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Osahon v. United States

United States District Court, E.D. New York

November 16, 2017

OMORUYI TERRY OSAHON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Da'Tekena Adokiye Barango-Tariah, Attorney at Law Attorney for the Petitioner Da'Tekena Adokiye Barango-Tariah, Esq.

          United States Attorney's Office for the Eastern District of New York Attorneys for the Respondent Nadia Elizabeth Moore, Assistant U.S. Attorney

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT UNITED STATES DISTRICT JUDGE

         On March 11, 2002, Omoruyi Terry Osahon (the “Petitioner”) entered a guilty plea for attempting to possess fifteen or more unauthorized credit cards in violation of 18 U.S.C. § 1029(a)(3). Thereafter, the Petitioner was sentenced to four months' imprisonment followed by four months of home detention with electronic monitoring. He has completed this sentence.

         The Petitioner filed this writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a) seeking to vacate his conviction, and raising an ineffective assistance of counsel claim that his defense counsel failed to advise him of the immigration consequences of his guilty plea.

         For the reasons set forth below, the Petitioner's application for coram nobis relief is denied.

         I. BACKGROUND

         The Petitioner was born in Nigeria and in 2001 his immigration status was as a lawful permanent resident of the United States. (See Pet., Ex. B, Notice to Appear.) On March 23, 2001, the Petitioner pled guilty to attempting to possess fifteen or more unauthorized credit card numbers in violation of 18 U.S.C. § 1029(a)(3). (See Pet., Ex. A, Judgment at 1.) The Petitioner was later sentenced in the United States District Court of the Eastern District of New York to a term of imprisonment of four months followed by four months of home detention. (See Judgment at 2-3.)

         On October 26, 2002, following the completion of his sentence, the Petitioner was served with a Notice to Appear indicating he was subject to removal from the United States as a result of his guilty plea. (See Notice to Appear.) On January 23, 2014 the Petitioner filed the instant petition seeking a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651. (Dkt. No. 1.) At the time of filing this writ of coram nobis, the Petitioner's removal proceedings were pending in Immigration Court. (Pet. ¶ 11.) Neither the Petitioner nor his attorney have directly appealed his conviction or sentence.

         In the instant action, the Petitioner asserts an ineffective assistance of counsel claim, arguing that at the time of his guilty plea he was not advised by counsel of the potential immigration consequences of said plea. (Pet. ¶ 12.)

         II. DISCUSSION

         A. The Legal Standard as to a Writ of Coram Nobis

         A writ of error coram nobis is “an ‘extraordinary remedy' available only in rare cases.” Kovacs v. United States, 744 F.3d 44, 54 (2d Cir. 2014) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954)). Coram nobis relief is “essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus.” Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam). As the petitioner is no longer in custody, “harm to the petitioner is therefore much less and, accordingly, courts are more reluctant to grant relief.” Moskowitz v. United States, 64 F.Supp.3d 574, 577-78 (S.D.N.Y. 2014) (collecting cases).

         When petitioning for coram nobis relief, a petitioner bears the burden of showing 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 grant of the writ.” Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996) (quoting Morgan, 346 U.S. at 511-12, 74 S.Ct. at 252-53) (internal quotation marks omitted). The Second Circuit has held that “coram nobis is not a substitute for appeal, and relief under the writ is strictly limited to cases in which ...


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