The opinion of the court was delivered by: Trager, J
The government has filed a motion for reconsideration of the grant of Kevin Dean's coram nobis petition.
Dean initially petitioned for an expungement of the record of his fingerprints on October 25, 2004. This motion was denied on November 8, 2004. Dean v. United States, No. 04-mc-00299 (E.D.N.Y. Nov. 8, 2004).
Dean's second motion was filed on March 23, 2005 pursuant to 28 U.S.C. § 2255 to have his conviction set aside. On September 1, 2005, the petition was denied and converted into a petition for coram nobis. Dean v. United States, 05-cv-1496, 2005 WL 2129153 (E.D.N.Y. Sept. 1, 2005). In the same order, the government was directed to submit the form upon which the petitioner pled guilty. Id. The government failed to provide any such form, displaying lack of due diligence that is to be contrasted with the petitioner's counsel, who was able to retrieve the form and submitted it to the court. Nonetheless, having failed to submit any form, the government filed its first motion for reconsideration regarding the application of the coram nobis doctrine and requested limited discovery. On February 27, 2006, petitioner's petition for coram nobis was granted, implicitly denying the discovery request. Dean v. United States, 418 F. Supp. 2d 149 (E.D.N.Y. 2006).
(1) The Government has Filed this Motion for Reconsideration
In this motion the government argues that petitioner's claim is precluded by the prior suit for fingerprint expungement. The government has again requested the opportunity for discovery, a summary judgment briefing and an evidentiary hearing on the elements of the coram nobis doctrine. Finally, the government has again questioned whether Dean suffers from any conviction at all. Each argument is addressed below.
The government has raised for the first time in this motion the argument that Dean's record cannot be expunged because of the res judicata, or claim preclusion, effect of the October 25, 2004 order denying petitioner's motion to expunge the record of his fingerprints. Not only has it waived the affirmative defense by failing to raise it previously, O'Conner v. Pierson, 426 F.3d 187 (2d Cir. 2005) (finding claim preclusion an affirmative defense which is waived if not raised), it is now precluded from raising this new issue on a reconsideration motion. Cunnif v. Dep't of Treasury, 05-3399 (ENV), 2006 WL 930842 (E.D.N.Y. Apr. 11, 2006) (denying motion for reconsideration where movant failed to "demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion") (internal quotation and citation omitted).
Even if the court were prepared to ignore the waiver, the preclusion argument is without merit. A motion to expunge and a § 2255 motion or coram nobis claim are treated differently under the court's procedures. An application to expunge is filed as a miscellaneous proceeding while a § 2255 is filed as a civil action with a different caption. Although the court probably would not have required Dean to pay, the court does require different fees for miscellaneous cases ($35), than for § 2255 cases ($5). See Deficit Reduction Act of 2005, Pub. L. 109-171 (2005).
More importantly, although the government characterizes its argument as res judicata, the government's argument appears to be based on collateral estoppel or issue preclusion because it claims that the particular issue of expungement of Dean's fingerprints has already been litigated, thus precluding the expungement of Dean's conviction record. However, the doctrine cannot apply because a claim for expungement of the record of his fingerprints is not the same as one for the correction of an erroneous record of a conviction. The factors and policies weighed in expunging an accurate arrest or fingerprint record and in correcting an erroneous record of conviction present different considerations.
The expungement of accurate arrest records is only allowed in "extreme cases" because of the government's interest in maintaining accurate records to promote effective law enforcement. Unted States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977); see 28 U.S.C. § 534(a) (2005) (directing the attorney general to collect and maintain criminal records). "Such extreme circumstances have been found and records ordered to be expunged where procedures of mass arrests rendered judicial determination of probable cause impossible, where the court determined the sole purpose of the arrests was to harass civil rights workers, where the police misused the police records to the detriment of the defendant, or where the arrest was proper but was based on a statute later declared unconstitutional." Schnitzer, 567 F.2d at 539 (internal citations omitted). Because these circumstances were not present, and because potential harm to employment has been found not to be an "extreme circumstance," Dean's initial petition to expunge the accurate record of his arrest and fingerprints was denied. Dean v. United States, No. 04-mc-00299 (E.D.N.Y. Nov. 8, 2004); (citing United States v. Hasan, No. 98-cr-786 (ILG), 2002 WL 31946712 (E.D.N.Y. Dec. 4, 2002)).
Dean's second request, to correct the erroneous record of a conviction, does not trigger the same concern about the negative consequences of loss of important information if accurate criminal records are expunged. Here, rather than seeking to remove an accurate record from law enforcement officials, Dean seeks to ensure the record contains accurate information: that he has not been convicted of public lewdness. No information is lost to law enforcement officials by granting his request. Rather it assures that they have correct information on which to proceed. This new request improves upon, rather than diminishes, law enforcement's effectiveness. Thus, the rationale for requiring an "extreme circumstance" does not exist. All that is being sought is the correction of an inaccurate or ambiguous record. Dean, 418 F. Supp. 2d at 157. Many cases have stated that the courts have the equitable power to correct the "inaccuracy of records." See Doe v. Immigration and Customs Enforcement, No. M-54, 2004 WL 1469464, at *5-6 (S.D.N.Y. June 29, 2004); Doe v. United States, 964 F. Supp. 1429 (S.D.Cal. 1997); accord United States v. McFadzean, 93-cr-25 (CSH), 1999 WL 993641 (S.D.N.Y. 1999); United States v. Sherman, 782 F. Supp. 866 (S.D.N.Y. 1991); Chastain v. Kelley, 510 F.2d 1232 (D.C. Cir. ...