Summary
In Figueroa, the petitioner argued that his attorney's failure to inform him of the possibility of being classified as a Career Offender amounted to "erroneous legal advice about the ultimately knowable," rather than a mere mistaken prediction as to the length of sentence.
Summary of this case from Nwachia v. U.S.Opinion
00 Cv. 5979 (RPP), 92 Cr. 101 (RPP)
March 27, 2001
OPINION AND ORDER
Petitioner Leslie Figueroa ("Petitioner") filed a petition pro se for a writ of error coram nobis pursuant to 28 U.S.C. § 1651. For the following reasons, the petition is denied.
BACKGROUND
Petitioner was arrested on February 19, 1992. After a jury trial held in 1993, Petitioner was convicted of conspiracy to distribute and possess heroin in violation of 21 U.S.C. § 841 (a)(1), 841(b)(1)(a) and of possession with intent to distribute heroin in violation of 21 U.S.C. § 841 (a)(1), 841(b)(1)(a). On November 15, 1993, Petitioner was sentenced to ninety-seven months of imprisonment, to be followed by five years of supervised release. United States v. Figueroa, Judgment dated Nov. 17, 1993, at 3 (Government's Appendix ("A"), at 003).
Prior to Petitioner's trial, Petitioner moved to suppress the approximately 500 glassine envelopes of heroin seized from him at the time of his arrest, challenging the existence of probable cause to justify the warrantless arrest. See United States v. Figueroa, No. S2 92 Cr. 101 (RPP), 1993 WL 14658 (S.D.N.Y. Jan. 12, 1993). The Court denied Petitioner's motion, that the government agents had probable cause to arrest Petitioner. See id. at *3.
Following Petitioner's conviction, Petitioner filed an appeal, again arguing that there was no probable cause to arrest him because the arresting agents had no particularized knowledge about who he was or what he was doing at the time he was arrested. See United States v. Valero-Rodriguez, Nos. 93-1836, 93-1849, 93-1857, 93-1858, 94-1039 (2d Cir. Jan. 27, 1995) (unpublished opinion) (A-011-17). The Second Circuit rejected Petitioner's arguments, holding that "the agents had probable cause to believe that the passenger in the livery cab [Petitioner) was part of a heroin distribution organization." Id. at 4-5 (A-014-15).
On July 27, 2000, the Petition for Writ of Error Coram Nobis was received by the Pro Se Office of the Southern District of New York, and it was filed with the United States District Court on August 14, 2000. On September 1, 2000, the Court: (1) ordered the United States Attorney for the Southern District of New York to file an answer along with relevant trial and post-conviction records and transcripts no later than September 25, 2000; (2) permitted Petition to file reply papers by October 9, 2000; and (3) ordered the Clerk of the Court to serve copies of the Order and the petition by certified mail upon the United States Attorney for the Southern District of New York. On September 19, 2000, and on November 20, 2000, the Government requested, and the Court granted, extensions of the deadline for the government to respond to the petition and of Petitioner's time to reply. On November 30, 2000, the Government submit memorandum in opposition to the petition and an appendix of supporting records and transcripts. On January 9, 2001, Petitioner requested, and the Court granted, an extension of time to reply to January 29, 2001, and the Court ordered the Government to serve Petitioner with a copy of its responding papers at his new address by January 18, 2001. On January 23, 2001, Petitioner requested, and the Court granted, an extension of time to file reply papers to February 9, 2001. To date, Petitioner has not submitted any reply papers.
DISCUSSION
This petition is for a writ of error coram nobis pursuant to 28 U.S.C. § 1651, which provides:
(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 and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.28 U.S.C. § 1651 (2000). 28 U.S.C. § 1651 (a) authorizes federal courts to grant the ancient common law writ of error coram nobis. Fleming v. United States, 146 F.3d 88, 89 (2d Cir. 1998) (citing United States v. Morgan, 346 U.S. 502 (1954)). "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." Id. at 89-90.
Here, Petitioner was in custody at the time his petition was filed, and his petition must therefore be considered under 28 U.S.C. § 2255, which provides in pertinent part that:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255 (2000).
A petitioner need not be incarcerated to be "in custody," rather the Supreme Court has held that in determining whether a petitioner is "in custody" for the purposes of habeas review, a court should consider whether there are "significant restraints on [the] petitioner's liberty because of his conviction and sentence which are in addition to those imposed by the State upon the public generally." Jones v. Cunningham, 371 U.S. 236, 242 (1963). The Second Circuit has held that for purposes of habeas review, "a petitioner under supervised release may be considered `in custody.'" Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).
The conditions of supervised release place significant restraints upon Petitioner in addition to those imposed by the State upon the public generally. For example, among other conditions, Petitioner "shall not leave the judicial district without the permission of the court or probation officer... shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month . . . [and] shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer." United States v. Figueroa, Judgment dated Nov. 17, 1993, at 3 (A-003). "Supervised release carries with it the possibility of revocation and additional jail time." United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997). "Because [petitioner on supervised release] was in custody within the meaning of § 2255 when he filed his petition in the district court, coram nobis relief was unavailable to him, and § 2255 was his exclusive remedy."Id. Since at the time the petition was filed, Petitioner was subject to conditions because of his conviction and sentence which placed significant restraints upon his liberty, Petitioner was in custody" and his petition is properly considered a petition for habeas corpus review pursuant to 28 U.S.C. § 2255, rather than a petition for a writ of error coram nobis.
Under 28 U.S.C. § 2255, a petition for habeas corpus must be filed within a one year statute of limitations period, which begins to run from the latest of the following dates:
(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. Prisoners whose convictions became final before the enactment of the filing deadlines are afforded a one year grace period from the effective date of the statute. Mickens v. United States 148 F.3d 145, 148 (2d Cir. 1998). Petitioner's conviction became final in 1993, thus he is entitled to the one year grace period from the effective date of the statute. The relevant statute, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective on April 24, 1996. See 28 U.S.C. § 2255. The petition was receivedby the Pro SeOffice of the Southern District of New York on July 27, 2000, and filed on August 14, 2000. Since the petition was not filed by April 24, 1997, it is untimely. Petitioner does not assert that there was a governmental impediment to making a motion or that he seeks to assert a right newly recognized by the Supreme Court. Nor does Petitioner rely on recently discovered facts in support of his claim. Accordingly, the petition is dismissed as untimely.
Even if the petition were timely filed, however, Petitioner seeks to relitigate issues already decided in his direct appeal. "A § 2255 motion may not relitigate issues that were raised and considered on direct appeal." United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) (holding that petitioner had already argued on appeal that the district court should have granted his motion to withdraw his guilty plea, and therefore declining to address the merits of the claim). Here, Petitioner argues that probable cause did not exist for his arrest, that the contraband was discovered unlawfully, and that the possession and conspiracy convictions must therefore be reversed. These are the arguments that Petitioner raised in his direct appeal to the Second Circuit which were rejected by that court. See United States v. Valero-Rodriguez, Nos. 93-1836, 93-1849, 93-1857, 93-1858, 94-1039 at 4-5 (2d Cir. Jan. 27, 1995) (unpublished opinion) (A-011-17) (finding that "the agents had probable cause to believe that the passenger in the livery cab was part of a heroin distribution organization"). Accordingly, Petitioner cannot relitigate this issue through a petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 since the issue was raised and considered upon direct appeal.
CONCLUSION
For the foregoing reasons, the petition is hereby denied.
IT IS SO ORDERED.