United States District Court, E.D. New York
JESSE PAUL LEVINE, Ehrinpreis & Levine PLLC, New York, NY, Attorney for Petitioner.
Michael Warren, LORETTA E. LYNCH, United States Attorney, Eastern District Of New York Brooklyn, NY, Attorney for Respondent.
MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
Jesse Worlumarti brings this petition for a writ of error coram nobis attacking his 1997 conviction and one-year prison sentence (long since served) for using a false passport in violation of 18 U.S.C. § 1543. Although an immigration judge found that Worlumarti would likely be tortured if he returned to Nigeria, his country of citizenship, Worlumarti's conviction and sentence have rendered him ineligible for asylum in the United States. He is currently permitted to remain in this country only under an order withholding his removal to prevent torture. Worlumarti argues that his conviction should be vacated, or his sentence reduced, because his counsel was ineffective. For the reasons given below, Worlumarti's petition is denied.
Some background of this case is also laid out in Worlumarti's direct appeal, United States v. Celenk, 159 F.3d 1348, 1998 WL 480756 (2d Cir. 1998) (unpublished table decision) (" Worlumarti I "), and my previous opinion denying his first coram nobis petition, Worlumarti v. United States, 00 CV 3538 (JG), 2002 WL 257817 (E.D.N.Y. Feb. 8, 2002) (" Worlumarti II ").
According to an affidavit he has filed, Worlumarti is a Nigerian citizen and a member of the Ogoni ethnic group; he participated in various political causes in Nigeria prior to 1997. See Affidavit of Jesse Worlumarti in Support of Writ of Error Coram Nobis ("Worlumarti Aff.") ¶¶ 2-7, ECF No. 1-2. Worlumarti claims that he twice fled from Nigeria to Germany (in 1992, and again in 1996) to avoid being placed on a government watch list, but returned to Nigeria both times. Id. ¶ 5. Worlumarti claims that in 1997, he fled to Germany after being tortured by men he believed to be government agents. Id. ¶¶ 6-7. From there he flew to the United States using a false Dutch passport bearing the name Nuri Celenk. See Worlumarti II, 2002 WL 257817, at *1.
Although the matter is disputed, Worlumarti contends that, after he exited the plane in New York, he did not actually attempt to deceive officials at the United States border about his identity or the veracity of his passport. Rather, he claims that he immediately told the border control agent that he was a Nigerian citizen seeking asylum in the United States. See Worlumarti Aff. ¶ 12 ("Upon my arrival at [JFK] airport, I informed the Immigration Officers that the Dutch passport which I was carrying was false and that I was escaping Nigeria. I requested an attorney and asked to see a judge."). By contrast, according to the factual account in Worlumarti's presentence report (which he had a chance to contest at the time of his original guilty plea and sentence), Worlumarti did not reveal that the passport was fake, and instead attempted to enter the United States under the name Celenk Nuri. See PSR ¶ 2, ECF No. 1-4 (Ex. 6). It is undisputed that he was detained, and that border officials attempted to place him on several planes bound for Germany over the next few days, but Worlumarti resisted, and officials were unsuccessful in deporting him. Id. ¶¶ 3-5. On April 2, 1997, Worlumarti resisted being placed on a plane by charging at passengers while screaming, "I will blow this plane." Id. ¶ 5. At that point he was detained and charged with attempting to use a false passport in violation of 18 U.S.C. § 1543.
In the summer of 1997, before Worlumarti had decided whether to plead guilty or proceed to trial, Interpol provided additional information about Worlumarti's arrest history in Germany. See PSR ¶ 18. Worlumarti had been arrested in Germany six times using six different names. Id. Furthermore, German authorities had issued an order of expulsion against him. Id.
In a supplemental affidavit in this proceeding, Worlumarti now contends that his German criminal history arose out of his attempts to avoid persecution in Nigeria: he claims that he spent two separate periods in Germany (in 1992 and in 1996), and that although he entered that country legally each time on a tourist visa, he used illegal documents to work. See Supplemental Affidavit of Jesse Worlumarti ¶¶ 2-5, ECF No. 8-1. Nonetheless, when Worlumarti's German arrest history was revealed in 1997, Worlumarti's lawyer, Abraham Clott, became concerned that Worlumarti's claims of torture in Nigeria would not be credible and that the trial judge would be unsympathetic. As a result, Clott advised Worlumarti to plead guilty, and he did. Id. ¶¶ 7-10.
Worlumarti's total offense level was computed as 4, with a criminal history category of I, corresponding to a Guidelines range of zero to six months. See PSR ¶¶ 8-17; U.S. Sentencing Guidelines Manual (1995). However, at a sentencing hearing on September 19, 1997, Judge Nickerson indicated that he was inclined to consider Worlumarti's threat to blow up the plane, as well as his prior repeated refusals to leave the country, as bases for an upward departure; he therefore gave both sides additional time to brief the question. See September 19, 1997 Sentencing Hearing Transcript 3-4, 10, ECF No. 1-4. After reviewing video of Worlumarti's airport outburst, Judge Nickerson imposed a one-year sentence. See September 26, 1997 Sentencing Hearing Transcript 3-4, ECF No. 1-4. The court relied on the general departure provision of the (then-mandatory) Guidelines, U.S.S.G. § 5K2.0 (1995), which granted authority to depart from the Guidelines range if the court found "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that prescribed.'" (quoting 18 U.S.C. § 3553(b) (1996)).
Worlumarti's sentence was affirmed on appeal. See Worlumarti I, 1998 WL 480756. The Court of Appeals rejected the argument that Judge Nickerson had failed to sufficiently explain the reasons for his departure. Id. at *2-3.
In May of 2000, Worlumarti - who had by then completed his prison term - filed a petition for a writ of error coram nobis. The case was eventually reassigned to me after Judge Nickerson's death. With the assistance of counsel, Worlumarti argued that his criminal proceeding had lacked full context since he had been unable to explain that he used a false passport to escape persecution in Nigeria. See Memorandum of Law in Support of Petition for Writ of Error Coram Nobis, ECF No. 1-5 (Ex. 10). He also claimed that Judge Nickerson may not have understood the full consequences of the Illegal Immigration Reform and Immigration Responsibility of 1996 ("IIRIRA"), codified in sections of 8 U.S.C. ch. 12, which had been recently enacted at the time of sentencing, and which creates a per se bar on asylum claims for anyone sentenced to a term of at least twelve months for immigration document fraud, see 8 U.S.C. § 1101(43)(P) & § 1158(b). I denied the petition. See Worlumarti II, 2002 WL 257817.
Worlumarti filed the instant petition on November 1, 2013, in his criminal case, No. 97-cr-485, but the motion was docketed in this new case, No. 13-cv-6202, on ...