Hanan v. U.S.

• Decision Date: 21 November 2005
• Docket Number: No. 1:05CV1062.,1:05CV1062.
• Citation: 402 F.Supp.2d 679
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Babry HANAN, Petitioner, v. UNITED STATES of America, Respondent.

Page 679

402 F.Supp.2d 679

Babry HANAN, Petitioner, v. UNITED STATES of America, Respondent.

No. 1:05CV1062.

United States District Court, E.D. Virginia, Alexandria Division.

November 21, 2005.

Fitsum Achamyeleh Alemu, Law Offices of Fitsum Alemu, Arlington, VA, for Petitioner.

MEMORANDUM OPINION

ELLIS, District Judge.

This suit is the latest chapter in plaintiff's determined, long-term effort to avoid deportation to his native Afghanistan and remain in this country. In this petition, he invokes Rule 60(b), Fed.R.Civ.P., and the All Writs Act,¹ specifically the writs of coram nobis and audita querela-all for the purpose of obtaining vacatur of a 22-year old importation of heroin conviction, which is the principal reason for his deportation. In support of his petition, petitioner offers affidavits purporting to show (i) that he was innocent of the crime for which he was convicted; and (ii) that both he and his family will face extreme hardship if he is deported to Afghanistan. Accordingly, the question presented is whether these affidavits are sufficient, under either Rule 60(b) or the All Writs Act, to justify expunging from his record his criminal conviction for heroin importation with intent to distribute.

I.

Babry Hanan ("Hanan"), an Afghani citizen, entered the United States in 1980 from Afghanistan. His friend and original co-defendant, Abdul Samad ("Samad"), also an Afghani, arrived in the United States in 1981. In this country, Hanan worked as a taxi cab driver, while Samad worked various odd jobs, although at the time of their arrest in 1983 Samad was unemployed. At all pertinent times, Hanan and Samad shared an apartment on South Whiting Street in Alexandria, Virginia.

On January 4, 1983, United States customs officials intercepted a package at Kennedy International Airport addressed to "M. Amin" at Hanan's and Samad's Whiting Street apartment. The package contained a shirt with 22 grams of heroin sewn in the collar. On January 11, 1983, at the behest of the Drug Enforcement Agency ("DEA"), a local courier service made a controlled delivery of this package to the Whiting Street apartment. When Samad answered the door, the courier informed him he had a package for "M. Amin." Samad, who did not speak English fluently, said "yes," and asked if a signature was required. The courier responded that none was necessary. After receiving the package, Samad handed it to Hanan, who then opened it. Samad then left the room. Within moments, DEA agents, who had been monitoring the delivery, knocked on the door. Hanan placed the heroin under a rug before the DEA agents entered. Although he initially denied that the package contained any illicit substance, Hanan eventually told the agents they could find the heroin under the living room rug. Based on this evidence, a jury on April 1, 1983 convicted both Hanan and Samad of unlawfully importing heroin with intent to distribute. Hanan was sentenced to three years of incarceration and three years of special parole. Both Hanan and Samad thereafter appealed their convictions. Samad's conviction was reversed on the ground that there was insufficient evidence to support a finding by a reasonable jury that Samad was aware that the package in question contained heroin. See United States v. Samad, 754 F.2d 1091, 1098-99 (4th Cir.1984). Hanan did not fare as well in his appeal; by contrast, the Court of Appeals held that there was sufficient circumstantial evidence to support the inference that Hanan knew the package contained drugs, and accordingly, Hanan's conviction was affirmed. Id. at 1099.²

Following his release from prison on November 10, 1984, the Immigration and Nationalization Service ("INS") attempted to deport Hanan to Afghanistan on account of his conviction, but was unable to do so because of Afghanistan's unstable political climate at that time. Although unable to deport Hanan immediately, the deportation order remained in effect, and Hanan was placed on supervised release. In 1996, Hanan petitioned INS to lift his order of deportation. This effort failed when the INS denied the petition on February 12, 1997. On May 15, 1997, Hanan tried again; he filed for relief from deportation under Article 3 of the United Nations Convention Against Torture,³ which prohibits, inter alia, removal of an individual to a country where he would be subject to torture. This effort also failed, as the INS denied this petition for relief on October 23, 2002, and the Board of Immigration Appeals affirmed this result in April 2004. In May 2004 and August 2004, INS notified Hanan by letter that it intended to deport him to Afghanistan by August 10, 2004. This notice precipitated two responses.

First, on August 9, 2004, Hanan filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 in Minnesota federal district court. That petition is currently pending. The Minnesota court filed a temporary stay of deportation enjoining INS from deporting Hanan during the pendency of his habeas petition.⁴ Hanan also filed this suit seeking vacatur of his heroin importation conviction in this district, hoping to have the conviction vacated and expunged, thereby eliminating the predicate ground for his deportation. As noted, petitioner supports his claim for relief with several affidavits from himself, his family members, and others.⁵ Each of these affidavits attest to (i) Hanan's good character; (ii) Samad's poor character; (iii) the hardship Hanan and his family will suffer if he is deported to Afghanistan, and (iv) the ties Hanan and his family have to each other, their community, and the United States.

With respect to Samad's character, Babry in his supplemental affidavit alleges, inter alia, (i) that while incarcerated, Samad blackmailed his brother for $2,000;⁶ and (ii) that during their incarceration, Samad threatened Hanan that he would implicate Hanan's family members and girlfriend at the time as co-conspirators in the drug trade if Hanan were to recant his statement to police that Hanan and Samad together opened the package containing heroin together.

Hanan claims that the affidavits of Farid Urdu ("Urdu") and Mir Waise Aziz ("Aziz") support his actual innocence claim because they demonstrate, in his view, that Samad alone was culpable with respect to the drug crime for which he and Samad were convicted, and for which Hanan now faces deportation. In his June 20, 2005 affidavit, Urdu stated that he met Samad by chance at a party in Hamburg, Germany in 2003. Urdu further states that when their conversation turned to Hanan, Samad said (i) that he, not Hanan, was guilty of the heroin importation crime for which they were both convicted; and (ii) that it was unjust that Hanan, an innocent man, spent time in prison, while Samad's conviction was overturned and he was set free. In his November 10, 2004 affidavit, Aziz states that he is convinced of Hanan's innocence based on his conversations with Urdu in June or July of 2004, during which Urdu told Aziz of his 2003 encounter with Samad.

The question presented is whether Hanan's petition and supporting affidavits entitles him to the relief he seeks under Rule 60(b) or the writs of coram nobis or audita querela.

II.

In a 1946 amendment to Rule 60, Fed.R.Civ.P., Congress abolished several common law writs, including coram nobis and audita querela. Rule 60 stated in pertinent part:

Writs of coram nobis, coram vobis, audita querela, and bills of review, and bills in the nature of a bill of review, are abolished, and the procedure shall be by motion as prescribed in these rules or by an independent action.

Notwithstanding the plain language of Rule 60, the Supreme Court eight years later in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), held that the All Writs Act, codified at 28 U.S.C. § 1651(a), authorized courts to hear petitions for a writ of coram nobis.⁷ Morgan teaches that federal courts may properly fill the interstices of the federal post-conviction remedial framework through remedies available at common law, including, inter alia, writs of coram nobis and audita querela. See United States v. Ayala, 894 F.2d 425, 428 (D.C.Cir.1990). Accordingly, in this circuit and elsewhere, litigants properly may pursue both a writ of coram nobis and a writ of audita querela.

While courts' authority to grant writs of coram nobis and audita querela flows from a common source, the All Writs Act, these writs are not identical. A writ of coram nobis⁸ is typically used to attack a judgment that was infirm at the time it issued for reasons that later came to light. By contrast, a writ of audita querela⁹ is used to challenge a judgment that was correct at the time it was issued, but which was rendered infirm by matters which arose after its issuance. See United States v. Reyes, 945 F.2d 862, 863 n. 1 (5th Cir.1991) (contrasting writs of coram nobis and audita querela). Given this and the facts presented, a writ of coram nobis clearly is the more appropriate vehicle to challenge Hanan's heroin importation conviction; Hanan has always maintained his innocence, but only recently obtained the information he now presents in support of his innocence claim. Accordingly, Hanan's motion is properly treated as a petition for writ of coram nobis.

A writ of coram nobis is available to correct errors "of the most fundamental character" that have occurred in a criminal proceeding. Morgan, 346 U.S. at 512, 74 S.Ct. 247. Indeed, it may issue only to correct errors "resulting in a complete miscarriage of justice." Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996). Thus, it does not matter whether the convicted person is in custody; it is well established that the writ will lie where the convicted person is not in custody, either because he has completed his sentence or because he has not yet begun to serve it. See Morgan, 346 U.S. at 510, 74 S.Ct. 247; United States v. Hay, 702 F.2d 572 (5th Cir.1983); 18 Am.Jur.2d Coram...