Lazreg v. United States
| Decision Date | 26 July 2019 |
| Docket Number | 09-CR-00399 (NGG) |
| Parties | ABDEL KHALEK LAZREG, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On December 1, 2009, Petitioner Abdel Khalek Lazreg pleaded guilty to count one of a two-count indictment for conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii)(II). (See Official Tr. of Plea Proceedings at 20:16-25; 21:1-25 (Dkt. 39).) On June 14, 2017, Petitioner filed this motion to vacate his 2009 conviction. (See Pet'rs Mot. to Vacate J. of Conviction ("Mot.") (Dkt. 45-1).)
In light of the fact that Petitioner has fully served his sentence under a federal felony conviction, the court construes this motion to vacate as a petition for a writ of coram nobis. See U.S. v. Loschiavo, 531 F.2d 659, 662 (2d Cir. 1976) (). The district court has the power to vacate its judgment of conviction and sentence after the expiration of the full term of its service through a writ of coram nobis. See United States v. Morgan, 346 U.S. 502, 512-13 (1954) ().
For the following reasons, the petition is DENIED.
On December 1, 2009, Petitioner pleaded guilty before this court to one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii)(II). (See Official Tr. of Plea Proceedings at 20:16-25; 21:1-25.) Prior to Petitioner's guilty plea, the prosecutor and federal agents arranged for a proffer meeting with Petitioner and his counsel. (See Mot. at 4, 7.) During this meeting, the parties agreed that Petitioner would plead guilty and cooperate with the government. (See Mot. at 4.) Petitioner assisted government agencies with their then-ongoing investigation of this matter, fulfilling his promise to cooperate. (See Pet'rs Decl. at 7 (Dkt. 45-2).) Although his efforts were unsuccessful, the government described them as "very serious efforts" during Petitioner's sentencing hearing. (See June 14, 2012 Sentencing Tr. (Dkt. 45-4) ("Sentencing Tr.") at 7:20-21.)
On June 14, 2012, Petitioner was sentenced before this court to time served and a three-year period of supervised release. (See June 14, 2012 Min. Entry of Sentencing (Dkt. 34); see also J. (Dkt. 35).) Petitioner did not directly appeal his conviction or sentence, nor did he pursue habeas relief under 28 U.S.C. § 2255.
On July 17, 2016, Petitioner filed a motion to expunge his criminal record on equitable grounds based on the adverse impact of his underlying criminal conviction. (See Pet'rs Mot. to Alter J. ("Mot. to Alter J.") (Dkt. 43).) On September 14, 2016, this court denied Petitioner's motion to expunge his criminal record for lack of subject-matter jurisdiction. (See Sept. 14, 2016 Order ("Sept. 14 Order") (Dkt. 44).)
On July 14, 2017, Petitioner filed the instant motion to vacate his conviction. (See generally Mot.) On September 15, 2017, the government filed its response to Petitioner's motion. On December 14, 2017, Petitioner filed its reply in support of its motion to vacate.
Petitioner argues his plea was induced by false, unfilled promises made by the government and thus his conviction should be vacated. (See Mot. at 2.) Specifically, Petitioner claims the government promised to "advise the Immigration Court of his cooperation efforts and testify on his behalf, if needed." (See Mot. at 5.) Petitioner also claims the federal agents advised Petitioner that "he was eligible to receive an S-Visa, which would allow [Petitioner] to legally reside and work in the United States." Id. Petitioner claims he would have never pleaded guilty if the government had not made these promises. Id. at 8.
A writ of coram nobis, also referred to as a writ of error coram nobis, is not a substitute for appeal but, rather, an "extraordinary remedy." Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting Morgan, 346 U.S. at 511). Relief is typically granted only when a prisoner is out of custody and cannot pursue habeas relief. Id. (citing Porcelli v. U.S., 404 F.3d 157, 158 (2d Cir. 2005)). A writ of coram nobis is "limit[ed] [to] 'extraordinary' cases presenting circumstances compelling its use 'to achieve justice.'" Du Purton v. United States, 891 F.3d 437, 444 (2d Cir. 2018) (quoting Morgan, 346 U.S. at 511) (citing United States v. Denedo, 556 U.S. 904, 911 (2009)).
In evaluating a coram nobis petition, the court presumes that the prior proceedings were correct and the burden rests on the petitioner to show otherwise. Morgan, 356 U.S. at 512. Consistent with these principles, the Second Circuit has set forth a three-prong standard for obtaining coram nobis relief. A petitioner "must demonstrate 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 granting of the writ." Kovacs, 744 F.3d at 49 (citation omitted).
In determining whether to grant coram nobis relief, the court begins its analysis with the second prong of this standard, timeliness, as it is a procedural hurdle to obtain relief. Dixon v. United States, No. 14-CV-960 (KMK), 2015 WL 851794 at *6 (S.D.N.Y. Feb. 27, 2015) (). The "critical inquiry" into this standard is "whether the petitioner is able to show justifiable reasons for the delay." Foont, 93 F.3d at 80 (). The district court is required to decide the issue of timeliness "in light of the individual circumstances of the case." Id. at 79.
Petitioner argues that the motion is timely because he sought relief from this court in July 2016 when he filed a motion to expunge his criminal conviction. (See Reply in Supp. of Mot. at 3; see also Mot. to Alter J.) However, Petitioner still waited over a year and a half after discovering that the United States Citizenship and Immigration Services ("USCIS") could notgrant his Form I-360, Violence Against Women Act ("VAWA") Petition1 before filing his July 2016 motion. (See Mot. to Alter J. at 11.)
Here, Petitioner waited two-and-a-half years after discovering that USCIS could not grant his Form I-360 Petition before seeking coram nobis relief. The court finds that a two-year delay in seeking coram nobis relief to be unjustifiable, particularly given the fact that petitioner completed the term of his supervised release and did not file his petition until discovering that Immigration and Naturalization Service ("INS")2 denied his application to become a naturalized citizen. Ejekwu v. United States, No. 02-CV-699 (SJ), 2005 WL 3050286, at *3 (E.D.N.Y. Nov. 14, 2005) ().
The timeliness of a coram nobis petition is further undermined when a petitioner failed to seek earlier appropriate relief pursuant to 28 U.S.C. § 2255. Foreman v. United States, 247 F. App'x 246, 248 (2d Cir. 2007)3; Cisse v. United States, 330 F. Supp. 2d 336, 344 (E.D.N.Y. 2004) () Petitioner does not explain why he failed to file a motion to vacate his sentence under 28 U.S.C. § 2255 within one year of the final judgment of his conviction entered on June 22, 2012. Moreover, Petitioner fails to explain whyhe did not seek appropriate relief within one year of receiving the notice of his removal on March 7, 2013, the point at which Petitioner should have realized the alleged promises made by the government to assist Petitioner with his immigration status would not be fulfilled. (See Pet'rs Decl. at 8, 9.) Given these facts, the court ultimately finds this petition untimely and thus barred.
In finding that Petitioner failed to meet the second prong's procedural threshold, the court need not return to the first prong, namely that Petitioner demonstrate "circumstances compelling such action to achieve justice." Kovacs, 744 F.3d at 49. Nonetheless, the court also finds that Petitioner has failed to meet this standard. As stated, coram nobis relief is limited to errors "of the most fundamental character." Du Purton, 891 F.3d at 440 (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)). Petitioner claims that his guilty plea was induced by false promises made by the government and thus was involuntary. This is an error of such magnitude that would entitle Petitioner to coram nobis relief. Machibroda v. United States, 368 U.S. 487, 493 (1962) (); Santobello v. New York, 404 U.S. 257, 262 (1971) (). Petitioner, however, has...
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