United States District Court, S.D. New York
February 1, 2005.
ANGEL FELIPE GONZALES-RODRIGUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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.
The petition is denied.
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 term of supervised release. Judgment was
entered on March 8, 1989.
Petitioner did not appeal. He served a prison term of about 9 months,
before being paroled on December 20, 1989.
Petitioner was then taken into the custody of the INS. He was released
on bail by an Immigration Judge in Texas. He failed to appear for further
immigration proceedings. Petitioner now claims that he returned to the
New York area and never received notification of such proceedings. An
order of deportation was entered in absentia. Petitioner was located and
was deported on April 1, 1999.
On October 23, 2001 petitioner was arrested for illegally reentering
the United States. On March 4, 2002 he was indicted for illegally
reentering, following deportation, which deportation occurred subsequent
to conviction for the commission of an aggravated felony. See
8 U.S.C. § 1326(a)(b)(2). Petitioner pled guilty and was sentenced on
July 25, 2002 to imprisonment for 50 months to be followed by a
three-year term of supervised release.
The Present Petition
The present petition is based on the following contentions. Petitioner
asserts, correctly, that in 1991 Occhipinti was indicted on multiple
counts of violation of civil rights, involving the conduct of illegal
searches and seizures at grocery stores, travel agencies and other small
businesses. He was charged also with other crimes. Occhipinti was tried,
based upon evidence of illegal conduct occurring in 1989 and 1990, and
Petitioner contends that Occhipinti's criminal conviction demonstrates
the illegality of Occhipinti's search and seizure as to petitioner in
1987, and further demonstrates the lack of credibility of Occhipinti as a
witness at petitioner's 1988 suppression hearing.
Petitioner further claims that, if the motion to suppress had been
granted in 1988, as it should have been, the criminal case against
petitioner could not have proceeded, nor would petitioner have entered a
guilty plea. Thus, according to petitioner, his 1989 conviction should be
set aside. Without this 1989 conviction, petitioner's illegal reentry
charge would not have
been of such a serious nature, and his sentence on the reentry charge,
which is now being served, would have been substantially less. Thus, he
should be re-charged and re-sentenced on the reentry matter.
The basic issue is whether the court, in response to the present
petition, should nullify its ruling on the 1988 suppression motion. All
other requests in the petition flow from petitioner's contention
regarding the suppression motion.
The court declines to revise its ruling on the suppression motion. The
court recognizes that the conviction of Occhipinti is a most unusual
circumstance. But this conviction does not mean that every search and
seizure Occhipinti ever carried out was illegal. Nor does it mean that
the findings of a court after a thorough suppression hearing are
Occhipinti's credibility was put directly at issue in the 1988
suppression hearing. Among other things, there was the question of
whether Occhipinti was telling the truth when he said he and the other
agent went to petitioner's apartment to inquire about a travel agency. On
the basis of the evidence presented, the court found that they did so.
But more importantly, there was uncontradicted evidence that the agents
were admitted to the apartment, that petitioner was an illegal alien, and
that he had in his possession cocaine, drug paraphernalia, and a gun.
Petitioner does not deny
that after being properly given his Miranda warnings, he confessed to
selling cocaine and owning the gun.
The evidence, which the court scrutinized and weighed in 1988 justified
denial of the suppression motion. The court's judgment is not altered by
the information regarding Occhipinti's later criminal case. Thus there is
no basis for invalidating petitioner's 1989 judgment of conviction, and
no basis for directing that there be any revision of the illegal reentry
The petition is dismissed.
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