Angus v. USA

Filing 7

MEMORANDUM AND ORDER. For the reasons set forth in the attached Memorandum & Order, Mr. Angus's coram nobis petition is respectfully DENIED. The Clerk of Court is respectfully directed to enter judgment in favor of respondent and close th is case. Respondent is directed to make reasonable efforts to serve Mr. Angus with a copy of this Memorandum & Order and the judgment, whenever his current address is obtained, and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/8/2020. (Zhang, Grace)

Case 1:17-cv-00583-KAM-CLP Document 7 Filed 07/08/20 Page 1 of 22 PageID #: 84

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
GIFTON ANGUS,
Petitioner,
MEMORANDUM AND ORDER
-against17-CV-583 (KAM)
UNITED STATES OF AMERICA,
Respondent.
-----------------------------------X
MATSUMOTO, United States District Judge:
On March 31, 1989, in the Eastern District of New
York, petitioner Gifton Angus (the “petitioner”) was sentenced
to two concurrent terms of ten years’ imprisonment, followed by
ten years of special parole, following his conviction at jury
trial of: one count of importation of over 500 grams of cocaine
(“Count One”), in violation of 21 U.S.C. §§ 952(a), 960(a)(1)
and 960(b)(2)(B)(ii), and one count of possession of over 500
grams of cocaine with intent to distribute (“Count Two”), in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II).
(ECF No. 6, Ex. 1, Indictment; ECF No. 6, Ex. 2, Judgment and
Probation/Commitment Order, at 16. 1)

On August 22, 2016, Mr.

Angus, proceeding pro se, filed the instant motion for a writ of
coram nobis, challenging his 1989 convictions.

(ECF No. 1,

Motion for Writ of Coram Nobis (“Mot.”), at 1-3.)

1

Mr. Angus’s

The government filed all exhibits to its response in a single document,
together with its letter opposition to petitioner’s motion for coram nobis
relief, and the court’s citations to ECF No. 6 refer to the ECF pagination.

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asserts that there were fundamental errors in his 1989
convictions, including that he “still maintain[s] innocence and
lack of proof” and “is still suffering continue[d] legal
consequences from his conviction.”

(Id. at 1-2.)

For the

reasons set forth below, Mr. Angus’s motion is respectfully
DENIED.
Background
Petitioner Gifton Angus is a citizen of Jamaica who
was first admitted into the United States in New York on a B-2
visitor visa in 1981.

(ECF No. 6, Ex. 11, Oral Decision and

Order of the Immigration Judge (“Imm. Order”), at 52.)

In 1983,

petitioner’s status was adjusted to that of a lawful permanent
resident.

(Id.)
On or about September 25, 1987, petitioner was

arrested at John F. Kennedy airport in possession of nearly two
kilograms of cocaine, located in a false compartment in his
luggage after arriving on a flight from Jamaica.
ECF No. 6, Ex. 1, Indictment, at 12.)

(Id. at 53;

Petitioner maintained

that he did not know how the drugs came to be in his suitcase
and claimed that he did not agree to transport the drugs.

(Imm.

Order 53.)
In January 1989, in the Eastern District of New York,
a jury found petitioner guilty of one count of importing five
hundred grams or more of cocaine, in violation of 21 U.S.C. §
2

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952(b)(2)(B), and one count of possession with the intent to
distribute five hundred grams or more of cocaine, in violation
of 21 U.S.C. § 841(a)(1).

(ECF No. 6, Ex. 2, at 16.)

On March

31, 1989, petitioner was sentenced to ten years’ imprisonment
followed by ten years of special parole.

(Id.)

On April 5,

1989, petitioner filed a Notice of Appeal from the judgment
entered by the Eastern District of New York.

By order dated

June 16, 1989, and docketed in the Eastern District of New York
on July 19, 1989, the Second Circuit dismissed petitioner’s
appeal from the judgment of conviction due to defendant’s
default.

(See United States v. Angus, 87-CR-661 (MAC), ECF No.

15.)
In August 1991, petitioner was served with a Form I221 Order to Show Cause and charged as being subject to
deportation pursuant to Sections 241(a)(2)(A)(iii) and
241(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”)
(ECF No. 6, Ex. 3, Order to Show Cause and Notice of Hearing, at
18-20.)

On November 7, 1994, an immigration court judge ordered

petitioner removed from the United States to Jamaica.
6-4, Order of the Immigration Judge, at 22-24.)

(ECF No.

On November 16,

1994, petitioner filed an appeal with the Board of Immigration
Appeals (the “BIA”), posted an immigration bond of $10,000 and
was released from custody on November 23, 1994.
5, Decision of BIA, at 26-27.)

(ECF No. 6, Ex.

On March 29, 1995, the BIA
3

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dismissed petitioner’s appeal and issued an order of
deportation.

(Id.)

On April 10, 1995, a deportation warrant

was issued for petitioner.

(ECF No. 6, Ex. 6, Warrant of

Deportation for Gifton Angus, at 29-31.)
On January 13, 1997, petitioner was arrested in
Tennessee while traveling in a two-car caravan carrying 65.5
pounds of marijuana.
at 33-34.)

(ECF No. 6, Ex. 7, State Court Indictment,

On December 11, 1998, petitioner was convicted in

Shelby County Criminal Court, in Memphis, Tennessee, under the
alias “Grant Oswald” for the felony offense of Unlawful
Possession of a Controlled Substance with Intent to Distribute,
for which petitioner received a one-year sentence of
imprisonment.

(ECF No. 6, Ex. 7, Judgment, at 36.)

On January 11, 1999, Immigration and Naturalization
Service (the “INS”) encountered petitioner while he was
incarcerated at the Shelby County Penal Farm in Tennessee.
No. 6, Ex. 8, Warrant of Removal/Deportation, at 39.)

(ECF

On

February 19, 1999, petitioner was taken into INS custody, and on
March 25, 1999, he was removed from the United States to Jamaica
pursuant to the prior order of removal.

(Id. at 40.)

At some point after his deportation, in 2000,
petitioner illegally re-entered the United States.

See Angus v.

Attorney General United States of America, 675 F. App’x 193, 194
(3d Cir. 2017) (noting that petitioner reentered the United
4

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States in 2000, less than a year after he was deported).

The

government has stated that it is unaware of any records
indicating that petitioner requested or received legal
authorization to reenter the United States following his
removal.

(ECF No. 6, at 2-3.)
On August 26, 2013, immigration officers encountered

petitioner following his arrest by the Binghamton Police
Department in New York for Possession of a Forged Instrument.
Angus, 675 F. App’x at 194.

On August 31, 2013, petitioner

posted bail on his criminal charge, was taken into immigration
custody, and was served with a Form I-871, Notice of Intent to
Reinstate a Prior Order of Removal pursuant to Section 241(a)(5)
of the INA.

(ECF No. 6, Ex. 9, Notice of Intent/Decision to

Reinstate Prior Order, at 43.)
On February 28, 2014, petitioner pled guilty to
Reentry of a Previously Removed Alien, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2) in the Northern District of New York.
(ECF No. 6, Ex. 10, Judgment in a Criminal Case, at 45.)
Accordingly, petitioner was sentenced to 30 months of
incarceration. (Id. at 46.)

On March 18, 2016, an immigration

judge denied petitioner’s application for deferral of removal
and ordered petitioner’s removal from the United States.
No. 6, Ex. 11, at 50-65.)

5

(ECF

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On April 4, 2016, petitioner appealed the immigration
judge’s March 18, 2016 decision and filed a motion to remand to
the BIA.

(ECF No. 6, Ex. 12, Decision of BIA, at 67.)

On July

8, 2016, the BIA denied petitioner’s motion and dismissed the
appeal because, inter alia, petitioner “did not mention Trevor
Dobson or his fear in returning to Jamaica because of his prior
dealings with Trevor Dobson” in his prior immigration
proceedings and, due to petitioner’s post-1996 convictions, he
is ineligible for immigration relief under former section 212(c)
of the INA.

(Id. at 67-68.)

On July 19, 2016, petitioner

filed, in the Third Circuit, a Petition for Review of the BIA’s
July 8, 2016 decision and also sought to stay his removal, which
was denied in part and dismissed in part on January 3, 2016.
Angus, 675 F. App’x at 193.
On February 23, 2017, petitioner was deported from the
United States to Jamaica pursuant to a Department of Homeland
Security order and Section 241(a)(5) of the INA.
Warrant of Removal/Deportation, at 70-72.)

(ECF No. 6-13,

Petitioner has not

advised the court of his current address, and the government has
advised that petitioner’s current whereabouts are unknown.
No. 6, at 3.)
Prior to this most recent deportation, pro se
petitioner filed the instant petition on August 22, 2016,
seeking coram nobis relief related to his 1989 convictions
6

(ECF

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described above.

(Mot. at 1-4.)

Petitioner seeks to have his

1989 drug trafficking convictions vacated.

In support of his

request for relief, petitioner asserts, in conclusory fashion,
that he had no knowledge of the cocaine hidden inside the
suitcase he was carrying.

(Id. at 1-3.)

Petitioner further

asserts that his counsel was constitutionally ineffective in
rendering incorrect legal advice regarding the possible
immigration consequences of his 1989 convictions.

(Id. at 1-2.)

The petition is silent in regard to Mr. Angus’s post-1989
criminal convictions.
Standard of Review
I.

Pro Se Status
In the instant action, petitioner is proceeding pro

se.

(Mot. at 1-4.)

A pro se petitioner’s pleadings are held to

“less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
and internal quotation marks omitted), and are construed “to
raise the strongest arguments that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(emphasis omitted).

“Nonetheless, a pro se [litigant] is not

exempt from compliance with relevant rules of procedural and
substantive law.”

Rivera v. United States, No. 06-CV-5140

(SJF), 2006 WL 3337511, at *1 (E.D.N.Y. Oct. 4, 2006) (citation
omitted).

Petitioner’s papers are evaluated accordingly.
7

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II.

Coram Nobis
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a),

“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.”

A court may grant a writ of coram nobis in order to

“redress an adverse consequence resulting from an illegally
imposed criminal conviction or sentence.”

United States v.

LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (citing United States
v. Morgan, 346 U.S. 502, 512-13 (1954)).

“Coram nobis is an

‘extraordinary remedy’ [that is] generally sought to review a
criminal conviction where a motion under 28 U.S.C. § 2255 is
unavailable because petitioner is no longer serving a sentence.”
Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).

In

addition, coram nobis is “not a substitute for appeal, and . . .
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 omitted); United States
v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000) (describing a
writ of coram nobis as “a remedy of last resort”) (internal
quotation marks and citation omitted).
In order to support an application for coram nobis
relief, a petitioner must show that: “1) there are circumstances
8

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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.”
United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000)
(quoting Fleming v. United States, 146 F.3d 88, 90 (2d Cir.
1998) (per curiam)); Porcelli, 404 F.3d at 158 (“Speculative
harms are insufficient” to demonstrate serious continuing
harm.).

The burden to prove the existence of errors in the

challenged proceedings rests with the petitioner, and the court
presumes that the proceedings were correct until the petitioner
shows otherwise.

See Nicks, 955 F.2d 161, 167 (2d Cir. 1992).
Discussion

In his petition filed on August 22, 2016, petitioner
asks this court to grant him coram nobis relief related to his
1989 convictions for felony drug trafficking offenses.
1-4.)

(Mot. at

For the reasons set forth below, the court finds that

petitioner has failed to meet the requirements for coram nobis
relief and respectfully denies the petition.
A. Petitioner Has Failed to Establish Any Fundamental Error
Regarding His 1989 Convictions that Compels Coram Nobis
Relief in the Interests of Justice.
First, petitioner must show that “there are
circumstances compelling” the relief and the writ would serve
the interests of justice.

Foont, 93 F.3d at 79.
9

Specifically,

Case 1:17-cv-00583-KAM-CLP Document 7 Filed 07/08/20 Page 10 of 22 PageID #: 93

a petitioner must demonstrate “errors . . . of the most
fundamental character.”

Id. at 78.

Construed liberally, the

petition appears to assert that these fundamental errors are
that (1) petitioner is innocent of the crime; and (2) petitioner
was denied effective assistance of counsel in violation of his
Sixth Amendment rights.

(Mot. at 1-2.)

The claim fails on both

grounds.
i. Petitioner Has Failed to Show Actual Innocence.
Actual innocence can be grounds for granting a writ of
coram nobis.

McQuiggin v. Perkins, 133 S. Ct. 1924, 1926 (2013)

(actual innocence can warrant habeas relief); see United States
v. Travers, 514 F.2d 1171, 1173 n.1 (2d Cir. 1974) (finding the
“standards applied in federal coram nobis are similar” to those
applied under federal habeas petitions).

In the habeas context,

to establish a claim of actual innocence, a petitioner must show
that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent.”
477 U.S. 478, 496 (1986).

Murray v. Carrier,

To meet his evidentiary burden,

petitioner “must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.”

Schlup v. Delo, 513 U.S. 298, 327 (1995).

The court agrees with the government’s contention that
petitioner’s assertion that he is innocent of the drug
trafficking offenses he was convicted of is conclusory and
10

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unsupported by any new evidence.

Prior proceedings are presumed

to have been conducted correctly until the petitioner shows
otherwise, and the burden to prove the existence of errors in
the challenged proceedings rests with the petitioner.
Nicks, 955 F.2d at 167.

See

Petitioner has asserted, in conclusory

fashion, that he is innocent and had no knowledge of the cocaine
hidden inside the suitcase he was carrying.

Petitioner has

failed to offer any new evidence supporting his assertions, and
thus has not met his evidentiary burden.

(Mot. at 1.)

Petitioner’s conclusory assertions are insufficient to justify
coram nobis relief.

See Dixon v. United States, 2015 WL 851794,

at *9 (S.D.N.Y. Feb. 27, 2015); see also Dennis v. Corcoran,
2010 WL 5072124, at *3 (W.D.N.Y. Dec.7, 2010) (“A conclusory
assertion of a deprivation of constitutional rights does not
state a viable claim for habeas corpus relief.”).

Nor were

there any other allegations in Mr. Angus’s petition that
demonstrated any fundamental error in his 1989 convictions.
Foont, 93 F.3d at 80 (“Claims of new evidence, however, without
constitutional or jurisdictional error in the underlying
proceeding, cannot support a coram nobis claim.”).
ii. Petitioner Has Failed to Show Ineffective
Assistance of Counsel.
When construed most liberally, petitioner’s argument
appears to be that he received ineffective assistance of counsel

11

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because he was not advised of the potential immigration
consequences of going to trial, and that he would have accepted
a plea deal in order to avoid deportation.

(Mot. at 2.)

As

noted below, however, Mr. Angus does not assert that he was
offered a plea agreement to a charge for which he would not have
faced deportation.

Because Mr. Angus’s threadbare allegations

are insufficient to meet the heavy burden set forth in
Strickland v. Washington, the court finds that petitioner has
failed to identify any fundamental error that led to his 1989
convictions, as a result of alleged ineffective assistance of
counsel.
Under the Sixth Amendment, a criminal defendant is
afforded “the right . . . to have the assistance of counsel for
his defense.”

U.S. Const. amend. VI.

This right does not

guarantee a defendant “perfect counsel,” but rather effective
assistance of counsel.

Constant v. Martuscello, 119 F. Supp. 3d

87, 142 (E.D.N.Y. 2015) (citations and internal quotation marks
omitted), aff’d, 677 F. App’x 727 (2d Cir. 2017).

To establish

an ineffective assistance of counsel claim, a petitioner must
satisfy the two-pronged test announced in Strickland v.
Washington, i.e. that (1) counsel’s performance “fell below an
objective standard of reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would be different.”
12

466

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U.S. 668, 694 (1984).

The two prongs may be addressed in either

order, and the court is not required “to address both components
of the inquiry if the defendant makes an insufficient showing on
one.”

Id. at 697.

“A court hearing an ineffectiveness claim

must consider the totality of the evidence before the judge or
jury,” id. at 695, and the petitioner must “affirmatively prove
prejudice arising from counsel’s allegedly deficient
representation,” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.
2008) (citations and internal quotation marks omitted).
As the government notes, ineffective assistance of
counsel can be grounds for granting a writ of coram nobis.

See

Chhabra v. United States, 720 F.3d 395, 406 (2d Cir. 2013).
Petitioner, however, has failed to meet the two-pronged
Strickland standard, and his claim is therefore respectfully
denied.
First, petitioner has failed to show any deficient
performance by his defense counsel falling below an objective
standard of reasonableness.

Petitioner asserts that his counsel

did not inform him of the immigration consequences of the
charged crimes and erroneously assured him that the crimes were
not deportable offenses, which caused petitioner to elect to go
to trial and forgo the possibility of a plea agreement that
could avoid his deportation.

(Mot. at 1-2.)

13

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First, assuming his allegations to be true, petitioner
has not adequately alleged that his counsel’s performance fell
below an objective standard of reasonableness.

Though the

Supreme Court held in Padilla v. Kentucky that an attorney
representing a criminal defendant in plea negotiations has an
affirmative duty to advise his client of the immigration
consequences of a conviction, Padilla does not apply in this
case because petitioner’s conviction became final before Padilla
was decided.

Padilla, 559 U.S. 356, 367-71 (2010); Chaidez v.

United States, 133 S. Ct. 1103, 1113 (2013) (holding that the
ruling in Padilla is inapplicable on collateral review of a
conviction that was final when Padilla was decided.)

Even if

petitioner could avail himself of the Padilla line of cases, his
allegations concerning ineffective assistance of counsel fall
short because, as noted above, they are conclusory statements
without supporting evidence.

See Dixon, 2015 WL 851794, at *9

(“[C]onclusory assertions [of extraordinary circumstances] are
insufficient to justify coram nobis relief.”).
Second, petitioner has not shown a reasonable
probability of prejudice under the second prong of Strickland.
Petitioner does not allege that he was ever offered a plea
agreement.

Instead, he merely asserts that his counsel “other

wise [sic] could have negotiated a plea to the crime with no
effect on respondent [sic] Immigration status[.]”
14

(Mot. at 2.)

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Petitioner’s assertion is speculative, and as the government
notes, there is no evidence that the government would have been
willing to offer a plea agreement, much less one that shielded
petitioner from immigration consequences resulting from his
aggravated felony convictions.

(ECF No. 6, at 6; Kovacs v.

United States, 744 F.3d 44, 52 (2d Cir. 2014) (holding that in
order to show prejudice under Strickland, a petitioner must
“demonstrate a reasonable probability that the prosecution would
have accepted, and the court would have approved, a deal that
had no adverse effect on the petitioner’s immigration status”).)
Additionally, there is no basis for the court to
conclude that, absent counsel’s alleged deficient performance at
trial, petitioner would not have faced immigration-related
consequences.

As the government notes, petitioner was convicted

of two counts of felony drug trafficking, following a jury
trial, and petitioner does not allege – nor could he plausibly
allege – that his counsel’s advice regarding the immigration
consequences could have changed the outcome of trial.

Because

petitioner has failed to demonstrate a “reasonable probability”
of prejudice, petitioner’s claim of ineffective assistance of
counsel is respectfully rejected.
As set forth above, petitioner has not demonstrated
that his 1989 convictions were tainted by fundamental errors,
that he is actually innocent, or that counsel was ineffective.
15

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Thus, the court respectfully denies petitioner’s coram nobis
petition on this independent ground.
B. Petitioner Failed to Demonstrate Sound Reasons for Failure
to Seek Appropriate Relief Before 2016. 2
Petitioner has also failed to meet the second
requirement for coram nobis relief, i.e. demonstrating sound
reasons for his failure to seek appropriate before 2016.
93 F.3d at 79.

Foont,

“[A]lthough coram nobis relief has no specific

statute of limitations, such relief ‘may be barred by the
passage of time,’” and unless the petitioner demonstrates
“’sufficient justification for his failure to seek relief at an
earlier time, the writ is unavailable and [the] petition . . .
should be dismissed.’”

Sahin v. United States, No. 13–CV–358,

2014 WL 2177088, at *2 (N.D.N.Y. May 22, 2014) (internal
citations omitted); Dixon, 2015 WL 851794, at *9 (the timeliness
requirement is a “threshold procedural hurdle to obtaining coram
nobis relief”); Rodriguez v. United States, No. 98-CR-764 (MHD),
2012 WL 6082477, at *9 (S.D.N.Y. Dec. 4, 2012) (failure to
fulfill the timeliness requirement is “alone sufficient to bar .
. . coram nobis petition”).

Moreover, “[t]he sufficiency of the

reasons bears an inverse relationship to the length of the delay
— the longer the delay, the more compelling must be the

2 Because petitioner has failed to satisfy the first requirement for coram nobis
relief, the court need not address the government’s remaining contentions.
Nevertheless, for the sake of completeness, the court will address the rest of
the government’s arguments.

16

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reasons.”

Tocci v. United States, 178 F. Supp. 2d 176, 181

(N.D.N.Y. 2001).
The calculation of the time for filing a petition
begins when the petitioner “knew or should have known . . . of
the facts underlying his current claim.”

Foont, 93 F.3d at 80;

Rodriguez, 2012 WL 6082477, at *10; Evangelista v. United
States, No. 11-CV-5085, 2012 WL 3818109, at *3 (E.D.N.Y. Sept.
4, 2012), aff’d, 523 F. App’x 12 (2d Cir. 2013).

Further, an

unjustified delay of nearly three decades is fatal to
petitioner’s application for coram nobis relief.

See Sash, 374

F. App’x at 199 (finding no sound reasons for four-year delay);
Dorfmann, 2014 WL 260583, at *6 (same for three-year delay); Ahn
v. United States, No. 02-CV-8031 (JFK), 2003 WL 21910855, at *3
(S.D.N.Y. Aug. 8, 2003) (same for four-year delay), aff’d sub
nom. Hyun Ahn v. United States, 96 F. App’x 43 (2d Cir. 2004).
The court agrees with the government that Mr. Angus
either “knew or should have known” of the facts underlying his
current claim by August 1991, when he was served with an I-221
Order to Show Cause, and charged with being subject to
deportation pursuant to Sections 241(a)(2)(A)(iii) and
241(a)(2)(B)(i) of the INA.

(ECF No. 6-3, at 18-20.)

Not only

did the Form I-221 alert Mr. Angus that he was subject to
deportation, but he was subsequently placed into deportation
proceedings later that year, which resulted in an immigration
17

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judge issuing a permanent order for his removal in 1994.
No. 6-4, at 22-24.)

(ECF

Then, after breaching his bond on his

immigration case and sustaining another felony conviction, he
was deported in 1999.
41.)

(ECF No. 6-7, at 36; ECF No. 6-8, at 39-

Petitioner reportedly returned to the United States

illegally in 2000 and was ultimately convicted of additional
crimes and reinstated into deportation proceedings in 2013.
(ECF No. 6-11, at 54; ECF No. 6-9, at 43.)

Despite receiving

notice of the immigration consequences of his 1989 convictions
in August 1991, petitioner delayed until August 22, 2016 to file
the instant petition challenging his convictions, and he has not
identified any reasons that would excuse his failure to seek
appropriate relief for more than 25 years.
Furthermore, though petitioner has actively challenged
his deportation proceedings commencing in the 1990s and the more
recent proceedings starting in 2013, courts within the Second
Circuit have repeatedly found that being engaged in immigration
proceedings “does not excuse [petitioner’s] failure to initiate
proceedings to challenge his conviction.”

Dorfmann v. United

States, 2014 WL 260583, at *6 (S.D.N.Y. Jan. 23, 2014), aff’d,
597 F. App’x 6 (2d Cir. 2015); see also United States v. Sash,
374 F. App’x 198, 200 (2d Cir. 2010) (finding “unavailing”
petitioner’s argument that he delayed filing petition “because
he was preoccupied with other proceedings”); Korac v. United
18

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States, 2011 WL 2365811, at *4 (S.D.N.Y. June 6, 2011) (finding
that “where a petitioner has learned that a conviction carries
possible immigration consequences and nevertheless waits to seek
coram nobis relief for a period of several years, or until he
has exhausted other means of attacking the conviction, no sound
reason exists”); Sahin, 2014 WL 2177088, at *2-3 (finding
petitioner had failed to demonstrate sound reasons for his
eight-year delay between exhaustion of administrative appeals
and filing of coram nobis petition).
Accordingly, the court finds that petitioner has
failed to satisfy the second prong for coram nobis relief, and
his petition is respectfully denied on this additional ground.
C. Continuing Legal Consequences from Petitioner’s 1989
Convictions Would Not Be Remedied by Coram Nobis Relief.
Petitioner has failed to satisfy the third prong for
coram nobis relief because he has not, and indeed could not,
demonstrate that he continues to suffer legal consequences
resulting from his 1989 convictions that would be remedied by
the relief he seeks.
“The prospect of deportation certainly constitutes the
type of ongoing legal consequence that could be remedied by a
writ of coram nobis.”

Korac, 2011 WL 2365811, at *3; see Lee v.

United States, No. 05–CV-5844 (JSR), 2007 WL 1987868, at *5
(S.D.N.Y. July 9, 2007) (report and recommendation) (consequence

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of deportation “clearly” establishes third requirement for coram
nobis relief); see also Chhabra, 2010 WL 4455822, at *3
(petitioner determined to be deportable on the basis of a prior
conviction continues to suffer legal consequences from that
conviction).

If petitioner faced deportation only due to his

1989 convictions, the third requirement for coram nobis relief
would be met.

But this is not the case here.

“Where a separate conviction forms an independent
basis for deportation, the extraordinary relief of coram nobis
is inappropriate because vacating the challenged conviction
would not prevent the deportation, and is therefore not required
to achieve justice.”

Korac, 2011 WL 2365811, at *4; Foreman v.

United States, 247 F. App'x 246, 248 (2d Cir.2007) (affirming
denial of coram nobis relief where, inter alia, issuance of writ
would not remedy consequence of deportation because petitioner
had been convicted of separate aggravated felony that formed
independent basis for removal); Shushansky v. United States, No.
93–5632, 1995 WL 108668, at *2 (E.D.N.Y. Mar. 1, 1995) (denying
coram nobis relief where, among other things, petitioner's
independent conviction made him deportable regardless of
challenged conviction).
Mr. Angus has been convicted of at least three
aggravated felonies: the 1989 drug trafficking convictions, the
2014 illegal reentry conviction, and – according to the
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government - the 1998 drug conviction.

(ECF No. 6, at 9.) 3

Petitioner’s 2014 illegal reentry conviction, which his instant
petition does not challenge, provides an independent basis for
his deportation pursuant to 8 U.S.C. §§ 1101(a)(43)(O) and
1227(a)(2)(A)(iii) (codifying the term “aggravated felony” as
“an offense described in section 1325(a) or 1326 of this title
committed by an alien who was previously deported on the basis
of a conviction for an offense described in another subparagraph
of this paragraph”).

As a result, even if petitioner’s 1989

convictions were vacated, he would still be subject to
deportation from the United States on the basis of the 2014
felony conviction.

Accordingly, petitioner has not shown that

he suffers from continuing legal consequences that may be
remedied by the requested relief, and thus the court
respectfully denies the petition on this ground as well.
Conclusion
For the reasons stated above, Mr. Angus’s coram nobis
petition is respectfully DENIED.

The Clerk of Court is

respectfully directed to enter judgment in favor of respondent

3

The 1998 Tennessee state court proceeding resulted in petitioner’s conviction
of a drug-trafficking-related violation of state law. Though the government
contends that the 1998 state conviction constitutes an “aggravated felony” under
8 U.S.C. § 1101(a)(43)(B), which would make petitioner deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), the government does not explain why the state criminal
conviction necessarily constitutes an aggravated felony under the federal
statute, which by its own terms, applies to terms “[a]s used in this chapter[.]”
Further, because the court has found that other bases for denial of the petition
exist, the court respectfully declines to rule on this issue.

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and close this case.

Respondent is directed to make reasonable

efforts to serve Mr. Angus with a copy of this Memorandum and
Order and the judgment, whenever his current address is
obtained, and to note service on the docket.
SO ORDERED.
Dated:

July 8, 2020
Brooklyn, New York
__________/s/________________
HON. KIYO A. MATSUMOTO
United States District Judge

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