Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

FOREMAN v. U.S.

United States District Court, S.D. New York


October 10, 2005.

MICHAEL TROY FOREMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: HAROLD BAER JR., District Judge

OPINION & ORDER

On June 22, 2004, pro se petitioner Michael Troy Foreman applied to this Court for a writ of error coram nobis pursuant to 28 U.S.C. § 1651. Petitioner seeks to vacate his 1998 guilty plea and conviction. For the following reasons, the petition is DENIED.

I. BACKGROUND

  Petitioner is a native and citizen of Jamaica who entered the United States in 1971. On December 16, 1996, Petitioner was arrested in New York City on drug-related charges to which he plead guilty to violation of 21 U.S.C. § 846 (conspiracy to commit a drug offense) ("1996 Plea") and was placed on supervised release.*fn1 United States v. Foreman, 96 Cr. 1209 (S.D.N.Y. Feb. 4, 1997) (Tr. at 18:19, 19:21.) On February 25, 1997, Petitioner was again arrested on drug-related charges and I permitted him to withdraw his 1996 Plea and enter a new guilty plea on February 4, 1998 ("1998 Plea"), which is the subject of the instant petition. Id. (Feb. 4, 1998) (Tr. at 300:03). During his 1998 plea allocution, Petitioner's attorney stated that he had reviewed the plea agreement "line by line" with Foreman, and also "discussed the potential immigration and other collateral consequences" of the guilty plea. (Tr. at 300:25, 301:18.) Foreman testified that he believed his attorney "really truly has given . . . his all, his full attention to [Foreman's] case" (Tr. at 306:10) and this Court agreed. (Tr. at 306:14.)

  On March 12, 1998, pursuant to the plea agreement, this Court convicted Foreman of violation of 28 U.S.C. § 843(b) (using a telephone in the commission of a narcotics felony) and sentenced him to a prison term of ninety months followed by one year of supervised release. On February 23, 2004, Immigration Judge Grace S. Sease ordered Foreman removed from the United States to Jamaica upon completion of his sentence. In re. Michael Troy Foreman, File A 31 030 322, Executive Office For Immigration Review (2004). Her decision was predicated on his drug-related convictions. On June 22, 2004, six years after his 1998 guilty plea and conviction, Foreman filed the instant petition for writ of error coram nobis to vacate the 1998 plea and conviction and, ultimately, avoid deportation.

  II. DISCUSSION

  A writ of error coram nobis is available "only where extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). "To obtain coram nobis relief, a petitioner must demonstrate that 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. (internal citations and quotation marks omitted.) To establish compelling circumstances, Petitioner must establish that a fundamental error occurred at some point in his criminal proceeding. United States v. Morgan, 346 U.S. 502, 512 (1954). Petitioner posits ineffective assistance of counsel in violation of the Sixth Amendment as the requisite fundamental error. Id. at 511-12. In order to prevail on an ineffective assistance of counsel claim, Petitioner must establish that: (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688 (1984).

  Having heard Petitioner's plea allocution and acted as the sentencing judge in this case, and having reviewed the various submissions, the Judgment of Conviction, the plea allocution, as well as other pertinent portions of the record, I conclude that Petitioner is not entitled to relief.

  Petitioner alleges that his trial counsel rendered ineffective assistance by failing to inform him that his guilty plea could result in his deportation and as such his plea was not knowing and voluntary. This claim is without merit. The record is clear that Petitioner was aware of his alien status as well as the possibility of deportation when he pled guilty in 1998. During Petitioner's plea allocution, the possible effects of a guilty plea on his immigration status were raised before this Court. At that time his attorney confirmed that, together with Petitioner, he had "reviewed the plea agreement . . . and then we went through it paragraph by paragraph, line by line. . . . We also discussed the potential immigration and other collateral consequences." (Tr. at 300:22, 301:18.) When I asked Petitioner if he had gone over his plea agreement with his attorney and had all his questions answered, he responded in the affirmative. (Tr. at 300:22.) Moreover, the Presentence Investigative Report ("PSR"), dated March 3, 1998, states that Petitioner admitted that did not believe he was a citizen of the United States. (PSR ¶ 96.) Based on this, Petitioner has not met his burden to show that his attorney's conduct in any way fell below objective standards of reasonableness.

  III. CONCLUSION

  Because Petitioner has not demonstrated compelling circumstances to warrant issuance of a writ of error coram nobis relief, this Court need not consider whether sound reasons exist for Petitioner's failure to seek appropriate earlier relief. The petition for a writ of error coram nobis is DENIED. The Clerk of the Court is ORDERED to close this motion and any open motions and remove the case from my docket.

  IT IS SO ORDERED.

20051010

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.