Summary
finding that petitioner had not offered a sound reason for the delay in seeking earlier collateral relief and in seeking earlier coram nobis relief
Summary of this case from Durrani v. U.S.Opinion
Civil Action No. CV-02-1255 (DGT)
July 14, 2003
MEMORANDUM AND ORDER
Petitioner Felix Echendu ("Echendu") filed this petition for a writ of coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651. Echendu, who is no longer in custody for the underlying offense, claims that his conviction is the result of ineffective assistance of counsel. Echendu requests that his conviction be overturned on the grounds that it was improper and that he continues to be subject to legal detriment. The government has filed a motion to dismiss the petition.
Background (1)
Echendu is a Nigerian native and a lawful permanent resident of the United States. On March 7, 1990, Echendu was arrested at John F. Kennedy International Airport ("JFK") after he was found with approximately $103,000 in United States currency concealed in "Bisquick" containers in his checked baggage. (Government Mem. of Law ("Gov. Mem."), Ex. B at 3.) He was initially indicted on one count of failure to file a currency report and was released on August 2, 1990 on $150,000 bail. (Gov. Mem., Ex. B, Government App. ("Gov. App."), at 1.) In a superseding indictment, Echendu was charged with one count of conspiracy and one count of money laundering under 18 U.S.C. § 1956(a)(2)(b)(i). (Gov. App., at 9.) The government alleged that Echendu was part of a heroin smuggling and money laundering organization run by co-defendant Michael Ikelionwu. (Gov. Mem., at 4.) Echendu was released on bail with the initial bail conditions remaining in effect through his trial, which was set for June 24, 1991. (Gov. Mem., Ex. A, Addendum ("Add.") 1, at 3.)
On June 18, 1991, Echendu learned that his father had died. (Echendu Reply, at 3.) On the morning of June 24, 1991, Echendu failed to appear at trial, which was set for 9:30 a.m. (Gov. App., at 18.) His attorney, Labe Richman ("Richman"), told the court that, although Echendu was "right outside the courtroom" earlier that morning, he was unaware of his client's current whereabouts. (Gov. App., at 19-20.) The late Judge Nickerson postponed the trial for two hours to allow Echendu additional time to appear. (Gov. App., at 21.) When the parties reconvened later at approximately 11:30 a.m., Echendu did not appear — although Richman stated that he had seen Echendu during the recess. (Gov. App., at 23-24.) Judge Nickerson gave Richman five minutes to search the building for Echendu, after which time Richman returned without Echendu. (Gov. App., at 24.) Nevertheless, Judge Nickerson postponed the trial yet again until 1:00 p.m. and resolved to try him in abstentia if he did not appear. (Gov. App., at 25-26.) After Echendu failed to appear at 1:00 p.m., the court issued a bench warrant for his arrest and proceeded to try him in abstentia. (Gov. App., at 27.)
The initial bench warrant contains an apparent typographical error. The warrant was issued pursuant to 18 U.S.C. § 3248(b); the intended statutory reference was 18 U.S.C. § 3148(b).
At trial, Richman successfully argued that, although Echendu may have unwittingly been part of Ikelionwu's organization and may have been traveling to Nigeria to be one of Ikelionwu's couriers, the evidence failed to show that Echendu knew that he had $103,000 in his luggage. (Gov. App., at 31-53.) Thus, the jury found that the government had failed to satisfy the knowledge element. (Id.) Echendu was acquitted; Ikelionwu and another co-conspirator, however, were convicted. (Gov. Mem., at 8-9.)
On February 1, 1993, Echendu was arrested upon arrival at JFK while attempting to enter the United States on a flight from Nigeria. (Id. at 9). Echendu was arraigned and charged with failure to appear in violation of 18 U.S.C. § 3146(a)(1), (b)(1)(A)(ii). (Echendu Br., at 2.) On March 1, 1993, Echendu, still represented by Richman, pled guilty to one count of knowingly failing to appear in court in violation of 18 U.S.C. § 3146(a)(1), (b)(1)(A)(i). (Gov. Mem., at 9-10.)
Petitioner was indicted under §§ 3146(a)(1), (b)(1)(A)(ii), but his guilty plea was under §§ 3146(a)(1), (b)(1)(A)(i). The change in statutory subsection reflected the proper punishment provision in that subsection (b)(1)(A)(i) provides the penalty for failure to appear where the underlying offense carries a penalty of 15 years or more while subsection (b)(1)(A)(ii) governs the penalty for failure to appear where the underlying offense imposes a term of imprisonment of five years or more. The crime for which Echendu failed to appear subjected him to a potential prison term of over 15 years, and he was properly sentenced under § 3146(b)(1)(A)(i).
Echendu now claims that Richman told him that the court had agreed to postpone the trial in light of the death of Echendu's father, and thereby misled him into believing that he was authorized to travel to Nigeria to attend his father's funeral. (Echendu Br., at 24.) Echendu claims that Richman — in order to conceal the mistaken or false representation — pressured Echendu into pleading guilty to the charge of failure to appear. Echendu claims that Richman pressured him with threats of potential deportation if Echendu were to challenge the charges. (Id. at 24-25.)
Echendu was sentenced by Judge Nickerson on May 14, 1993. (Gov. App., at 70-79.) In a letter to the sentencing court, Richman wrote that, on the night before the trial, Echendu was "quite upset and . . . obsessed with his father's death" and had wanted a postponement of the trial. (Gov. Mem., Ex. A, Add. 2, at 2.) He also stated that the next morning in the courthouse, Echendu was sweating and shaking . . . and did not appear coherent." (Id.) Richman argued to the sentencing court that Echendu failed to appear because of emotional distress surrounding his father's death in Nigeria and that intense cultural and family pressure to attend the funeral clouded Echendu's judgment. (Id. at 3.) The court sentenced Echendu to 12 months imprisonment, the minimum sentence under the Federal Sentencing Guidelines. (Id., App., at 10.)
However, at trial, Richman did not mention Echendu's father's death or Echendu's reaction to it; nor did Richman attempt to secure a postponement. Richman claims that although Echendu suggested that a postponement be sought, Richman told him that obtaining such a postponement would be "almost impossible." (Id., Add. 2, at 2.)
Echendu appealed, but later withdrew his appeal allegedly because Richman sent him a letter "in which [Richman] reiterated that if [Echendu] appealed his conviction, the prosecutor would be provoked to contact the Immigration and Naturalization Service ("INS") to deport [him]." (Echendu Br., at 25.) However, Echendu has not produced this letter. Then, on June 25, 1993, although still represented by Richman, Echendu filed a pro se motion to reinstate the appeal, which was granted. (Id.) Richman then filed a motion to be relieved as Echendu's counsel on the grounds that Echendu distrusted him and that "defendant's interests would be better served by the appointment of new CJA counsel." (Add. to Echendu Reply, at 18.) Echendu, represented by new CJA counsel, filed his appellate brief on November 12, 1993. (Gov. Mem., Ex. C.)
On appeal, Echendu argued that Richman had provided ineffective counsel by (1) failing to raise a due process and Eighth Amendment objection to the application of 18 U.S.C. § 3146(b)(1)(A)(i) to Echendu and (2) failing to assert the affirmative defense of uncontrollable circumstances. (Id.) Echendu also argued that the district court should have held sua sponte a hearing on the voluntariness of his plea in light of his being unaware of the affirmative defense. (Id. at 3.)
On January 12, 1994, the Second Circuit affirmed Echendu's conviction and sentence. (Gov. Mem., Ex. D.) The court held that the actual sentence Echendu received was only 12 months and thus not disproportionate to his crime and that the affirmative defense of uncontrollable circumstances was unavailable because Echendu was in the courthouse on the day of the trial. (Id. at 2.) Further, because the affirmative defense lacked merit, the court found that the district court was correct in not holding a hearing sua sponte. (Id. at 3.)
Meanwhile, on July 21, 1993, approximately one month after his appeal was reinstated, Echendu filed for habeas corpus relief under 28 U.S.C. § 2255. (Add. to Echendu Reply, at 21.) Echendu alleged that Richman provided ineffective assistance of counsel by laboring under a conflict of interest that arose from Richman's desire to conceal the fact that he had represented to Echendu that the flight to Nigeria had been permitted. (Echendu Reply, at 9.) Thus, Echendu asserts that Richman coerced Echendu into entering the plea agreement in an effort to hide his own error. (Id.) However, the petition was dismissed on December 9, 1993 because Echendu's appeal was still pending. (Add. to Echendu Reply, at 26.)
On December 7, 1994, having completed his prison sentence, Echendu interviewed with the INS pursuant to an application for naturalization. (Gov. Mem., Ex. F.) On February 2, 1995, the INS denied his application for naturalization because (1) his trip to Nigeria from June 24, 1991 to February 1, 1993 violated the requisite five-year continuous presence requirement, and (2) he could not demonstrate the necessary "good moral character" because of his conviction for failure to appear. (Id. at 1-2.) As a further consequence of this application being denied, Echendu claims that his wife will be unable to become eligible to work in the United States for five years from the time her application is made. (Echendu Br., at 8.) Also, Echendu and the government agree that, as a result of his conviction and subsequent legislation, he is readily deportable. (Echendu Br., at 6; Gov. Mem., at 19.)
Echendu was not statutorily precluded at the time from establishing "good moral character," as he later became with the enactment of IIRIRA.See infra p. 7-8. Rather, the INS simply decided that his conviction for failure to appear evinced a moral character that was less than satisfactory.
On February 25, 2002, Echendu filed this petition for a writ of coram nobis arguing that the improper conviction is preventing him from gaining citizenship and has subjected him to possible deportation. (Echendu Br., at 6.)
This petition was originally filed by Echendu's attorney, John D. Nation ("Nation"). However, Nation has since withdrawn his representation, citing a deterioration of the attorney-client relationship and the belief "that further representation would not be in Petitioner's best interest." However, in addition to Echendu's capablepro se submissions, Nation filed a brief opposing the government's motion to dismiss before withdrawing as counsel.
(2) Subsequent Statutory Developments
In 1993, when Echendu pled guilty to failure to appear, his conviction was not classified as an aggravated felony. See 8 U.S.C. § 1101(a)(43) (1994). As such, he was not subject to deportation under the applicable immigration law in existence at the time, which provided for the deportation of legal permanent residents such as Echendu who were convicted of an "aggravated felony." Moreover, at the time, many individuals deported as aggravated felons were eligible for discretionary relief from deportation under the Immigration and Nationality Act ("INA") § 212(c). Also, because Echendu's offense was not defined as an aggravated felony, he was not statutorily precluded from establishing the "good moral character" necessary to gain citizenship. See 8 U.S.C. § 1101(f)(8) ("No person shall be regarded as, or found to be, a person of good moral character, who . . . at any time has been convicted of an aggravated felony.")
However, much changed in 1996 with the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"). AEDPA, enacted on April 24, 1996, significantly broadened the previously existing categories of aggravated felonies to include, inter alia, "failure to appear before a court . . . to answer . . . a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed." 8 U.S.C. § 1101(a)(43)(T). In addition, AEDPA § 440(d) mandated that any alien convicted of an aggravated felony was to be barred from seeking a § 212(c) waiver of deportation. On its own, however, AEDPA did not change Echendu's status because its redefinition of "aggravated felony" applied only to convictions entered on or after the date of its enactment. See 110 Stat. 1214, 1278.
IIRIRA, however, provided that the definition of "aggravated felony" under 8 U.S.C. § 1101(a)(43) "shall apply to actions taken on or after the date of the enactment of [IIRIRA], regardless of when the conviction occurred." IIRIRA § 322(c) (emphasis added). The Second Circuit has upheld the application of the redefinition of aggravated felony to convictions and guilty pleas entered prior to IIRIRA. See United States v. Luna-Reynoso, 258 F.3d 111, 113 (2d Cir. 2001) ("[I]n 1996, Congress plainly stated, in enacting [IIRIRA], that the new definition was to be used immediately, regardless of when the newly included offenses had been committed."); United States v. Ko, 1999 WL 1216730, at *2 (S.D.N.Y. Dec. 20, 1999); Maria v. McElroy, 68 F. Supp.2d 206, 220 (E.D.N.Y. 1999). Thus, because of his 1993 conviction, Echendu is now deportable as an aggravated felon. Also, because aggravated felons are precluded from demonstrating "good moral character" under 8 U.S.C. § 1101(f)(8), Echendu is now ineligible for citizenship.
Discussion
Federal courts have the power to grant the common law writ of error coram nobis under the All Writs Act. See 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law."); United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252 (1954) (holding that the enactment of 28 U.S.C. § 2255 did not supersede availability of writ of coram nobis). Although the All Writs Act is not an independent source of jurisdiction, it is available to district courts to "prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." United States v. Tablie, 166 F.3d 505, 507 (2d Cir. 1999) (quoting United States v. New York Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372 (1977)); see also Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir. 1992) ("Coram nobis arose as a device to extend the period in which the judge . . . who rendered a decision could reexamine his handiwork.").
"Coram nobis is essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). Echendu is not eligible for habeas corpus relief under 28 U.S.C. § 2255 because he is not "in custody" as required by that statute. See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir. 1960) ("A district court is without jurisdiction to entertain a writ of habeas corpus of a § 2255 motion if the relator or movant is not in custody."). The custody requirement under § 2255 has not been strictly interpreted by the courts, and actual physical confinement is not necessary for a petitioner to be "in custody." Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). Indeed, individuals on parole, probation, or under suspended sentence are considered to be "in custody."Id. However, "the Supreme Court has never gone so far as to hold that a habeas petitioner may be in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Id. (internal quotation marks omitted). Currently, Echendu is not physically confined, on parole, probation, or under suspended sentence and is therefore not "in custody." Accordingly, because Echendu has fully served his sentence and there are no deportation proceedings against him, he is not in custody and does not qualify for relief under § 2255.
The writ of coram nobis has its roots in the English common law, and has survived as a remedy "only to the extent it has not been replaced by statutes." Nicks v. United States, 955 F.2d 161, 166-67 (2d Cir. 1992). It was issued "to correct errors of fact unknown to the court at the time of the judgment, without fault of the defendant, which, if known, would probably have prevented the judgment." Morgan, 346 U.S. at 516, 74 S.Ct. at 255. However, "[c]oram nobis is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (internal quotation marks and alterations omitted). Coram nobis is an "extraordinary remedy" that is granted "only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511, 74 S.Ct. at 252.
To qualify for coram nobis relief, a petitioner mush show that "(1) there are circumstances compelling such action to achieve justice, (2) sound reasons exist for failure to seek appropriate earlier relief, and (3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Foont, 93 F.3d at 79 (internal quotation marks omitted). In considering a coram nobis petition, a court must "presume the proceedings were correct[, and] the burden of showing otherwise rests on the petitioner." Nicks, 955 F.2d at 167.
Echendu's petition cites two adverse legal consequences he claims to suffer as a result of his conviction: (1) he is deportable — though the INS has taken no action nor has it indicated that it will do so; and (2) he is precluded from becoming a citizen.
Echendu also argues that if deportation proceedings were initiated against him, he would be precluded from seeking INS § 212(c) relief. Indeed, AEDPA § 440(d) and IIRIRA § 304 may preclude Echendu from seeking INA § 212(c) discretionary relief despite the Supreme Court's holding in I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), that "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 121 S.Ct. at 2293. The St. Cyr holding rests on the premise that aliens charged with a deportable crime often rely on the availability of a § 212(c) hearing in deciding to plead guilty.See id. at 321, 121 S.Ct. at 2291. Thus, the Court recognized that plea agreements are a form of "quid pro quo" where, "[i]n exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous tangible benefits." Id. at 322, 121 S.Ct. at 2291. At the time Echendu pled guilty, he was not eligible for discretionary relief because his plea did not render him deportable. Echendu did not change his position in reliance on the availability of § 212(c) relief, and there was therefore no quid pro quo. See United States v. Marmolejo-Gutierrez, 60 Fed.Appx. 138, 140, 2003 WL 1084459, at *2 (9th Cir. Mar. 11, 2003) (unpublished opinion) ("Having pled to a nondeportable offense, [petitioner] would not have been eligible for § 212(c) relief [and, therefore,] the considerations underlying theSt. Cyr decision are . . . not present."). Although logical, the result appears unjust since someone like petitioner, whose crime was less serious, cannot obtain a dispensation from deportation available to those convicted of more serious crimes. This anomaly need not be resolved here.
"To meet the burden of demonstrating that he suffers from a continuing legal consequence, a petitioner must at least point to `a concrete threat that an erroneous conviction's lingering disabilities will cause serious harm. . . . [I]t is not enough to raise purely speculative harms.'"Fleming, 146 F.3d at 91 (quoting United States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990)) (alterations in Fleming). Althouth the Second Circuit has not addressed the question of whether the mere threat of deportation is a "concrete harm" or "purely speculative" for purposes of coram nobis, at least one circuit court has found it to be the latter.See Howard v. United States, 962 F.2d 651, 655 (7th Cir. 1992) ("The harm caused by [potential deportation] is speculative."); Ko, 1999 WL 1216739, at *2; but see Polanco v. United States, 803 F. Supp. 928, 930 (S.D.N.Y. 1992). Nevertheless, that question need not be resolved here because, even assuming arguendo that Echendu has shown lingering disabilities stemming from his conviction, Echendu has failed to present "sound reasons" for his lengthy delay in seeking relief. Foont, 93 F.3d at 79 ("Initially, it must be decided whether [petitioner's] delay in seeking coram nobis renders the relief sought unavailable.").
Echendu was convicted of the underlying offense on March 1, 1993. After serving his 12-month prison sentence, he was released in March, 1994. On September 30, 1996, IIRIRA was passed, severely affecting Echendu's immigration status. However, Echendu did not file the present petition until February 25, 2002.
"[T]he time for filing a petition [for coram nobis] is not subject to a specific statute of limitations." Id. (citations omitted). However, because "an error of constitutional dimension at the time of plea or sentence renders a conviction voidable, not void, . . . coram nobis relief may be barred by the passage of time." Id. The courts have not established a bright line timeliness rule, leaving district courts, at their discretion, to "decide the issue in light of the circumstances of the individual case." Id. "[I]f the district court decides that there was not sufficient justification for [the petitioner's] failure to seek relief at an earlier time, the writ is unavailable and [the] petition for coram nobis should be dismissed." Nicks, 955 F.2d at 167-68. The Second Circuit has rejected a laches requirement that would necessitate a government showing of prejudice due to the delay, instead focusing the inquiry on the petitioner's justification for the delay. See Foont, 93 F.3d at 80. In the absence of sound reasons provided by the petitioner, the courts have generally found that a belated petition for coram nobis should be dismissed if its filing has been delayed for more than several years. See id. (petitioner barred by unjustified four year and eight month delay); Mastrogiacomo v. United States, 2001 WL 799741, at *2 (S.D.N.Y. July 16, 2001) (petitioner barred by unjustified three year delay).
Here, Echendu filed this petition approximately nine years after his conviction. However, because the lingering disabilities that Echendu claims — deportability and ineligibility of citizenship — only arose with the enactment of AEDPA and IIRIRA, Echendu had no reason to file this petition prior to September 30, 1996 — the date of IIRIRA's enactment. Therefore, Echendu's delay is properly calculated with reference to the period between the day IIRIRA was enacted and February 25, 2002, the day the petition was filed. Accordingly, the petition was filed after a delay of well over five years.
The petitioner has the burden of justifying his delay in seeking earlier relief. Foont, 93 F.3d at 80. Echendu, however, has not provided any justification for the delay in seeking earlier relief and makes no effort to account for his extensive delay in seeking coram nobis relief. Echendu merely argues that he had "previously pursued vigorously the remedies available to him at the time." (Echendu Reply, at 14.) However, all of Echendu's prior petitions, appeals, and administrative matters had all been disposed of in one way or another at least seven years before he filed this petition.
As such, this case is identical to Foont, where the Second Circuit dismissed a coram nobis petition citing the petitioner's unjustified delay of four years and eight months. The court held that, because the petitioner "knew or should have known since the time of his conviction . . . of the facts underlying his current claim," his delay in seeking coram nobis relief was too long in light of insufficient justification.Foont, 93 F.3d at 80.
Like the petitioner in Foont, Echendu has known, or should have known, of the facts underlying his current claim for a sufficiently long period of time that an adequate justification is required. See id. Echendu has simply not provided sound reasons for his delay. Consequently, even if Echendu could show that the threat of deportation is a lingering disability redressable by the writ of coram nobis, his petition fails as the result of his unjustified delay.
Echendu's second claim of lingering disability, that he is ineligible to become a United States citizen, also fails. Even if Echendu's ineligibility for citizenship would qualify as a lingering disability, that claim suffers the same infirmity as the claim of potential deportation — unreasonable delay.
Because Echendu fails to meet the threshold requirement of providing sound reasons for his delay, there is no need to reach the merits of his claim of ineffective assistance of counsel. See Nicks, 955 F.2d at 167-168 ("If the district court decides that there was not sufficient justification for [the petitioner's] failure to seek relief at an earlier time, the writ is unavailable and [the] petition for coram nobis should be dismissed.")
Additionally, Echendu argues that the application of AEDPA and IIRIRA to his conviction amounts to an unconstitutional ex post facto law. However, this claim is not properly before this Court on a coram nobis petition because the post-conviction enactment of AEDPA and IIRIRA do not "render the proceeding itself irregular and invalid." Foont, 93 F.3d at 78 (internal quotation marks omitted). In fact, these statutory developments have nothing to do with the validity of Echendu's guilty plea. United States v. Persico, 2000 WL 145750, at *4 (S.D.N.Y. Feb. 07, 2000) ("[A] writ of coram nobis was traditionally available only to bring before the court factual errors `material to the validity and regularity of the legal proceeding itself.'") (quoting Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 1467 (1996) (internal quotation marks omitted)) (emphasis added).
Conclusion
Accordingly, the government's motion to dismiss is granted, and the case is dismissed. The Clerk of Court is directed to close the case.
SO ORDERED: