Dogan v. United States of America

Filing 11

MEMORANDUM OPINION AND ORDER adopting 8 Proposed Findings and Recommendations; directing that the 1 PETITION for Writ of Error Coram Nobis pursuant to 28 U.S.C. § 1651 is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 9/16/2013. (cc: attys; any unrepresented party, Mag. Judge) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CHARLES DOGAN, JR.,
Petitioner,
v.

Civil Action No. 2:13-01035
(Criminal No. 2:96-00066)
(Criminal No. 2:91-00055)

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is a petition for a writ of error coram nobis
pursuant to 28 U.S.C. § 1651, filed January 17, 2013.

I.

This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636.

On August

20, 2013, the magistrate judge filed his PF&R recommending that
the petition be denied.

The PF&R comprehensively recites the

lengthy procedural posture of this matter.
that discussion below.

The court summarizes

On February 7, 1991, the grand jury indicted the
petitioner for a drug conspiracy (Count One) and two counts of
possession with intent to distribute crack cocaine (Counts Two
and Three).

On July 16, 1991, petitioner pled guilty to the

indictment and, on September 24, 1991, he was sentenced to 30months imprisonment on each count, with the sentences running
concurrently.

Petitioner additionally received a five-year term

of supervised release.

No appeal was taken.

release term commenced April 21, 1993.

The supervised

On July 19, 1994, the

petitioner moved pursuant to 28 U.S.C. § 2255 seeking a
reduction of his supervised release term to three years.
On April 9, 1996, while on supervised release,
petitioner allegedly sold cocaine base in two separate
controlled buys.

The probation officer petitioned the court to

revoke the supervised release term based upon this conduct,
which violations also gave rise to Counts One and Two of a new
indictment.

See United States v. Dogan, No. 2:96-00066.

On

April 11, 1996, petitioner was alleged to have sold more crack
cocaine, which formed the basis for Count Three of the new
indictment.

Yet again, on April 16, 1996, petitioner allegedly

engaged in another sale, which conduct served as a predicate for
both revocation of the supervised release term and Count Four of
the new indictment.

On April 18, 1996, petitioner allegedly

conducted a fifth crack cocaine transaction, which resulted in
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Count Five in the new indictment.
On April 19, 1996, the court granted petitioner’s
section 2255 motion, reducing the supervised release term to
three years.

That was the same day the probation officer had

petitioned for revocation of the supervised release term as
noted supra.

On April 21, 1996, the petitioner’s reduced

supervised release term expired, after which, but prior to his
arrest on the petition, he engaged in two other sales of crack
cocaine on April 25, 1996.

Those two sales resulted in Counts

Six and Seven of the new indictment noted above.

Later that

same day, the petitioner was arrested on the supervised release
revocation warrant.
On August 21, 1996, the parties appeared for trial on
the new indictment.

Petitioner, however, chose instead to plead

guilty to Count Four of the new indictment.

The court rejected

the proposed plea agreement and trial commenced.

During the

first day of the trial, the parties entered into a revised
proposed plea agreement to Count Six, which the court accepted.
On January 2, 1997, petitioner moved to withdraw his
guilty plea to Count Six following the appearance of new counsel
on his behalf.

During an evidentiary hearing held January 2 and

3, 1997, witness testimony established the factual basis
supporting Count Six and the two alleged supervised release
3

violations.

On March 31, 1997, the court denied the motion to

withdraw the guilty plea.

On April 8, 1997, petitioner was

sentenced to a 24-month term of imprisonment on the supervised
release violations and a consecutive 288-month term on Count
Six, following the determination that he qualified as a career
offender.
On July 15, 1998, the court of appeals affirmed the
Judgments resulting in the petitioner’s revocation and criminal
sentences, rejecting the only ground advanced by petitioner,
namely, the denial of his motion to withdraw his guilty plea.
On February 11, 1999, the petitioner moved anew pursuant to
section 2255, which motion was denied on May 23, 2000.

The

petitioner’s appeal of that Judgment was unsuccessful.

A.

The Nature of the Writ and the Governing Standard

Our court of appeals has recently observed that coram
nobis relief is reserved only for the most compelling of cases:
As a remedy of last resort, the writ of error coram
nobis is granted only where an error is “of the most
fundamental character” and there exists no other
available remedy. United States v. Mandel, 862 F.2d
1067, 1075 (4th Cir. 1988). The writ is narrowly
limited to “‘extraordinary’ cases presenting
circumstances compelling its use ‘to achieve
justice.’” United States v. Denedo, 556 U.S. 904, 129
S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009) (quoting
United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct.
4

247, 98 L.Ed. 248 (1954)). Thus, the writ provides
relief in cases where the error “rendered the
proceeding itself irregular and invalid.” United
States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235,
60 L.Ed.2d 805 (1979) (internal quotation marks and
citation omitted) (superseded by statute on other
grounds).
United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012);
Bereano v. United States, 706 F.3d 568, 576-77 (4th Cir. 2013)
(noting the "circumscribed use of coram nobis" and quoting the
Supreme Court's observation that “'judgment finality is not to
be lightly cast aside; and courts must be cautious so that the
extraordinary remedy of coram nobis issues only in extreme
cases.'”)(quoting United States v. Denedo, 556 U.S. 904, 916
(2009) (quoting also Carlisle v. United States, 517 U.S. 416,
429 (1996), which states “[I]t 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
marks omitted))); see also United States v. George, 676 F.3d
249, 253 (1st Cir. 2012) ("The metes and bounds of the writ of
coram nobis are poorly defined and the Supreme Court has not
developed an easily readable roadmap for its issuance.

But the

Court has indicated that caution is advisable and that
'[c]ontinuation of litigation after final judgment . . . should
be allowed through this extraordinary remedy only under
circumstances compelling such action to achieve justice.'”)
(citation omitted).

5

As observed in the Akinsade decision, a petitioner
seeking coram nobis relief is obliged to demonstrate four
elements:
“(1) a more usual remedy is not available; (2) valid
reasons exist for not attacking the conviction
earlier; (3) adverse consequences exist from the
conviction sufficient to satisfy the case or
controversy requirement of Article III; and (4) the
error is of the most fundamental character.”
Akinsade, 686 F.3d at 252.

B.

The Petitioner’s Objections

On September 3, 2013, the petitioner objected to the
PF&R.

First, petitioner asserts that the probation officer

violated the Fourth Amendment inasmuch as he never testified to,
nor had personal knowledge of, the conduct giving rise to the
alleged supervised release violations.

The magistrate judge

adequately covers the matter at pages 21-22 of the PF&R.

The

objection is not meritorious.
Second, petitioner asserts that, by virtue of his plea
to Count Six, he was improperly deemed to have admitted the
separately alleged supervised release violations.
to the contrary.

The record is

As noted by the magistrate judge, the court

heard testimony during the January 2 and 3, 1997, evidentiary
hearings substantiating, by a preponderance of the evidence, the

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misconduct alleged in the supervised release petition.

The

objection is not meritorious.
Third, petitioner asserts that he in fact raised on
direct appeal a challenge to his 24-month supervised release
revocation term of imprisonment.

As noted by the court of

appeals in its July 15, 1998, opinion affirming that portion of
the court’s judgment, petitioner “only appeal[ed] the legal
question of whether the court erred in refusing to allow . . .
[him] to withdraw his plea” to Count Six of the new indictment.
(Slip op. at *2).

In view of this procedural default, and his

failure to demonstrate that the failure to raise that ground on
direct appeal amounted to ineffective assistance of counsel, the
objection is not meritorious.
Having considered and overruled the petitioner’s
objections, and in light of the thorough analysis conducted by
the magistrate judge at pages 18 to 27 of the PF&R and the
discussion supra,
1.

it is ORDERED as follows:

That the magistrate judge's PF&R be, and hereby is,
adopted and incorporated herein; and

2.

That this action be, and it hereby is, dismissed and
stricken from the docket.

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The Clerk is directed to transmit a copy of this
written opinion and order to the magistrate judge, counsel of
record and any unrepresented parties.
ENTER:

September 16, 2013

John T. Copenhaver, Jr.
United States District Judge

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