Clarence Rudolph Adolphus v. United States of America

Filing 21

ORDER RE PETITION FOR WRIT OF ERROR CORAM NOBIS by Judge Christina A. Snyder. Based on the foregoing, the Court DENIES the petition for writ of error coram nobis. IT IS SO ORDERED. (Made JS-6. Case Terminated.) (lom)

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O 1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CLARENCE RUDOLPH ADOLPHUS, 13 Case Nos. CR 04-215 CAS, CR 04-402 CAS, CV 16-8800 CAS, CV 16-8871 CAS Petitioner, 14 15 16 vs. PETITION FOR WRIT OF ERROR CORAM NOBIS (CV 16-8800-CAS, Dkt. 1, filed November 28, 2016) UNITED STATES OF AMERICA, 17 Respondent. 18 19 20 I. INTRODUCTION AND BACKGROUND On January 16, 2007, petitioner Clarence Rudolph Adolphus pleaded guilty 21 22 to one count of conspiracy to possess with intent to distribute a controlled 23 substance, in violation of 21 U.S.C. §§ 841(a)(1), 846; one count of conspiracy to 24 launder money, in violation of 21 U.S.C. §§ 1956(a)(1), 1956(h), 1957; one count 25 of tax evasion, in violation of 26 U.S.C. § 7201; and one count of obstructing due 26 administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). 27 /// 28 /// 1 1 CR Dkt. 669.1 On October 18, 2007, petitioner filed a motion to withdraw his 2 guilty plea, arguing that: (1) his plea colloquy was deficient because the Court did 3 not properly explore the factual basis for the plea; and (2) his plea was involuntary 4 because he was subject to undue pressure. The Court denied petitioner’s motion 5 on January 22, 2008. See United States v. Adolphus, No. CR 04-215 CAS, 2008 6 WL 11301048 (C.D. Cal. Jan. 22, 2008). 7 On July 27, 2010, the Court sentenced petitioner to a total term of 168 8 months imprisonment followed by a four-year term of supervised release. CR Dkt. 9 764. On August 3, 2010, petitioner appealed his sentence, arguing that: (1) the 10 Court violated Federal Rule of Criminal Procedure 32 and prevented meaningful 11 appellate review by failing to make sufficient findings in response to his objection 12 to the aggravating role adjustment; and (2) the Court erred by applying an 13 aggravating role adjustment under U.S.S.G. § 3B1.1(a) because there was no 14 evidence that he had control and authority over another participant with regard to 15 the money laundering offense. CR Dkt. 767. The Ninth Circuit rejected both 16 arguments and affirmed petitioner’s sentence. See United States v. Adolphus, 519 17 F. App’x 469, 470 (9th Cir. 2013). 18 19 On June 10, 2016, petitioner completed his term of imprisonment and was subsequently detained by U.S. Immigration and Customs Enforcement (“ICE”) at 20 21 22 23 24 25 26 27 28 1 Petitioner filed the same petition for writ of error coram nobis with respect to two underlying criminal cases: Case Nos. CR 04-215 CAS and CR 04-402 CAS. The corresponding civil docket numbers are CV 16-8800-CAS and CV 168871-CAS. In Case No. CR 04-215 CAS, a grand jury indicted defendant on February 27, 2004 on the tax evasion and obstruction charges. Thereafter, on April 13, 2004, in Case No. CR 04-402 CAS, a grand jury issued a four-count indictment against defendant and eight other co-defendants, which included the conspiracy charges to which defendant pleaded guilty. Unless otherwise noted, “CR” refers to the docket in CR 04-402 CAS and “CV” refers to the docket in CV 16-8800 CAS. 2 1 the LaSalle Detention Facility in Jena, Louisiana and placed in removal 2 proceedings. CV Dkt. 1 (“Pet.”) at 5–6. Proceeding pro se, petitioner filed the 3 instant petition for writ of error coram nobis on November 28, 2016 while still in 4 ICE custody and subject to supervised release. See id. On June 18, 2017, the 5 government filed an opposition. CV Dkt. 11 (“Opp’n”). And on October 4, 2017, 6 petitioner filed a response. CV Dkt. 17 (“Resp.”). Having carefully considered the 7 parties arguments, the Court finds and concludes as follows. 8 II. LEGAL STANDARD 9 “Coram nobis is an extraordinary writ that usually is available only to 10 petitioners who have fully served their sentences.” United States v. Monreal, 301 11 F.3d 1127, 1131–32 (9th Cir. 2002) (citing Telink, Inc. v. United States, 24 F.3d 12 42, 45 (9th Cir. 1994)). “Specifically, the writ provides a remedy for those 13 suffering from the lingering collateral consequences of an unconstitutional or 14 unlawful conviction based on errors of fact and egregious legal errors.” Estate of 15 McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995) (citations and 16 quotation marks omitted). A petition for writ of error coram nobis “fills a very 17 precise gap in federal criminal procedure.” Telink, 24 F.3d at 45 (explaining that 18 while a convicted defendant in federal custody may petition for habeas relief under 19 28 U.S.C. § 2255, there is no statutory basis to collaterally attack a conviction once 20 the sentence has been served). A court’s authority to issue a writ of error coram 21 nobis derives from the All Writs Act, 28 U.S.C. § 1651(a). Matus–Leva v. United 22 States, 287 F.3d 758, 760 (9th Cir. 2002). 23 The Supreme Court and the Ninth Circuit have both emphasized that “the 24 writ of error coram nobis a highly unusual remedy, available only to correct grave 25 injustices in a narrow range of cases where no more conventional remedy is 26 applicable.” United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007) (citing 27 United States v. Morgan, 346 U.S. 502, 511 (1954) (characterizing the writ as an 28 “extraordinary remedy” that should be granted “only under circumstances 3 1 compelling such action to achieve justice”) and Carlisle v. United States, 517 U.S. 2 416, 429 (1996) (“[I]t is difficult to conceive of a situation in a federal criminal 3 case today where [a writ of coram nobis] would be necessary or appropriate.”)). In 4 order to qualify for coram nobis relief, the petitioner must demonstrate that “(1) a 5 more usual remedy is not available; (2) valid reasons exist for not attacking the 6 conviction earlier; (3) adverse consequences exist from the conviction sufficient to 7 satisfy the case or controversy requirement of Article III; and (4) the error is of the 8 most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th 9 Cir. 1987). “Because these requirements are conjunctive, failure to meet any one 10 of them is fatal.” Matus–Leva, 287 F.3d at 760 (citation omitted). 11 III. 12 DISCUSSION Petitioner seeks to vacate his conviction on several grounds, arguing that: (1) 13 he received ineffective assistance of counsel because his attorney failed to prepare 14 for trial and failed to adequately advise him of the immigration consequences of 15 his plea; (2) his plea was involuntary because he was under emotional distress; and 16 (3) the Court’s plea colloquy was deficient because the Court did not clearly 17 question petitioner about the factual basis for his plea. Pet. at 4–5. The 18 government contends that petitioner is not entitled to coram nobis relief because he 19 cannot satisfy the first, second, and fourth Hirabayashi requirements. Opp’n at 9. 20 Specifically, the government argues that: (1) because petitioner is currently serving 21 a term of supervised release, he remains “in custody” and thus the more usual 22 habeas remedy under § 2255 is available; (2) petitioner has not provided valid 23 reasons for not attacking his conviction earlier; and (3) petitioner cannot show 24 fundamental error because his claim of ineffective assistance of counsel fails on 25 the merits and this Court previously rejected his challenges to the validity of the 26 plea. Id. at 9–17. Because the Court agrees that petitioner cannot satisfy the first 27 two, procedural Hirabayashi requirements, the Court need not reach the merits of 28 petitioner’s claims. 4 1 A. “A More Usual Remedy” Under 28 U.S.C. § 2255 is Available 2 Plaintiff has failed to demonstrate that “a more usual remedy is not 3 available.” Hirabayashi, 828 F.2d at 604. The Ninth Circuit has held that a federal 4 defendant who is subject to supervised release remains “in custody” and therefore 5 may seek habeas relief pursuant to § 2255. Matus–Leva, 287 F.3d at 761 (citing 6 Jones v. Cunningham, 371 U.S. 236, 242–43, (1963)). Thus, “[b]ecause the more 7 usual remedy of a habeas petition is available, the writ of error coram nobis is not.” 8 Id. This is true even if habeas relief under § 2255 is not available as a practical 9 matter because the petition would be time barred under the Antiterrorism and 10 Effective Death Penalty Act (“AEDPA”). See id. (“A petitioner may not resort to 11 coram nobis merely because he has failed to meet the AEDPA’s gatekeeping 12 requirements. To hold otherwise would circumvent the AEDPA’s overall purpose 13 of expediting the presentation of claims in federal court and enable prisoners to 14 bypass the limitations and successive petitions provisions.”) 15 Here, the Court sentenced petitioner to 168 months imprisonment followed 16 by a four-year term of supervised release. CR Dkt. 764. Petitioner completed his 17 term of imprisonment on June 10, 2016, Pet. at 5, and accordingly remains subject 18 to supervised release until June 9, 2020. Thus, because petitioner satisfies the 19 custody requirement of § 2255, the more usual remedy of a habeas petition is 20 available, and petitioner accordingly may not seek coram nobis relief. See Matus– 21 Leva, 287 F.3d at 761. This is true regardless of the fact that petitioner was in 22 removal proceedings and detained by ICE when he filed the petition on November 23 21, 2016. See United States v. Ndiagu, 591 Fed. App’x 632, 633 (9th Cir. 2015) 24 (holding that a petitioner who was released from federal prison satisfied the “in 25 custody” requirement under § 2255 because he was still subject to a term of 26 supervised release even though he had been transferred to ICE custody and 27 charged as deportable); see also United States v. Swaby, 855 F.3d 233, 239 (4th 28 Cir. 2017) (finding coram nobis petition invalid because the petitioner, who was 5 1 “under supervised release and detained by immigration authorities,” had access to 2 habeas relief under § 2255). 3 B. Petitioner Has Not Provided Valid Reasons for Delayed Challenge 4 Petitioner has also failed to demonstrate that “valid reasons exist for not 5 attacking the conviction earlier.” Hirabayashi, 828 F.2d at 604. Although no 6 formal statute of limitations applies to coram nobis petitions, “courts have required 7 coram nobis petitioners to provide valid or sound reasons explaining why they did 8 not attack their sentences or convictions earlier.” United States v. Kwan, 407 F.3d 9 1005, 1012 (9th Cir. 2005) (citations omitted), abrogated on other grounds by 10 Padilla v. Kentucky, 559 U.S. 356 (2010). The Ninth Circuit also requires 11 petitioners to exercise due diligence. See Riedl, 496 F.3d at 1008 (citing Klein v. 12 United States, 880 F.2d 250, 254 (10th Cir. 1989) (denying coram nobis relief 13 when there was a seven-year delay during which the petitioner did not exercise due 14 diligence). Petitioner has not satisfied this requirement. With respect to petitioner’s claims that the plea colloquy was deficient and 15 16 that his plea was involuntary, the Court already considered and rejected these 17 arguments when it denied petitioner’s motion to withdraw his guilty plea. See 18 Adolphus, 2008 WL 11301048 at *2–3 (finding that petitioner admitted there was 19 a factual basis for his guilty plea, and that the record establishes there was 20 sufficient factual basis for the plea; and concluding that petitioner’s guilty plea was 21 voluntary and not the result of undue pressure or emotional distress). Petitioner 22 did not challenge his conviction based on ineffective assistance of counsel until he 23 filed the instant petition on November 28, 2016. This claim was not raised on 24 direct appeal or through a habeas petition pursuant to § 2255. Petitioner argues 25 that the delay was justified because he was in the custody of the U.S. Marshals 26 Service from April 2014 through May 2016 as a government witness. Pet. at 6. 27 Petitioner states he was not given prior notice of his transfer, was unable to take his 28 /// 6 1 legal papers with him, and had limited access to the law library while housed in 2 county jail. Id. Petitioner’s purported reason for the delay in challenging his conviction is 3 4 not persuasive, and a similar argument has been rejected by the Ninth Circuit. 5 Although petitioner may not have been able to pursue his ineffective assistance of 6 counsel claim between April 2014 and May 2016, he offers no explanation why the 7 claim was not raised earlier on direct appeal or through a § 2255 petition within the 8 statutory deadline. See Riedl, 496 F.3d at 1007 (rejecting petitioner’s justification 9 for delay based on her deportation because it did not explain why she did not 10 challenge her conviction prior to being deported or while she was still imprisoned). 11 Accordingly, the Court concludes that petitioner in not entitled to coram nobis 12 relief because he has offered no valid reasons for the delay in attacking his 13 conviction. 14 IV. 15 16 17 CONCLUSION Based on the foregoing, the Court DENIES the petition for writ of error coram nobis. IT IS SO ORDERED. 18 19 20 21 Dated: October 18, 2017 ___ CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 7

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