Evola v. Carbone

• Decision Date: 19 April 2005
• Docket Number: Civil Action No. 05-1487(JAP).,Civil Action No. 05-1481 (JAP).,Crim. Action No. 97-203 (JAP).
• Citation: 365 F.Supp.2d 592
• Parties: Vito EVOLA, Plaintiff, v. John CARBONE, et al., Defendants. United States of America, Plaintiff, v. Vito Evola, Defendant.
• Court: U.S. District Court — District of New Jersey

365 F.Supp.2d 592

Vito EVOLA, Plaintiff, v. John CARBONE, et al., Defendants.

United States of America, Plaintiff, v. Vito Evola, Defendant.

Civil Action No. 05-1481 (JAP).

Civil Action No. 05-1487(JAP).

Crim. Action No. 97-203 (JAP).

United States District Court, D. New Jersey.

April 19, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas E. Moseley, Newark, NJ, Steven A. Morley, Morley Surin & Griffin, P.C., Admitted Pro Hac Vice, Philadelphia, PA, for Plaintiff.

Christopher J. Christie, United States Attorney, Neil R. Gallagher, Daniel J. Gibbons, Andrew Carey, Assistant United States Attorneys, Newark, NJ, Counsel for Defendants.

OPINION

PISANO, District Judge.

Both of the above captioned cases concern the imminent removal from the United States of petitioner Vito Evola ("Evola"). Evola petitions this Court for a Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging the decision of an Immigration Judge to remove him from the United States based on his commission of an "aggravated felony." Evola also petitions the Court for entry of a Writ of Error Coram Nobis, seeking to vacate the guilty plea and conviction that may ultimately lead to his removal, based on ineffective assistance of counsel. The Court recently denied Evola's request for a stay of removal with the understanding that he would be accorded swift justice by way of the Court's immediate attention to the outstanding petitions. Because these matters are so intertwined, and in the interest of timeliness, the Court will decide both cases in this opinion. For the reasons that follow, Evola's petitions for habeas relief and Writ of Error Coram Nobis are DENIED.

I. FACTUAL HISTORY

Evola is a thirty-nine year-old Italian national and citizen who was granted immigration status as a lawful permanent resident in the United States in 1980. He is self-employed and has three children from two marriages, each of whom is a United States citizen. On April 23, 1997 Evola was named in a 23-count indictment along with eleven co-defendants for their alleged role in a conspiracy to distribute narcotics. On August 13, 1997, Evola pled guilty to Count 20, a violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2, charging use of a communication device to facilitate a conspiracy to distribute and to possess with intent to distribute a controlled substance. As part of the plea, the government agreed to dismiss Count I, which charged Evola with conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a). On February 19, 1998, Evola was sentenced to five years probation. The judgment became final on March 2, 1998, after Evola failed to file an appeal within ten days.

On October 4, 2001, the Immigration and Naturalization Service ("INS")¹ initiated removal proceedings against Evola based on his 1997 conviction. The INS charged that Evola was removable pursuant to the Immigration and Nationality Act ("INA") because he was convicted of an "aggravated felony," and because he violated a federal law relating to a controlled substance (other than a single offense involving possession for one's own use of 30 grams or less of marijuana). See Evola Memorandum of Law, Exhibit B, Form I-862. On February 11, 2004, an Immigration Judge ("IJ") ordered Evola's removal to Italy. The Board of Immigration Appeals ("BIA") affirmed the removal order on December 10, finding that a violation of 21 U.S.C. § 843(b) constituted an "aggravated felony." Evola now challenges the finding that 21 U.S.C. § 843(b) is an "aggravated felony."

In September 2002, Evola filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct his sentence as a result of ineffective assistance of counsel. The petition alleged that Evola's attorney, Joseph Santaguida, Esq. ("Santaguida"), advised Evola that he could enter a guilty plea without suffering any consequences with respect to his immigration status. On September 3, 2003, this Court denied Evola's petition because it was barred by the relevant one-year statute of limitations. Evola now seeks relief from his conviction, again based on ineffective assistance of counsel, but this time under the rubric of a writ of error coram nobis. Each petition will be addressed in turn below.

II. DISCUSSION

A. The § 2241 Petition

Petitioner concedes that he is subject to removal because his conviction relates to a controlled substance. Evola Memorandum of Law, p. 2. Petitioner nonetheless disputes the BIA's finding that his conviction under 21 U.S.C. § 843(b) is an "aggravated felony" because such a finding precludes him from seeking a cancellation of removal pursuant to INA § 240(a), codified at 8 U.S.C. § 1229b.² Evola asserts that he would otherwise be eligible to participate in that process.

The INA defines an "aggravated felony" to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). A drug trafficking crime, according to section 924(c) of Title 18, is defined to include "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.) ..."

Evola concedes that 21 U.S.C. § 843(b) is a felony punishable under the Controlled Substances Act, but argues that it is not an "aggravated felony" because it does not involve "illicit trafficking," a crucial and necessary piece of the "aggravated felony" puzzle. Evola contends that "illicit trafficking" — dealing or trading in a commercial fashion — is the gravamen of an "aggravated felony," and the subsets of felonies identified in the statutory scheme should not include federal offenses that do not involve a trafficking element. Evola next argues that the Court is confined by the language of the statute when determining whether a conviction is an "aggravated felony," and 21 U.S.C. § 843(b) "does not necessarily have a trafficking element inherent to the statute." Evola Memorandum of Law, p. 4.

Evola attempts to muddy what the Court perceives as clear waters. The Court is guided by the explicit statutory language. An "aggravated felony" is defined to include "illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c) defines a drug trafficking crime to include "any felony punishable under the Controlled Substances Act (21 U.S.C. §§ 801, et. seq.)." Evola's violation of 21 U.S.C. § 843(b), for the use of a communication device to facilitate a conspiracy to distribute and to possess with intent to distribute a controlled substance, is a part of the Controlled Substances Act. Thus, the logic plays out as follows: an "aggravated felony" under the INA is defined as "including a drug trafficking crime," which is defined as "any felony punishable under the Controlled Substances Act." The Petitioner was convicted of a crime under the Controlled Substances Act and, therefore, committed an "aggravated felony" for purposes of the INA. In fact, such logic compelled the Sixth Circuit to make the same finding: "under the plain language of the relevant statutes, a violation of 21 U.S.C. § 843(b) qualified as an aggravated felony under the INA." Kayrouz v. Ashcroft, 115 Fed.Appx. 783, 785, 2004 WL 2320341, *1 (6th Cir.2004) aff'g Kayrouz v. Ashcroft, 261 F.Supp.2d 760 (E.D.Ky.2003); see also Calcano-Martinez v. INS, 232 F.3d 328, 332 (2d Cir.2000) (noting that a petitioner convicted under 21 U.S.C. § 843(b) was ineligible to seek cancellation of removal because his conviction constituted an "aggravated felony"). Kayrouz, though not binding, is nonetheless on point, and petitioner conceded at oral argument that there is no case law to the contrary.

In the alternative, Evola argues that 21 U.S.C. § 843(b), though a felony, is a "lesser offense" because it carries a lighter maximum penalty than other statutes in the Controlled Substances Act. Therefore, this lesser federal felony should not be considered an "aggravated felony." Evola looks for support from Steele v. Blackman, 236 F.3d 130 (3d Cir.2001), where the Third Circuit reversed a finding that an alien's multiple state misdemeanors constituted an "aggravated felony." The Court found that the BIA could not add up multiple state court misdemeanors to equal an "aggravated felony." Like the multiple misdemeanors in Steele, Evola argues that his conviction should be treated as a lesser offense. First, the Steele case is easily distinguishable because the alien was never convicted of a federal felony, as Evola was here. Second, that Evola appeals to the Court's sense of fairness, asking it to weigh the relative severity of each felony under the Controlled Substances Act, simply has no place in this analysis due to the clear statutory scheme set forth by Congress.³ Accordingly, Evola's § 2241 petition is denied.

B. Writ of Error Coram Nobis

A writ of error coram nobis is a rare and dated form of relief available to federal courts in criminal matters under the All Writs Act, 28 U.S.C. § 1651(a). United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir.1989). The writ "is used to attack allegedly invalid convictions which have continuing consequences, when the petitioner has served his sentence and is no longer `in custody' for purposes of 28 U.S.C. § 2255." Stoneman, 870 F.2d at 105-06. Moreover, it is only appropriate to "correct errors for which there was no remedy available at the time of trial and where `sound reasons' exist for failing to seek relief earlier." Id. at 106.

Due to the Court's significant interest in finality of judgments, and because the writ is so extraordinary, the standard for a successful collateral attack is more stringent than that of § 2255 petitions. Stoneman, 870 F.2d at 106. There must be errors of fact "of the most fundamental kind" that "must go to the jurisdiction of the trial court, thus rendering the trial itself...