Dixon v. United States of America

Filing 25

MEMORANDUM AND ORDER: For the foregoing reasons, the Petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651 (Docket Entry 1) is DENIED and the Supplemental Petition is DENIED (Docket Entry 24). Because there can be no debate among reasonable jurists that Petitioner was not entitled to coram nobis relief, the Court does not issue a Certificate of Appealability. 28 U.S.C. § 2253(c); see also Middleton v. Attys Gen., 396 F.3d 207, 209 (2d Cir.2005). The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner and mark this matter CLOSED. SEE ATTACHED DECISION for details. SO ORDERED by Judge Joanna Seybert on 2/14/2018. c/m to pro se Petitioner. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DEMARK DIXON,
Petitioner,
MEMORANDUM AND ORDER
14-CV-1223(JS)

-againstUNITED STATES OF AMERICA,

Respondent.
-------------------------------------X
APPEARANCES
For Petitioner:
DeMark Dixon, pro se
1315 Amsterdam Avenue
Apt. 1-H
New York, NY 10027
For Respondent:

Peter W. Baldwin, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

SEYBERT, District Judge:
DeMark Dixon (“Petitioner”) petitions this Court pro se
for a writ of error coram nobis pursuant to the All Writs Act,
28 U.S.C. § 1651(a).

For the following reasons, the Petition is

DENIED in its entirety.
BACKGROUND
On February 19, 1998, Petitioner entered a guilty plea
in the United States District Court of the Eastern District to
Count One of a filed Superseding Indictment.

(Plea Tr.1 12:12-

Plea transcript can be found at Docket Entry 1-1, Ex. B,
at 4-22.
1

17:19.)

As originally filed, Count One included the charge of

Racketeering in violation of 18 U.S.C. § 1962(c) for engaging in
the following criminal acts: (1) the robbery of Chase Bank on
October 10, 1996; (2) the robbery of the Christmas Tree Shop on
December

7,

1996;

(3)

the

robbery

of

the

Palace

Garage

on

December 23, 1996; (4) the robbery of North Fork Bank on March 6,
1997; (5) the robbery of the Key Bank on March 14, 1997; and (6)
the conspiracy to rob Mt. Sinai Hospital during the winters of
1996 and 1997. (See Dixon v. United States, No. 01-CV-4591, Docket
Entry 114, at 3.)

Petitioner entered a guilty plea exclusively to

Acts Two and Three of Count One and executed a written plea
agreement in which he waived his right to appeal. (Plea Tr. 12:1216:1; 17:15-17:18.)
Prior to the Court accepting Petitioner’s plea, the
Court asked a series of standard plea allocution questions.

The

Court informed Petitioner of the trial rights he was foregoing by
entering

his

understood.

guilty

plea,

and

(Plea Tr. 3:6-4:1.)

Petitioner

responded

that

he

The Court stated that pursuant

to his plea Petitioner was facing a maximum term of twenty-years
of imprisonment, but his anticipated sentence was between 140 and
175 months of imprisonment.

(Plea Tr. 4:2-5:8.)

Additionally,

the Court ensured that Petitioner understood the nature of his
appeal waiver, confirming that he agreed to waive his right to
appeal, a habeas corpus proceeding, or any action contesting his
2

guilt if he was sentenced to a term of 140 to 175 months.
Tr. 5:23-6:3.)
allocution,

(Plea

Further, the Petitioner engaged in a factual

during

which

he

explained

his

conduct

as

to

Racketeering Act 2 under Count 1 of the Superseding Indictment, in
pertinent part:
The Court: Mr. Dixon, what, if anything, did
you do with respect to the charges contained
in racketeering act 2 under Count 1?
The Defendant: I drove to Connecticut to a
Christmas tree store shop and I waited
outside, when they went inside to rob the
place.
The Court: And when was this?
The Defendant: December 7, 1996.
The Court: And did you know that these other
individuals were going to rob the tree shop?
The Defendant: Yes.
(Plea Tr. 12:24-13:9.)

Petitioner continued and explained his

role in Racketeering Act 3 under Count 1 of the Superseding
Indictment:
The Court: With respect to racketeering act
3, what, if anything, did you do between
October 1, 1996 and December 23, 1996?
The Defendant: I knew about the garage, that
it was going to get robbed.
The Court: What garage was that?
The Defendant: The Palace garage.
The Court: And that was located in
Manhattan?
The Defendant: Yes.
The Court: And what, if anything, did you do
with respect to planning that particular
crime?
The Defendant: I sat in the van, I drove the
van downtown and sat inside.
The Court: And waiting for these individuals
to go in and rob persons in the Palace
garage?
3

The Defendant: Yes.
The Court: Or take items that were involved
in commerce?
Mr. King: They were automobiles, Your Honor.
The Court: Well, let me hear it from Mr.
Dixon.
The Defendant: Yes. Yes, I knew they were
going to take cars.
(Plea Tr. 14:2-14:23.)

The Court confirmed that Petitioner’s plea

was a choice he was making of his own free will:
The Court: Do you have any questions
regarding the contents of this agreement or
your plea here today?
The Defendant: Yes, I understand it.
The Court: All right. Has anyone forced you
to enter into this plea?
The Defendant: That’s the only way I will
keep my health. I can’t get a fair trial
with the government.
The Court: Well, you have a right to go to
trial, sir.
The Defendant: I’m going to lose.
The Court: Well, I can’t make up your mind.
The Defendant: I understand that.
The Court: You’re pleading guilty here under
oath, what you said is sufficient to make
out a conviction under these charges.
The Defendant: Yes, Your Honor.
The Court: If you don’t want to plead
guilty, you go to trial. I’m ready to try
this case March 2nd. Your attorney Mr.
Gribetz is extremely experienced, he’s put a
lot of time into this case from what I can
tell.
The Defendant: I know he did.
The Court: And if you want a trial you have
a trial. Now, I’m asking you one last time,
is it your desire to plead guilty to these
charges?
The Defendant: Yes.
The Court: You now enter a plea of guilty
with respect to Count 1, racketeering acts 2
and 3; is that right, Mr. Dixon?
The Defendant: Yes.
4

The Court: Your plea is accepted.
(Plea Tr. 16:14-17:19.)

Shortly after his guilty plea, Petitioner

made a motion to withdraw the plea; following oral arguments, the
motion was denied.
144.)

(See Case No. 97-CR-0543, Docket Entries 130,

On September 24, 1999, Petitioner was sentenced to a below

guidelines range of 120 months’ imprisonment followed by three
years of supervised release.

(Resp’t’s Answer, Docket Entry 14,

at 5.)
Petitioner

appealed

his

conviction

and

the

Court’s

denial of his motion to withdraw his plea to the Second Circuit
Court of Appeals.

See United States v. Truesdale, No. 99-1587,

2000 WL 1051966, at *1-2 (2d Cir. July 27, 2000).

On July 27,

2000, the Second Circuit affirmed the Court’s denial of his motion
to withdraw his guilty plea, stating that “the district court did
not

clearly

statements

err
.

.

in
.

crediting

appellant’s

Appellant’s

later

allocution

self-serving

hearing

statements

therefore do not satisfy his burden to raise a significant question
about

the

voluntariness

of

his

plea.”

quotation marks and citations omitted).
Petitioner’s

conviction

stating,

Id.

at

*1

(internal

The Second Circuit upheld

“Appellant

recounted

his

involvement in two robberies and testified that he had participated
in the planning of those crimes and undertook other action in
furtherance of that plan.

On this record, we cannot say that the

5

district court erred in finding that appellant understood the
nature of the charges to which he was pleading.”

Id. at *2.

Subsequently Petitioner filed a petition to vacate his
sentence pursuant to 28 U.S.C. § 2255 and on June 9, 2004, the
Court denied the Section 2255 petition.

See Dixon v. United

States, No. 01-CV-4591, Mem. & Order, Docket Entry 114.
Following his release, Petitioner’s supervised release
terminated on December 9, 2013.
On

February

21,

(Pet., Docket Entry 1, at 2.)2

2014,

Petitioner

filed

the

instant

Petition for a writ of error coram nobis, arguing that (1) he
received ineffective assistance of counsel “before, during, and
after the plea allocution”; (2) his guilty plea was incomplete;
and (3) he is innocent of the charge he plead guilty to.
at 2.)

(Pet.

Additionally, Petitioner filed a motion requesting the

case be heard by a jury, which was denied on October 2, 2014.

(See

Oct. 2014 Order, Docket Entry 19, at 2.) Further, on October 2,
2014 the Court permitted Petitioner to supplement the coram nobis
petition to add facts to his actual innocence claim.

On April 12,

2017, Petitioner filed an additional writ of error coram nobis,
raising identical arguments.

(Suppl. Pet., Docket Entry 24.)3

Page numbers for the Petition and its accompanying exhibits are
those generated by the Electronic Case Filing System.
2

Page numbers for the Supplemental Petition are those generated
by the Electronic Case Filing System.
3

6

For the following reasons, the writ of coram nobis is
DENIED in its entirety.
DISCUSSION
The

Court

will

first

address

the

applicable

legal

standard before turning to the merits of the Petition.
I. Legal Standard
A writ of error coram nobis is an “extraordinary remedy”
authorized by the All Writs Act, 28 U.S.C. § 1651.

Coram Nobis

relief is “essentially a remedy of last resort for petitioners who
are no longer in custody pursuant to a criminal conviction and
therefore cannot pursue direct review or collateral relief by means
of a writ of habeas corpus.”

Fleming v. United States, 146 F.3d

88, 89-90 (2d Cir. 1998) (per curiam).

Further, “‘the All Writs

Act is a residual source of authority to issue writs that are not
otherwise

covered

by

statute.

Where

a

statute

specifically

addresses the particular issue at hand, it is that authority, and
not the All Writs Act, that is controlling.’”

Carlisle v. United

States, 517 U.S. 416, 429, 116 S. Ct. 1460, 1468, 134 L. Ed. 2d
613 (1996) (quoting Penn. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 43, 106 S. Ct. 355, 361, 88 L. Ed. 2d 189 (1985)).
As such, the writ of coram nobis “is not a substitute for appeal,
and relief under the writ is strictly limited to cases in which
errors

of

the

most

fundamental

character

proceeding itself irregular and invalid.”
7

have

rendered

the

Foont v. United States,

93 F.3d 76, 78 (2d Cir. 1996) (internal quotation marks and
citation omitted).
When seeking coram nobis relief, the petitioner bears
the burden of demonstrating that “(1) 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

conviction that may be remedied by grant of the writ.”

from

his

Foont, 93

F. 3d at 79 (internal quotation marks and citation omitted).

The

petitioner bears the burden of proof and “it is presumed [that]
the [prior] proceedings were correct”.

United States v. Morgan,

346 U.S. 502, 512, 74 S. Ct. 247, 253, 98 L. Ed. 2d 248 (1954).
In sum, “it is difficult to conceive of a situation in a federal
criminal case [ ] where [a writ of error coram nobis] would be
necessary or appropriate.”

Carlisle, 517 U.S. at 429, 116 S. Ct

at 1468 (internal quotation marks and citation omitted; second
alteration in original).
“It is undisputed that ‘[b]ecause a petition for writ of
error coram nobis is a collateral attack on a criminal conviction,
the time for filing a petition is not subject to a specific statute
of limitations.’”

Foont, 93 F.3d at 79 (quoting Telink, Inc. v.

United States, 24 F.3d 42, 45 (9th Cir. 1994)).

“A petition for

a writ of error coram nobis, however, may still be time barred if
the petitioner cannot provide a justified reason for failure to
8

seek appropriate relief at an earlier date.”

Cruz v. People of

N.Y., No. 03-CV-9815, 2004 WL 1516787, at *4 (S.D.N.Y. July 6,
2004).

Thus, the Court considers timeliness on a case-by-case

basis.

See Foont, 93 F.3d at 81; Cisse v. United States, 330 F.

Supp. 2d 336, 344 (S.D.N.Y. 2004).
Though a coram nobis petition is not a petition for
habeas corpus relief, “‘[b]ecause of the similarities between
coram

nobis

proceedings

and

§

2255

proceedings,

the

§

2255

procedure often is applied by analogy in coram nobis cases.’”
Fleming, 146 F.3d at 90 n.2 (quoting Blanton v. United States, 94
F.3d 227, 235 (6th Cir. 1996)).
As Petitioner’s submissions were filed pro se, the Court
will liberally construe them “‘to raise the strongest arguments
that they suggest.’” Kirkland v. Cablevision Sys., 760 F.3d 223,
224 (2d Cir. 2014) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).

However, this does not excuse Petitioner “‘from

compl[ying] with relevant rules of procedural and substantive
law’”.

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting

Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
II. Analysis
As

an

initial

matter,

the

Court

considers

whether

Petitioner’s waiver of his right to appeal bars this writ of error
coram nobis.

The Second Circuit has held that “knowing and

voluntary waivers of a defendant’s right to appeal a sentence
9

within an agreed Guidelines range are enforceable.”

United States

v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir. 1993) (per curiam).
However, “waivers of the right to appeal a sentence, like waivers
of constitutional rights, are invalid unless they are voluntary
and knowing.”

United States v. Monzon, 359 F.3d 110, 116 (2d Cir.

2004) (quoting United States v. Ready, 82 F.3d 551, 556 (2d Cir.
1996)).

Therefore, “[w]here the record clearly demonstrates that

the defendant’s waiver of her right to appeal a sentence within an
agreed Guidelines range was knowing and voluntary, that waiver is
enforceable.”

Id., 359 F.3d at 116.

Here, Petitioner agreed in his plea agreement and during
his

allocution

conviction

or

not

to

file

sentence

if

any
he

submissions

was

sentenced

challenging
to

a

his

term

of

imprisonment between 140 and 175 months, and Petitioner received
a below Guidelines sentence of 120 months of imprisonment.
Tr. 4:2-6:4; Resp’t’s Answer at 5.)
ensured

that

Petitioner

understood

(Plea

Additionally, the Court
the

contents

agreement which he executed in open court.

of

his

plea

(Plea Tr. 5:15-8:8;

16:5-16:6.)
There is nothing in the record to suggest that the choice
to enter the plea agreement was anything other than a voluntary
and knowing decision made by Petitioner. As such, since “a knowing
and

voluntary

waiver

of

the

right

enforceable,” the waiver is valid.
10

to

appeal

is

generally

United States v. Hernandez,

242 F.3d 110, 113 (2d Cir. 2001).

However, as one of Petitioner’s

allegations concerns counsel’s ineffective performance during the
plea process, the Court proceeds to review the merits of the
petition.
Cir.

See United States v. Djelevic, 161 F.3d 104, 107 (2d

1998)

(per

curiam)

(stating

that

claims

of

ineffective

assistance of counsel in entering the plea “might cast doubt on
the validity of his waiver.”) (citing United States v. Henderson,
72 F.3d 463, 465 (5th Cir. 1995)).

As is set forth below, the

Court finds that even if Petitioner had not waived his right to
file the instant petition, Petitioner is not entitled to coram
nobis relief.
A.

Timeliness
Guided by the Second Circuit, the timeliness of a coram

nobis petition is “a threshold procedural hurdle to obtaining coram
nobis relief.”

Dixon v. United States, No. 14-CV-0960, 2015 WL

851794, at *6 (S.D.N.Y. Feb. 27, 2015).

An “unjustified delay” in

filing a petition is “fatal to an application for coram nobis.”
Dorfmann v. United States, 13-CV-4999, 2014 WL 260583, at *6
(S.D.N.Y. Jan 23, 2014).

Here, though Petitioner filed his writ

of coram nobis fifteen years after his guilty plea, the filing was
within

one

year

from

when

his

sentence

completion of his supervised release.

was

final

upon

the

For purposes of this writ

of coram nobis, the Court will construe the Petition as timely.

11

B.

Fundamental Error
Next,

the

Court

considers

whether

Petitioner

has

demonstrated that there are “circumstances compelling such action
to achieve justice.”

Morgan, 346 U.S. at 511, 74 S. Ct. at 252.

As stated above, Petitioner raises three grounds for coram nobis
relief: (1) that he received ineffective assistance of counsel
“before, during, and after his plea allocution”; (2) that his
guilty plea was incomplete; and (3) that he is innocent of the
charge he pled guilty to.
1.

The Court addresses the claims in turn.

Ineffective Assistance of Counsel

Construing the petition liberally, Petitioner argues
that he received ineffective assistance of counsel “before, during
and after the plea allocution” when his counsel forced him to enter
a guilty plea by telling him that “the Court will get mad” if he
did not, and in retaliation the Court would impose a longer
sentence.

(Pet. at 2.)
It is well established that to prevail on an ineffective

assistance of counsel claim, a petitioner must demonstrate that
his counsel’s performance was so inadequate that he was denied his
Sixth Amendment right to counsel.

See Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
A petitioner must “(1) demonstrate that his counsel’s performance
‘fell below an objective standard of reasonableness’ in light of
‘prevailing professional norms,’ and (2) ‘affirmatively prove
12

prejudice’

arising

representation.”

from

counsel’s

allegedly

deficient

United States v. Cohen, 427 F.3d 164, 167 (2d

Cir. 2005) (quoting Strickland, 466 U.S. 688, 693, 104 S. Ct. 2064,
2067).

Under the first prong of the Strickland test, the Court

“must indulge a strong presumption that the counsel’s conduct falls
within the wide range of reasonable professional assistance”.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Under the second

prong of the Strickland test, a petitioner must establish that he
was prejudiced by counsel’s erred performance, meaning that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
When raising an ineffective assistance of counsel claim
in the context of a guilty plea, “petitioner must show that the
plea agreement was not knowing and voluntary, because the advice
he received from counsel was not within acceptable standards.”
Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) (internal
quotation marks and citations omitted).

This analysis focuses on

the plea agreement process, not on pre-plea occurrences.

Id.

It

is clear that “[c]laims by petitioners that their pleas were
involuntarily made due to the erroneous advice or unrealized
promises made by counsel ‘afford an all too easy avenue for the
invalidating of conviction on pleas of guilty.’”

Hernandez v.

United States, 839 F. Supp. 140, 143 (E.D.N.Y. 1993) (quoting
13

United States v. Horton, 334 F.2d 153, 154 (2d Cir. 1964)).

Thus,

“when considering the voluntariness of a defendant’s plea, courts
look to the voir dire of the defendant upon each plea to determine
whether the pleas reflect a knowing, free and rational choice of
the alternative open to the accused.”

Id. (internal quotation

marks and citation omitted).
Petitioner fails to point to anything in the record that
supports his conclusory assertion that counsel was ineffective
during the plea process.

See Pitcher v. United States, 371 F.

Supp. 2d 246, 257 (E.D.N.Y. 2005). Looking to the plea allocution,
Petitioner

indicated

representation,

that

informed

he

the

was
Court

satisfied
that

he

by

counsel’s

understood

the

constitutional rights he was giving up by pleading guilty, and
stated that he understood the plea itself.

(Plea Tr. 2:24-16:16.)

Additionally, Petitioner fails to demonstrate that he
was prejudiced in any way.

In the context of a guilty plea, to

satisfy the second prong of the Strickland test, “a petitioner
must demonstrate that there is a reasonable probability that ‘a
decision to reject the plea bargain would have been rational under
the circumstances.’”

Whyte v. United States, Nos. 08-CR-1330, 14-

CV-3598, 2015 WL 4660904, at *7 (S.D.N.Y. Aug. 6, 2015) (quoting
Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284 (2010).

A consideration in whether a petitioner was

prejudiced in the plea context is whether there was an available
14

defense that petitioner indicates he would have pursued at trial.
See Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014).
Petitioner does not indicate that he would have insisted on
proceeding to trial or pursued a viable defense if not for his
attorney’s alleged error.

As such, Petitioner’s contention that

he received ineffective assistance of counsel is without merit.
2.

Incomplete Guilty Plea

Petitioner contends that he is entitled to coram nobis
relief because his guilty plea was incomplete and invalid.

The

well-established standard for considering the validity of a plea
is “whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27
L. Ed. 2d 162 (1970).

In evaluating whether a guilty plea meets

this standard, “[w]hat is essential . . . is that the court
determine by some means that the defendant actually understands
that nature of the charges.”

United States v. Maher, 108 F.3d

1513, 1521 (2d Cir. 1997).

When considering a petitioner’s

statements made under oath during a plea allocution, “[s]olemn
declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52
L. Ed. 2d 136 (1977).
In light of these standards, the record shows that
Petitioner’s guilty plea and appeal waiver were both knowing and
15

voluntary.

Petitioner stated on the record that (1) he understood

his plea, (2) he wished to plead to the charges, (3) he understood
his waiver, and (4) he engaged in a detailed factual allocution.
(Plea Tr. 5:23-8:7; 12:24-14:23; 16:14-17:19.)

Additionally, both

this Court and the Second Circuit previously held that Petitioner’s
guilty plea was knowing and voluntary.

See Truesdale, 2000 WL

1051966, at *1-2; Dixon v. United States, No. 01-CV-4591, Docket
Entry 114, at 3.
3.

Actual Innocence

Petitioner argues that he is entitled to coram nobis
relief because he is actually innocent of the charge he pled guilty
to–-specifically, Racketeering Acts Two and Three contained under
Count One of the Superseding Indictment.
17:15-17:18.)

(See Pet. at 2; Plea Tr.

The petition states that there exists “sold alibi

evidence that would have weaken[ed] the fabricated testimony of
the Government witnesses testimony during any trial”.
2.)

(Pet. at

This alleged alibi evidence consists of written statements

from individuals stating that Petitioner was with them during the
weekend of March 14, 1997. (See Pet., Ex. D, at 30-52.)

In a

subsequent filing, Petitioner argues that he is actually innocent
because he doesn’t match a description of the perpetrators. (Reply
to Resp’t’s Answer, Docket Entry 15, at 3.)

Petitioner attaches

police paperwork from the investigation of the Palace Garage
robbery that describes the perpetrators who entered the garage as
16

“short & chubby”, and avers that he does not fit that description.
(Reply to Resp’t’s Answer at 3, 27.)
For Petitioner to succeed on a claim of actual innocence,
he must meet a high burden and show that “‘in light of the new
evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.’”

McQuiggin v. Perkins, 569

U.S. 383, 386, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013)
(quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 868,
130 L. Ed. 2d 808 (1995)).

An actual innocence claim “must be

supported by ‘new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence--that was not presented at trial.’”

Rivas v.

Fischer, 687 F.3d 514, 541 (2d Cir 2012) (quoting Schlup 513 U.S.
at 324, 115 S. Ct. at 851).
“‘actual

innocence’

insufficiency.”

means

In the context of guilty pleas,

factual

innocence,

not

mere

legal

Fountain v. United States, 357 F.3d 250, 255 (2d

Cir 2004) (quoting Bousley v. United States, 523 U.S. 614, 623,
118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998)).

A plea of guilty

greatly undermines a claim of actual innocence. German v. Racette,
No. 13-CV-1530, 2015 WL 7709606, at *6 (N.D.N.Y. Nov. 25, 2015);
see also Jenkins v. United States, Nos. 11-CR-0633, 13-CV-0195,
2013 WL 6869649, at *3 (S.D.N.Y. Dec. 31, 2013) (stating that
“[c]ourts are especially reluctant to overturn a conviction based
on new evidence when the conviction stemmed from a guilty plea”).
17

Petitioner’s alleged new evidence does not support his
claim of actual innocence.

First, the written statements at best

provide Petitioner an alibi for the dates March 14-16 of 1997.
(See Pet., Ex. D, at 35-52.)

As stated above, Petitioner pled

guilty to two criminal events, the Christmas Tree Shop robbery on
December 7, 1996 and the Palace Garage robbery on December 23,
1996.

(Plea Tr. 12:24-14:20.)
Second, while the police paperwork related to the Palace

Garage robbery, indicates that the perpetrators who entered the
garage with weapons were “short & chubby”, it also indicates that
there were additional participants who remained outside the Palace
Garage whose description is listed as “unknown”.
Resp’t’s Answer, Ex. B, at 27.)

(See Reply to

During Petitioner’s factual

allocution, he informed the Court that his role in the Palace
Garage robbery was that “[he] drove the van downtown and sat
inside.”

(Plea Tr. 14:13-14:14.)

Because he never entered the

garage, the description referred to by Petitioner is irrelevant.
In sum, Petitioner has not provided any evidence that
supports his claim of innocence.
C.

Continuing Legal Consequences
Assuming,

Petitioner

arguendo,

demonstrated

that

fundamental

the

Court

errors

in

found
the

that

the

underlying

proceedings, Petitioner has still failed to establish that he is

18

suffering

continuing

legal

consequences

as

a

result

of

his

consequences,

“a

conviction.
To

demonstrate

continuing

legal

petitioner must at least point to ‘a concrete threat that an
erroneous conviction’s lingering disabilities will cause serious
harm . . . [i]t is not enough to raise purely speculative harms.”
Fleming, 146 F.3d at 91 (quoting United States v. Craig, 907 F.2d
653, 658 (7th Cir. 1990)) (alteration in original).

The Second

Circuit has emphasized that “[t]he requirement of continuing legal
consequences would lose all force if speculative harms . . . were
sufficient to state a claim for coram nobis relief.”
petitioner’s

continuing

legal

consequences

are

Id.

When a

related

to

an

inability to obtain certain jobs, a petitioner must establish that
“he could obtain such employment but for his conviction.”
Further,

a

“desire

to

be

rid

of

the

stigma”

of

a

Id.

criminal

conviction is insufficient to establish that one is suffering from
continuing

legal

consequences.

See

United

States

v.

Nat’l

Plastikwear Fashions, 368 F.2d 845, 846 (2d Cir. 1996) (per
curiam).
Petitioner claims that he is unable to obtain “well
benefit employment.”

He states that on November 15, 2011, “Halls

Automotive” rescinded a job offer upon learning of this conviction
and that on January 16, 2014, he was removed from an Access-A-Ride
driver training course based on this conviction. Though Petitioner
19

has established challenges to maintaining specific instances of
employment,

he

has

not

demonstrated

that

he

impediment to returning to his profession.”

faces

“a

legal

United States v.

Foont, 901 F. Supp. 729, 734 (S.D.N.Y. 1995).

Though the Court

acknowledges Petitioner’s difficulties, “the great majority of
released

felons

face

difficulty

in

convincing

prospective

employers to overlook their criminal records when making hiring
decisions.

This

is

clearly

a

collateral

consequence

of

a

conviction, but it is not legal consequence of the type specified
by the Second Circuit as a prerequisite for eligibility for coram
nobis relief.”

Id. at 734, n.2.

Of note, Petitioner states that he possesses multiple
professional licenses including, inter alia: (1) a Commercial
Class B Driver’s License; (2) a Commercial Class A Permit; (3) a
New York City tow truck license; (4) professional car detailer;
(5) a fork lift license; (6) Homeland Security Clearance; (7) a
Building custodian Certification; and (8) a Cleaning Chemical
Certification and Green Certification.
at 5-6.)
pursue

(Reply to Resp’t’s Answer

The Court assumes that these licenses would allow him to
alternative

means

of

employment,

provided no explanation for not doing so.
with

regard

to

Petitioner’s

removal

and

Petitioner

has

The Court notes that

from

the

Access-A-Ride

driver’s course, the attached letter from the Department of Motor
Vehicles indicates that his disqualification for participation can
20

be waived when “five years have expired since you were convicted
or released from a sentence of imprisonment for this conviction”
or if a “certificate of relief” is obtained by demonstrating
specific pre-requisites.
has

failed

to

state

certificate of relief.

(See Pet., Ex. G., at 13.)

whether

he

took

actions

to

Petitioner
seek

this

In sum, Petitioner cannot show that he is

unable to return to his profession.
CONCLUSION
For the foregoing reasons, the Petition for a writ of
error coram nobis pursuant to 28 U.S.C. § 1651 (Docket Entry 1) is
DENIED and the Supplemental Petition is DENIED (Docket Entry 24).
Because there can be no debate among reasonable jurists that
Petitioner was not entitled to coram nobis relief, the Court does
not issue a Certificate of Appealability.

28 U.S.C. § 2253(c);

see also Middleton v. Att’ys Gen., 396 F.3d 207, 209 (2d Cir.2005).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Petitioner and mark this
matter CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
14 , 2018
Central Islip, New York
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