Angus v. United States
| Decision Date | 08 July 2020 |
| Docket Number | 17-CV-583 (KAM) |
| Parties | GIFTON ANGUS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On March 31, 1989, in the Eastern District of New York, petitioner Gifton Angus (the "petitioner") was sentenced to two concurrent terms of ten years' imprisonment, followed by ten years of special parole, following his conviction at jury trial of: one count of importation of over 500 grams of cocaine ("Count One"), in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(2)(B)(ii), and one count of possession of over 500 grams of cocaine with intent to distribute ("Count Two"), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). (ECF No. 6, Ex. 1, Indictment; ECF No. 6, Ex. 2, Judgment and Probation/Commitment Order, at 16.1) On August 22, 2016, Mr. Angus, proceeding pro se, filed the instant motion for a writ of coram nobis, challenging his 1989 convictions. (ECF No. 1, Motion for Writ of Coram Nobis ("Mot."), at 1-3.) Mr. Angus'sasserts that there were fundamental errors in his 1989 convictions, including that he "still maintain[s] innocence and lack of proof" and "is still suffering continue[d] legal consequences from his conviction." (Id. at 1-2.) For the reasons set forth below, Mr. Angus's motion is respectfully DENIED.
Petitioner Gifton Angus is a citizen of Jamaica who was first admitted into the United States in New York on a B-2 visitor visa in 1981. (ECF No. 6, Ex. 11, Oral Decision and Order of the Immigration Judge ("Imm. Order"), at 52.) In 1983, petitioner's status was adjusted to that of a lawful permanent resident. (Id.)
On or about September 25, 1987, petitioner was arrested at John F. Kennedy airport in possession of nearly two kilograms of cocaine, located in a false compartment in his luggage after arriving on a flight from Jamaica. (Id. at 53; ECF No. 6, Ex. 1, Indictment, at 12.) Petitioner maintained that he did not know how the drugs came to be in his suitcase and claimed that he did not agree to transport the drugs. (Imm. Order 53.)
In January 1989, in the Eastern District of New York, a jury found petitioner guilty of one count of importing five hundred grams or more of cocaine, in violation of 21 U.S.C. §952(b)(2)(B), and one count of possession with the intent to distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 6, Ex. 2, at 16.) On March 31, 1989, petitioner was sentenced to ten years' imprisonment followed by ten years of special parole. (Id.) On April 5, 1989, petitioner filed a Notice of Appeal from the judgment entered by the Eastern District of New York. By order dated June 16, 1989, and docketed in the Eastern District of New York on July 19, 1989, the Second Circuit dismissed petitioner's appeal from the judgment of conviction due to defendant's default. (See United States v. Angus, 87-CR-661 (MAC), ECF No. 15.)
In August 1991, petitioner was served with a Form I-221 Order to Show Cause and charged as being subject to deportation pursuant to Sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") (ECF No. 6, Ex. 3, Order to Show Cause and Notice of Hearing, at 18-20.) On November 7, 1994, an immigration court judge ordered petitioner removed from the United States to Jamaica. (ECF No. 6-4, Order of the Immigration Judge, at 22-24.) On November 16, 1994, petitioner filed an appeal with the Board of Immigration Appeals (the "BIA"), posted an immigration bond of $10,000 and was released from custody on November 23, 1994. (ECF No. 6, Ex. 5, Decision of BIA, at 26-27.) On March 29, 1995, the BIAdismissed petitioner's appeal and issued an order of deportation. (Id.) On April 10, 1995, a deportation warrant was issued for petitioner. (ECF No. 6, Ex. 6, Warrant of Deportation for Gifton Angus, at 29-31.)
On January 13, 1997, petitioner was arrested in Tennessee while traveling in a two-car caravan carrying 65.5 pounds of marijuana. (ECF No. 6, Ex. 7, State Court Indictment, at 33-34.) On December 11, 1998, petitioner was convicted in Shelby County Criminal Court, in Memphis, Tennessee, under the alias "Grant Oswald" for the felony offense of Unlawful Possession of a Controlled Substance with Intent to Distribute, for which petitioner received a one-year sentence of imprisonment. (ECF No. 6, Ex. 7, Judgment, at 36.)
On January 11, 1999, Immigration and Naturalization Service (the "INS") encountered petitioner while he was incarcerated at the Shelby County Penal Farm in Tennessee. (ECF No. 6, Ex. 8, Warrant of Removal/Deportation, at 39.) On February 19, 1999, petitioner was taken into INS custody, and on March 25, 1999, he was removed from the United States to Jamaica pursuant to the prior order of removal. (Id. at 40.)
At some point after his deportation, in 2000, petitioner illegally re-entered the United States. See Angus v. Attorney General United States of America, 675 F. App'x 193, 194 (3d Cir. 2017) (). The government has stated that it is unaware of any records indicating that petitioner requested or received legal authorization to reenter the United States following his removal. (ECF No. 6, at 2-3.)
On August 26, 2013, immigration officers encountered petitioner following his arrest by the Binghamton Police Department in New York for Possession of a Forged Instrument. Angus, 675 F. App'x at 194. On August 31, 2013, petitioner posted bail on his criminal charge, was taken into immigration custody, and was served with a Form I-871, Notice of Intent to Reinstate a Prior Order of Removal pursuant to Section 241(a)(5) of the INA. (ECF No. 6, Ex. 9, Notice of Intent/Decision to Reinstate Prior Order, at 43.)
On February 28, 2014, petitioner pled guilty to Reentry of a Previously Removed Alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2) in the Northern District of New York. (ECF No. 6, Ex. 10, Judgment in a Criminal Case, at 45.) Accordingly, petitioner was sentenced to 30 months of incarceration. (Id. at 46.) On March 18, 2016, an immigration judge denied petitioner's application for deferral of removal and ordered petitioner's removal from the United States. (ECF No. 6, Ex. 11, at 50-65.)
On April 4, 2016, petitioner appealed the immigration judge's March 18, 2016 decision and filed a motion to remand to the BIA. (ECF No. 6, Ex. 12, Decision of BIA, at 67.) On July 8, 2016, the BIA denied petitioner's motion and dismissed the appeal because, inter alia, petitioner "did not mention Trevor Dobson or his fear in returning to Jamaica because of his prior dealings with Trevor Dobson" in his prior immigration proceedings and, due to petitioner's post-1996 convictions, he is ineligible for immigration relief under former section 212(c) of the INA. (Id. at 67-68.) On July 19, 2016, petitioner filed, in the Third Circuit, a Petition for Review of the BIA's July 8, 2016 decision and also sought to stay his removal, which was denied in part and dismissed in part on January 3, 2016. Angus, 675 F. App'x at 193.
On February 23, 2017, petitioner was deported from the United States to Jamaica pursuant to a Department of Homeland Security order and Section 241(a)(5) of the INA. (ECF No. 6-13, Warrant of Removal/Deportation, at 70-72.) Petitioner has not advised the court of his current address, and the government has advised that petitioner's current whereabouts are unknown. (ECF No. 6, at 3.)
Prior to this most recent deportation, pro se petitioner filed the instant petition on August 22, 2016, seeking coram nobis relief related to his 1989 convictionsdescribed above. (Mot. at 1-4.) Petitioner seeks to have his 1989 drug trafficking convictions vacated. In support of his request for relief, petitioner asserts, in conclusory fashion, that he had no knowledge of the cocaine hidden inside the suitcase he was carrying. (Id. at 1-3.) Petitioner further asserts that his counsel was constitutionally ineffective in rendering incorrect legal advice regarding the possible immigration consequences of his 1989 convictions. (Id. at 1-2.) The petition is silent in regard to Mr. Angus's post-1989 criminal convictions.
In the instant action, petitioner is proceeding pro se. (Mot. at 1-4.) A pro se petitioner's pleadings are held to "less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted), and are construed "to raise the strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted). "Nonetheless, a pro se [litigant] is not exempt from compliance with relevant rules of procedural and substantive law." Rivera v. United States, No. 06-CV-5140 (SJF), 2006 WL 3337511, at *1 (E.D.N.Y. Oct. 4, 2006) (citation omitted). Petitioner's papers are evaluated accordingly.
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." A court may grant a writ of coram nobis in order to "redress an adverse consequence resulting from an illegally imposed criminal conviction or sentence." United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (citing United States v. Morgan, 346 U.S. 502, 512-13 (1954)). "Coram nobis is an 'extraordinary remedy' [that is] generally sought to review a criminal conviction where a motion under 28 U.S.C. § 2255 is unavailable because petitioner is no longer serving a sentence." Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). In addition, coram nobis is "not a substitute for appeal, and . . . is strictly limited to those cases in which errors . . .of the most fundamental...
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