Pitcher v. United States of America

Filing 3

MEMORANDUM AND ORDER dated 12/28/15 that the petition is dismissed. ( Ordered by Judge Allyne R. Ross on 12/28/2015 ) *Forwarded for jgm. (Guzzi, Roseann)

\N \Lt
U.S G!'.:;I'.·.. , ..
,,
·"J

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------x

*

BR00l{'Si': C!f'F!CE

Richard PITCHER,
Petitioner,
MEMORANDUM AND ORDER
15-CV-5482 (ARR)

-againstUNITED STATES OF AMERICA,
Respondent.

-----------------------------------------------------------------x
ROSS, United States District Judge.
On September 15, 2015, petitioner Richard Pitcher filed a prose writ of coram no bis
challenging his April 19, 2006 conviction in this court on the ground that his November 23, 2003
arrest was effected without probable cause. For the following reasons, the petition is dismissed.

BACKGROUND
After his April 19, 2006 conviction in 03-CR-1368-17 (ARR) and subsequent appeals,
United States v. Adams, 316 F. App'x 60, 62 (2d Cir.), cert. denied, Pitcher v. United States, 558
U.S. 1037 (2009), petitioner challenged his conviction in a collateral proceeding pursuant to 28
U.S.C. § 2255, which was denied by this court on February 28, 2011. Pitcher v. United States,
10-CV-3454 (ARR), 2011 WL 809648 (E.D.N.Y. Feb. 28, 2011).
Petitioner then filed a "Motion Pursuant to Federal Rule of Civil Procedure 60(b)(4)," in
which he asserted that "[a]lthough it is clear that a Warrant for his arrest was purportedly ordered
by the District Court, it is also now clear that such a Warrant was in fact never issued." Id., Dkt.
# 19 at 5. The court denied the motion, finding that "petitioner was in fact arrested pursuant to a

duly authorized arrest warrant issued from this district," and attaching a copy of the arrest
warrant. Id., Dkt. #20.
Next, petitioner filed a petition for a writ of coram no bis in which he challenged that
same arrest on the ground that the arrest warrant was not properly executed. Pitcher v. United
States, 13-CV-2824 (ARR), (E.D.N.Y. May 20, 2013) (petition denied).
Petitioner now asserts, in his second request for coram no bis relief, that the "warrant for
arrest was not executed," Petition at 5, Dkt #1, that "[t]he arrest warrant lacked an affidavit'', id.,
and that he was never shown the warrant. Id. Petitioner also cites a recent Supreme Court case,
Rodriguezv. United States,-U.S.-, 135 S. Ct. 1609, 191L.Ed.2d492 (2015), which
clarifies the limits on vehicle searches following traffic stops, but has no relevance to petitioner's
claim regarding his arrest pursuant to an arrest warrant.

WRIT OF CORAM NOBIS

A writ of coram nobis is an "extraordinary remedy" traditionally invoked in order to
review a criminal conviction where habeas corpus relief under 28 U.S.C. § 2255 is unavailable
because the petitioner is no longer in custody. Porcelli v. United States, 404 F.3d 157, 158 (2d
Cir. 2005). Coram nobis is a remedy of last resort, granted only where "extraordinary
circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992); ~United
States v. Morgan, 346 U.S. 502 (1954). The petition for the writ "is not a substitute for appeal,
and relief under the writ is strictly limited to those cases in which errors of the most fundamental
character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93
F.3d 76, 78 (2d Cir. 1996) (internal quotation marks and citations omitted). The proceedings
2

leading to the petitioner's conviction are presumed to be valid, and the burden rests on the
petitioner to show otherwise. Id. at 78-79. "A petitioner seeking [coram nobis] relief must
demonstrate that I) 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 conviction that may be remedied by granting of the writ." Id. at 79
(internal quotation marks and citations omitted).

DISCUSSION

In this case, petitioner fails to demonstrate that fundamental errors have rendered his
criminal proceedings "irregular and invalid." This court has already considered the validity of
the arrest warrant, provided petitioner with a copy of the warrant, and found that "petitioner was
in fact arrested pursuant to a duly authorized arrest warrant issued from this district." Pitcher v.
United States, No. IO-CV-3454 (ARR), Dkt. # 20.
Additionally, even if petitioner's claims could be construed to raise a new, previouslyignored issue, "coram nobis relief may be barred by the passage of time." Foont, 93 F.3d at 79.
"The critical inquiry ... is whether the petitioner is able to show justifiable reasons for the
delay."

14. at 80. In this filing, twelve years after his arrest and nine years after his conviction,

petitioner points to no new factual information or relevant legal rule and has asserted no
impediment to a timely filing. Petitioner suggest that "[a]fter being in Trinidad for two years,
[he] has had an opportunity to review and study applicable law," but his further studies are
neither an excuse for the long delay nor a justification for resurrecting claims previously rejected
by the court.
3

As petitioner has failed to provide "sound reasons" for his delay in bringing the petition
and has failed to demonstrate any error in his conviction, his petition for a writ of error coram
nobis is denied. The Clerk of Court is directed to enter judgment accordingly and close the case.
The court denies a certificate ofappealability and certifies, pursuant to 28 U.S.C. § l 9!5(a)(3),
that any appeal would not be taken in good faith Coppedge v. United States, 369 U.S. 438, 44445 (1962).
SO ORDERED.

/s/(ARR)
Allyne R.
United Stat
Dated: December 28, 2015
Brooklyn, New York

4