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Fikret Korac v. United States of America

June 6, 2011

FIKRET KORAC, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Seibel, J.

MEMORANDUM DECISION AND ORDER

Pro se petitioner Fikret Korac immigrated to the United States in 1972 and became a permanent resident alien in 1974. He was convicted of federal felonies in 1994 and again in 2007. As a result of his convictions, Korac was ordered to be removed from the United States and faces deportation to Montenegro. In an attempt to avoid deportation, Korac has petitioned this Court for a writ of error coram nobis to vacate his 1994 conviction on the grounds that he was not apprised of the potential immigration consequences of entering a guilty plea. (Doc. 107.) For the reasons stated herein, Korac's motion is DENIED.

I.BACKGROUND

Petitioner Korac, a native of Yugoslavia, was admitted to the United States at New York City on December 19, 1972, and became a permanent resident alien in 1974. (Opp'n Mem. Ex. 4 ¶¶ 100, 105).*fn2 Between September 1991 and April 1992, Korac and several co-defendants stole approximately $298,000 by using credit cards stolen from the locker rooms of gyms and athletic clubs to obtain cash advances. (Id. at 2, Ex. 1 ¶¶ 5--15, 23.) Specifically, Korac and his co-defendants paid clerks at the Yonkers Raceway to approve the cash advances, which were then distributed among the co-defendants. (Id. Ex. 12 at 15:3--17.) For his part in the enterprise, Korac personally received approximately $15,000 to $20,000. (Id. Ex. 12 at 15:18--20.) On October 12, 1993, Korac and his co-defendants were indicted on one count of conspiracy to commit access device fraud in violation of 18 U.S.C. §§ 371 and 1029. (Doc. 32.) Thereafter, on June 28, 1994, Korac pleaded guilty to the sole count of the indictment, (Opp'n Mem. Ex. 1 ¶ 2), and on September 16, 1994, he was sentenced to one year and one day of imprisonment, to be followed by three years of supervised release, (Doc. 75). I will refer to this case, No. 93-cr-848, as the "1994 Conviction."

From November 2000 to January 2002, Korac participated in a conspiracy to install devices known as "skimmers" in automated teller machines ("ATMs") in New York, California, and Florida. (Opp'n Mem. Ex. 4 ¶¶ 28--47.) The skimmers allowed members of the conspiracy to steal users' bank account information from the ATMs in which the skimmers were installed. (Id. Ex. 4 ¶ 32.) Using the stolen account information, members of the conspiracy fraudulently withdrew more than $3,750,000 from victims' bank accounts. (Id. Ex. 4 ¶ 34.) On December 4,2001, Korac was indicted, (No. 01-cr-1127, Doc. 7), and on April 11, 2002, that indictment was superseded, (No. 01-cr-1127, Doc. 19). On May 7, 2003, the indictment was again superseded, (No. 01-cr-1127, Doc. 66), and on June 6, 2003, Korac pleaded guilty to conspiracy to commit bank and access device fraud, bank fraud, access device fraud, and assault on a federal officer, in violation of 18 U.S.C. §§ 371, 1344, 1029(a)(5), and 111(a)(1). (Opp'n Mem. Ex. 6.) On June 27, 2007, Korac was sentenced to time already served and a five-year period of supervised release. (No. 01-cr-1127, Doc. 82.) I will refer to this case, No. 01-cr-1127, as the "2007 Conviction."

On March 26, 2010, Korac was served with a Notice to Appear ("NTA") that informed him that he was subject to deportation on the basis of having been convicted of an aggravated felony-specifically his 2007 Conviction. (Opp'n Mem. Ex. 8.) That charge was supplemented on May 10, 2010 to include Korac's 1994 Conviction as an additional basis for deportability.*fn3

(Id. Ex. 10 at 2.) On August 19, 2010, Korac was ordered to be removed from the United States because his 1994 Conviction and his 2007 Conviction each constituted convictions for aggravated felony offenses in violation of 8 U.S.C. § 1227(a)(2)(A)(iii), and because-as a result of both convictions-Korac had been convicted of more than one crime involving moral turpitude not arising from the same criminal conduct in violation of 8 U.S.C. § 1227(a)(2)(A)(ii). (Id. Ex. 10 at 8--9.) On August 31, 2010, Korac filed a Notice of Appeal from the decision ordering his removal. (Id. Ex. 11.)

On October 18, 2010, Korac applied to this Court for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a) seeking to have his 1993 guilty plea and 1994 Conviction vacated. (Doc. 107.) If granted, the writ would remove the 1994 Conviction as one of the bases upon which Korac was ordered to be deported. Korac appears to advance two reasons why his 1994 Conviction should be vacated.

First, Korac argues that the guilty plea on which his 1994 Conviction rests was invalid because the Court did not advise him that pleading guilty might negatively impact his immigration status. (Pet'r's Mem. ¶¶ 5--6.) *fn4 The transcript of the plea allocution does not contain any mention of the possible immigration consequences associated with a guilty plea. (Doc. 110.) Second, Korac argues that his plea is invalid because he was denied effective assistance of counsel in violation of the Sixth Amendment, (Pet'r's Mem. ¶¶ 14, 18, 25), in that his attorney failed to inform him that pleading guilty might have a negative affect on his immigration status, (id. ¶ 6). Korac states that he told Frank A. Bress, the attorney representing him at the time of his plea, that he was not a citizen of the United States, but that Bress "talked absolutely nothing concerning immigration consequences resulting from his guilty plea or conviction," (id.), and that had he understood the potential immigration consequences of the 1994 Conviction, he would have "insisted" on going to trial, (id. ¶ 8). In an affidavit filed in connection with this proceeding, Bress has stated that although he is unable to recall any specific conversation he may have had with Korac regarding the immigration consequences of his plea, it was at the time his standard professional practice to discuss the immigration consequences of criminal convictions with his clients and he believes he would have discussed such consequences with Korac before Korac pleaded guilty. (Opp'n Mem. Ex. 3 ¶ 6.)

Whether or not he was aware of them in 1993, Korac was aware of the potential immigration consequences of pleading guilty to a felony at least as early as May 2003, when he entered the guilty plea which formed the basis for the 2007 Conviction. (Opp'n Mem. Ex. 6 at 4:10--23.) During that plea allocution, the Court specifically asked if Korac understood that pleading guilty to a felony might affect his immigration status; he replied that he did. (Id.) Furthermore, a letter from Korac's attorney to the United States Attorney's Office dated August 4, 2003 states that Korac believed he was facing possible deportation. (Id. Ex. 7.)

II.DISCUSSION

A.Coram Nobis Standard

Courts have the authority, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), to grant the ancient common-law writ of coram nobis in order to "redress an adverse consequence resulting from an illegally imposed criminal conviction or sentence." United States v.LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (citing United States v. Morgan, 346 U.S. 502, 512--13 (1954)). The writ has been abolished and replaced in the civil context by Federal Rule of Civil Procedure 60(b), but it may still be granted as a remedy of last resort in the criminal context, id., particularly where a petitioner who has served his sentence, or is no longer in custody, is accordingly unable to pursue direct review of a conviction, or collateral relief by means of a habeus corpus petition, Fleming v. United States, 146 F.3d 88, 89--90 (2d Cir. 1998). But despite its applicability in the criminal context, coram nobis is "not a substitute for appeal, and . . . is strictly limited to those cases in which errors . . . of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (second alteration in original) (internal quotation marks omitted). The remedy should be granted only where "extraordinary circumstances are present." Id. (internal quotation marks omitted).

To meet this high standard, a petitioner must demonstrate that: (1) there are circumstances compelling such action to achieve justice; (2) sound reasons exist for failure to seek earlier appropriate relief; and (3) the petitioner continues to suffer legal consequences stemming from the conviction that may be remedied by granting of the writ. Id. at 79. Moreover, the burden to prove the existence of errors in the challenged proceedings rests with the petitioner, and the Court presumes that the proceedings were correct until the petitioner shows otherwise. Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). Korac cannot meet this high standard because there are no continuing legal consequences that would be remedied were his ...


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