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Awan v. United States

September 30, 2009


The opinion of the court was delivered by: Seybert, District Judge


On January 20, 2009, Khalid Awan ("Petitioner"), proceeding pro se, filed a petition seeking a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). Petitioner maintains that his guilty plea should be vacated because he received ineffective assistance of counsel. For the reasons stated below, Petitioner's application is DENIED in its entirety.


In September of 2001, law enforcement authorities received a complaint from a neighbor regarding possible criminal activity in Petitioner's apartment, located at 125 Terryville Road, Port Jefferson Station, New York. After interviewing the complainant, law enforcement agents went into Petitioner's vacated apartment and found mail in multiple names from credit card issuers and banks and thus sensed that a credit card scheme was involved. On March 17, 2003, Petitioner pled guilty to a Superceding Indictment charging a violation of 18 U.S.C. § 1029 (hereinafter referred to as "Conviction One").

Pursuant to his Plea Agreement, Petitioner agreed to "not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes the statutory maximum sentence of a term of imprisonment of 60 months, or below." (Plea Agreement ¶ 4.) Additionally, Petitioner agreed to the entry of an order forfeiting to the United States any and all property constituting or derived from proceeds Petitioner obtained directly or indirectly as the result of the violation of 18 U.S.C. § 1029. (Id. ¶ 6.) Petitioner agreed to the entry against him of a forfeiture money judgment in the amount of $306,785.00. On October 28, 2004, the Court sentenced Petitioner to sixty-months imprisonment, which was within his appellate waiver.

On March 8, 2006, while serving his first sentence for Conviction One, Petitioner was indicted in the Eastern District of New York. On December 20, 2006, after trial before the Honorable Charles P. Sifton, Petitioner was convicted of providing material support to terrorists, conspiracy to provide material support to terrorists, and money laundering (hereinafter referred to as "Conviction Two"). On October 3, 2007, Petitioner was sentenced to 168 months imprisonment, which was to run consecutively with Petitioner's sentence for Conviction One. Petitioner completed serving his sentence under Conviction One and is currently serving his second sentence for Conviction Two. The instant petition for a writ of coram nobis challenges the validity of Conviction One.


A writ of error coram nobis is an "extraordinary remedy" authorized under the All Writs Act, 28 U.S.C. § 1651, and is generally used to review a criminal conviction where a habeas corpus motion under 28 U.S.C. § 2255 is unavailable because the petitioner is no longer serving the sentence which he challenges. Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). However, "'the All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.'" Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed. 2d 613 (1996) (quoting Penn. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed. 2d 189 (1985). Coram nobis is essentially a remedy of last resort and should be allowed only when necessary to achieve justice. United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The petition for the writ "is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which" fundamental errors have rendered the proceedings irregular and invalid. Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996). The federal court reviewing the petition for the writ must presume the earlier proceedings were correct and the petitioner has the burden of showing otherwise. Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998).

"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." United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000) (internal quotation marks omitted).

The Government erroneously refers to the one-year statute of limitations applicable to petitions brought under 18 U.S.C. § 2255. However, "[t]t is undisputed that because a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subject to a specific statute of limitations." Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996) (internal citations and quotation marks omitted). "A petition for a writ of error coram nobis, however, may still be time barred if the petitioner cannot provide a justified reason for failure to seek appropriate relief at an earlier date." Cruz v. People of NY, 2004 U.S. Dist. LEXIS 12501, 2004 WL 1516787, *4 (S.D.N.Y. 2004) (citing Foont, 93 F.3d at 80). Petitioner alleges that he only recently "discovered" that he received ineffective assistance of counsel because counsel did not seek to suppress evidence that was allegedly "illegally" obtained. Given Petitioner's pro se status, the Court will err on the side of caution and presume that Petitioner did, in fact, only recently discover these facts.


I. Ineffective Assistance of Counsel

Although the petition for a writ of error coram nobis is difficult to decipher, it appears that Petitioner contends that he recently discovered that the catalyst for the original search of his home came from an "anonymous tip." According to Petitioner, the anonymous tip was "in fact a mistaken identity" and therefore there was no basis for the government to search his home and ultimately arrest Petitioner. (Pet. p. 12.) Petitioner argues that his counsel should have asked for a suppression hearing because counsel was allegedly aware that the evidence against Petitioner was "illegally and unlawfully" obtained from Petitioner's residence. Petitioner also maintains that his plea agreement was a deceptive representation by his attorney; according to Petitioner, his counsel "dangled" the Superseding Indictment before Petitioner one hour before Petitioner's guilty plea.

Finally, Petitioner maintains that he received ineffective assistance of counsel because his counsel failed to ...

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