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December 20, 2001


The opinion of the court was delivered by: David R. Homer, U.S. Magistrate Judge.


Presently pending is the petition and motion of Blerim Tocci ("Tocci") pursuant to 28 U.S.C. § 2241 and 2255 to vacate his conviction and sentence. For the reasons which follow, that relief is granted.*fn1

I. Background

Tocci, now thirty-two, was born in Yugoslavia (now Macedonia), moved to the United States with his parents and siblings in 1984, and has resided here ever since. Kenmore Affirm. (Docket No. 1) at ¶ 2; Tocci Aff. (Docket No. 1, Ex. H) at ¶ 5. Tocci became a lawful permanent resident of the United States in 1995. Kenmore Affirm. at ¶ 3 & Ex. A. He resides in Brooklyn, New York with his two United States citizen sons, ages nine and six. Id. at ¶ 3 & Ex. B.

On September 9, 1998 in the early morning hours, Tocci arrived at the Port of Entry at Rouses Point, New York southbound from Canada and driving a rented vehicle. Id. at ¶ 4; Gov't Mem. of Law (Docket No. 3) at Exs. 2, 5. Discovered hiding in the trunk of Tocci's car was Fatima Saimi, a citizen of Kosovo. Docket No. 3, Ex. 3 at 2. According to the United States, both Tocci and Saimi made statements to immigration officers following thier arrests.

According to Saimi, then eighteen, her mother had been killed by Serbian forces in Kosovo several months earlier and Saimi decided to seek asylum in the United States. Both Saimi and Tocci stated that they had met through an internet website which solicited volunteers to bring Kosovo refugees to the United States. In accordance with their arrangements, Tocci met Saimi in Montreal on September 8, 1998 and they proceeded toward the United States in Tocci's rented vehicle. Before reaching the border, Tocci instructed Saimi to hide in the trunk because he knew that, lacking a proper travel document, she could not enter the United States legally. Docket No. 3, Ex. 2.*fn2

Tocci was placed under arrest and subsequently charged in an information with attempting to bring an alien to the United States illegally in violation of 8 U.S.C. § 1324(a)(2).*fn3 Docket No. 1, Ex. C; Docket No. 3, Ex. 4. At approximately 3:00 p.m. on the same day, Tocci appeared before the United States Magistrate Judge at Rouses Point. Tr. of Hearing (Docket No. 1) at 2. Present were the magistrate judge, the arresting officers and Tocci; no attorney was present for the United States and Tocci signed a waiver of his right to counsel. Id.; Docket No. 3, Ex. 7. Tocci consented to proceed before a magistrate judge (Docket No. 3, Ex. 7), pleaded guilty to the information and was sentenced to pay a fine of $475 and a special assessment of $25. Judgment (Docket No. 1, Ex. D). Tocci took no direct appeal from his sentence and conviction.

Following the proceeding, Tocci was served by an immigration officer with a "Notice to Appear in a Removal Action." Docket No. 1, Ex. F. The Notice commenced removal proceedings against Tocci in which the Immigration and Naturalization Service alleged that as a lawful permanent resident, Tocci should be ordered removed from the United States because he had knowingly aided, assisted and encouraged an alien, Saimi, to enter the United States illegally in violation of section 212(a)(6)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(E)(i).*fn4 Id. The hearing was scheduled to commence on March 17, 1999 in Buffalo. Id. Tocci was paroled into the United States pending completion of the removal proceedings. Kenmore Affirm. at ¶ 8 & Ex. G. Tocci has denied the charge in the Notice and has filed an application for asylum; the removal proceeding remains pending as does Tocci's application for asylum. Id. at ¶ 9.

II. Discussion

A. Jurisdiction

Tocci commenced these actions as a motion under 28 U.S.C. § 2255, which authorizes a sentencing court to vacate a sentence and conviction if "the sentence was imposed in violation of the Constitutiion or laws of the United States. However, that section imposes a one year period of limitation on filing such motions and the period begins to run from the latest of four contingencies. The contingency most favorable to Tocci provides that the period begins to run on "the date on which the facts supporting the . . . claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(4); see Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000).*fn5

Here, the affidavit submitted by Tocci in his removal proceeding indicates that, Tocci had received a transcript of his guilty plea, was represented by an attorney and was aware of the grounds on which a motion could be made under section 2255. That affidavit was executed by Tocci on October 13, 1999. Tocci Aff. at 13. Thus, viewing the record in the light most favorable to Tocci, the facts supporting his claims here could have been discovered by the exercise of due diligence no later than October 13, 1999 and his section 2255 motion must, therefore, have been filed on or before October 12, 2000. Tocci filed his motion herein on February 20, 2001, more than four months after the section 2255 period of limitation could have expired. Accordingly, relief is unavailable to Tocci under section 2255.

In the alternative, Tocci contends that jurisdiction exists under 28 U.S.C. § 2241. That section authorizes courts to issue writs of habeas corpus in the district where the petitioner is detained. The Second Circuit Court of Appeals has held that a court may exercise jurisdiction under section 2241 over an individual convicted in a federal court where relief under section 2255 is inadequate or ineffective and where the record of the case demonstrates that the petitioner is actually innocent. See Triestman v. United States, 124 F.3d 361, 377-79 (2d Cir. 1997). However, relief under section 2241 is unavailable here to Tocci for at least two reasons. First, the record does not demonstrate Tocci's "actual innocence." See id. at 371 (vacating federal conviction under section 2241 where the petitioner was procedurally barred from seeking relief under section 2255 and the record demonstrates the petitioner's "actual innocence"); Fermin v. United States, Nos. 99 Civ. 4127 & 99 Civ. 4128, 2000 WL 12133, at *4 (E.D.N.Y. Jan. 6, 2000) (vacating one of petitioner's convictions under section 2241 as barred by the Double Jeopardy Clause). While Tocci's affidavit, if credited, establishes Tocci's innocence of the offense charged, that affidavit is contradicted by other evidence in the record, including the post-arrest statements of Tocci and Saimi. Thus, the record fails to establish Tocci's "actual innocence." Second, habeas corpus relief under section 2241 is available only to a petitioner whose liberty is then restrained in some fashion. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976) ("[d]espite the willingness of courts in recent years to broaden the concept of `custody' beyond the simple status of present imprisonment, . . . it still remains an essential aspect of the habeas corpus writ."). Where, as here, a petitioner has completed service of his or her sentence, the "in custody" requirement cannot be satisfied by the pendency of immigration proceedings. See Maleng v. Cook, 490 U.S. 488, 492-93 (1989); United States v. Weiss, 902 F. Supp. 326, 328-29 (N.D.N.Y. 1995).*fn6 Thus, section 2241 is also unavailable to Tocci here.

However, the fact that relief is unavailable to Tocci under either section 2255 or 2241 does not exhaust all possible bases for jurisdiction. Jurisdiction may also be found under the rarely issued common law writ of error coram nobis.*fn7 That "ancient" writ retains vitality under the All Writs Act, 28 U.S.C. § 1651(a).*fn8 United States v. Mandanici, 205 F.3d 519, 521 & n. 1 (2d Cir. 2000); Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). "Coram nobis 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, 146 F.3d at 89-90. It serves "to extend the period . . . in which the judge who rendered a decision could reexamine his handiwork." Lowery v. McCaughtry, 954 F.2d 422, 432 (7th Cir. 1992). Coram nobis "is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996). The burden of demonstrating entitlement to relief rests on the petitioner and it is presumed that the proceedings were correct. See Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). A writ of error coram nobis may issue if a petitioner demonstrates 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 from his conviction that may be remedied by granting of the writ." Foont, 93 F.3d at 79 (internal quotation marks, citations, and alterations omitted); see also Fleming, 146 F.3d at 90. Here, as discussed below in subsection B, the first requirement is satisfied. The third requirement is also satisfied by ...

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