Dickson v. United States, CASE NO. 5:10-CR-50124

• Decision Date: 09 May 2016
• Docket Number: CASE NO. 5:10-CR-50124
• Parties: CONRAD ELIOT DICKSON PETITIONER v. UNITED STATES OF AMERICA RESPONDENT
• Court: U.S. District Court — Western District of Arkansas

CONRAD ELIOT DICKSON PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

CASE NO. 5:10-CR-50124

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

May 9, 2016

OPINION AND ORDER

Currently before the Court is the Report and Recommendation ("R & R") (Doc. 62) filed in this case on November 23, 2015, by the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, regarding Petitioner Conrad Eliot Dickson's Petition for Writ of Error Coram Nobis (Doc. 61). In response to Judge Setser's recommendation that the Petition be dismissed, Dickson filed timely Objections (Doc. 64) on January 4, 2016. The Court has now conducted a de novo review of the record, focusing in particular on the portions of the R & R to which specific objections have been made, in accordance with 28 U.S.C. § 636(b)(1)(c). After considering these objections, the Court finds that Dickson's Petition was timely filed, but agrees with the Magistrate Judge that the Petition lacks merit. For the reasons explained herein, the Court will DECLINE IN PART to adopt the conclusion of the Magistrate Judge as to the untimeliness of Dickson's Petition, but will ADOPT IN TOTO the Magistrate Judge's recommendation that the Petition be denied on the merits.

I. BACKGROUND

On December 6, 2010, Dickson waived indictment and pleaded guilty to an Information charging him with one count of conspiring to use an interstate facility to promote, manage, establish, carry on, and facilitate an unlawful activity, namely

Page 2

prostitution, in violation of 18 U.S.C. §§ 1952(a)(3)(A) and 371. He was sentenced by the Honorable Jimm Larry Hendren to twelve months of imprisonment, three years of supervised release, a $2,000.00 fine, and a $100.00 special assessment. He did not directly appeal his conviction but filed a habeas petition pursuant to 18 U.S.C. § 2255, which was denied on November 19, 2012 (Doc. 35).¹

Dickson served his sentence and was released from prison in July of 2012. Shortly after that, he began his three-year term of supervised release. In March of 2013, he was informed by his probation officer that the state of Arkansas required him to register as a sex offender pursuant to the Sex Offender Registration Act ("SORA"), Ark. Code Ann. § 12-12-901, et seq. Dickson objected to the registration requirement and on April 15, 2013, filed a document with the Court entitled "Request for Clarification of Judgment and Commitme[n]t" (Doc. 39), which asked the Court to find that he should not be required to register under the SORA because his Plea Agreement, Judgment, and Commitment Order never contemplated him doing so.

On May 5, 2013, the Court denied Dickson's Request for Clarification and issued a brief Order (Doc. 41), explaining that "whether the Judgement and Commitment Order explicitly states a requirement to register as a sex offender has no bearing on whether the laws of the State of Arkansas will require Mr. Dickson to register." Id. at p. 2.

Page 3

After Dickson completed his term of supervised release in July of 2015, he filed a Petition for Writ of Error Coram Nobis (Doc. 61) on November 11, 2015, arguing that his counsel was ineffective in failing to advise him of the registration requirements under the SORA, and that he would not have pleaded guilty to the charge in the Information had he known he would have been required to register as a sex offender. The Magistrate Judge determined, first, that although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required, and Dickson did not diligently pursue this relief from the time he first became aware of the registration requirement in March of 2013 until he filed his Petition more than two years later. Second, the Magistrate Judge determined that Dickson's Petition should be denied on the merits because an ineffective assistance of counsel claim cannot rest on counsel's failure to advise about the collateral effects of a guilty plea and conviction, and the requirement to register as a sex offender under state law is a collateral, rather than direct, consequence of conviction.

II. OBJECTIONS

Dickson's first objection is that the Magistrate Judge erred in finding that he did not exercise due diligence in filing his Petition until nearly two-and-a-half years after he was first advised by his probation officer of the registration requirement. He contends that although he could have filed a second, successive § 2255 petition regarding this registration issue while he was still serving his term of supervised release, he elected not to do so for various strategic reasons, including the fact that his first § 2255 petition had already been denied. Dickson instead waited four months after his supervised release ended to file a coram nobis petition.

Page 4

The Court finds that Dickson's first objection should be sustained, as the Court considers that, under the circumstances, he did not fail to act with due diligence in pursuing the Petition for Writ of Error Coram Nobis now before the Court. Coram nobis relief under 28 U.S.C. § 1651 is available as a remedy to vacate a federal conviction when the sentence...