Defendant’s former lawyer, ICE invited to be heard

The Superior Court has invited former assistant public defender Jeffrey Moots and the U.S. Department of Homeland Security-Immigration and Customs Enforcement to participate in the hearing of a citizen of the Federated States of Micronesia who is asking the court to set aside his attempted rape conviction because Moots, his then-counsel, allegedly failed to provide advice that his guilty plea would make him deportable.

In separate orders issued Tuesday, Associate Judge Joseph N. Camacho invited Moots and U.S. DHS-ICE to submit an amicus curiae and/or sworn declaration.

Amicus curiae (friend of the court) refers to a brief filed in court by any entity that is not a party to the case.

Camacho said Moots and DHS-ICE are not required to file any pleadings.

Any filings, he said, shall be due on or before Sept. 4, 2015.

A motion hearing on defendant Seremea Isy Nowell’s motion will be held on Sept. 16, 2015, at 1:30pm.

Camacho said Nowell’s case has far-reaching ramification beyond this individual case.

The judge said as any findings by the court may or not give rise to a collateral disciplinary complaint that may spill over and reflect upon Moots, at the very least an opportunity should be given to him to be heard on this matter.

With respect to DHS-ICE, Camacho said immigration issues were once under the jurisdiction of the CNMI and now under the United States, and this case straddles the two different jurisdictions.

At the very least, Camacho said, an opportunity should be given to DHS-ICE to be heard on this matter.

On Feb. 6, 2, 2002, Nowell pleaded guilty to attempted rape pursuant to a plea agreement with the government. He was sentenced to two years in prison and served the jail term.

Nowell is now facing deportation by DHS-ICE after Immigration Judge Clarence M. Wagner Jr. issued a decision on Jan. 13, 2015, ordering him to be deported to the Federated States of Micronesia.

Last May 21, the 54-year-old Nowell, through counsel Pamela Brown-Blackburn, filed in court an emergency petition for a writ of error coram nobis to vacate his conviction.

Writ of error coram nobis refers to an extraordinary court order that is issued only where the circumstances compel such action to achieve justice.

Blackburn said the writ “provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors.”

Blackburn said in Nowell’s case, then assistant public defender Moots made a critical error by advising the defendant to accept a plea agreement in which he pleaded guilty to attempted rape—a felony offense—in exchange for the dismissal of three other criminal charges.

Blackburn said the error results in a manifest injustice and severe consequences because, unbeknownst to Nowell, the plea made him deportable under both CNMI immigration law, which were applicable at the time, and under federal law, which became applicable on Nov. 28, 2009.

Nowell has resided in the CNMI since the early 1990s and had adopted a U.S. citizen son, who is now 9 years old.

Nowell has only distant relatives in Chuuk, FSM. His home island of Mama is a weeklong boat ride from the main island of Weno.

Blackburn said to allow the 2002 plea of guilty to a crime without being properly advised of any adverse immigration consequences constitutes a violation of the NMI Constitution, the Sixth Amendment, and the Commonwealth Rules of Criminal Procedure.

In his declaration, Nowell said that, on Feb. 5, 2002, Moots told him to plead guilty because he has no choice since it was his last court appearance.

“When I tried to object, Mr. Moots said this was my only chance,” Nowell said.