Fernandez v. United States

• Decision Date: 14 April 2020
• Docket Number: CIVIL CASE NO. 1:19-cv-00148-MR,CRIMINAL CASE NO. 2:00-cr-00086-MR
• Parties: ANA ROSE FERNANDEZ, a/k/a ANNA ROSE MOORE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of North Carolina

ANA ROSE FERNANDEZ, a/k/a ANNA ROSE MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

CIVIL CASE NO. 1:19-cv-00148-MR
CRIMINAL CASE NO. 2:00-cr-00086-MR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

April 14, 2020

MEMORANDUM OF DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner's Petition for Writ of Error Coram Nobis [CV Doc. 1].¹

I. BACKGROUND

The Petitioner Anna Rose Moore (the "Petitioner") legally entered the United States in 1977 and was granted legal permanent resident status in 1984. [EDNC CR Doc. 47 at 8, WDNC CR Doc. 38 at 2]. On November 6, 2000, the Petitioner was indicted in this District on one count of conspiring to

Page 2

manufacture less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D).² [WDNC CR Doc. 1]. On January 8, 2001, the Petitioner agreed to plead guilty to the indictment. [WDNC CR Doc. 12].

On January 17, 2001, the Court held a Rule 11 hearing on the Petitioner's guilty plea. [WDNC CR Doc. 14; Doc. 38 at 3]. During that hearing, the Court held a colloquy with the Petitioner about her history of mental health, drug, and alcohol treatment, including stays at a mental hospital five years earlier and an alcohol and drug treatment center fourteen years earlier. [CV Doc. 1-4 at 5-7]. Ultimately, the Court accepted the guilty plea and found that the Petitioner made the plea knowingly and voluntarily. [WDNC Doc. 14; CV Doc. 1-3 at 17].

A probation officer prepared a presentence report ("PSR"). [WDNC CR Doc. 38]. The PSR stated that "[b]ased on the conviction for the instant offense, [the Petitioner] is amenable for deportation." [Id. at ¶ 49].

The Court held a sentencing hearing on July 25, 2001. [CV Doc. 1-6]. At that hearing, the parties stipulated that there was a factual basis to support the guilty plea and that the Court could accept the PSR as evidence

Page 3

establishing a factual basis to support the plea. [Id. at 2]. The Court sentenced the Petitioner to two years of probation, including six months of home confinement. [Id. at 12-13]. The Court entered its judgment on August 9, 2001. [WDNC CR Doc. 18].

On December 13, 2001, the United States filed a Petition for Revocation. [WDNC CR Doc. 20]. The Petitioner's probation was revoked based upon her admission to the New Law Violation of obtaining property by false pretenses, [Id. Doc. 30 at 2-3], and she was sentenced to six months imprisonment. [Id. at Doc. 27]. On September 16, 2002, the Petitioner was released to the custody of Immigration and Customs Enforcement. [EDNC CR Doc. 47]. On November 20, 2002, the Petitioner was deported to Honduras based on her conviction. [Id. at ¶ 5].

The Petitioner illegally reentered the United States at some point before July 14, 2014, when she was arrested in Onslow County, North Carolina, for not having an operator's license and failing to maintain lane control. [Id. at 3]. On January 20, 2018, the Petitioner was arrested again in Onslow County for not having an operator's license. [Id. at ¶ 6]. On January 31, 2018, the Petitioner was indicted in the Eastern District of North Carolina and charged with illegal reentry by an aggravated felon in violation of 8 U.S.C. §§ 1326(a) and (b)(2). [Id. at ¶ 1]. The Petitioner pleaded guilty

Page 4

in November 2018. [Id. at ¶ 2]. On May 1, 2019, the Petitioner was sentenced to time served and a year of supervised release. [EDNC Doc. 65].

On May 7, 2019, the Petitioner filed the present Petition for Writ of Error Coram Nobis in this Court. [CV Doc. 1]. In it, the Petitioner argues that her 2001 conviction should be set aside because she received ineffective assistance of counsel in many respects, including having been ill-advised regarding the implications that such a conviction could have on her immigration status. [CV Doc. 1 at 5]. To support her claims, the Petitioner submits an affidavit from her ex-husband, Sean Adams. He was a co-conspirator in that case, even though he was not indicted in this Court. [CV Doc. 1-5, WDNC CR Doc. 38 at 4-5]. Adams states in his affidavit that he is a recovering drug addict who abused the Petitioner during their marriage and forced her to buy hydroponic lights to grow marijuana. [CV Doc. 1-5 at ¶¶ 3, 17, 21, 24, 25]. As of the time of her arrest on the charges brought in this Court, however, Petitioner had divorced Adams and was married to Don Michael Moore, who was also a co-conspirator in that case who was not indicted in this Court. [WDNC CR Doc. 38 at 4-5].

On September 13, 2019, the Government responded to the Petitioner's Petition. [CV Doc. 4]. On October 14, 2019, the Petitioner replied to the

Page 5

Government's Response. [CV Doc. 7]. Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Under 28 U.S.C. § 1651(a), coram nobis relief is available only when all other avenues of relief are inadequate and where the defendant is no longer in custody. In re Daniels, 203 F. App'x. 442, 443 (4th Cir. 2006) (unpublished); United States v. Mandel, 862 F.3d 1067, 1075 (4th Cir. 1988). In reviewing a petition for a writ of error coram nobis, the Court "must presume that the underlying proceedings were correct, and the burden of showing otherwise rests on the petitioner." Hanan v. United States, 402 F. Supp. 2d 679, 684 (E.D. Va. 2005), aff'd, 213 F. App'x. 197 (4th Cir. 2007). The burden placed on a petitioner who seeks a writ of error coram nobis exceeds the burden placed on a petitioner who seeks collateral relief through a habeas petition. Id. This heavier burden is justified in coram nobis proceedings, as the government is unlikely to allocate scarce prosecutorial resources to retry a defendant who has completed his sentence and thus will not be resentenced. See id. Indeed, the Supreme Court has stated that "it is difficult to conceive of a situation in a federal criminal case today where a writ of coram nobis would be necessary or appropriate." Carlisle v. United

Page 6

States, 517 U.S. 416, 429 (1996) (internal quotation marks and brackets omitted) (quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).

In discussing relief through a writ of error coram nobis, the Fourth Circuit has stated as follows:

As a remedy of last resort, the writ of error coram nobis is granted only where an error is "of the most fundamental character" and there exists no other available remedy. Mandel, 862 F.2d at 1075. The writ is narrowly limited to "'extraordinary' cases presenting circumstances compelling its use 'to achieve justice.'" United States v. Denedo, 556 U.S. 904, 911 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error "rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S. Ct. 2235, 60 L.Ed.2d 805 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).

United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012).

III. DISCUSSION

1. Availability of Coram Nobis

With regard to the first Akinsade factor, a more usual remedy was available because the Petitioner was in custody and could have filed a

Page 7

petition under 28 U.S.C. § 2255. "An applicant need only be 'in custody when the application for habeas corpus is filed.'" United States v. Swaby, 855 F.3d 233, 238-39 (4th Cir. 2017) (quoting Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). A prisoner on supervised release is considered to be 'in custody' for purposes of a §2255 motion." United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). As such, courts "have consistently barred individuals in custody from seeking a writ of error coram nobis." Swaby, 855 F.3d at 239 (citing United States v. Brown, 413 F.2d 878, 879 (9th Cir. 1969); United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001); United States v. Barrett, 178 F.3d 34, 54 (1st Cir. 1999); United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997)).

The Petitioner was serving a one-year term of supervised release when she filed this petition (on which she remains...