United States District Court, Southern District of New York
April 11, 2003
MICHAEL A. FRAYLER, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
Michael A. Frayler ("Frayler") has made an application, pro se, for a writ of error coram nobis, pursuant to the All Writs Act, 28 U.S.C. § 1651(a). The application is premised upon "new evidence" that he contends warrants the court's vacating his conviction and permitting him to proceed to trial on criminal charges to which he previously pleaded guilty, so that he might clear his name. The respondent, United States of America, opposes Frayler's application; it is addressed below.
In July 1998, after entering into a negotiated plea agreement, Frayler pleaded guilty to a two count Information bearing docket No. 98 Cr. 670. Count one of the Information charged that Frayler, while a member of the New York Stock Exchange ("NYSE" or "Exchange"), unlawfully, willfully and knowingly effected securities transactions on the floor of the Exchange for accounts in which he maintained a beneficial interest and in which he had investment discretion, in violation of 15 U.S.C. § 78(k)(a)(1) and 17 C.F.R. § 240.11a-1. Count two of the Information charged Frayler with securities fraud, in violation of 15 U.S.C. § 78(j)(b) and 78ff and 17 C.F.R. § 240.10b-5, arising out of his execution of securities transactions on the floor of the Exchange in breach of his fiduciary duties to customers.
By January 2000, Frayler had dismissed the attorney he had retained, who negotiated the plea agreement on his behalf; that attorney also represented Frayler at his pleading proceeding. In January 2000, Frayler was being represented by an attorney appointed for him by the court. At that time, with the assistance of his new counsel, Frayler made a motion, pursuant to Fed.R.Crim.P. 32(e), that the court permit him to withdraw his guilty plea. The bases upon which Frayler sought that relief were: 1) psychological instability at the time the plea was tendered occasioned by unemployment, economic distress and prescribed anti-depressant medication; 2) ineffective assistance rendered by Frayler's retained counsel; 3) information revealed by a NYSE official, concerning the Exchange's interpretation, application and communication of rules, regulations and statutes pertinent to (a) the criminal charges Frayler faced and (b) the conduct of business on the trading floor of the Exchange; and 4) statements made by Frayler at the time that he pleaded guilty and later during a Fatico hearing concerning the wrongfulness and illegality of the conduct he engaged in that caused criminal charges to be filed against him. Frayler maintained that the statements he made when he pleaded guilty, and at the subsequent hearing, indicated that at the time of the charged crimes, he lacked the requisite culpable state of mind (mens rea) needed to be held criminally liable for his conduct. Moreover, he alleged that those statements made the knowing and voluntary nature of his guilty plea suspect.
On January 31, 2000, after oral argument on Frayler's motion to withdraw his guilty plea, your Honor denied the motion and sentenced Frayler to one month imprisonment, five months of home confinement, and three years of supervised release. Frayler was also directed to pay a special assessment of $200.
Frayler appealed from the judgment of conviction to the United States Court of Appeals for the Second Circuit. He urged that court to upset his conviction because the Honorable Sidney H. Stein, to whom Frayler had tendered his plea of guilty, had failed to ensure that the plea was being made voluntarily. Frayler also claimed that his plea allocution did not include all the elements of the charged crimes and, furthermore, that your Honor had abused your discretion in refusing to allow Frayler to withdraw his guilty plea. In an unpublished opinion, dated October 2, 2000, Frayler's conviction was affirmed. Thereafter, Frayler made the application for a writ of error coram nobis that is before the Court.
In support of the instant application, Frayler relies upon a variety of items that he characterizes as "new evidence." Among the items is a summary Frayler prepared of a telephone conversation he alleges he had in March 2001 with FBI Special Agent Paul Higgins. Special Agent Higgins was the case agent assigned to Frayler' s criminal prosecution. According to Frayler, during the telephone conversation, which Frayler says was taped, Special Agent Higgins acknowledged that Frayler was reluctant to plead guilty. Frayler reports that Special Agent Higgins expressed misgivings about Frayler's prosecution and the quality of the legal assistance Frayler received. Frayler contends that Special Agent Higgins also acknowledged having some recollection of seeing NYSE memoranda concerning Exchange trading floor practices pertinent to the conduct for which Mr. Frayler was prosecuted.*fn1
In further support of his petition for a writ of error coram nobis, Frayler also relies upon a letter he received from an unsatisfied client of the attorney Frayler retained to assist him in defending against the criminal charges to which he pleaded guilty. The author of the letter criticized the assistance that he received when he retained the attorney. The letter explained that its author learned of Frayler's circumstances through a newspaper article, and decided to write to him, in part, to offer Frayler assistance in starting a new career. The letter explained further that similar assistance had been offered to its author following his own involvement with the criminal justice system.
The "new evidence" that Frayler states justifies granting him the writ also consists of informational material concerning depression, and the beneficial effect of exercise on persons suffering from mild to moderate depression. The items of "new evidence" noted above were supplemented by newspaper articles concerning a deposition taken in a related case from Richard Grasso ("Grasso"), a former Chair of the Exchange. According to the articles, during the deposition, Grasso was questioned about NYSE floor trading practices germane to the criminal charges Frayler had faced. Frayler also submitted excerpts from the transcript generated during his sentencing proceeding. He maintains that the transcript excerpts show that he pleaded guilty under pressure from his retained counsel and, therefore, was not fully cognizant of what he was doing at that time.
For its part, the respondent contends that Frayler is not entitled to the relief he seeks because the claims he makes respecting: (1) mens rea; (2) the knowing and voluntary nature of his guilty plea; and (3) the ineffectiveness of the assistance he received from his retained counsel are all matters that were considered and rejected by the Second Circuit when Frayler appealed from the judgment of conviction. Therefore, the respondent maintains, Frayler cannot raise these claims anew through a collateral attack on the conviction. Furthermore, the respondent also contends that Frayler's application must be denied because he has not met the heavy burden placed on a petitioner seeking the extraordinary relief provided through the grant of a writ of error coram nobis. For example, the respondent maintains that Frayler has not alleged that any errors of a fundamental character occurred in the prior criminal proceedings for which the writ must be granted. Moreover, the respondent also contends that Frayler has not alleged that he continues to suffer legal consequences from his conviction that would be remedied if the court granted his application. The respondent also argues that Frayler's "new evidence" is not competent evidence upon which a court may rely in determining whether to grant the writ Frayler seeks. As a result, the respondent urges that Frayler's application for a writ of coram nobis be denied.
Generally, once a question has been raised and considered on direct appeal from a criminal conviction, the question may not be relitigated via a collateral attack upon the conviction. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001); Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992). Read liberally, Frayler's application for a writ of error coram nobis presents for review claims that were previously raised by Frayler in his direct appeal from the judgment of conviction to the Second Circuit Court of Appeals. Those claims include Frayler's contentions that his guilty plea was not made knowingly and voluntarily because his mental state was impaired by stress, hypertension and medication and, furthermore, that his retained attorney rendered ineffective assistance to him by pressuring him to plead guilty without permitting him an adequate opportunity to consider and discuss fully the terms and conditions of the negotiated plea agreement. In addition, Frayler also asked the Second Circuit to consider whether his plea allocution was defective because, as he maintained, the admissions he made during the plea allocution failed to establish that he had the requisite culpable state of mind at the time he committed the charged offenses to be held criminally liable for them. To the extent that the instant application for a writ of error coram nobis is premised on these grounds, it should not be entertained by the court because these precise questions were raised and considered on direct appeal and were resolved adversely to petitioner by the Second Circuit. See Savin and Cabrera, supra.
Although the impediment to attacking the conviction collaterally discussed above appears to obviate the need to reach the merits of Frayler' s application for a writ of error coram nobis, for completeness, the Court has determined to analyze the merits of his application.
"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 v. United States, 146 F.3d 88, 89 (2d Cir. 1998).*fn2 "A district court may issue a writ of error coram nobis . . . where "extraordinary circumstances are present.'" Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996)(citing Nicks v. United States, 955 F.2d 161, 167 [2d Cir. 1992]). Since it is presumed that all proceedings leading to the underlying criminal conviction were in all respects correct, an applicant for a writ of error coram nobis has the burden of showing otherwise. See United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253 (1954). Furthermore, in order to obtain a writ of error coram nobis, a petitioner "must demonstrate 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 the writ." Foont v. United States, 93 F.3d at 79 (citations omitted).
While Frayler contends that "new information" has emerged that warrants his conviction being vacated so that he might proceed to trial on the criminal charges that were lodged against him and clear his name, he has not presented to the Court any facts, of an evidentiary nature, that demonstrate that justice will be achieved if the relief he seeks is granted. For example, Frayler has failed to present "new evidence" that would support a finding that errors of a fundamental character were committed during any of the proceedings that preceded the entry of the judgment of conviction. To a great extent, Frayler's "new evidence" is old evidence previously revealed to your Honor and to the Second Circuit. Consequently, his reliance on: statements allegedly made by Special Agent Higgins concerning Frayler' s reluctance to plead guilty and the performance by his retained counsel; newspaper clippings; an unsolicited letter offering him employment; and information concerning depression, to support his application, is misguided. None of these items is competent evidence of facts that demonstrate that the pre-judgment criminal proceedings were infirm, that is, invalid and irregular. See Foont v. United States, 93 F.3d at 78. Without such evidence, Frayler has not surmounted one of the hurdles that must be cleared by him in order to permit a court to grant the writ he seeks.
In like manner, a writ of error coram nobis cannot issue absent a showing by a petitioner that he continues to suffer legal consequences from his conviction. The record before the Court is devoid of any allegation by Frayler that he continues to suffer legal consequences as a result of his conviction. While Frayler claims that he seeks the writ so that he might have a chance to clear his name, that is not an appropriate ground upon which to grant the writ. See U.S. v. Osser, 864 F.2d 1056, 1060 (3rd Cir. 1988). Under the circumstances, Frayler has not overcome at least two of the barriers to obtaining a writ of error coram nobis. Since the burden is upon Frayler to satisfy all of the requirements that would permit a court to grant his application for a writ of error coram nobis, the application must be denied. See Nicks v. United States, 955 F.2d at 167.
For the reasons set forth above, Frayler's application for a writ of error coram nobis should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).