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Brown v. United States

United States District Court, W.D. North Carolina, Asheville Division

June 19, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 1:99-cr-00075-MR-DLH-2


          Martin Reidinger United States District Judge.

         THIS 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][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 motions.


         On or about December 8, 1989, Petitioner Waneley Brown, [2] a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident.[3] 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.[4] [CR Doc. 201].

         On 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].

         On 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.

         On 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.

         With 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].


         Pursuant 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).


         A. Petition for Writ of Error Coram Nobis

         Under 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)).

         In discussing relief through a writ of error coram nobis, the Fourth ...

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