Man pleads guilty to attempted rape in 2002, asks court to set aside conviction

A citizen of the Federated States of Micronesia who served two years in prison after pleading guilty to attempted rape now wants the Superior Court to set aside his 2002 conviction because his then-counsel allegedly failed to advise him that his guilty plea would render him deportable.

Seremea Issy Nowell, 54, through counsel Pamela Brown Blackburn, submitted an emergency petition for a writ of error coram nobis to vacate his conviction.

A 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 that in Nowell’s case, then assistant public defender Jeffrey A. Moots advised Nowell to agree to a plea deal where he would plead guilty to attempted rape, a felony, in exchange for the dismissal of three other criminal charges.

Nowell agreed to the plea deal and was subsequently sentenced to five years, of which he served two years. Had he been found guilty of all charges, he faced a maximum sentence of life imprisonment and a maximum fine of $5,000.

Blackburn said that unknown to Nowell, however, his guilty 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.

Blackburn said at the time of the plea, Nowell was a citizen of FSM and was an immediate relative of a U.S. citizen, which was the equivalent of a lawful permanent resident under federal immigration laws.

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

Nowell had no prior criminal convictions or arrests and has had none since his release from prison in 2004. His entire family is either in the U.S. or deceased.

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

Blackburn said to allow the 2002 guilty plea without being properly advised of any adverse immigration consequences constituted 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, he met Moots outside the courtroom and the lawyer 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.

He claimed that Moots never explained the plea agreement that Moots told him to sign on Feb. 6, 2002, when they entered the courtroom.

“In fact, this was the first time that I ever saw the agreement,” he said.

Nowell said he does not believe that he was properly advised by Moots because if he knew that he would face deportation because of a guilty plea, he would have fought the case.

In his removal case, Nowell informed the U.S. Immigration Court that he suffers from diabetes and hypertension and that doctors diagnosed his condition as serious, possibly resulting in blindness.

In a written order on Jan. 13, 2015, Immigration Judge Clarence M. Wagner Jr. ordered that Nowell be removed to FSM.

Wagner said the respondent is statutorily eligible for voluntary departure, but that the voluntary departure should be denied as a matter of discretion.