US v. Hamid, 85-1639.

• Decision Date: 15 September 1987
• Docket Number: No. 85-1639.,85-1639.
• Citation: 531 A.2d 628
• Parties: UNITED STATES, Appellant, v. Abdul HAMID, a/k/a Hilvan Jude Finch, Appellee.
• Court: D.C. Court of Appeals

531 A.2d 628

UNITED STATES, Appellant, v. Abdul HAMID, a/k/a Hilvan Jude Finch, Appellee.

No. 85-1639.

District of Columbia Court of Appeals.

Argued September 23, 1986.

Decided September 15, 1987.

Ilene G. Rosenthal, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Paul L. Knight, and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on brief, for appellant.

Greta C. Van Susteren, with whom Timothy Junkin, Washington, D.C., was on brief, for appellee.

Before PRYOR, Chief Judge, and MACK and FERREN, Associate Judges.

MACK, Associate Judge:

The government appeals from the trial court's order granting appellee's petition for a writ of error coram nobis and reducing his sentence to time served. We affirm.

A writ of error coram nobis is an "`extraordinary remedy'" which should be granted "`only under circumstances compelling such action to achieve justice.'" United States v. Higdon, 496 A.2d 618, 619 (D.C.1985) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954)). The trial court granted the writ based on the finding that both appellee and his trial lawyer were under duress at the time of appellee's trial and sentencing and were unable to present mitigating information to the court for it to determine the proper sentence. Appellee has carried his burden of showing that an error amounting to a "`miscarriage of justice,'" United States v. Higdon, supra, 496 A.2d at 620 (quoting Moon v. United States, 106 U.S.App.D.C. 301, 303, 272 F.2d 530, 532 (1959)) occurred at his sentencing hearing. We find that the trial court properly exercised its discretion in granting the petition for writ of error coram nobis.¹

I

The relative simplicity of the issue as framed—i.e., whether the trial court abused its discretion in granting the writ of error coram nobis—belies the long and complex procedural history of this case. That history is essential to an understanding of the trial court's decision.

On May 3, 1977, appellee Abdul Hamid, also known as Hilvan Jude Finch, along with eleven other defendants, was indicted and later brought to trial on a multiple count indictment. Appellee, who neither took the stand nor offered any evidence on his own behalf, was convicted by a jury of conspiracy to commit kidnapping while armed, assault with a dangerous weapon, and eight counts of kidnapping while armed in connection with the takeover of the B'nai B'rith Headquarters. On September 6, 1977, appellee was sentenced by the court to an aggregate of 36 to 108 years imprisonment. At the time of sentencing, appellee did not present mitigating information to the trial court that might have served to lessen the sentence imposed by the trial court. Appellee's conviction (along with the convictions of the eleven codefendants) was later upheld on appeal. Khaalis v. United States, 408 A.2d 313 (D.C.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980).² Appellee did not join his codefendants who sought review by the United States Supreme Court, which denied the petition for a writ of certiorari on February 19, 1980. The mandate issued by this court affirming appellee's conviction was received by the Superior Court on February 28, 1980.

On June 25, 1980, 118 days after receipt of the mandate, appellee filed a motion to reduce his sentence pursuant to Super.Ct. Crim.R. 35(b). More than four months later, the government filed an opposition to appellee's motion. Following a hearing on December 10, 1980, at which time the court heard extensive testimony about the life experiences of the 22-year-old appellee and his limited role in the takeover of B'nai B'rith, the court granted the motion to reduce sentence and reduced appellee's sentence to time served.

The government filed a petition for a writ of mandamus, alleging that the trial court had no jurisdiction to rule on appellee's motion because 120 days had elapsed after receipt of the mandate. On May 14, 1981, a division of this court held that the trial court had no jurisdiction beyond the 120-day period specified in Rule 35(b) to rule upon appellee's motion to reduce sentence. United States v. Nunzio, 430 A.2d 1372 (D.C.1981). Appellee filed a petition for rehearing and/or hearing en banc, asking the panel to reconsider its decision or the full court to vacate the panel opinion and set the case for en banc reargument. He argued that the panel's decision to interpret Rule 35(b) as a jurisdictional deadline and not a filing deadline was contrary to the rule as previously understood and widely accepted. The petition was denied, and the trial court vacated its January 8, 1981 order reducing appellee's sentence.³

Appellee next moved to vacate his sentence pursuant to D.C.Code § 23-110 (1981). On September 23, 1981, the trial court conducted a hearing and was presented with evidence supporting appellee's claim that he was denied effective assistance of counsel because his attorney failed to file a motion to reduce sentence in time for the trial court to consider and rule upon the motion. On October 2, 1981, the trial court found that appellee was denied effective assistance of counsel and vacated appellee's sentence, resentencing appellee to time already served.⁴ The government appealed the trial court's decision, arguing that appellee was not denied effective assistance of counsel. In United States v. Hamid, 461 A.2d 1043 (D.C.1983), this court reversed the trial court's ruling, holding that the Sixth Amendment right to effective assistance of counsel does not attach to post-conviction motions seeking reduction of sentence. The trial court was instructed to reinstate appellee's original sentence and appellee's petition for rehearing en banc was denied on August 31, 1983.

On September 13, 1983, appellee petitioned the trial court for a writ of error coram nobis. Appellee requested that the trial court find a fundamental flaw in appellee's sentencing hearing due to duress, and to thus vacate the September 6, 1977 sentence and afford him an opportunity for resentencing. Appellee contended that he was prevented from raising a defense at trial and from presenting mitigating factors to the trial court at sentencing due to fear, duress and threats of force and violence directed at appellee, appellee's family, appellee's lawyer, and his lawyer's family by the leader of the Hanafi Muslims, Hamaas Abdul Khaalis. Two months later, the government filed a written opposition to appellee's petition for a writ of error coram nobis.

During the course of a status hearing held December 12, 1983, argument was heard concerning the effect of the decision by this court in Williams v. United States, 470 A.2d 302 (D.C.1983) on appellee's original Rule 35 motion to reduce sentence.⁵ The Williams court held that Nunzio should be applied prospectively only and not retroactively. Thus, the trial court surmised it would have jurisdiction to rule on appellee's original Rule 35 motion. First, however, the trial court inquired whether the government intended to petition for an en banc review of Williams. Appellee's motions pending in the trial court were held in abeyance pending the outcome of the government's petition for rehearing en banc, filed January 27, 1984. Rehearing en banc was granted April 2, 1984, and the panel's opinion in Williams was vacated. Argument was heard on May 16, 1984, and on January 18, 1985, this court sitting en banc split evenly, 4 to 4, in ruling on the government's petition.

A hearing was conducted before the trial court on February 22, 1985, during which the court granted appellee's motion for reduction of sentence based upon the split en banc decision by this court in Williams. On February 27, 1985, the government filed a motion for reconsideration urging the court to vacate its decision of February 22, 1985, which granted appellee's motion to reduce sentence. The government argued that the net effect of the split en banc decision by this court was to affirm the judgment of the trial court. The trial court thereafter vacated its order.

On May 30, 1985, appellee filed a Petition to Vacate Sentence and for a Writ of Habeas Corpus, pursuant to D.C.Code § 23-110. The government filed an opposition to appellee's petition on July 15, 1985, one and one-half months later. A hearing was conducted before the court on July 19, 1985, on appellee's previously filed petition for a writ of error coram nobis along with the petition to vacate sentence and for a writ of habeas corpus. The matter was continued to September 10, 1985 and on that date the trial court heard testimony as well as arguments from appellee and the government relating to each of appellee's petitions then pending before the court. Based upon the testimony adduced at the September 10, 1985 hearing and the entire record in this case, including the testimony and exhibits adduced at the hearings conducted before the court on December 10, 1980, and September 23, 1981, and adopted by the court at the September 10, 1985 hearing the trial court concluded that the writ should be granted.⁶

II

In United States v. Higdon, supra, this court held that the primary function of the writ of error coram nobis at common law was to "`correct errors of fact on the part of the trial court, not attributable to the negligence of the defendant, when the errors alleged were "of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid,"'" Id. at 619 (citing Moon v. United States, supra, 106 U.S.App.D.C. at 303, 272 F.2d at 532). The writ of error coram nobis provides a petitioner the opportunity to "correct errors of fact not apparent on the face of the record and unknown to the trial court." Watwood v. District of Columbia, 162 A.2d 486, 487 (D.C.1960).⁷

We reject the government's argument that appellee's claim is not one legally cognizable by way of a writ of error coram nobis (see Part III-E infra). We also...