The opinion of the court was delivered by: David R. Homer, U.S. Magistrate Judge.
MEMORANDUM-DECISION AND ORDER
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
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
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.
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
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 ...