Martinez v. United States of America

Filing 6

MEMORANDUM AND ORDER: Because a writ of error coram nobis is unavailable 23 years after petitioner made the same claims on direct appeal, the instant motion for a writ of error coram nobis is denied. The Clerk of Court is directed t o enter judgment accordingly and close the case. The Court denies a certificate of appealability and certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO Ordered by Judge William F. Kuntz, II on 5/14/2019. (Tavarez, Jennifer)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NORBERTO MARTINEZ,

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MAY 15 2019

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BROOKLYN OFFICE

Petitioner,

v.

MEMORANDUM AND ORDER

l 9-CV-2044 (WFK)
UNITED STATES OF AMERICA,

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Respondent.

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KUNTZ, II, United States District Judge.
On March 26, 2019, the Court received petitioner Norberto Martinez's prose petition for
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a writ of error coram nobis challenging his July 28, 1997 conviction in this Court. For the
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following reasons, the petition is denied.
Petitioner was convicted in Docket Number 95-cr-710-DGT, following a jury trial, of
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conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, and possession with intent to
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distribute heroin, in violation of 21 U.S.C. § 84l(a)(l). His subseq\lent appeal was dismissed.
United States v. Martinez, 159 F.3d 1349 (2d Cir. 1998) (dismissiJ1g defendant-appellant's

claims related to sufficiency of the evidence, the trial court's admi$sion of certain evidence, and
alleged ineffective assistance of trial counsel), cert. denied, Marti~ez v. United States, 525 U.S.
939 (1998). Petitioner was sentenced to 63 months imprisonment Jud 4 years supervised release.
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Petitioner did not file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
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Thereafter, petitioner was convicted of multiple offenses related to narcotics trafficking
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and sentenced to life imprisonment under Docket Number 03-cr-1149-NGG. Petitioner appealed
that conviction and also filed a collateral challenge pursuant to 28f U.S.C. § 2255. United States
v. Vargas, et al., 279 F. App'x 56, 59 (2d Cir. 2008) (appeal dismissed), cert. denied, Martinez v.
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l.

United States, 565 U.S. 883 (2011); Martinez v. United States, No. 09-CV-3692-NGG, 2010 WL
5391189 (E.D.N.Y. Dec. 22, 2010) (denying habeas petition).

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The instant petition argues that the 1997 conviction is invalid because the prosecution
failed to prove each element of conspiracy and because trial counsel: was ineffective in failing to
argue that claim at trial. Petitioner does not assert any newly discovJred evidence or present any
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reason for his failure to raise these arguments in prior post-conviction motions.
A writ of error coram nobis is an "extraordinary remedy" autorized under the All Writs
Act, 28 U.S.C. § 1651, and is generally used to review a criminal conviction where a habeas

corpus motion under 28 U.S.C. § 2255 is unavailable because the petitioner is no longer serving
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the sentence which he challenges. Porcelli v. United States, 404 F.3µ 157, 158 (2d Cir. 2005).
"'Where a statute specifically addresses the particular issue at hand, it is that authority, and not
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the All Writs Act, that is controlling."' Carlisle v. United States, 51~ U.S. 416,429 (1996)
(quoting Penn. Bureau of Corr. v. US. Marshals Serv., 474 U.S. 34, 43 (1985)). Coram nobis is
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essentially a remedy of last resort and should be allowed only whe1 necessary to achieve justice
and where "extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167
(2d Cir. 1992); see United States v. Morgan, 346 U.S. 502 (1954). The petition for the writ "is
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not a substitute for appeal, and relief under the writ is strictly limit~d to those cases in which
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errors of the most fundamental character have rendered the proceeding itself irregular and
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invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (intcimal quotation marks and
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citations omitted). "A petitioner seeking such relief must demonstrate that 1) there are
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circumstances compelling such action to achieve justice, 2) sound ieasons exist for failure to
seek appropriate earlier relief, and 3) the petitioner continues to su{fer legal consequences from

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his conviction that may be remedied by granting of the writ." Id. at 79 (internal quotation marks
and citations omitted).

Coram nob is relief is not available if the petitioner could ha✓e sought earlier relief,
including on direct appeal or through habeas corpus. See Calvert v. United States, No. 06-CV1722 (CBA), 2007 WL 160918, at *3 (E.D.N.Y. Jan.I 7, 2007) (find~ng petitioner was not
entitled to a writ of error coram nobis because he failed to explain 'i'hy he did not seek relief
through direct appeal or through a 28 U.S.C. § 2255 petition), affd, 351 F. App'x 475 (2d Cir.
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2009). If the petitioner did not seek earlier relief, he must "show justifiable reasons for the
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delay." Foont, 93 F.3d at 80. Although the writ of error coram nobi1 "is not subject to a specific
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statute of limitations," it "may be barred by the passage of time." Id, at 80 (internal quotation
marks and citation omitted).
In this case, twenty-three years after his conviction, petition~r renews arguments that he
previously made on appeal. He does not assert any reason that he c?uld not have filed a timely
petition pursuant to 28 U.S.C. § 2255 or have filed any other post-conviction motions in the
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intervening years. Under these circumstances, a writ of error coram nobis is not available.
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3

CONCLUSION

Because a writ of error coram nobis is unavailable 23 years after petitioner made the
same claims on direct appeal, the instant motion 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 of appealability and certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

s/WFK

Dated: May 14, 2019
Brooklyn, New York

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