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Colon v. United States

United States District Court, E.D. Virginia, Alexandria Division

December 12, 2016

MARY COLON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM OPINION

          James C. Cacheris UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on Petitioner Mary Colon's Motion for a Writ of Error Coram Nobis, pursuant to 28 U.S.C. § 1651. [Dkt. 23.] Having considered Petitioner's arguments and the Government's opposition, the Court will deny the motion.

         I. Background

         Mary Colon (“Petitioner” or “Colon”) was born in the Dominican Republic, but has lived in the United States since 1990. (Presentence Report (“PSR”) [Dkt. 11], ¶ 50.) She is a legal permanent resident. (Id.) From approximately January 2008 to February 2011, Petitioner worked with co-conspirator Jose Longo and others to obtain kilogram quantities of heroin to repackage and sell for a profit. (Statement of Facts (“SOF”) [Dkt. 7], ¶¶ 1-4.) On or around February 3, 2011, Petitioner and Longo met with an undercover law enforcement agent and agreed to purchase a kilogram of heroin from the agent for $50, 000. (Id., ¶ 4.) The meeting was audio and video recorded. (Id.)

         On May 29, 2012, Colon pled guilty to conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Colon's guilty plea was entered pursuant to a plea agreement with the Government. [Dkt. 6.]

         On August 24, 2012, Colon was sentenced to sixty months' imprisonment. [Dkt. 17 at 4.] She was also sentenced to three years of supervised release, with the special conditions that Colon participate in mental health treatment and counseling, that Colon be surrendered to a duly-authorized immigration official of the Department of Homeland Security Bureau of Immigration and Customs Enforcement (“ICE”) for deportation review, and that, if ordered deported, Colon remain outside the United States. [Id.] On March 17, 2015, Colon was released from custody and placed in removal proceedings with ICE.

         Colon filed the instant petition on April 22, 2016. [Dkt. 23.] The Government filed its opposition on June 1, 2016. [Dkt. 32.] Colon replied on July 11, 2016. [Dkt. 35.] This motion is now ripe for disposition.

         II. Standard of Review

         In United States v. Morgan, 346 U.S. 502 (1954), the Supreme Court established that federal courts have the power under the All-Writs Act, 28 U.S.C. § 1651(a), to grant a writ of error coram nobis to vacate a conviction after the sentence has been served. See United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The Court warned that the extraordinary remedy should be issued, however, "only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511. In other words, an error "of the most fundamental character" must have occurred, and no other remedy must be available. Id.

         More specifically, a petitioner seeking a writ of error coram nobis must show the following: (1) a more usual remedy is not available; (2) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; (3) valid reasons exist for not attacking the conviction earlier; and (4) the error is of the most fundamental character. See United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012). Notably, for coram nobis petitions, “[n]o hearing is required when the record conclusively shows that the petitioner is entitled to no relief.” United States v. Wilson, 77 F.3d 472 (4th Cir. 1996) (quoting Fontaine v. United States, 411 U.S. 213, 215 (1973)).

         III. Analysis

         At its essence, Colon's argument is one of ineffective assistance of counsel. Colon claims that she “did not know the severe consequences that would come from accepting that guilty charge, ” that “[n]obody from the government told me I would ever have this consequence, ” and that her Plea Agreement does not contain “an advisement regarding immigration consequences.” [Dkt. 23 at 2, 9.] Colon also argues that her attorney was a “criminal attorney and therefore I did not know about immigration laws.” [Id.] She attaches to her Petition a copy of the Supreme Court's opinion in Padilla v. Kentucky, 559 U.S. 356 (2010). [Id. at 44-85.] Colon appears to be arguing that her defense counsel's alleged failure to advise her that her guilty plea carried a risk of deportation, as required by Padilla, resulted in the violation of her Sixth Amendment right to effective assistance of counsel. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed[.]”) (internal citation and quotation omitted).

         The Court does not need an evidentiary hearing to conclude that Colon is not entitled to a writ of error coram nobis. While the Government concedes that Colon has demonstrated that a more usual remedy is not available and that adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III, she fails to show that valid reasons exist for not attacking the conviction earlier or that the error is of the most fundamental character. Accordingly, the Court will deny her motion.

         A. Valid Reasons Exist for not Attacking ...


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