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United States District Court, S.D. New York

August 24, 2004.

UNITED STATES. Respondent.

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge


Preliminary Statement

  On August 30, 1995, Franklin Grullon ("Grullon") pleaded guilty to one count of conspiracy to commit robbery involving an assault with a dangerous weapon, in violation of 18 U.S.C. § 1959(a)(6), and one count of using a telephone in connection with the distribution of cocaine, in violation of 21 U.S.C. § 843(b). Grullon, a legal resident of the United States since 1984, was sentenced to the maximum seven years' imprisonment on December 19, 1996. Grullon has petitioned this Court to vacate his Judgment of Conviction and dismiss the indictment against him pursuant to Federal Rule of Civil Procedure 60(b), specifically under subsections (2), (3), (4), and (6), as well as through a writ of coram nobis.


  Grullon and sixteen other defendants were initially charged in an eighty-six count superseding indictment, S2 94 Cr. 466 (JFK) (the "Indictment"), which was unsealed on November 16, 1994. Grullon and the other defendants were charged in Counts One and Two with violating the substantive and conspiracy provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c)(d).

  Specifically, the Indictment charged that Grullon and his co-defendants committed and conspired to commit six armed robberies of retail businesses. The Indictment charged Grullon with six predicate acts of racketeering, as well as non-RICO offenses arising from those predicate acts, including robbery (18 U.S.C. § 1951) and use of firearms during and in relation to violent crimes (18 U.S.C. § 924(c)). If convicted of all of the charges, Grullon faced more than 100 years' imprisonment.

  Grullon faced additional federal charges in Indictment 95 Cr. 25 (RWS). That indictment related to a "dial up" cocaine delivery service owned by Grullon. According to that indictment, undercover agents called a telephone number and ordered $20 packets of cocaine, that was then delivered and sold to the agents. Indictment 95 Cr. 25 charged Grullon with one count of conspiracy to sell cocaine, in violation of 21 U.S.C. §§ 812(a)(1), 841(b)(1)(c) and 846.

  Several defendants pleaded guilty before trial but Grullon and ten other defendants proceeded to trial on August 9, 1995. During jury selection, a majority of defendants, through their counsel, expressed an interest in pleading guilty and actively engaged in plea negotiations. Ten of the eleven defendants pleaded guilty between August 9, 1995 and August 24, 1995. On August 29, 1995 Grullon went to trial alone. The following morning, on August 30, 1995, Grullon pleaded guilty before the Honorable Kevin T. Duffy.*fn1

  Pursuant to a written plea agreement with the Government, Grullon pleaded guilty to a two-count superseding information (S 14 94 Cr. 455 (JFK)). Count One of the information charged Grullon with conspiracy to commit the robbery of Cars & Credit, located at 1501 Bruckner Boulevard, Bronx, New York (involving assault with a dangerous weapon, in violation of 18 U.S.C. § 19598(a)(6)). Count Two of the information charged Grullon with using a telephone to converse with a co-conspirator about the distribution of cocaine in violation of 21 U.S.C. § 1843(b). The plea agreement provided that Grullon's pleas of guilty to the two charges would be in full satisfaction of the charges pending against him before this Court and The Honorable Robert W. Sweet.

  During the plea allocution, Judge Duffy established that Grullon understood the charges against him; his right to plead not guilty and to proceed to trial; and his right to be represented by counsel throughout his trial. (Transcript of Plea Allocution ("Plea Tr.") at 3, 11). Judge Duffy read the full superseding information to Grullon and elicited from Grullon that he understood the maximum penalties for the charges to which he was pleading guilty. (Id. at 3-4). The Judge also reviewed with Grullon the plea agreement that Grullon had signed earlier, and ascertained that Grullon had discussed the plea agreement with his attorney, Ms. Bobbi Sternheim ("Sternheim"), who was present in court with him. (Id. at 3).

  Judge Duffy also elicited that no one was forcing Grullon to plead guilty to the charges:

THE COURT: Anyone force you to accept this arrangement, this plea agreement or anything like that?
GRULLON: No, your honor.
  (Id. at 17). In addition, Grullon acknowledged that he knew that a lie during his plea was "a separate crime for which [he] separately could be punished." (Id. at 12). As to each of the two counts, Grullon stated, "I plead guilty." (Id. at 13). Grullon then explained how he had committed the crimes with which he was charged, and answered questions posed by Judge Duffy. At the end of the plea allocution, Judge Duffy ruled that Grullon's "plea of guilty [was] knowing and voluntarily made and has a basis in fact," and scheduled sentencing for December 21, 1995. (Id.).

  On December 8, 1995, more than three months after entering his guilty plea, Grullon filed a pro se letter motion to withdraw his guilty plea and to have Sternheim replaced. Grullon alleged that Sternheim utilized unethical "boiler room tactics" to push him to plead guilty, and that she provided him with constitutionally ineffective assistance. (Application of Franklin Grullon, pro se, dated December 8, 1995).

  On January 5, 1996, the Court conferenced the case to address the issue of Sternheim's continued representation of Grullon. At the conference, the Court recounted the chronology of events prior to Grullon's guilty plea. Grullon acknowledged to the Court that the chronology was accurate, and a colloquy followed, during which Grullon stated, "Like I told you once before, Bobbi Sternheim is a good attorney. I can't say she is not a good attorney." (Transcript of January 5, 1996 Conference, at 5-6) (hereinafter, "1/5/95 Tr.").

  Grullon then told the Court that he had problems with Sternheim prior to his guilty plea: that "he was not supposed to be indicted with the Willis Avenue Lynch Mob," that he had no intention of pleading guilty prior to August 29, and that there were motions he wanted Sternheim to file and witnesses he had wanted her to subpoena for trial. (1/5/95 Tr. At 9-10). At the end of the conference, the Court, with great reluctance discharged Sternheim and appointed Anthony Ricco, Esq. ("Ricco") pursuant to the Criminal Justice Act ("CJA"), Grullon's third lawyer.*fn2

  On April 11, 1996, over seven months after Grullon pleaded guilty, Ricco, on Grullon's behalf, filed a motion to withdraw the guilty plea. Grullon supplemented Ricco's motion with copious submissions of his own in support of this application, in which he attacked both Sternheim and Ricco and asserted that his guilty plea was the result of "extreme psychological and mental pressure." Although Ricco wrote to the Court on two subsequent occasions, his attorney-client relationship with Grullon prevented him from challenging Grullon's allegations.

  In a written opinion on August 5, 1996, the Court denied Grullon's motion to withdraw his guilty plea. See United States v. Grullon, 1996 WL 437956 (S.D.N.Y. Aug. 5, 1996). In that opinion, the Court found that Grullon's claims were belied by the record, that Grullon's plea was entirely voluntary, and his claims regarding his former attorneys were baseless. On September 6, 1996, the Court granted Grullon's application to discharge Ricco, and appointed Grullon his fourth attorney. Grullon then filed a second motion to withdraw his guilty plea on October 8, 1996. The Court denied Grullon's motion in a written opinion, see United States v. Grullon, 1996 WL 721084 (S.D.N.Y. Dec. 13, 1996), and on December 19, 1996, the Court sentenced Grullon to a term of seven years' imprisonment, consistent with the terms of Grullon's written plea agreement.

  Grullon subsequently appealed his conviction. On November 17, 1997, the Second Circuit affirmed his conviction. (United States v. Ramon Torres, et al., 129 F.2d 710 (2d Cir. 1997)). On November 24, 1998, Grullon filed a petition pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction. Additionally, Grullon filed a motion requesting that the Court recuse itself from considering the petition. The Court denied Grullon's petition and recusal motion. See Grullon v. United States, 2001 WL 43603 (S.D.N.Y. Jan. 17, 2001). On April 23, 2001, the Court denied Grullon's request for a certificate of appealability pursuant to 28 U.S.C. § 2253. See Grullon v. United States, 2001 WL 417080 (S.D.N.Y. April 23, 2001). Grullon claims that his petition to the Second Circuit for a certificate of appealability was denied on April 5, 2002, and that a motion to re-consider that decision was denied by the Second Circuit on June 11, 2002, however, neither are reported. Grullon also claims that on October 21, 2002, the United States Supreme Court denied his petition for a writ of certiorari. See Grullon's Motion Under Rule 60(b) Requesting to Vacate the Defendant's Convictions and to Dismiss the Above Indictments With Prejudice ("Grullon Motion") at p. 8.

  Finally, in October 2003, Grullon filed the instant motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, seeking to vacate his convictions and to dismiss the indictment against him.


  Jurisdiction Grullon raises the same claims in this petition that he previously raised on appeal and in his § 2255 petition: that there is a conspiracy involving the attorneys and government officials in his case, and that the court wrongly convicted him.

  Grullon seeks vacatur of the judgment in this criminal case pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Rule 60(b)"). The Federal Rules of Civil Procedure govern only the procedure in the United States District Courts for suits of a civil nature however. Fed R. Civ. P. 1. Specifically, Rule 60(b) does not provide relief from a judgment in a criminal case. The rule is only available with respect to a previous habeas proceeding when the motion challenges the integrity of the habeas proceeding. The rule cannot be used to attack the underlying criminal conviction. See Harris v. United States, 367 F.3d 74, 77 (citing Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001). Grullon's arguments attacking the judgments of conviction and sentence are therefore inappropriately raised, and will not be reviewed by this Court. Nevertheless, to the extent that Grullon challenges the habeas proceeding itself, the Court will consider the Rule 60(b) motion.

  Rule 60(b) provides relief from a final judgment in suits of a civil nature for the following reasons set forth in the rule's subsections:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic); (4) the judgment is void; 95) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b). Grullon claims that subsections (2), (3) and (4) apply to his situation and dictate that the judgment of conviction be rendered void. According to Grullon, newly discovered evidence demonstrates that his convictions were obtained by fraud. Additionally, Grullon seeks relief pursuant to Rule 60(b)(6).

  Grullon's Rule 60(b) Motion Does Not Challenge the Integrity of the Habeas Proceeding.

  Despite Grullon's claim that his Rule 60(b) motion challenges the integrity of the habeas proceeding, his motion actually disputes the criminal judgments of conviction and sentence only. Grullon does not challenge the civil habeas proceeding or offer any evidence that the proceeding was tainted. Rather, Grullon simply recasts the same arguments he raised in his petition pursuant to 28 U.S.C. § 2255 ("2255"). Once again, assertions of his factual innocence and a claim of ineffective assistance of counsel.

  Grullon claims, pursuant to Rule 60(b)(2), that there was newly discovered evidence which the District Court failed to address in the habeas proceeding. The "new evidence" Grullon raises, however, is the potential testimony of a robbery victim who knew Grullon personally and who Grullon claims would offer his opinion of Grullon's innocence. This is not "newly discovered" evidence pursuant to Rule 60(b), as this potential witness could have been discovered in time to move for a new trial under Rule 59(b). Moreover, the claim was offered and rejected in his various motions and appeals. Thus, Grullon fails to offer any evidence to satisfy the rule, and fails to establish a complete claim pursuant to Rule 60(b)(2).

  Pursuant to Rule 60(b)(3), Grullon claims that he was the victim of fraud perpetrated by the government throughout all of his criminal proceedings. Notwithstanding Grullon's lack of evidence for this claim, the claim is inappropriately raised under Rule 60(b)(3) as it pertains to the criminal proceedings. As previously stated, Rule 60(b) does not apply to criminal proceedings. Although the rule may serve to challenge the integrity of the habeas proceeding, Grullon presents no evidence of fraud in the habeas proceedings. His claim pursuant to Rule 60(b)(3) is therefore without merit.

  Equally flawed is Grullon's claim pursuant to Rule 60(b)(4), asserting that the judgment is void. Again, Grullon fails to offer any concrete evidence, instead relying on his continued claims of innocence, that he was coerced into pleading guilty, and his unsubstantiated claim of governmental fraud.

  Grullon's persistent assertion of innocence does nothing to challenge the civil habeas proceeding and is misplaced. His claims of coercion and fraud were properly disposed of during consideration of his habeas petition and not, therefore the proper subject of a 60(b) motion. Additionally, Grullon claims that the government breached the plea agreement by ordering him deported. The plea agreement did not, however, address the potential issue of deportation. The fact that Grullon is eligible for deportation is a collateral consequence of his conviction and not a part of his actual sentence. Because deportation was not a part of his sentence, it was not a matter contemplated by the terms of his plea agreement. Furthermore, Grullon's deportation was ordered by the Immigration and Naturalization Service ("INS"). Although a government office, the INS was not a party to the plea agreement. Thus, the United States Attorney's Office did not breach the agreement. Therefore, this claim is likewise without merit.

  Relief Pursuant to Rule 60(b)(6) is Inappropriate

  Grullon believes he is entitled to relief pursuant to Rule 60(b)(6). He fails, however, to recognize that he is barred from Rule 60(b)(6) relief. The language of Rule 60(b)(6), specifically the phrase "other reason," has consistently been interpreted by the courts to mean reasons other than those specified in subsections (1) through (5) of Rule 60(b). See e.g. Klapprott v. United States, 335 U.S. 601, 614-15 (1949); Cirami, 563 F.2d 26, 32 (2d Cir. 1977) ("when the reason asserted for relief comes properly within one of [the first five] clauses, clause (6) may not be employed to avoid the one year limitation."); Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) ("(b)(6) applies only when no other subsection is available"); Schwarz v. United States, 384 F.2d 838, 835 (2d Cir. 1967). Therefore, by its plain terms, Rule 60(b)(6) does not apply in this case because Grullon has sought relief under subsections (2), (3), and (4), and Grullon is barred from relief pursuant to Rule 60(b)(6).

  Even if the Court were to find a legitimate claim pursuant to Rule 60(b)(6), which it does not, Grullon fails to establish a situation of extraordinary circumstances required by the rule. Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001); United States v. Cirami, 563 F.2d 26 (2d Cir. 1977) (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)). In his motion, Grullon focuses primarily on a claim of ineffective assistance of counsel to demonstrate an extraordinary circumstance upon which to contest his pending deportation. An ineffectiveness of counsel claim, however, is generally sought pursuant to Rule 60(b)(1). See e.g. Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986). Furthermore, the Second Circuit has rejected the argument that gross negligence of an attorney provides a basis for Rule 60(b)(6) relief. Cirami, 563 F.2d at 30.

  Ineffective Assistance of Counsel Claim is Without Merit

  Even if Grullon's ineffective assistance of counsel claim were properly raised, Grullon fails to satisfy the ineffectiveness standard established by the Supreme Court. In Strickland v. Washington, the Supreme Court articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance of counsel. See 466 U.S. 668, 687 (1984). As interpreted by the Second Circuit, under this test Grullon must show: "(1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (2d cir. 1998) (per curiam). Grullon's claim of ineffective counsel is predicated on his belief that his lawyer, Ms. Sternheim, coerced him into pleading guilty, and that she failed to inform him that deportation was a possible consequence of his pleading guilty. In considering an ineffective counsel claim, a court need not accept a petitioner's uncorroborated, self-serving testimony as true. Slevin v. United States, 71 F.Supp. 2d 348, 356 n. 7 (S.D.N.Y. 1999), aff'd, 234 F.3d 1263 (2d Cir. 2000); see also Williams v. United States, 481 F.2d 339, 346 (2d Cir. 1973); United States v. Follette, 416 F.2d 156, 163-64 (2d Cir. 1969). In the Second Circuit, it is established that the failure of the petitioner to submit an affidavit from counsel corroborating an ineffective assistance of counsel claim provides sufficient justification to dismiss a petition to vacate a guilty plea. See e.g., United States v. Santelises, 476 F.2d 787, 790 n3 (2d Cir. 1973); United States v. Welton, 493 F.2d 824, 826 (2d Cir. 1971); Slevin, 71 F.Supp. 2d at 357. Grullon did not submit an affidavit from his counsel to corroborate his ineffective assistance of counsel claim and has provided the Court with only his own uncorroborated testimony.

  Nor has Grullon supplied any other form of evidence, as required by Second Circuit case law, to support his self-serving testimony of ineffective assistance of counsel. There is no showing that counsel's performance was ineffective or unprofessional. In fact, as the record reflects, at the plea allocution, Judge Duffy specifically asked Grullon if he was being forced to accept the plea agreement. Grullon replied, "No, your honor." Further, aside from Grullon's own statements to the Court that he believed his attorney, Sternheim, was a "good lawyer," the plea agreement which she brokered indicates her effectiveness. The agreement substantially decreased Grullon's potential time in prison by up to 1,116 months. Consequently, the Court finds that Grullon has failed to demonstrate prejudice.

  Grullon also alleges that his counsel failed to inform him that a possible consequence of pleading guilty was deportation. Such a failure, Grullon contends, provides a basis for an ineffectiveness of counsel claim. Grullon, however, is mistaken in his interpretation of the case law on this matter. Deportation is a collateral consequence of pleading guilty, not a direct one. See United States v. Olvera, 954 F.2d 788, 793 (2d Cir. 1992). A defendant need not be informed of all of the collateral consequences of a guilty plea. See United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (noting that an attorney's failure to inform a defendant that a guilty plea may result in deportation "is of no legal significance"); Russo v. United States, 173 F.3d 846, **2 (2d Cir. 1999) ("counsel can not be found ineffective for the mere failure to inform a defendant of the collateral consequences of a plea, such as deportation."); Polanco v. United States, 803 F.Supp. 928, 931-32 (S.D.N.Y. 1992); Mastrogiacomo v. United States, 2001 WL 99741 at *3 (S.D.N.Y. July 16, 2001). Grullon incorrectly relies upon the United States v. Couto, where the Second Circuit held that ineffective assistance of counsel rendered a guilty plea invalid because counsel affirmatively misrepresented to the defendant the deportation consequences of pleading guilty. United States v. Couto, 311 F.3d 179 (2d Cir. 2002). In this case, however, there is no evidence that Grullon's attorney affirmatively misrepresented to him the consequences of pleading guilty. Even if Grullon's attorney failed to inform him of the possibility of deportation, which has not been established, that does not render Grullon's attorney ineffective because deportation remains a collateral consequence of the guilty plea. Santelises, 509 F.2d 703. Given that Grullon's attorney was not required to inform him of the possible collateral consequence of deportation, her alleged failure to do so was not unreasonable. Likewise, Sternheim's alleged failure to inform does not indicate prejudice. Thus, Grullon fails to satisfy both prongs of the Strickland test. Grullon's ineffective counsel claim is denied.

  Grullon's Motion is Time-Barred Under Rule 60(b).

  Even if this Court were to find relief pursuant to Rule 60(b) available to Grullon, which it does not, Grullon's motion is not timely made. Rule 60(b) provides that any motion made under subsections (1) through (3) "shall be made not more than one year after the judgment order, order, or proceeding was entered or taken." Fed.R.Civ.P. 60. Relief pursuant to clauses (4) and (6) of Rule 60(b) must be sought within a reasonable time period. Fed.R.Civ.P. 60. Grullon's conviction was affirmed by the Second Circuit on November 17, 1997. See United States v. Ramon Torres, et al., 129 F.2d 719 (2d Cir. 1997). His conviction, therefore, became final as of the date upon which he could no longer file a petition for a writ of certiorari to the United States Supreme Court, which, pursuant to Rule 13 of the Rules of the Supreme Court of the United States, was ninety days after entry of the judgment: February 17, 1998. Grullon filed this motion more than five years after his conviction became final. Even if the Court viewed Grullon's motion as properly directed at the habeas proceeding and order, that judgment order was entered on January 17, 2001. Grullon has filed this motion more than two years after the judgment order of his habeas proceeding was entered. Grullon's motion, therefore, is time-barred under Rule 60(b).*fn3

  Coram Nobis Relief is Inappropriate.

  Through his 60(b) motion, Grullon seeks relief pursuant to the ancient common law doctrine of coram nobis. Although Rule 60(b) is not typically construed as a writ of coram nobis, because Grullon is a pro se litigant facing deportation, the Court will afford him liberal construction and the benefit of such review. See Haines v. Kerner, 404 U.S. 519 (1972) (recognizing that pro se defendants cannot be expected to navigate the legal system as cleanly as a trained lawyer would; thus courts are expected to give pro se defendants greater latitude than they would trained lawyers). "A writ of error coram nobis is a traditional common-law writ that allowed for the correction of factual or clerical error in the judgment of a court by the same court that had rendered judgment." Worlumarti v. United States, 2002 WL 257817 at *2 (E.D.N.Y. Feb. 8, 2002) (citing Black's Law Dictionary 513 (6th Ed. 1990)). Although courts are still entitled to exercise coram nobis jurisdiction, see United States v. Morgan, 346 U.S. 502 (1954), coram nobis has become a disfavored means of exercising jurisdiction and the circumstances under which it can be exercised are narrowly limited. See Carlisle v. United States, 517 U.S. 416, 429 (1996) (stating that it is difficult for the Supreme Court to imagine a situation in which the exercise of coram nobis would be necessary or appropriate). Moreover, "coram nobis is not a substitute for appeal, and relief under the writ 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) (internal quotations omitted). A writ of coram nobis should only be issued, and thereby litigation that would otherwise be exhausted continued, when the circumstances compel its use to right a great injustice. See Morgan, 346 U.S. at 511; Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998).

  In order for Grullon to be entitled to the relief of the exercise of coram nobis jurisdiction, he 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) [that he] continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996). Grullon cannot satisfy this standard.

  Although Grullon has sought appropriate earlier relief, he fails to provide evidence of "circumstances compelling" the exercise of coram nobis jurisdiction because he fails to establish any occurrence of injustice. The merits of Grullon's conviction were considered and affirmed on direct appeal. He also challenged his conviction by filing a petition pursuant to 28 U.S.C. § 2255 to vacate his conviction. Since the date of his plea, the merits of his conviction have twice been considered. In each of these proceedings, as in the present motion, the crux of Grullon's claims have centered on his self-proclaimed innocence and unsubstantiated accusations of a conspiracy. In each instance his claims have been rejected and his conviction upheld.

  Nor does Grullon's claim that he was coerced into pleading guilty indicate a circumstance compelling action to achieve justice. The claim is advanced devoid of any evidentiary support. In fact, what evidence there is in the record before the Court contradicts this assertion. As previously noted, at his plea allocution, Grullon testified that he understood his right to trial and counsel and that he was not being forced into the plea agreement.

  Similarly, Grullon's challenges to his conviction lack any evidentiary support, and rely simply on his self-proclaimed innocence. Lacking evidence to establish a compelling circumstance of injustice, Grullon has failed to satisfy the standard for exercising coram nobis jurisdiction. Therefore, the Court finds it inappropriate to exercise coram nobis jurisdiction. Conclusion

  For the foregoing reasons, Grullon's petition to vacate his judgment of conviction is hereby denied. This case is closed and the Court directs the clerk of the court to remove this case from the Court's active docket.


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