at 369.

Second, I have substantial concerns with the district

court's failure to even mention -- in weighing the interests of

justice -- the relevance of Morillo's guilty plea, the difficulty

of re-trying the case after the passage of so many years, and the

government's interest in finality. Each is a relevant factor in

determining the interests of justice. Aceituno, 132 F.4th at 572–

73; George, 676 F.3d at 257-58. Although our review is

deferential, "a material error of law invariably constitutes an

It is worth emphasizing, however, that the majority's

15

holding is a narrow one; had the government contested the evidence or called the witnesses' credibility into question in any way, the outcome would likely be different.

- 35 -abuse of discretion," Corp. Techs., Inc. v. Harnett, 731 F.3d 6,

10 (1st Cir. 2013), and a district court abuses its discretion

when it fails to even consider relevant factors, see Rosario-Urdaz

v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003).

In my view, these concerns counsel further caution in

allowing Morillo to seek coram nobis relief at this late hour,

contrary to Aceituno. I respectfully dissent.

- 36 -