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