Mala v. United States of America

Filing 39

OPINION AND ORDER. MOOT 37 MOTION for Writ of Mandamus filed by Kelley Norman Joseph Mala; GRANTED 32 MOTION to dismiss Plaintiff's Petition to Vacate Sentence filed by United States of America. Signed by Judge Salvador E Casellas on 4/16/2010.(LB)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

K E L L E Y NORMAN JOSEPH MALA Petitioner v. U N IT E D STATES OF AMERICA R espondent Civil No. 09-1037 (SEC)

OPINION and ORDER P e n d in g before this Court is Petitioner Kelly Norman Joseph Mala's ("Mala" or " P e titio n e r" ) request for a writ of coram nobis (Docket # 1), and the Government's opposition th e r e t o (Docket # 32). The Government also filed a motion to dismiss (Docket # 32), and P e titio n e r opposed (Docket # 35). After reviewing the filings and the applicable law, the G o v e rn m e n t's motion is GRANTED, and Petitioner's request for a writ of coram nobis is D E N IE D . Factual and Procedural Background O n January 4, 1989, Mala was indicted by a federal grand jury in Puerto Rico in a f iv e -c o u n t superseding indictment against a total of fourteen defendants. See United States v. M a la , 7 F.3d 1058, 1060 (1993). Mala was charged with conspiracy to import cocaine into the U n ite d States, 21 U.S.C. § 963, conspiracy to possess cocaine with intent to distribute it, 21 U .S .C . § 846, and using a telephone to facilitate importation of cocaine, 21 U.S.C. § 843(b). Id. S o m e 25 months after the original indictment surfaced, the Government agents arrested him in S t. Thomas, took him to Puerto Rico, and arraigned him on March 8, 1991. Id. On November 8 , 1991, Mala was sentenced to a lengthy prison term and other penalties. Id. His conviction was la te r affirmed on appeal. Id. However, Mala's April 18, 1994 petition pursuant to 28 U.S.C. § 2 2 5 5 was partially granted, insofar as the district court upheld Mala's conviction, however, the

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s e n te n c e imposed was vacated on the grounds of ineffective assistance of counsel. Civil No. 941 5 1 7 (JP), Docket # 34. As a result, on August 23, 1995, Mala was re-sentenced, and his s e n te n c e was reduced to concurrent terms of imprisonment of 70 months for each of the first a n d second counts, and 48 months for the third count. Over 10 years later, Mala filed a motion re q u e stin g the expungement of his criminal record and conviction, which was denied by the c o u rt. Crim No. 89-0002-1, Dockets ## 843 & 848. On January 14, 2009, Mala filed the present w rit, seeking to set aside his conviction on grounds of ineffective assistance of counsel. The G o v e rn m e n t filed an opposition, and Mala replied. Standard of Review " P u rsu a n t to the All Writs Act, federal courts have the authority to grant writs that were tra d itio n a lly available at common law." Barreto-Barreto v. United States, 551 F.3d 95, 102-103 (1 st Cir. 2008) (citing United States v. Sawyer, 239 F.3d 31, 37 (1st Cir. 2001) (citing 28 U .S .C . § 1651)). "A writ of error coram nobis is a common-law writ through which a rendering c o u rt, subject to certain conditions, may correct its own judgment on the basis of some patent e rro r affecting the validity or regularity of that judgment." Id. (citing Trenkler v. United States, 5 3 6 F.3d 85, 90, n.2 (1st Cir. 2008). It is "ordinarily available only to a criminal defendant who is no longer in custody." Id. (citing Trenkler, 536 F.3d at 98). To obtain relief under a writ of e rro r coram nobis, "the petitioner must 1) explain her failure to seek relief from judgment e a rlie r, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove th a t the error is fundamental to the validity of the judgment." Id. (citing Sawyer, 239 F.3d at 3 8 ); see also United States v. George, 436 F. Supp 2d 274, 278 (D. Mass. 2006). Albeit the "modern iteration coram nobis is broader that its common law predecessor," ra n g in g from "technical errors to fundamental ones," the Supreme Court has noted that the a v a ila b ility of the writ is limited "to `extraordinary' cases presenting circumstances compelling

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its use `to achieve justice.'" United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (citing U n ite d States v. Morgan, 346 U.S. 502, 511 (1954)). A p p lic a b le Law and Analysis O n appeal, Mala argued that the charges against him should have been dismissed due to v io la tio n s to his right to a speedy trial. The First Circuit affirmed the district court's judgment, n o tin g that "[b]ecause an evidentiary hearing was neither sought nor convened in this instance, th e assignment of error premised on the defendant's constitutional right to a speedy trial s u c c u m b s for want of satisfactory proof." Mala, 7 F.3d at 1062. The Court then affirmed the ju d g m e n t below "without prejudice, however, to appellant's right to raise his claim of in e f f e c tiv e assistance in a proceeding brought pursuant to 28 U.S.C. § 2255." Id. at 1063. A c c o rd in g ly, as previously stated, Mala filed a §2255 petition alleging ineffective assistance o f counsel, and as a result thereof, his sentence was vacated. However, his conviction remained u n a lte re d . During the re-sentencing hearing held on August 23, 1995, Mala's sentence was re d u c e d to concurrent terms of imprisonment of 70 months for each of the first and second c o u n ts , and 48 months for the third count. Thereafter, Mala's November 7, 2005 motion re q u e stin g the expungement of his criminal record and conviction was denied by the court. Crim N o . 89-0002-1, Dockets ## 843 & 848. On January 14, 2009, that is, over thirteen years after his re-sentencing, Mala filed the p re s e n t writ, seeking to set aside his conviction on grounds of ineffective assistance of counsel. A c c o rd in g to Mala, the district court's prior finding of ineffective assistance of counsel failed to take into consideration alleged violations to his right to a speedy trial. Mala argues that his c o u n s e l failed to raise this issue in the 2255 petition. He contends that his indictment and c o n v ic tio n would have been set aside but for his counsel's omissions on this front.

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In opposition, the Government argues that because Mala is currently in custody, he is not e n title d to a writ of coram nobis. Furthermore, they contend that Mala's writ is a mislabeled § 2 2 5 5 petition, insofar as he reasserts speedy trial act violations, and ineffective assistance of c o u n s e l arguments already addressed by this court. For purposes of determining whether Petitioner may seek coram nobis relief, this Court f in d s that he is not currently "in custody." United States v. Bucci, 97-10263, * 18, 2009 U.S. D is t. LEXIS 71768 (D. Mass. Aug. 11, 2009) (citing Maleng v. Cook, 490 U.S. 488, 492, 109 S . Ct. 1923, 104 L. Ed. 2d 540 (1989) (holding that "...once the sentence imposed for a c o n v ic tio n has completely expired, the collateral consequences of that conviction are not th e m se lv e s sufficient to render an individual `in custody' for the purposes of a habeas attack u p o n it"). Although the Government points out that Mala is currently in custody, it is for another c o n v ic tio n in Crim. No. 05-00286 (JAF). Instead the record shows that Mala was released on M a rc h 22, 1996 after serving his conviction in Crim. No. 89-0002-1. As such, he served the a m e n d e d sentence imposed in Crim. No. 89-0002-1. N o tw ith s ta n d in g , to prevail in his present request, Mala must first explain why he failed to seek relief from judgment earlier, considering that he was initially sentenced in 1991, and res e n te n c e d in 1995. On this front, Mala argues that he recently became aware of the collateral c o n s e q u e n c e s stemming from his conviction, upon being sentenced to 78 months in Crim. No. 0 5 -0 0 2 8 6 (JAF), instead of 70 months, due to his prior conviction in 89-0002-1. Thus he c o n te n d s that there was no delay in seeking coram nobis relief. However, courts have d istin g u is h e d the delay in seeking relief from a conviction with delay in seeking relief from the c o lla te ra l consequences of the conviction. United States v. Kayode, Slip Op. No. 06-508-T, *5 (D .R .I. January 8, 2009). This follows case law requiring that the movant explain his failure to

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s e e k relief from judgment earlier. Barreto-Barreto, 551 F.3d at 102-103 (citing Sawyer, 239 F.3d a t 38). Therefore, Mala's arguments on this front fail. This Court further notes that the three requisites to obtain relief under a writ of error c o r a m nobis as established by the First Circuit, must be viewed in light of the writ's purpose. C o r a m nobis relief allows courts to correct their own judgment on the basis of some patent error a f f e c tin g the validity or regularity of that judgment. Thus there must be an error that warrants c o rre c tio n by the court. Additionally, the Supreme Court has emphasized its limited applicability " to `extraordinary' cases presenting circumstances compelling its use `to achieve justice.'" D e n e d o , 129 S. Ct. at 2220. Upon reviewing the record, this Court finds that even if Mala demonstrates continuing c o lla te ra l consequences from the conviction, he fails to show that a fundamental error affecting th e validity of the judgment was committed, and warrants the issuance of a writ of coram nobis. S e e United States v. Michaud, 925 F.3d 37, 44 (1st Cir. 1991). More so considering that contrary to Mala's assertions, his arguments regarding alleged violations to his right to a speedy trial w e re presented before the district court in the 2255 petition. See Docket # 32-4. Thus, his c o u n s e l adequately argued said issue in support of Mala's motion to set aside his conviction. A s a matter of fact, based upon review of Mala's arguments, and the applicable law, the district c o u rt reduced his sentence on ineffective assistance of counsel grounds. However, the alleged e rro r was found insufficient to vacate his conviction. Considering the foregoing, Mala cannot o n c e again revisit issues than were adequately addressed, and denied by the courts. It is wells e ttle d that re-labeling of 2255 arguments has been repeatedly rejected by the courts. See United S ta te s v. Barett, 178 F.3d 34, 55 (1st Cir. 1999). As such, coram nobis relief is unwarranted in th is case. Conclusion

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CIVIL NO. 09-1037 (SEC) B a s e d on the above, Petitioner's petition for writ of coram nobis is DENIED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 16 th day of April, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge

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