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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 ...

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