Aguiar v. United States of America
Filing
2
OPINION AND ORDER denying 1 Petition for Writ of Error Coram Nobis (28 USC 1651). Signed by Judge William K. Sessions III on 4/29/2015. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
UNITED STATES OF AMERICA
:
:
:
:
:
v.
STEPHEN AGUIAR
Case No. 2:00-cr-119
OPINION AND ORDER
Defendant Stephen Aguiar, proceeding pro se, has filed a
petition for writ of error coram nobis challenging his 2001
conviction for possession of heroin with intent to distribute.
Aguiar contends that his defense attorney misadvised him about
the statutory maximum sentence, and that this advice played a
significant role in his decision to plead guilty.
Although
Aguiar has completed his sentence, he claims to be suffering
continuing injury because a more recent sentence was enhanced by
the 2001 conviction.
The government opposes the petition, arguing that it is
untimely and legally unsupported.
For the reasons set forth
below, the petition is denied.
Factual Background
Aguiar alleges in his petition that he was arrested in
Burlington, Vermont on November 6, 2000.
In the course of the
arrest, law enforcement seized 20.1 grams of heroin and 84.6
grams of powder cocaine.
Aguiar admitted in a post-arrest
statement that the drugs belonged to him.
On December 7, 2000, a federal grand jury returned a two-
count indictment charging Aguiar with possession with intent to
distribute 100 grams or more of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B), and possession with intent to
distribute a quantity of cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C).
Defense counsel allegedly advised
Aguiar that he faced a potential sentence of ten years to life on
Count One.
The defense subsequently filed a motion to suppress Aguiar’s
post-arrest statement.
Prior to the suppression hearing, the
prosecution communicated to defense counsel that if the hearing
went forward, the government would ultimately argue for an
obstruction of justice enhancement and oppose any acceptance of
responsibility reduction.
After relaying this message to his
client, defense counsel presented Aguiar with a plea agreement.
The agreement proposed that Aguiar would plead guilty to a
single count and be sentenced under Section 841(b)(1)(C) for less
than 100 grams of heroin.
There would be no statutory minimum,
but according to counsel the Court could impose a sentence of up
to 30 years in prison and supervised release of no less than six
years to life.
Aguiar would stipulate to a base offense level of
26 based upon drug quantity, including relevant conduct of 200
grams of heroin and 840 grams of cocaine.
Counsel reportedly
advised Aguiar that, given the possibility of a life sentence if
the case went to trial, he should accept the plea agreement.
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Aguiar did offer to plead guilty, but claims that he
“vehemenly contested” the drug amount alleged in the plea
agreement, and informed the Court at the Rule 11 hearing that the
plea deal felt coerced and involuntary.
The transcript from the
Rule 11 hearing reveals that when the Court asked Aguiar whether
anyone had threatened him or forced him in any way to plead
guilty, Aguiar responded: “No, sir.”
ECF No. 43 at 7.
Aguiar
did inform the Court that he was entering a guilty plea in order
to avoid a charge of obstruction of justice and remain eligible
for acceptance of responsibility.
The Court made clear that
those issues would be decided in a “separate determination,” and
that acceptance of responsibility was not necessarily determined
by whether Aguiar had “objected to the introduction of evidence
or not.”
Id. at 12.
Aguiar further explained to the Court that he had weighed
the risks and benefits of a plea, that there was “no question
[as] to [his] guilt,” but that he believed the police were being
untruthful about his post-arrest statement and “that there are
guidelines that people have to go by.”
Id. at 14-15.
The Court
took a short recess so that Aguiar could again discuss the
agreement with his attorney.
When the hearing resumed, defense counsel reiterated that
Aguiar remained disturbed about potential police dishonesty.
Counsel also conceded that even if the post-arrest statement was
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suppressed, arguments for suppression of other drug evidence were
a “long shot” and that Aguiar was aware of this fact.
Id. at 18.
When Aguiar asked about how the Court makes credibility
determinations, both defense counsel and the Court explained that
a totality of circumstances test would be applied.
When Aguiar
suggested that he take a polygraph test, the Court discussed the
admissibility of such a test.
The Court then took a second brief
recess.
After the second recess, Aguiar informed the Court of his
belief that “it’s within my best interests to accept the plea
agreement.”
Id. at 43.
The government provided a proffer of
facts to which Aguiar agreed, and the Court accepted the plea.
With regard to the government’s threat to oppose acceptance of
responsibility if the suppression hearing went forward, the Court
noted that in any plea agreement “[b]oth sides give up something
and both sides get something in return.
So I don’t think that
there really is any question about voluntariness here.”
43.
Id. at
Aguiar was subsequently sentenced to 92 months in prison to
be followed by a six-year term of supervised release.
Aguiar now claims that throughout the criminal proceeding,
his attorney and the Court assumed that he would be subject to a
sentence enhancement under Section 851, when in fact there could
be no such enhancement because the government failed to file a
Section 851 information.
Aguiar further argues that without the
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required Section 851 information, he was subject to a maximum
sentence of 40 years under Section 841(b)(1)(B), and not the life
sentence of which his attorney warned.
Aguiar also claims that
his supervised release would have been capped at three years, and
not the six to which he was sentenced.
This misinformation from
counsel allegedly played a substantial role in Aguiar’s decision
to plead guilty.
In 2009, having served fewer than three years of his
supervised release on the 2001 sentence, Aguiar was arrested and
charged with conspiracy.
release was revoked.
Because of his arrest, his supervised
In 2011, he was convicted of conspiracy and
sentenced to 30 years in prison to be followed by 10 years of
supervised release.
He was also convicted of violating his
previous supervised release, and given a concurrent sentence of
36 months.
Aguiar claims that his most recent sentence was
enhanced by the 2001 conviction under 28 U.S.C. § 851, as well as
United States Sentencing Guideline § 4B1.1.
He contends that
without these enhancements, his minimum statutory sentence would
have been 10 years, and not the 30 years to which he was
sentenced.
Aguiar reports that his 2001 sentence, including supervised
release, expired on August 4, 2014.
He filed his petition for
writ of coram nobis on September 29, 2014.
The government
concedes that it never filed a Section 851 information in the
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2001 case, but contends that the indictment alleging a previous
felony conviction was the “functional equivalent.”
The
government also argues that the petition is untimely, and that
Aguiar has failed to explain why he failed to raise these issues
earlier.
Discussion
I.
Legal Standard
The writ of coram nobis is an exceptional remedy to be
granted “only where extraordinary circumstances are present.”
Nicks v. United States, 955 F.2d 161, 166–67 (2d Cir. 1992).
It
“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.”
F.3d 88, 89–90 (2d Cir. 1998).
Fleming v. United States, 146
“[T]he power of the [C]ourt . . .
to vacate . . . judgments for errors of fact exist[s] . . .
[only] in those cases where the errors were of the most
fundamental character; that is, such as rendered the proceeding
itself irregular and invalid.”
United States v. Mayer, 235 U.S.
55, 69 (1914); Foont v. United States, 93 F.3d 76, 78 (2d Cir.
1996) (same); see also Carlisle v. United States, 517 U.S. 416,
429 (1997) (noting that “it is difficult to conceive of a
situation in a federal criminal case today where [a writ of coram
nobis] would be necessary or appropriate” (internal quotation
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marks omitted)).
In keeping with these principles, the Second
Circuit has articulated a three-pronged standard for when coram
nobis relief is appropriate: “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 from his [or
her] conviction that may be remedied by granting of the writ.”
Foont, 93 F.3d at 79 (quoting Nicks, 955 F.2d at 167 and United
States v. Morgan, 346 U.S. 502, 511 (1954)).
When determining whether to grant coram nobis relief, the
prior proceedings are presumed to have been conducted correctly
and it is Petitioner’s burden to prove otherwise.
See Morgan,
346 U.S. at 512 (“It is presumed [that] the proceedings were
correct and the burden rests on the accused to show otherwise.”);
Nicks, 955 F.2d at 167 (“[W]e must presume the proceedings were
correct.
The burden of showing otherwise rests on the
petitioner.”).
II.
Timeliness Under 21 U.S.C. § 851(e)
The government first argues that because Aguiar is
challenging a 2001 conviction that was used in calculating his
2009 sentence, his challenge is untimely under 21 U.S.C. §
851(e).
Section 851(e) provides:
No person who stands convicted of an offense under this
part may challenge the validity of any prior conviction
alleged under this section which occurred more than
five years before the date of the information alleging
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such prior conviction.
Aguiar’s 2001 sentence is plainly outside this five year statute
of limitations.
Aguiar responds that Section 851(e) applies only to
sentencing, and not to collateral attacks.
The District of
Massachusetts recently reached that same conclusion with regard
to habeas corpus petitions.
Vizcaino v. United States, 981 F.
Supp. 2d 104, 109 (D. Mass. 2013).
In Vizcaino, Judge Saris
found that “the prohibition on raising ‘challenges’ that were
over five years old only restricts defendants from raising such
challenges within the federal sentencing forum. . . .
[T]here is
no clear statement [in the statute] that such challenges could
not be . . . used as a basis for a federal habeas motion . . . .”
981 F. Supp. 2d at 109.
Although Viscaino was a habeas corpus
case, the Second Circuit has held that federal habeas principles
are often instructive in the coram nobis context.
See, e.g.,
Fleming v. United States, 146 F.3d 88, 90 n.2 (2d Cir. 1998).
In this case the Court need not determine the question of
whether Section 851(e) applies since, as discussed below,
Aguiar’s petition is barred for failure to seek relief previously
and for lack of prejudice.
III. Failure to Seek Relief Previously
“[A]lthough coram nobis relief has no specific statute of
limitations, such relief ‘may be barred by the passage of time’”
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depending on the facts and circumstances of the individual case.
Sahin v. United States, No. 8:13-CV-358, 2014 WL 2177088, at *2
(N.D.N.Y. May 22, 2014) (italics omitted) (quoting Foont, 93 F.3d
at 79).
“Therefore, unless the petitioner can demonstrate
sufficient justification for his failure to seek relief at an
earlier time, the writ is unavailable and his petition for coram
nobis should be dismissed.”
Id. (italics and internal quotation
marks omitted); see also Nicks, 955 F.2d at 167–68 (describing
the Court’s task as to “determine whether [the petitioner] had
sound reasons for his lengthy delay in seeking coram nobis
relief” (italics omitted)).
Aguiar claims that he first learned about the Section 851
information requirement during a status conference in 2011, held
in the context of his more recent conspiracy conviction.
In
August 2012, he reviewed the 2001 case docket and discovered that
no such information was filed.
Aguiar also reports that he first
learned of the coram nobis remedy in 2011.
Nonetheless, he
failed to file his petition until approximately three years
later.
Courts in this Circuit have widely held that such a delay
is unacceptable.
See Rodriguez v. United States, No. 98–CR–764,
2012 WL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012) (more than
two-year delay); Ejekwu v. United States, No. 02–CV–699, 2005 WL
3050286, at *3 (E.D.N.Y. Nov. 14, 2005) (more than two-year
delay); Cisse v. United States, 330 F. Supp. 2d 336, 344
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(S.D.N.Y. 2004) (one-year delay); Mastrogiacomo v. United States,
No. 90–CR–565, 2001 WL 799741, at *2 (S.D.N.Y. July 16, 2001)
(three-year delay); see also United States v. Abramian, No.
02–CR–945, 2014 WL 4702584, at *4 (C.D. Cal. Sept. 22, 2014)
(more than two-year delay); United States v. Rankin, 1 F. Supp.
2d 445, 454 (E.D. Pa. 1998) (more than two-year delay).
Aguiar blames the delay in part upon the fact that he has
been represented by the same attorney since 2001.
At the same
time, he concedes that he was able to discover the lack of a
Section 851 information when he received a copy of the docket
sheet in 2012.
He further claims that the delay was due to a
traumatic brain injury, and cites a neuropsychological evaluation
from 2010 indicating “cognitive and emotional sequelae of both
untreated Attention Deficit Disorder and traumatic brain injury.”
ECF No. 37-9 at 19.
In order to convince the Court that a delay
should be excused, it is the petitioner’s burden “to show that
these problems rendered him unable to pursue his legal rights.”
Torres v. Miller, No. 99-CIV-0580, 1999 WL 714349, at *8
(S.D.N.Y. Aug. 27, 1999).
Here, Aguiar does not explain why,
despite this alleged injury, he was able to file in 2014 and not
earlier.
He has therefore failed to carry his burden.
In his reply memorandum, Aguiar details his efforts to
perform legal research and obtain corroborating evidence after
his receipt of the docket sheet in 2012.
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Those efforts were
impeded, in part, by time that Aguiar spent in administrative
segregation, presumably for some form of misconduct.
Aguiar also
explains that, in the face of other Court filings suggesting that
a Section 851 information had been filed in the 2001 case, he did
not want to rely solely upon the lack of a docket entry.
Ultimately, however, he did just that, filing his petition in
2014 and obtaining confirmation of his “hunch” when the
government filed its response.
Of course, an earlier and more
timely filing would have achieved the same result.
The Court therefore finds that Aguiar’s petition is
untimely, and may be denied on that basis.
IV.
Prejudice
The Court also finds that Aguiar has failed to show
prejudice arising out of his guilty plea.
The essence of his
claim is ineffective assistance of counsel, which requires a
showing of not only ineffectiveness but also prejudice.
See
Strickland v. Washington, 466 U.S. 668, 694 (1984) (petitioner
must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”).
The failure to raise an issue on direct
appeal, as Aguiar has done here, also bars further relief unless
the petitioner can show prejudice.
See Bousley v. United States,
523 U.S. 614, 622 (1998).
At the Rule 11 hearing, which was initially called in order
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to hear Aguiar’s suppression motion, defense counsel explained
that even if the suppression motion was successful his client was
likely to be convicted on the basis of other evidence.
Furthermore, in the course of that hearing Aguiar admitted his
guilt and agreed to the government’s factual proffer.
While
Aguiar now contends that his attorney’s poor advice was a
substantial factor in his decision to plead guilty, the
likelihood of his conviction at trial, and his re-arrest in 2009
in the midst of his supervised release term, rendered that advice
essentially harmless.
The Court further notes that Aguiar
received downward departures at sentencing, including acceptance
of responsibility, and that those departures may not have been
awarded in the face of a likely government objection post-trial.
Aguiar has therefore failed to demonstrate prejudice arising out
of his guilty plea, and his coram nobis petition is denied.
V.
Conclusion
For the reasons set forth above, Aguiar’s petition for a
writ of coram nobis (ECF No. 37) is denied.
Dated at Burlington, in the District of Vermont, this 29th
day of April, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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