Opinion
22-CV-00211-DC-RCG
11-01-2022
FIROOZ DELJAVAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN, UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Petitioner Firooz Delijavan's Petition for Writ of Error Coram Nobis (Doc. 1) and his accompanying Motion to Accept Petition on Emergency Review By Court (Doc. 2). This case is before the undersigned through a Standing Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration of the facts, as well as relevant case law, the Court takes the following actions:
1. GRANTS Petitioner's Motion to Accept Petition on Emergency Review to the extent that the Court will consider Petitioner's Petition for Writ of Error Coram Nobis on an emergency basis before November 1, 2022. (Doc. 2).
2. The Court RECOMMENDS that Petitioner's Petition for Writ of Error Coram Nobis (Doc. 1) be DENIED, and that FINAL JUDGMENT be entered in favor of the United States.
I. Background
On September 29, 2022, Petitioner Firooz Deljavan (“Petitioner”) filed his Petition for Writ of Error Coram Nobis against the United States of America seeking, as far as the Court can tell, for a sentence modification that will in essence relieve him of his remaining restitution payments by releasing $12,000.00 in garnished funds from the Federal Litigation Unit (“FLU”). (Doc. 1 at 1). Accompanying his Petition for Writ of Error Coram Nobis, Petitioner also filed a Motion seeking, what the Court construes as, emergency review of his Petition for Writ of Error Coram Nobis on account of Petitioner becoming homeless by Monday, October 31, 2022. (See Docs. 1 at 2; 2 at 1).
Petitioner's case stems from a 2004 criminal indictment in the Austin Division of the Western District of Texas wherein a grand jury indicted Petitioner (along with twenty-four (24) other defendants) on sixteen (16) counts involving a conspiracy to commit fraud, mail fraud, wire fraud, and bank fraud. See United States v. Firooz Deljavan et al., 1:04-CR-00180-LY-1 (W.D. Tex. Aug. 3, 2004). Petitioner, represented by court-appointed counsel, entered into a plea agreement with the Government and pleaded guilty to counts 1 and 16 on August 23, 2007 before a United States Magistrate Judge. Thereafter, the period for objections to Petitioner's guilty plea ran and United States District Judge Lee Yeakel accepted Petitioner's guilty plea and plea agreement.
On November 14, 2007, Judge Yeakel sentenced Petitioner to sixty (60) months imprisonment on each count 1 and 16 (to run concurrently), five (5) years supervised release on count 1, three (3) years supervised release on count 16, $5,504,647.39 in restitution (owed jointly and severally with the other Defendants), and a $200 special assessment. After completing his prison term, the Austin Division transferred jurisdiction of Petitioner's case to the Midland/Odessa Division of the Western District of Texas for supervised release.
It remains unclear whether Petitioner filed any motion(s) under 28 U.S.C. § 2255 whilst incarcerated.
As stated above, Petitioner filed the current case on September 29, 2022. In his Petition for Writ Error Coram Nobis, Petitioner avers that he has been paying restitution in the amount of $25 per month during and after his supervised release. (Doc. 1 at 5). However, Petitioner states that his remaining restitution obligation renders him ineligible for medical assistance, a refinance or reverse mortgage, and credit from financial institutions (except ones with high interest rates). Id. at 8. Further, because Petitioner owes restitution and was convicted of a crime related to real estate, he states that he is unable to obtain government housing subsidies for things such as rent subsidies, senior housing, and/or low-income housing. Id. at 9. Thus, he now seeks relief from enforcement of the restitution procedure (i.e., paying $25.00 per month) and a refund of $12,000 in garnished social security benefits and income tax refunds, which Petitioner argues the FLU exceeded its authority in collecting. Id. at 10-11. Petitioner then asks that the $12,000.00 he requests in refund from the FLU be applied to his future restitution obligation, and that the Court modify his restitution obligation to find it fully satisfied after the $12,000 payment. Id. at 12-14.
II. Discussion
A writ coram nobis is “available to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where ‘the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify the extraordinary relief.' ” United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) (quoting United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989)). The Supreme Court of the United States recognizes the writ of coram nobis as an “extraordinary remedy” to be used “only under circumstances compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954); see also Marcello, 876 F.2d at 1154 (“In United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Supreme Court held that coram nobis should issue to correct only errors which result in a complete miscarriage of justice.”). Further, a writ of coram nobis is only available when “[a]n error of ‘the most fundamental character' must have occurred and no other remedy may be available.” Marcello, 876 F.2d at 1154 (quoting Morgan, 346 U.S. at 512). In the Fifth Circuit, the standard for coram nobis relief is “more ‘demanding' than the cause and prejudice standard for habeas relief under 28 U.S.C. § 2255.” Castro, 26 F.3d at 559 (quoting United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992)).
Here, the petition for a writ coram nobis must be denied for multiple reasons. First, “the Mandatory Victim's Restitution Act (MVRA), 18 U.S.C. § 3664(o), the statute that governs federal restitution, ‘sharply limit[s] a district court's discretion' to modify restitutionary orders.” United States v. Singh, 836 Fed.Appx. 331, 333 (5th Cir. 2021) (quoting United States v. Singh, No. 4:17-CR-193, 2020 WL 4192899, at *2 (E.D. Tex. July 20, 2020)). In Singh, the Fifth Circuit went on to state that “rejecting the possibility of collateral attacks on restitution awards” was consistent with Fifth Circuit precedent-as the Fifth Circuit held that “[a] district court lacks jurisdiction to modify a restitution order under § 2255, a writ of coram nobis, or any other federal law.” Id. (quoting Campbell v. United States, 330 Fed.Appx. 482, 483 (5th Cir. 2009)).
Second, assuming that the Court could modify Petitioner's restitution obligation via a writ coram nobis, Petitioner still does not present an error of “the most fundamental character,” which will result in the complete miscarriage of justice. In fact, in Petitioner's plea agreement, he expressly waived “the right to appeal his sentence on any ground, or to collaterally attack his sentence by post-conviction proceeding, including but not limited to a proceeding under [§2255]. . . .” In his plea agreement, Petitioner also acknowledged “that the District Court, at sentencing, may enter an amount to be determined by the U.S. Probation Officer . . . . The restitution may be imposed jointly and severally with some or all of the other co-defendants previously sentenced in this case.”
Although Petitioner does briefly present an argument based on ineffective assistance of counsel, his argument would fail Strickland v. Washington's prejudice prong (this is assuming the first prong is met). Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Because Petitioner pleaded guilty, he “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here, Petitioner does not even argue that he would have sought to proceed to trial if counsel had informed him of the collateral consequences of a restitution judgment, he would not have pleaded guilty. Instead, Petitioner simply seeks to eliminate the restitution portion of his sentence. Nevertheless, Petitioner has not proven nor argued that there is any likelihood he would have insisted on going to trial to challenge all sixteen (16) counts of the indictment. Consequently, Petitioner's coram nobis petition, to the extent it is based on ineffective assistance of counsel fails.
III. Recommendation
For the foregoing reasons, it is RECOMMENDED that Petitioner's Petition for Writ of Error Coram Nobis be DENIED, and that FINAL JUDGMENT be entered in favor of the United States and this case be CLOSED. (Doc. 1).
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).