United States District Court, S.D. New York
October 10, 2005.
MICHAEL TROY FOREMAN, Petitioner,
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.
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.
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.
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.
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