United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
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.
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.)
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.
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.
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.
Standard of Review
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.
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
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).
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.
Valid Reasons Exist for not Attacking ...