Dixon v. United States

• Decision Date: 14 February 2018
• Docket Number: 14-CV-1223(JS)
• Parties: DEMARK DIXON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of New York

DEMARK DIXON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

14-CV-1223(JS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 14, 2018

MEMORANDUM AND ORDER

APPEARANCES

For Petitioner:

DeMark Dixon, prose

1315 Amsterdam Avenue

Apt. 1-H

New York, NY 10027

For Respondent:

Peter W. Baldwin, Esq.

United States Attorney's Office

Eastern District of New York

271 Cadman Plaza East

Brooklyn, NY 11201

SEYBERT, District Judge:

DeMark Dixon ("Petitioner") petitions this Court pro se for a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). For the following reasons, the Petition is DENIED in its entirety.

BACKGROUND

On February 19, 1998, Petitioner entered a guilty plea in the United States District Court of the Eastern District to Count One of a filed Superseding Indictment. (Plea Tr.¹ 12:12-17:19.) As originally filed, Count One included the charge of Racketeering in violation of 18 U.S.C. § 1962(c) for engaging in the following criminal acts: (1) the robbery of Chase Bank on October 10, 1996; (2) the robbery of the Christmas Tree Shop on December 7, 1996; (3) the robbery of the Palace Garage on December 23, 1996; (4) the robbery of North Fork Bank on March 6, 1997; (5) the robbery of the Key Bank on March 14, 1997; and (6) the conspiracy to rob Mt. Sinai Hospital during the winters of 1996 and 1997. (See Dixon v. United States, No. 01-CV-4591, Docket Entry 114, at 3.) Petitioner entered a guilty plea exclusively to Acts Two and Three of Count One and executed a written plea agreement in which he waived his right to appeal. (Plea Tr. 12:12-16:1; 17:15-17:18.)

Prior to the Court accepting Petitioner's plea, the Court asked a series of standard plea allocution questions. The Court informed Petitioner of the trial rights he was foregoing by entering his guilty plea, and Petitioner responded that he understood. (Plea Tr. 3:6-4:1.) The Court stated that pursuant to his plea Petitioner was facing a maximum term of twenty-years of imprisonment, but his anticipated sentence was between 140 and 175 months of imprisonment. (Plea Tr. 4:2-5:8.) Additionally, the Court ensured that Petitioner understood the nature of his appeal waiver, confirming that he agreed to waive his right to appeal, a habeas corpus proceeding, or any action contesting hisguilt if he was sentenced to a term of 140 to 175 months. (Plea Tr. 5:23-6:3.) Further, the Petitioner engaged in a factual allocution, during which he explained his conduct as to Racketeering Act 2 under Count 1 of the Superseding Indictment, in pertinent part:

The Court: Mr. Dixon, what, if anything, did you do with respect to the charges contained in racketeering act 2 under Count 1?

The Defendant: I drove to Connecticut to a Christmas tree store shop and I waited outside, when they went inside to rob the place.

The Court: And when was this?

The Defendant: December 7, 1996.

The Court: And did you know that these other individuals were going to rob the tree shop?

The Defendant: Yes.

(Plea Tr. 12:24-13:9.) Petitioner continued and explained his role in Racketeering Act 3 under Count 1 of the Superseding Indictment:

The Court: With respect to racketeering act 3, what, if anything, did you do between October 1, 1996 and December 23, 1996?

The Defendant: I knew about the garage, that it was going to get robbed.

The Court: What garage was that?

The Defendant: The Palace garage.

The Court: And that was located in Manhattan?

The Defendant: Yes.

The Court: And what, if anything, did you do with respect to planning that particular crime?

The Defendant: I sat in the van, I drove the van downtown and sat inside.

The Court: And waiting for these individuals to go in and rob persons in the Palace garage?

The Defendant: Yes.

The Court: Or take items that were involved in commerce?

Mr. King: They were automobiles, Your Honor.

The Court: Well, let me hear it from Mr. Dixon.

The Defendant: Yes. Yes, I knew they were going to take cars.

(Plea Tr. 14:2-14:23.) The Court confirmed that Petitioner's plea was a choice he was making of his own free will:

The Court: Do you have any questions regarding the contents of this agreement or your plea here today?

The Defendant: Yes, I understand it.

The Court: All right. Has anyone forced you to enter into this plea?

The Defendant: That's the only way I will keep my health. I can't get a fair trial with the government.

The Court: Well, you have a right to go to trial, sir.

The Defendant: I'm going to lose.

The Court: Well, I can't make up your mind.

The Defendant: I understand that.

The Court: You're pleading guilty here under oath, what you said is sufficient to make out a conviction under these charges.

The Defendant: Yes, Your Honor.

The Court: If you don't want to plead guilty, you go to trial. I'm ready to try this case March 2nd. Your attorney Mr. Gribetz is extremely experienced, he's put a lot of time into this case from what I can tell.

The Defendant: I know he did.

The Court: And if you want a trial you have a trial. Now, I'm asking you one last time, is it your desire to plead guilty to these charges?

The Defendant: Yes.

The Court: You now enter a plea of guilty with respect to Count 1, racketeering acts 2 and 3; is that right, Mr. Dixon?

The Defendant: Yes.

The Court: Your plea is accepted.

(Plea Tr. 16:14-17:19.) Shortly after his guilty plea, Petitioner made a motion to withdraw the plea; following oral arguments, the motion was denied. (See Case No. 97-CR-0543, Docket Entries 130, 144.) On September 24, 1999, Petitioner was sentenced to a below guidelines range of 120 months' imprisonment followed by three years of supervised release. (Resp't's Answer, Docket Entry 14, at 5.)

Petitioner appealed his conviction and the Court's denial of his motion to withdraw his plea to the Second Circuit Court of Appeals. See United States v. Truesdale, No. 99-1587, 2000 WL 1051966, at *1-2 (2d Cir. July 27, 2000). On July 27, 2000, the Second Circuit affirmed the Court's denial of his motion to withdraw his guilty plea, stating that "the district court did not clearly err in crediting appellant's allocution hearing statements . . . Appellant's later self-serving statements therefore do not satisfy his burden to raise a significant question about the voluntariness of his plea." Id. at *1 (internal quotation marks and citations omitted). The Second Circuit upheld Petitioner's conviction stating, "Appellant recounted his involvement in two robberies and testified that he had participated in the planning of those crimes and undertook other action in furtherance of that plan. On this record, we cannot say that thedistrict court erred in finding that appellant understood the nature of the charges to which he was pleading." Id. at *2.

Subsequently Petitioner filed a petition to vacate his sentence pursuant to 28 U.S.C. § 2255 and on June 9, 2004, the Court denied the Section 2255 petition. See Dixon v. United States, No. 01-CV-4591, Mem. & Order, Docket Entry 114.

Following his release, Petitioner's supervised release terminated on December 9, 2013. (Pet., Docket Entry 1, at 2.)²

On February 21, 2014, Petitioner filed the instant Petition for a writ of error coram nobis, arguing that (1) he received ineffective assistance of counsel "before, during, and after the plea allocution"; (2) his guilty plea was incomplete; and (3) he is innocent of the charge he plead guilty to. (Pet. at 2.) Additionally, Petitioner filed a motion requesting the case be heard by a jury, which was denied on October 2, 2014. (See Oct. 2014 Order, Docket Entry 19, at 2.) Further, on October 2, 2014 the Court permitted Petitioner to supplement the coram nobis petition to add facts to his actual innocence claim. On April 12, 2017, Petitioner filed an additional writ of error coram nobis, raising identical arguments. (Suppl. Pet., Docket Entry 24.)³

For the following reasons, the writ of coram nobis is DENIED in its entirety.

DISCUSSION

The Court will first address the applicable legal standard before turning to the merits of the Petition.

I. Legal Standard

A writ of error coram nobis is an "extraordinary remedy" authorized by the All Writs Act, 28 U.S.C. § 1651. Coram Nobis relief is "essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam). Further, "'the All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.'" Carlisle v. United States, 517 U.S. 416, 429, 116 S. Ct. 1460, 1468, 134 L. Ed. 2d 613 (1996) (quoting Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361, 88 L. Ed. 2d 189 (1985)). As such, the writ of coram nobis "is not a substitute for appeal, and relief under the writ is strictly limited to cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States,93 F.3d 76, 78 (2d Cir. 1996) (internal quotation marks and citation omitted).

When seeking coram nobis relief, the petitioner bears the burden of demonstrating that "(1) there are circumstances compelling such action to achieve justice; (2) sound reasons exist for failure to seek appropriate earlier relief, and (3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by grant of the writ." Foont, 93 F. 3d at 79 (internal quotation marks and citation omitted). The petitioner bears the burden of proof and "it is presumed [that] the [prior] proceedings were correct". United States v. Morgan, 346 U.S. 502, 512, 74 S. Ct. 247, 253, 98 L. Ed. 2d 248 (1954). In sum, "it is difficult to conceive of a situation in a federal criminal case [ ] where [a writ of error coram nobis] would be...