United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on Petitioner's
“Petition for a Writ of Error Coram Nobis Pursuant to
28 U.S.C.S. § 1651” [CV Doc. 1]; Petitioner's
“Motion to Appoint Counsel and Motion for a Preliminary
Injunction” [CV Doc. 3]; and Petitioner's
“Motion for a Preliminary Injunction” [CV Doc.
4]. For the reasons set forth below, the Court denies and
dismisses the petition and denies Petitioner's other
about December 8, 1989, Petitioner Waneley Brown,
native and citizen of Jamaica, was admitted to the United
States as a lawful permanent resident. On January 31,
2001, Petitioner was convicted in this Court after a jury
trial of conspiracy to possess with intent to distribute
cocaine and cocaine base. [CR Doc. 108: Judgment]. Petitioner
was originally sentenced to 240 months of imprisonment.
[Id.]. Petitioner appealed, and the Fourth Circuit
Court of Appeals subsequently affirmed Petitioner's
conviction and sentence. [CR Doc. 141]. Petitioner filed a
motion to vacate pursuant to 28 U.S.C. § 2255 on May 14,
2003. [CR Doc. 191]. On August 19, 2003, this Court denied
the motion to vacate with prejudice on the
merits. [CR Doc. 201].
October 20, 2010, Petitioner filed a petition for writ of
audita querela, claiming that he was not actually the person
indicted because another person had stolen his identity and
also that he received ineffective assistance of counsel at
trial. [CR Doc. 287]. On November 20, 2010, this Court denied
the petition on the grounds that Petitioner had already filed
a § 2255 motion to vacate, and that he could not avoid
the requirements for filing a successive petition by filing a
petition for a writ of audita querela. [CR Doc. 288].
February 11, 2013, Petitioner's sentence was subsequently
reduced to 210 months under the crack cocaine amendments to
the sentencing guidelines. [CR Doc. 297]. On May 2, 2013,
based on Petitioner's conviction in this Court,
Immigration and Customs Enforcement (“ICE”)
commenced removal proceedings against him. On November 26,
2013, Petitioner appeared before an immigration judge, at
which time Petitioner admitted all of the allegations and the
immigration judge found that Petitioner was subject to
removal. Petitioner's counsel asked for an adjournment to
look into possible relief from removal, and the immigration
judge granted the request. On March 24, 2014, Petitioner
again appeared before an immigration judge and filed an
application for asylum. The immigration judge granted a
continuance and the matter was adjourned.
November 26, 2014, upon completing his sentence for his
conviction in this Court, Petitioner was released from Bureau
of Prisons custody and entered ICE custody. By order dated
March 23, 2015, an immigration judge ordered Petitioner
removed to Jamaica and denied his application for deferral of
removal under Article III of the Convention Against Torture.
Petitioner appealed the immigration judge's order. On
appeal, the Board of Immigration Appeals remanded the matter
to the immigration court for further proceedings.
Petitioner's immigration proceedings ongoing, Petitioner
filed the present petition for writ of error coram nobis in
this Court on January 9, 2017. In his Petition, Petitioner
asks the Court to “vacate, set aside conviction,
dismiss indictment or correct his sentence due to ineffective
assistance of counsel” based on counsel's alleged
“fail[ure] to inform[ ] Petitioner of the immigration
consequences he would encounter going to trial and being
convicted, ” in violation of Padilla v.
Kentucky, 559 U.S. 356, 360 (2010). [CV Doc. 1 at 1].
Petitioner also alleges that counsel was ineffective in: (1)
failing to investigate Petitioner's contentions that he
was indicted under the wrong name and that the Government
could not prove that Petitioner was the person named in the
indictment and (2) failing to challenge the Government's
“star witness” with evidence that Petitioner
contends would have established that the witness was not
present at the time of the events to which the witness
testified. All of these errors, Petitioner contends, led to
his wrongful conviction and subsequent deportation
proceedings. [CV Doc. 1 at 1-2].
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Petition for Writ of Error Coram Nobis
28 U.S.C. § 1651(a), coram nobis relief is available
only when all other avenues of relief are inadequate and
where the defendant is no longer in custody. In re
Daniels, 203 F. App'x 442, 443 (4th Cir. 2006)
(unpublished); United States v. Mandel, 862 F.3d
1067, 1075 (4th Cir. 1988). In reviewing a petition for a
writ of error coram nobis, the Court “must presume that
the underlying proceedings were correct, and the burden of
showing otherwise rests on the petitioner.” Hanan
v. United States, 402 F.Supp.2d 679, 684 (E.D. Va.
2005), aff'd, 213 F. App'x 197 (4th Cir.
2007). The burden placed on a petitioner who seeks a writ of
error coram nobis exceeds the burden placed on a petitioner
who seeks collateral relief through a habeas petition.
Id. This heavier burden is justified in coram nobis
proceedings, as the government is unlikely to allocate scarce
prosecutorial resources to retry a defendant who has
completed his sentence and thus will not be resentenced.
See id. Indeed, the United States Supreme Court has
stated that “it is difficult to conceive of a situation
in a federal criminal case today where a writ of coram nobis
would be necessary or appropriate.” Carlisle v.
United States, 517 U.S. 416, 429 (1996) (internal
quotation marks and brackets omitted) (quoting United
States v. Smith, 331 U.S. 469, 475 n.4 (1947)).
discussing relief through a writ of error coram nobis, the