The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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.
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 ...