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 -