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Cases / United States (federal)

Conviction overturned

First Circuit upholds coram nobis relief where lawyer wrongly assured client she could fix her immigration status after plea

A divided court holds that telling a noncitizen she can stay in the country, when the plea in fact makes removal mandatory, is constitutionally deficient advice, and that corroborated testimony plus a plausible trial defense can show prejudice even without contemporaneous evidence.

Morillo v. United States, No. 25-2027

6 min read
Court
United States Court of Appeals for the First Circuit
Decided
Oct 16, 2026
Conviction to this result
10 years
Sentence
84 months' imprisonment followed by three years of supervised release, after a downward variance

Conviction vacated by the district court on a writ of coram nobis; affirmed on appeal by a two to one majority. The conviction was quashed or vacated. Read the brief for what happens next.

What happened

Mara Morillo came to the United States from South America in 1996 on a travel visa and overstayed. She later married a man who ran a drug business. The relationship became abusive, leading to assault charges and restraining orders against him. She became involved in his business, and both were charged in New Hampshire federal court with one count of drug conspiracy. Morillo told her appointed Federal Public Defender that her priority was staying in the United States, where her two children are citizens. Counsel told her that if she took the plea she would serve some time but could stay and work out her immigration situation afterwards. She pleaded guilty. The plea agreement and the judge both warned that she "may" be removed. In fact the conviction made her presumptively removable and permanently inadmissible. At sentencing, counsel argued for leniency partly because she was "going to be deported". She received 84 months. In August 2021, after finishing her sentence and supervised release, she received a removal notice. The dissent records that a final removal order issued shortly after. Believing the notice a mistake, she tried to reach her former lawyer, then consulted two other attorneys, and retained new counsel in February 2025. The opinion does not say when those intermediate steps happened. She sought a writ of coram nobis, a remedy that lets a person no longer in custody challenge a conviction. At the hearing, her daughter and a family friend confirmed she had always planned to fix her status after release. Former counsel had no memory of the case but described his usual practice of warning clients about a risk of deportation. The district court granted the writ and vacated the conviction. The government appealed.

Procedural history

  1. 2014
    Conduct giving rise to the charges occurs in 2014 and 2015
  2. Undated
    Grand jury indicts Morillo and her husband on one count of drug conspiracy under 21 U.S.C. §§ 846 and 841(a)(1)United States District Court for the District of New Hampshire
  3. 2016
    Morillo pleads guilty under a plea agreement after her appointed counsel assures her she can work out her immigration situation after releaseUnited States District Court for the District of New Hampshire
  4. 2017
    Sentenced to 84 months' imprisonment and three years of supervised release; counsel tells the court she is going to be deported while arguing for leniencyUnited States District Court for the District of New Hampshire
  5. Aug 2021
    After completing prison and supervised release, Morillo receives a Notice of Intent to Issue a Final Administrative Removal Order; according to the dissent, a final removal order issued shortly after
  6. Undated
    Believing the notice a mistake, Morillo attempts to contact her former counsel and, when that fails, consults two other attorneys; the packet gives no dates for these steps
  7. Feb 2025
    Morillo retains new counsel
  8. 2025
    Petition for a writ of error coram nobis filed; evidentiary hearing held; the next day the court grants the writ and vacates the conviction, with a second order explaining its reasonsUnited States District Court for the District of New Hampshire
  9. Undated
    Government files a timely appealUnited States Court of Appeals for the First Circuit
  10. Oct 16, 2026
    Published decision affirming the grant of the writ; Judge Dunlap dissentsUnited States Court of Appeals for the First Circuit

The offence and its elements

Conspiracy to distribute, and to possess with intent to distribute, controlled substances

21 U.S.C. §§ 846 and 841(a)(1)

What the prosecution had to prove:

  • A conspiracy (an agreement between two or more people) existednot addressedFrom the reasons
  • The object of the agreement was to distribute, or possess with intent to distribute, a controlled substancenot addressedGeneral law: check the current text
  • The defendant had knowledge of the conspiracynot addressedFrom the reasons
  • The defendant knowingly and voluntarily participated in the conspiracy, meaning she intended to join it and intended its goals to be accomplisheddisputedFrom the reasons

The questions on appeal

Did Morillo adequately explain why she did not challenge her plea sooner?
Yes, by a majority. The court held the district court did not abuse its discretion in finding that the "may be deported" warnings matched counsel's advice rather than contradicting it, that counsel's sentencing remark about deportation was made while arguing for leniency and did not retract his advice to her, and that she acted on the 2021 notice by seeking lawyers. The majority accepted that the sentencing remark directly contradicted counsel's own advice, but held that in context the district court could still find it did not put her on notice. The dissent accepted that the conditional warnings alone would have made this a different case, but reasoned that counsel's unequivocal statements at sentencing in 2017, and then the 2021 notice and the removal order that followed, put her on notice or at least obliged her to inquire, and that the record did not show when she sought new advice, so she had not proved diligence.
Was counsel's advice constitutionally deficient under Padilla?
Yes. Where the immigration consequence is clear, counsel must give correspondingly clear advice. Telling her she could stay and sort things out was affirmative misadvice. A warning that she "may" be deported would not have been enough here, even if given.
Did the misadvice prejudice her?
Yes. The district court could find a reasonable probability she would have gone to trial. Her account was corroborated by two witnesses, the government did not cross-examine her or contradict the evidence, and she had a plausible defense to the intent element based on extreme domestic abuse. Lack of contemporaneous evidence goes to weight, not to whether prejudice can be shown at all.
Did the interests of justice favor relief?
Yes. The government's interests in finality and the difficulty of retrial are legitimate, but they arise in nearly every coram nobis case and did not compel reversal on this record.

The law the court applied

Requirements for a writ of coram nobis

The petitioner must (1) explain her failure to seek earlier relief, (2) show continuing significant collateral consequences, and (3) show the judgment resulted from an error of the most fundamental character. Even then, she must persuade the court that justice demands this extraordinary remedy.

Aceituno v. United States, 132 F.4th 563, 569 (1st Cir. 2025); United States v. Castro-Taveras, 841 F.3d 34, 39 (1st Cir. 2016)

Ineffective assistance of counsel

Two parts: counsel's performance fell below an objective standard of reasonableness, and the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984)

Duty to advise on immigration consequences

When the deportation consequence of a plea is succinct, clear and explicit, counsel must give equally clear advice. Only when the law is unclear may counsel simply warn of a risk of adverse immigration consequences.

Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010)

Prejudice in the plea context

A reasonable probability that, but for counsel's error, the defendant would not have pleaded guilty and would have insisted on going to trial, judged on the totality of the evidence and not solely on post hoc assertions.

Lee v. United States, 582 U.S. 357, 364-65, 369 (2017); Hill v. Lockhart, 474 U.S. 52, 59 (1985)

Standard of review

Legal conclusions reviewed de novo (afresh), findings of fact for clear error, and the decision to grant the writ for abuse of discretion.

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

What the court decided

In a published, precedential decision, the First Circuit (Gelpí, J., joined by Thompson, J.) affirmed the district court's grant of a writ of coram nobis vacating Morillo's drug conspiracy conviction. The district court did not err in law or abuse its discretion in finding that she justified her delay, that counsel's affirmative misadvice about clear deportation consequences was deficient under Padilla, that she showed a reasonable probability she would have gone to trial, and that the interests of justice favored relief. Judge Dunlap dissented, concluding the petition was untimely under Aceituno because counsel's unequivocal statements at sentencing in 2017 put her on notice, and alternatively because the 2021 notice and the final removal order that followed gave further cause for diligence while the record did not show when she acted. The dissent also expressed reservations about the prejudice and equities findings.

What happens next: The conviction stands vacated. The packet does not say whether the government intends to retry the charge or seek further review. If a retrial occurs, Morillo is presumed innocent.

Analysis

This is our commentary, separate from the court’s reasons.

Why the timing question decided the appeal

The real battleground was not whether the advice was wrong. Even the dissent did not defend it. The fight was over when Morillo should have realised it was wrong. The majority treated notice as a question of fact for the district court, reviewed deferentially. The vague "may be deported" warnings in the plea agreement and at the plea hearing fit counsel's advice, so they gave her no reason to doubt it. The sentencing statement was different, and the majority said so. It accepted that counsel's "going to be deported" remark directly contradicted his own advice. Its point was that contradiction and notice are not the same thing. The remark was addressed to the judge as part of a plea for leniency, listed alongside other hardships, and nothing in it signalled to Morillo that counsel was withdrawing what he had told her privately. On that footing the district court could reasonably find that the statement did not alert her that the advice was wrong, even though in substance it was inconsistent with that advice. The dissent read the First Circuit's own recent decision in Aceituno as setting an objective rule: once a petitioner hears correct information, whatever its source or purpose, the clock starts, or at least a duty to inquire arises. It also stressed that the record gave no dates for her efforts after the 2021 notice, so there was no basis to find she acted promptly. The majority distinguished Aceituno on its facts, including that the petitioner there did nothing after receiving a notice. Future petitioners should expect the government to press the dissent's reading, and should expect close scrutiny of exactly when they learned the truth and what they did next.

What Padilla requires when the law is clear

The decision rejects the argument that a general warning of a risk of deportation always satisfies the Sixth Amendment. It reads Padilla as drawing a line based on the clarity of the immigration statute. The government suggested that this part of Padilla was dicta, meaning remarks not necessary to the decision. The court did not decide that label. It said that even if those statements were not strictly necessary, they were the Supreme Court's considered explanation of the duty it had just recognized, at a minimum highly persuasive, and it saw no reason to depart from them. The practical consequence is that a lawyer's habitual "you may face immigration consequences" speech does not cure a specific assurance that the client can stay. The court also declined to consider the government's argument, raised for the first time on appeal, that the consequence was not clear in this case. That question was simply not reached here.

Prejudice without contemporaneous evidence

Lee warned courts not to upset pleas on post hoc assertions alone. This case shows what "alone" means. Morillo did not produce the kind of contemporaneous evidence Lee had, a statement during the plea proceeding itself that deportation would affect his decision. But she had two corroborating witnesses, uncontested testimony, and a plausible defense to the intent element grounded in domestic abuse. The majority was careful to say the defense need not have been likely to succeed; it needed only to give a rational person a reason to risk trial. The dissent's footnote is the honest caveat: the holding is narrow, and had the government cross-examined or contested the evidence, the outcome might well have differed. The government's choice not to call Morillo for cross-examination weighed heavily.

Citations

Sources

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This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.