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GONZALES-RODRIGUEZ v. U.S.

February 1, 2005.

ANGEL FELIPE GONZALES-RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

This is a petition for a writ of error coram nobis. It was filed in September 2003 with the original number of the criminal action, 88 Cr. 290. It was not assigned a civil number until 2004. That number is 04 Civ. 1428.

The petition seeks to vacate the judgment entered in the criminal case on March 8, 1989. He also seeks relief as to a recent illegal reentry conviction, as will be described.

  The petition is denied.

  Facts

  On October 20, 1987 two agents of the Immigration and Naturalization Service, Joseph Occhipinti and Theresa Regis, appeared at the apartment of petitioner. Occhipinti has testified that the purpose was to interview the owner of a travel agency that was believed to be located at the apartment. Page 2

  The agents knocked on the door of the apartment, which was opened by petitioner. After identifying themselves as immigration officers, the agents questioned petitioner, who denied that there was a travel agency at the location. The agents were granted permission to enter the apartment. In the course of questioning, petitioner claimed that he was from Puerto Rico, but then admitted that he was from the Dominican Republic. Petitioner could not produce any immigration documents, and was placed under arrest. Occhipinti observed in plain view a gun, a substance that appeared to be cocaine, and drug paraphernalia.

  Petitioner was given his Miranda warnings, and subsequently executed a written statement, admitting that he had been selling cocaine for approximately one month and that the gun belonged to him.

  Petitioner was subsequently indicted for possession of cocaine with intent to distribute and possession of a firearm in connection with drug trafficking.

  Petitioner moved to suppress the evidence seized from his apartment and also to suppress oral and written statements.

  A suppression hearing was held on September 29, 1988. Occhipinti was the only witness. Petitioner did not present any evidence by way of affidavit or testimony, although his attorney engaged in vigorous cross-examination of Occhipinti. Page 3

  The court denied the suppression motion from the bench. The court's ruling was on the basis of what the court considered uncontradicted evidence. The court found that the agents were admitted to the apartment by petitioner, that the agents properly found out that petitioner was an illegal alien, and that drugs and drug paraphernalia were observed in plain view. Moreover, there was no indication, or even a claim, that petitioner's Miranda rights were violated.

  As a result of the denial of the suppression motion, petitioner pled guilty on December 15, 1988 to count one of the indictment, charging the narcotics violation. Petitioner was sentenced to a prison term of 16 months, followed by a three-year ...


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