Opinion
Nos. 04 Civ. 1428 (TPG), 88 Cr. 290 (TPG).
February 1, 2005
OPINION
This is a petition for a writ of error coram nobis. It was filed in September 2003 with the original number of the criminal action, 88 Cr. 290. It was not assigned a civil number until 2004. That number is 04 Civ. 1428.
The petition seeks to vacate the judgment entered in the criminal case on March 8, 1989. He also seeks relief as to a recent illegal reentry conviction, as will be described.
The petition is denied.
Facts
On October 20, 1987 two agents of the Immigration and Naturalization Service, Joseph Occhipinti and Theresa Regis, appeared at the apartment of petitioner. Occhipinti has testified that the purpose was to interview the owner of a travel agency that was believed to be located at the apartment.
The agents knocked on the door of the apartment, which was opened by petitioner. After identifying themselves as immigration officers, the agents questioned petitioner, who denied that there was a travel agency at the location. The agents were granted permission to enter the apartment. In the course of questioning, petitioner claimed that he was from Puerto Rico, but then admitted that he was from the Dominican Republic. Petitioner could not produce any immigration documents, and was placed under arrest. Occhipinti observed in plain view a gun, a substance that appeared to be cocaine, and drug paraphernalia.
Petitioner was given his Miranda warnings, and subsequently executed a written statement, admitting that he had been selling cocaine for approximately one month and that the gun belonged to him.
Petitioner was subsequently indicted for possession of cocaine with intent to distribute and possession of a firearm in connection with drug trafficking.
Petitioner moved to suppress the evidence seized from his apartment and also to suppress oral and written statements.
A suppression hearing was held on September 29, 1988. Occhipinti was the only witness. Petitioner did not present any evidence by way of affidavit or testimony, although his attorney engaged in vigorous cross-examination of Occhipinti.
The court denied the suppression motion from the bench. The court's ruling was on the basis of what the court considered uncontradicted evidence. The court found that the agents were admitted to the apartment by petitioner, that the agents properly found out that petitioner was an illegal alien, and that drugs and drug paraphernalia were observed in plain view. Moreover, there was no indication, or even a claim, that petitioner's Miranda rights were violated.
As a result of the denial of the suppression motion, petitioner pled guilty on December 15, 1988 to count one of the indictment, charging the narcotics violation. Petitioner was sentenced to a prison term of 16 months, followed by a three-year term of supervised release. Judgment was entered on March 8, 1989.
Petitioner did not appeal. He served a prison term of about 9 months, before being paroled on December 20, 1989.
Petitioner was then taken into the custody of the INS. He was released on bail by an Immigration Judge in Texas. He failed to appear for further immigration proceedings. Petitioner now claims that he returned to the New York area and never received notification of such proceedings. An order of deportation was entered in absentia. Petitioner was located and was deported on April 1, 1999.
On October 23, 2001 petitioner was arrested for illegally reentering the United States. On March 4, 2002 he was indicted for illegally reentering, following deportation, which deportation occurred subsequent to conviction for the commission of an aggravated felony. See 8 U.S.C. § 1326(a)(b)(2). Petitioner pled guilty and was sentenced on July 25, 2002 to imprisonment for 50 months to be followed by a three-year term of supervised release.
The Present Petition
The present petition is based on the following contentions. Petitioner asserts, correctly, that in 1991 Occhipinti was indicted on multiple counts of violation of civil rights, involving the conduct of illegal searches and seizures at grocery stores, travel agencies and other small businesses. He was charged also with other crimes. Occhipinti was tried, based upon evidence of illegal conduct occurring in 1989 and 1990, and was convicted.
Petitioner contends that Occhipinti's criminal conviction demonstrates the illegality of Occhipinti's search and seizure as to petitioner in 1987, and further demonstrates the lack of credibility of Occhipinti as a witness at petitioner's 1988 suppression hearing.
Petitioner further claims that, if the motion to suppress had been granted in 1988, as it should have been, the criminal case against petitioner could not have proceeded, nor would petitioner have entered a guilty plea. Thus, according to petitioner, his 1989 conviction should be set aside. Without this 1989 conviction, petitioner's illegal reentry charge would not have been of such a serious nature, and his sentence on the reentry charge, which is now being served, would have been substantially less. Thus, he should be re-charged and re-sentenced on the reentry matter.
Discussion
The basic issue is whether the court, in response to the present petition, should nullify its ruling on the 1988 suppression motion. All other requests in the petition flow from petitioner's contention regarding the suppression motion.
The court declines to revise its ruling on the suppression motion. The court recognizes that the conviction of Occhipinti is a most unusual circumstance. But this conviction does not mean that every search and seizure Occhipinti ever carried out was illegal. Nor does it mean that the findings of a court after a thorough suppression hearing are automatically invalidated.
Occhipinti's credibility was put directly at issue in the 1988 suppression hearing. Among other things, there was the question of whether Occhipinti was telling the truth when he said he and the other agent went to petitioner's apartment to inquire about a travel agency. On the basis of the evidence presented, the court found that they did so. But more importantly, there was uncontradicted evidence that the agents were admitted to the apartment, that petitioner was an illegal alien, and that he had in his possession cocaine, drug paraphernalia, and a gun. Petitioner does not deny that after being properly given his Miranda warnings, he confessed to selling cocaine and owning the gun.
The evidence, which the court scrutinized and weighed in 1988 justified denial of the suppression motion. The court's judgment is not altered by the information regarding Occhipinti's later criminal case. Thus there is no basis for invalidating petitioner's 1989 judgment of conviction, and no basis for directing that there be any revision of the illegal reentry case.
The petition is dismissed.
SO ORDERED.