United States District Court, S.D. New York
June 8, 2005.
KURIAN CHACKO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION AND ORDER
The petitioner, Kurian Chacko ("Chacko"), brings this motion
pursuant to Federal Rule of Criminal Procedure 35, which is
properly construed as a writ of error coram nobis or another
extraordinary writ. The petitioner asks the Court to modify or
set aside a condition of his supervised release that requires the
petitioner to make payments on a judgment entered against him in
the civil proceeding, State Bank of India v. Balogh, Inc., No.
96 Civ. 4416 (S.D.N.Y. Oct. 19, 1995). The petitioner's
application is denied.
The facts of this case are detailed in the Court's prior
opinions, United States v. Chacko, No. 96 Cr. 519, 1997 WL
481862 (S.D.N.Y. Aug. 21, 1997), aff'd, 169 F.3d 140 (2d Cir.
1999) and Chacko v. United States, Nos. 96 Cr. 519 & 00 Civ.
405, 2000 WL 1808662 (S.D.N.Y. Dec. 11, 2000) (denying habeas corpus), certificate of appealability
denied, No. 01-2130 (2d Cir. May 30, 2001). Familiarity with
these opinions is assumed, and details are recounted here as
necessary to decide the issues raised in the petitioner's current
In an October 17, 1995 Order, Chief Judge Mukasey entered a
judgment against the petitioner in the amount of $5,000,000 plus
interest of $685,138.05 at the conclusion of civil litigation
between Chacko, his company Balogh, Inc., and the State Bank of
India ("the Bank"). See State Bank of India v. Balogh, Inc.,
No. 95 Civ. 4416 (S.D.N.Y. Oct. 19, 1995).
In a subsequent judgment filed on February 4, 1998, this Court
sentenced the petitioner principally to a term of imprisonment of
121 months, in addition to a three-year term of supervised
release. See United States v. Chacko, No. 96 Cr. 519
(S.D.N.Y. Feb. 4, 1998). As one of the special conditions of
supervision, the Court ordered the petitioner to "pay 10% of his
gross monthly income toward the payment of the judgment of
$5,586,138.05 in favor of the State Bank of India entered by
Chief Judge Mukasey until it is fully paid." (See id. at 5;
see also Order dated Oct. 19, 2004, at 1.) The conviction was
affirmed on appeal. United States v. Chacko, 169 F.3d 140 (2d Cir. 1999).
The petitioner filed a first petition pursuant to
28 U.S.C. § 2255, which was denied. Chacko v. United States, Nos. 96 Cr.
519 & 00 Civ. 405, 2000 WL 1808662 (S.D.N.Y. Dec. 11, 2000). The
Court of Appeals denied the petitioner's motion for a certificate
of appealability. Chacko v. United States, No. 01-2130 (2d Cir.
May 30, 2001).
On January 12, 2004, the Court's Pro Se Office received the
petitioner's first motion allegedly pursuant to Federal Rule of
Criminal Procedure 35(a). (See Order dated Oct. 19, 2004, at
3.) In that motion, the petitioner challenged the calculations
used to determine his sentence of imprisonment pursuant to the
United States Sentencing Guidelines along with this Court's Order
directing the petitioner to make monthly payments toward the
judgment entered in the petitioner's civil case. As the Court
explained in its Order dated October 19, 2004, the petitioner has
repeatedly characterized these payments as a part of an "order of
restitution," when these payments were in fact ordered as a
special condition of Chacko's term of supervised release. (See
id.) The Court did not enter an order of restitution. Chief Judge Mukasey interpreted Chacko's self-styled Rule 35(a)
motion as a second or successive habeas petition filed pursuant
to Section 2255 and transferred it to the Court of Appeals for
the Second Circuit. (See Chacko v. United States, No. 04 Civ.
2258, Transfer Order (S.D.N.Y. Mar. 22, 2004).) The Court of
Appeals subsequently denied Chacko's motion for leave to file a
second Section 2255 petition to the extent that it challenged the
determination of his sentence of imprisonment. (See Chacko v.
United States, No. 04-1668 (2d Cir. May 24, 2004).) The Court of
Appeals also appeared to adopt the petitioner's characterization
of the payments to the Bank as an "order of restitution" as
opposed to a condition of the petitioner's supervised release.
The Court of Appeals noted that because challenges to orders of
restitution are not cognizable under Section 2255, the Court of
Appeals was not required to rule upon that portion of Chacko's
motion and remanded the matter of restitution to this Court.
(Id.; see also Order dated Oct. 19, 2004, at 4 & n. 2.)
Upon remand from the Court of Appeals, the Court ordered Chacko
to file a new civil action if he wished to proceed on a challenge
to the Court's order that he make payments to the Bank. In
response, Chacko filed an "Amended Motion" pursuant to Federal
Rule of Criminal Procedure 35(a). In the Amended Motion, the petitioner again
challenged both the calculation of his term of imprisonment and
the Court's order regarding payments to the Bank. (Id. at 5.)
The Court denied the petitioner's renewed objections to the
calculation of the length of his term of imprisonment because it
was identical to the motion already rejected by the Court of
Appeals. (Id. at 6.) The Court added that the petitioner's
objections to the alleged order of restitution might be construed
as a petition for a writ of error coram nobis or as a
petition for some other extraordinary writ. (Id. at 7.)
Accordingly, the Court ordered the Government to respond to the
petitioner's Amended Motion, and specifically requested that the
Government address the issue of whether the petitioner's Amended
Motion was properly construed as a petition for a writ of error
coram nobis or as a petition for some other extraordinary
writ. (Id. at 6.)
The Court of Appeals for the Second Circuit has explained that
the writ of error coram nobis is,
not a substitute for appeal, and relief under the
writ is strictly limited to those cases in which
errors . . . of the most fundamental character have
rendered the proceeding itself irregular and invalid.
United States v. Carter, 437 F.2d 444, 445 (5th
Cir.) (per curiam) (citation and internal quotation
marks omitted). A district court may issue a writ of
coram nobis pursuant to the All Writs Act,
28 USC § 1651(a), where "extraordinary circumstances are
present." Nicks v. United States, 955 F.2d 161, 167
(2d Cir. 1992). The proceedings leading to the
petitioner's conviction are presumed to be correct,
and "the burden rests on the accused to show
otherwise." United States v. Morgan, 346 U.S. 502,
512 (1954); Nicks, 955 F.2d at 167. A petitioner
seeking such relief must demonstrate that (1) there
are "circumstances compelling such action to achieve
justice," id. at 167 (citation and internal
quotation marks omitted), (2) "sound reasons exist ?
for failure to seek appropriate earlier relief,"
Morgan, 346 U.S. at 512, and (3) the petitioner
"continues to suffer legal consequences from his
conviction that may be remedied by granting of the
writ." Nicks, 955 F.2d at 167.
Foont v. United States, 93 F.3d 76, 78-79 (2d Cir. 1996).
Moreover, the Supreme Court has instructed that although the writ
of coram nobis survived the enactment of Section 2255, the
writ is available only in truly extraordinary circumstances.
See Morgan, 346 U.S. at 510-11.
After its decision in Foont, the Court of Appeals for the
Second Circuit reviewed the denial of a Section 2255 petition
filed by a prisoner who sought to challenge both his term of
imprisonment and an order of restitution. See Kaminski v.
United States, 339 F.3d 84, 85 (2d Cir. 2003). In Kaminski,
the Court of Appeals considered, but did not determine, whether a
petitioner can ever use an extraordinary writ to challenge a
non-custodial aspect of a sentence, such as an order of
restitution. Rather, the Court of Appeals noted that Section 2255
petitions extend only to claims relating to a prisoner's "custody" and that the
minimum restitution payment schedule in that case did not amount
to a restraint on liberty. Id. at 86-87.
As Judge Calabresi noted in Kaminski, in a discussion that
Chief Judge Walker and Judge Leval did not join, the writ of
error coram nobis "is an extraordinary remedy which operates
under rules that are more stringent than those applicable to
habeas," and is available only to address "fundamental errors"
in obtaining a conviction. Id. at 90 (emphasis in original).
Judge Calabresi explained that the possibility that incarcerated
defendants could challenge non-custodial aspects of their
sentences through such extraordinary writs would "create an
elegant symmetry in the availability of challenges to
punishments." Id. at 91. Contrasting the restrictions on
challenges on direct appeal to either custodial or non-custodial
punishments with the restrictions imposed on collateral
challenges, Judge Calabresi observed that,
When these collateral attacks go to something as
inherently fundamental as restraints on freedom
sufficient to amount to "custody," the great writ,
habeas, presumably lies. When instead custody is not
at stake, challenges can only be made through the use
of extraordinary writs like coram nobis, which lie
only if the challenged error is fundamental. The fact
that a petitioner seeks to challenge both custodial
and non-custodial punishments at the same time
neither expands nor contracts the scope of either
habeas or the extraordinary writs. Id.
Judge Calabresi also noted that the Court of Appeals for the
Seventh Circuit has approved such a use of the writ of error
coram nobis. See id. at 89 (citing Barnickel v. United
States, 113 F.3d 704, 706 (7th Cir. 1997)). The prerequisite for
this use of the writ is a showing of extraordinary circumstances
amounting to the existence of a fundamental error. See id.;
see also Barnickel, 113 F.3d at 706 (noting that writ of
error coram nobis can be used to challenge order of
restitution but that writ is not available "to reach issues that
could have been raised by direct appeal. . . .") Judge Calabresi
made it clear in Kaminski that he was not writing on behalf of
the Court when he noted that a writ of error coram nobis may
be available under appropriate circumstances. See Kaminski,
229 F.3d at 89.
In this case, the petitioner is actually challenging a monetary
condition of his supervised release rather than an order of
restitution, but there is no basis to apply a different set of
principles to that condition from the rules that apply to an
order of restitution. Accordingly, the Court of Appeals has not
yet resolved the issue raised by the petitioner's current
application, namely whether the petitioner can use an extraordinary writ to challenge the
requirement of his supervised release that he pay the judgment in
the Bank of India case in accordance with the specified payment
However, it is unnecessary to resolve the issue of whether the
petitioner could successfully challenge that order or other
non-custodial condition because "coram nobis can relieve an
individual of the continuing noncustodial effects of a criminal
conviction only when fundamental errors were made in obtaining
that conviction." See id. at 90 (citations omitted) (emphasis
In this case, the petitioner could not make a showing that
fundamental errors were made in obtaining his conviction, and he
has not made this showing in his current application. Rather, the
petitioner misconstrues the condition of his supervised release
as a requirement to pay the entire amount of the judgment without
credits for any other money paid to the Bank to satisfy the
judgment. However, the condition of supervised release expressly
provides that the petitioner will pay 10% of his gross monthly
income toward the judgment "until it is fully paid." Plainly, all
money paid to satisfy the judgment would reduce the amount to be
paid. Accordingly, Chacko's request for a hearing to determine
the total amount that he owes the Bank is denied in this criminal proceeding. (See
Amended Motion at 8.) Once the civil judgment is fully paid, no
further payments are required.
The petitioner also objects to the condition of supervised
release that required his periodic payment of the Bank of India
judgment because, he argues, the Court should have imposed an
order of restitution rather than a condition of supervised
release. The argument is without merit. First, the argument
cannot be raised on this petition for coram nobis relief
because it plainly could have been raised on direct appeal from
the judgment of conviction which included the term of supervised
release. See Barnickel, 113 F.3d at 706 (coram nobis
cannot be used to raise issues that could have been raised on
direct appeal). Moreover, the condition of supervised release was
a wholly reasonable condition of supervised release that was
"reasonably related" to the offenses of conviction. See
18 U.S.C. § 3583(d); United States v. A-Abras, Inc., 185 F.3d 26,
35 (2d Cir. 1999) ("conditions of supervised release need only be
`reasonably related' to the offense and the circumstances of the
In his reply papers, the petitioner argues that the Court
should modify the condition of his supervised release, pursuant
to 18 U.S.C. § 3583(e)(2), because of payments that the Bank has received. The application is denied.
The application was raised for the first time in the petitioner's
reply brief and is not properly part of the relief requested in
this coram nobis petition.*fn1 There is also no basis
for the application. While the Court does have the power to
modify the conditions of supervised release in order to account
for changed circumstances, see United States v. Lussier,
104 F.3d 32, 34 (2d Cir. 1997), the petitioner has failed to show any
such circumstances. The petitioner has not even begun to serve
his term of supervised release. He has made no showing that the
reasonable payment schedule for the judgment should be modified,
and he has made no showing that the substantial judgment in favor
of the Bank of India has been satisfied. III.
The petitioner submitted a February 11, 2005 letter that raised
two new issues.
First, the petitioner asks for the return of his passports,
which were allegedly turned over to the Government in May 1997,
presumably as part of the conditions of the petitioner's
pre-trial release. That application was raised for the first time
in supplemental papers and is not properly part of this coram
nobis application. By separate order the Court directed the
Government to return the passports or show a continuing need for
their retention. By letter dated June 7, 1995, the Government
reported that it is trying to determine the location of the
petitioner's passport and that the most recent passport has
expired. It is unclear from the correspondence if there is more
than one passport. This application, as part of the coram
nobis proceeding, is denied as moot.
Second, the petitioner alleges that his sentence was imposed
pursuant to the Sentencing Guidelines and was in violation of the
Supreme Court's decision finding the mandatory application of the
Sentencing Guidelines to be unconstitutional. See United
States v. Booker, 125 S. Ct. 738 (2005). The claim is without
merit because Booker is not retroactive to cases on collateral
review. See Guzman v. United States, No. 03-2446-PR, 2005 WL
803214 (2d Cir. Apr. 8, 2005). However, this challenge to the petitioner's sentence is yet another challenge to the
petitioner's custody, which is a successive petition pursuant to
28 U.S.C. § 2255 and must be referred to the Court of Appeals for
a determination whether it is consistent with the limitations on
successive petitions for habeas corpus. 28 U.S.C. § 1631;
Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996)
For the reasons explained above, the petitioner's motion
pursuant to Rule 35(a), construed as a writ of error coram
nobis or other extraordinary relief, is denied. To the extent
that the petitioner has raised a new argument based on Booker
to vacate his sentence, the application is transferred to the
Court of Appeals for the Second Circuit for a determination
whether the petitioner should be permitted to file a successive
motion pursuant to 28 U.S.C. § 2255.