Opinion
24-CV-4312 (LAP)
07-15-2024
DEMARK DIXON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER OF DISMISSAL
LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:
Petitioner Demark Dixon, also known as Demont Dixon, brings this petition for a writ of error coram nobis challenging his February 26, 1998 conviction for conspiracy to defraud the United States, bank robbery, assault with a deadly weapon, and use of a firearm in United States v. Rahman (Dixon), No. 97-CR-0498-8 (LAP) (S.D.N.Y. Feb. 26,1998). The petition was opened as a new civil action and assigned this case number, and was also docketed in Petitioner's criminal case. See id, ECF 201. Petitioner also filed an “addendum” to the petition that was docketed only in the criminal case. See id., ECF 202. The Court construes both documents as the operative pleading. For the reasons set forth below, the Court dismisses the petition.
STANDARD OF REVIEW
A district court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a), where “extraordinary circumstances are present.” Nicks v. United States, 955 F.2d 161, 167 (2d Cir.1992). The proceedings leading to the petitioner's conviction are presumed to be correct, and “the burden rests on the accused to show otherwise.” United States v. Morgan, 346 U.S. 502, 512 (1954); Nicks, 955 F.2d at 167. Coram nobis is not a substitute for appeal, and reliefunder the writ is strictly limited to those cases in which “‘errors ... of the most fundamental character'” have rendered “‘the proceeding itself irregular and invalid.'” United-States v. Carter, 437 F.2d 444, 445 (5th Cir.) (per curiam) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)).
The Court is obliged to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001).
BACKGROUND
Upon conviction, Petitioner was sentenced to 147 months' imprisonment followed by three years' supervised release. Dixon, ECF 7:97-CR-0498, 88. Petitioner was released from federal custody in June 2010 and completed his supervised release on December 9, 2013, Habeas corpus relief is therefore no longer available to Petitioner because he is no longer in custody. See Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam).
Petitioner alleges that he should be granted relief on grounds of “a[c]tual factual innocence. (ECF 1, at 1.) He asserts that “Government [witnesses lied and committed perjury[] to the Court and the U.S. Attorney Office.” (Id. at 2.) He further alleges that Judge Charles L. Brieant, who presided over his trial, “knew that the Government Witnesses w[ere] liars.” (Id.) Petitioner further states that he has “demonstrated due diligence over the years from 1997, to the current date on this writ trying over & over again to demonstrate that the” witnesses lied and committed perjury. (Id.) He attaches to the petition excerpts from a February 11,1998 proceeding in his criminal case, a copy of the indictment, and witness statements that he alleges were given to the United States Attorney's Office for the Eastern District of New York and that he asserts provide him with an alibi.
In his “addendum” to the petition, Petitioner attaches a September 22, 1999 order from Judge Brieant that summarizes the evidence against Petitioner. He states that he attaches the order “for this Court to see and know what went on in Judge Brieant['s] Court room” and asserts .........that the witnesses against him “lied before a grand[] jury in another district before I was even charged in this district.” ECF 7:19-CR-0498, 202, at 2.
DISCUSSION
The writ of error coram nobis is a limited and exceptional remedy. See Nicks v. United States, 955 F.2d 161, 166-67 (2d Cir.1992). It “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). “[T]he power of the [C]ourt... to vacate ... judgments for errors of fact exist[s] . .. [only] in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69 (1914); Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (same); see also Carlisle v. United States, 517 U.S. 416, 429 (1997) (noting that “it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate” (internal quotation marks omitted)). Generally, therefore, coram nobis relief “after final judgment and exhaustion or waiver of any statutory right of review should be allowed ... only under circumstances compelling such action to achieve justice,” United States v. Morgan, 346 U.S. 502, 511 (1954), and “where extraordinary circumstances are present,” Nicks, 955 F.2d at 167.
Consistent with these principles, the Second Circuit has articulated a three-pronged standard for when coram nobis relief is appropriate: “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 [or her] conviction that may be remedied by granting of the writ.” Foont, 93 F.3d at 79 (quoting Nicks, 955 F.2d at 167 and Morgan, 346 U.S. at 511 (citations, alteration, and internal quotation marks omitted)).
The Court will begin its analysis with the second prong of this standard - the timeliness of the petition - because it is a threshold procedural hurdle to obtaining coram nobis relief. See United States v. Foont, 901 F.Supp. 729, 732-33 (S.D.N.Y. 1995), aff'd, 93 F.3d 76 (1996) (noting that the timeliness of a coram nobis petition was “the threshold issue” the court had to resolve prior to reaching the underlying merits of the claim (citing Nicks, 955 F.2d at 167-68)). “[U]nless the petitioner can demonstrate ‘sufficient justification for his failure to seek relief at an earlier time, the writ is unavailable and his petition for coram nobis should be dismissed.'” Sahin v. United States, No. 8:13-CV-0358, 2014 WL 2177088, at *2 (N.D.N.Y. May 22, 2014) (quoting Nicks, 955 F.2d at 167-68)). Here, Petition's sole allegation regarding the timeliness of the petition is that that he has “demonstrated due diligence” in pursuing his claims between 1997 and the present time. (ECF 1, at 2.) He alleges no facts demonstrating why he could not have sought relief sooner or that he exercised due diligence in pursuing his claims. The Court therefore finds that the petition is untimely.
As Petitioner alludes, he has an extensive history of filing actions in this court challenging his conviction. See, e.g, Dixon v. United States, No. 14-CV-0960 (KMK), 2015 WL 851794 (S.D.N.Y. Feb. 27, 2015) (denying Petitioner's request for coram nobis relief on grounds of actual innocence, misidentification at trial, and ineffective assistance of counsel as “without merit”); Dixon v. United States, No. 99-CV-1876 (CLB) (S.D.N.Y. Apr. 30, 1999) (motion under 28 U.S.C. § 2255 dismissed sua sponte on the merits because “proof of guilt in this case was overwhelming” and the “conduct of counsel throughout was objectively reasonable”); see also Dixon v. United States, No. 1 l-CV-4637 (LAP) (S.D.N.Y. Sept. 27, 2011) (directing transfer of petition for a writ of error coram nobis challenging his conviction on actual innocence grounds while Petitioner was on supervised release to the Second Circuit as a second or successive Section 2255 motion), authorization denied, No. 11-3984 (2d Cir. Dec. 6, 2011); Dixon v. United States, No. 08-CV-3957 (CLB) (S.D.N.Y. Apr. 28, 2008) (directing transfer to the Second Circuit as a second or successive Section 2255 motion), authorization denied, No. 08-2425 (2d Cir. Aug. 21, 2008); Dixon v. Menifee, No. 05-CV-3743 (MBM) (S.D.N.Y. Apr. 12, 2005) (directing transfer of petition under 28 U.S.C. § 2241 to the Second Circuit as a second or successive Section 2255 motion), authorization denied, No. 05-2053 (2d Cir. June 24, 2005); Dixon v. United States, No. Ol-CV-2552 (MBM) (S.D.N.Y. Mar. 26, 2001) (directing transfer of action to Second Circuit as a second or successive Section 2255 motion), authorization denied, No. 01-3552 (2d Cir. May 22, 2001). The Court notes that to the extent Petitioner has previously asserted the same claims of actual innocence in his prior filings, he may be procedurally barred from filing this petition. See, e.g., United States v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004) (coram nobis inappropriate if petitioner merely repeated claims already presented and dismissed in Section 2255 petition), Klein v. United States, 880 F.2d 250, 254 n.l (10th Cir. 1989) (“Coram nobis relief is not . available to litigate issues already litigated; it is reserved for claims which have yet to receive their first disposition.”); Willis v. United States, 654 F.2d 23 (8th Cir. 1981) (dismissing petition for writ of error coram nobis because his claim was fully litigated in a previous Section 2255 proceeding and petitioner did not argue the existence of new credible evidence or a change in relevant law); Durrani v. United States, 294 F.Supp.2d 204, 210 (D. Conn. 2003) (denying, coram nobis petition because grounds had already been presented and denied in previous Section 2255 motion), aff'd, No. 04-0717 (Nov. 23, 2004). In light of Petitioner's pro se status, however, the Court declines to dismiss the petition on these grounds.
Petitioner also fails to satisfy the third prong of the coram nobis standard - that he suffers continuing legal consequences of his conviction. Foont, 93 F.3d at 79. To demonstrate continuing legal consequences, “(P]etitioner must show a concrete threat of serious harm, as compared to Speculative harms,” which are “insufficient to meet this test.” Porcelli v. United States, 404 F.3d 157,158 (2d Cir. 2005); see also Fleming, 146 F.3d at 91 (explaining that the petitioner's “claim [that he cannot find employment in the financial sector] is purely speculative, and as such we do not think it is sufficient to justify involving the extraordinary remedy). Here, Petitioner alleges no facts demonstrating that he suffers from continuing legal consequences of his conviction. His bare assertion that he “continue[s] to suffer from this unlawfill conviction” (ECF 1, at 4), is insufficient to demonstrate a “concrete threat of serious harm” as a result of his conviction, Porcelli, 404 F.3d at 158.
Finally, even if the petition was timely and Petitioner adequately alleged a concrete ongoing legal consequence, nothing in the petition suggests that the extraordinary remedy of coram nobis relief is warranted. Petitioner alleges that “Government Witnesses lied and committed perjury” and that Judge Brieant, who presided over Petitioner's criminal trial, “knew the Government Witnesses was liars.” (ECF 1, at 2.) He alleges no facts explaining how the witnesses lied or demonstrating that Judge Brieant was aware of any alleged perjury. Petitioner attaches various documents to the petition, including what he refers to as “alibi” statements from several witnesses that appeared to have been taken in 1997. Many of the attachments appear irrelevant to the claims he appears to assert. To the extent that Petitioner's claims rest on the “alibi” statements, he does not allege basic facts about them such as how they are related to his claims that various witnesses lied, the context in which the statements were taken, and whether they were introduced at trial. Petitioner's conclusory allegations that witnesses lied are insufficient to justify coram nobis relief. Cf. Dennis v. Corcoran, No. 07-CV-6229, 2010 WL 5072124, at *3 (W.D.N.Y. Dec. 7, 2010) (“A conclusory assertion of a deprivation of constitutional rights does not state a viable claim for habeas corpus relief”).
Courts have repeatedly affirmed that the evidence introduced at Petitioner's trial was adequate to demonstrate Petitioner's guilt and have rejected Petitioner's claims of actual innocence. See Dixon v. United States, No. 14-CV-0960 (KMK) 2015 WL 851794, at *5 (S.D.N.Y. Feb. 27, 2015) (denying Petitioner's prior request for coram nobis relief based on actual innocence, misidentification at trial, and ineffective assistance of counsel as “without merit”); Dixon v. United States, No. 99-CV-1876 (CLB) (S.D.N.Y. Apr. 30, 1999) (rejecting Petitioner's motion to vacate his conviction under Section 2255 and holding that “(t]he proof of guilt in this case was overwhelming”); United States v. Rahman, 166 F.3d 1202, 1998 WL 907042, at *2 (2d Cir. Dec. 23, 1998) (table) (affirming Petitioner's conviction and noting “the strong evidence of Dixon's guilt”).
Because Petitioner makes no showing that justice requires an extraordinary remedy of last resort in this case, the Court denies his petition for a writ of error coram nobis.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Cur done, 657 F.3d 116,123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in the petition cannot be cured with an amendment, the Court declines to grant Petitioner leave to amend his complaint.
CONCLUSION
The Court denies the petition for a writ of error coram nobis.
The Court also denies Petitioner's application for the court to request pro bono counsel as moot. (ECF 4.)
The Court further denies Petitioner's application to proceed in forma pauperis as unnecessary. (ECF 3.)
Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court directs the Clerk of Court to enter judgment.
SO ORDERED.