Angus v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GIFTON ANGUS,

Petitioner,

MEMORANDUM AND ORDER

-against-

17-CV-583 (KAM)

UNITED STATES OF AMERICA,

Respondent.

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MATSUMOTO, United States District Judge:

On March 31, 1989, in the Eastern District of New

York, petitioner Gifton Angus (the “petitioner”) was sentenced

to two concurrent terms of ten years’ imprisonment, followed by

ten years of special parole, following his conviction at jury

trial of: one count of importation of over 500 grams of cocaine

(“Count One”), in violation of 21 U.S.C. §§ 952(a), 960(a)(1)

and 960(b)(2)(B)(ii), and one count of possession of over 500

grams of cocaine with intent to distribute (“Count Two”), in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II).

(ECF No. 6, Ex. 1, Indictment; ECF No. 6, Ex. 2, Judgment and

Probation/Commitment Order, at 16.1) On August 22, 2016, Mr.

Angus, proceeding pro se, filed the instant motion for a writ of

coram nobis, challenging his 1989 convictions. (ECF No. 1,

Motion for Writ of Coram Nobis (“Mot.”), at 1-3.) Mr. Angus’s

1 The government filed all exhibits to its response in a single document,

together with its letter opposition to petitioner’s motion for coram nobis

relief, and the court’s citations to ECF No. 6 refer to the ECF pagination.

asserts that there were fundamental errors in his 1989

convictions, including that he “still maintain[s] innocence and

lack of proof” and “is still suffering continue[d] legal

consequences from his conviction.” (Id. at 1-2.) For the

reasons set forth below, Mr. Angus’s motion is respectfully

DENIED.

Background

Petitioner Gifton Angus is a citizen of Jamaica who

was first admitted into the United States in New York on a B-2

visitor visa in 1981. (ECF No. 6, Ex. 11, Oral Decision and

Order of the Immigration Judge (“Imm. Order”), at 52.) In 1983,

petitioner’s status was adjusted to that of a lawful permanent

resident. (Id.)

On or about September 25, 1987, petitioner was

arrested at John F. Kennedy airport in possession of nearly two

kilograms of cocaine, located in a false compartment in his

luggage after arriving on a flight from Jamaica. (Id. at 53;

ECF No. 6, Ex. 1, Indictment, at 12.) Petitioner maintained

that he did not know how the drugs came to be in his suitcase

and claimed that he did not agree to transport the drugs. (Imm.

Order 53.)

In January 1989, in the Eastern District of New York,

a jury found petitioner guilty of one count of importing five

hundred grams or more of cocaine, in violation of 21 U.S.C. §

952(b)(2)(B), and one count of possession with the intent to

distribute five hundred grams or more of cocaine, in violation

of 21 U.S.C. § 841(a)(1). (ECF No. 6, Ex. 2, at 16.) On March

31, 1989, petitioner was sentenced to ten years’ imprisonment

followed by ten years of special parole. (Id.) On April 5,

1989, petitioner filed a Notice of Appeal from the judgment

entered by the Eastern District of New York. By order dated

June 16, 1989, and docketed in the Eastern District of New York

on July 19, 1989, the Second Circuit dismissed petitioner’s

appeal from the judgment of conviction due to defendant’s

default. (See United States v. Angus, 87-CR-661 (MAC), ECF No.

15.)

In August 1991, petitioner was served with a Form I-

221 Order to Show Cause and charged as being subject to

deportation pursuant to Sections 241(a)(2)(A)(iii) and

241(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”)

(ECF No. 6, Ex. 3, Order to Show Cause and Notice of Hearing, at

18-20.) On November 7, 1994, an immigration court judge ordered

petitioner removed from the United States to Jamaica. (ECF No.

6-4, Order of the Immigration Judge, at 22-24.) On November 16,

1994, petitioner filed an appeal with the Board of Immigration

Appeals (the “BIA”), posted an immigration bond of $10,000 and

was released from custody on November 23, 1994. (ECF No. 6, Ex.

5, Decision of BIA, at 26-27.) On March 29, 1995, the BIA

dismissed petitioner’s appeal and issued an order of

deportation. (Id.) On April 10, 1995, a deportation warrant

was issued for petitioner. (ECF No. 6, Ex. 6, Warrant of

Deportation for Gifton Angus, at 29-31.)

On January 13, 1997, petitioner was arrested in

Tennessee while traveling in a two-car caravan carrying 65.5

pounds of marijuana. (ECF No. 6, Ex. 7, State Court Indictment,

at 33-34.) On December 11, 1998, petitioner was convicted in

Shelby County Criminal Court, in Memphis, Tennessee, under the

alias “Grant Oswald” for the felony offense of Unlawful

Possession of a Controlled Substance with Intent to Distribute,

for which petitioner received a one-year sentence of

imprisonment. (ECF No. 6, Ex. 7, Judgment, at 36.)

On January 11, 1999, Immigration and Naturalization

Service (the “INS”) encountered petitioner while he was

incarcerated at the Shelby County Penal Farm in Tennessee. (ECF

No. 6, Ex. 8, Warrant of Removal/Deportation, at 39.) On

February 19, 1999, petitioner was taken into INS custody, and on

March 25, 1999, he was removed from the United States to Jamaica

pursuant to the prior order of removal. (Id. at 40.)

At some point after his deportation, in 2000,

petitioner illegally re-entered the United States. See Angus v.

Attorney General United States of America, 675 F. App’x 193, 194

(3d Cir. 2017) (noting that petitioner reentered the United

States in 2000, less than a year after he was deported). The

government has stated that it is unaware of any records

indicating that petitioner requested or received legal

authorization to reenter the United States following his

removal. (ECF No. 6, at 2-3.)

On August 26, 2013, immigration officers encountered

petitioner following his arrest by the Binghamton Police

Department in New York for Possession of a Forged Instrument.

Angus, 675 F. App’x at 194. On August 31, 2013, petitioner

posted bail on his criminal charge, was taken into immigration

custody, and was served with a Form I-871, Notice of Intent to

Reinstate a Prior Order of Removal pursuant to Section 241(a)(5)

of the INA. (ECF No. 6, Ex. 9, Notice of Intent/Decision to

Reinstate Prior Order, at 43.)

On February 28, 2014, petitioner pled guilty to

Reentry of a Previously Removed Alien, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2) in the Northern District of New York.

(ECF No. 6, Ex. 10, Judgment in a Criminal Case, at 45.)

Accordingly, petitioner was sentenced to 30 months of

incarceration. (Id. at 46.) On March 18, 2016, an immigration

judge denied petitioner’s application for deferral of removal

and ordered petitioner’s removal from the United States. (ECF

No. 6, Ex. 11, at 50-65.)

On April 4, 2016, petitioner appealed the immigration

judge’s March 18, 2016 decision and filed a motion to remand to

the BIA. (ECF No. 6, Ex. 12, Decision of BIA, at 67.) On July

8, 2016, the BIA denied petitioner’s motion and dismissed the

appeal because, inter alia, petitioner “did not mention Trevor

Dobson or his fear in returning to Jamaica because of his prior

dealings with Trevor Dobson” in his prior immigration

proceedings and, due to petitioner’s post-1996 convictions, he

is ineligible for immigration relief under former section 212(c)

of the INA. (Id. at 67-68.) On July 19, 2016, petitioner

filed, in the Third Circuit, a Petition for Review of the BIA’s

July 8, 2016 decision and also sought to stay his removal, which

was denied in part and dismissed in part on January 3, 2016.

Angus, 675 F. App’x at 193.

On February 23, 2017, petitioner was deported from the

United States to Jamaica pursuant to a Department of Homeland

Security order and Section 241(a)(5) of the INA. (ECF No. 6-13,

Warrant of Removal/Deportation, at 70-72.) Petitioner has not

advised the court of his current address, and the government has

advised that petitioner’s current whereabouts are unknown. (ECF

No. 6, at 3.)

Prior to this most recent deportation, pro se

petitioner filed the instant petition on August 22, 2016,

seeking coram nobis relief related to his 1989 convictions

described above. (Mot. at 1-4.) Petitioner seeks to have his

1989 drug trafficking convictions vacated. In support of his

request for relief, petitioner asserts, in conclusory fashion,

that he had no knowledge of the cocaine hidden inside the

suitcase he was carrying. (Id. at 1-3.) Petitioner further

asserts that his counsel was constitutionally ineffective in

rendering incorrect legal advice regarding the possible

immigration consequences of his 1989 convictions. (Id. at 1-2.)

The petition is silent in regard to Mr. Angus’s post-1989

criminal convictions.

Standard of Review

I. Pro Se Status

In the instant action, petitioner is proceeding pro

se. (Mot. at 1-4.) A pro se petitioner’s pleadings are held to

“less stringent standards than formal pleadings drafted by

lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations

and internal quotation marks omitted), and are construed “to

raise the strongest arguments that they suggest,” Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

(emphasis omitted). “Nonetheless, a pro se [litigant] is not

exempt from compliance with relevant rules of procedural and

substantive law.” Rivera v. United States, No. 06-CV-5140

(SJF), 2006 WL 3337511, at *1 (E.D.N.Y. Oct. 4, 2006) (citation

omitted). Petitioner’s papers are evaluated accordingly.

II. Coram Nobis

Pursuant to the All Writs Act, 28 U.S.C. § 1651(a),

“all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” A court may grant a writ of coram nobis in order to

“redress an adverse consequence resulting from an illegally

imposed criminal conviction or sentence.” United States v.

LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (citing United States

v. Morgan, 346 U.S. 502, 512-13 (1954)). “Coram nobis is an

‘extraordinary remedy’ [that is] generally sought to review a

criminal conviction where a motion under 28 U.S.C. § 2255 is

unavailable because petitioner is no longer serving a sentence.”

Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005). In

addition, coram nobis is “not a substitute for appeal, and . . .

is strictly limited to those cases in which errors . . .of the

most fundamental character have rendered the proceeding itself

irregular and invalid.” Foont v. United States, 93 F.3d 76, 78

(2d Cir. 1996) (internal quotation marks omitted); United States

v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000) (describing a

writ of coram nobis as “a remedy of last resort”) (internal

quotation marks and citation omitted).

In order to support an application for coram nobis

relief, a petitioner must show 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.”

United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000)

(quoting Fleming v. United States, 146 F.3d 88, 90 (2d Cir.

1998) (per curiam)); Porcelli, 404 F.3d at 158 (“Speculative

harms are insufficient” to demonstrate serious continuing

harm.). The burden to prove the existence of errors in the

challenged proceedings rests with the petitioner, and the court

presumes that the proceedings were correct until the petitioner

shows otherwise. See Nicks, 955 F.2d 161, 167 (2d Cir. 1992).

Discussion

In his petition filed on August 22, 2016, petitioner

asks this court to grant him coram nobis relief related to his

1989 convictions for felony drug trafficking offenses. (Mot. at

1-4.) For the reasons set forth below, the court finds that

petitioner has failed to meet the requirements for coram nobis

relief and respectfully denies the petition.

A. Petitioner Has Failed to Establish Any Fundamental Error

Regarding His 1989 Convictions that Compels Coram Nobis

Relief in the Interests of Justice.

First, petitioner must show that “there are

circumstances compelling” the relief and the writ would serve

the interests of justice. Foont, 93 F.3d at 79. Specifically,

a petitioner must demonstrate “errors . . . of the most

fundamental character.” Id. at 78. Construed liberally, the

petition appears to assert that these fundamental errors are

that (1) petitioner is innocent of the crime; and (2) petitioner

was denied effective assistance of counsel in violation of his

Sixth Amendment rights. (Mot. at 1-2.) The claim fails on both

grounds.

i. Petitioner Has Failed to Show Actual Innocence.

Actual innocence can be grounds for granting a writ of

coram nobis. McQuiggin v. Perkins, 133 S. Ct. 1924, 1926 (2013)

(actual innocence can warrant habeas relief); see United States

v. Travers, 514 F.2d 1171, 1173 n.1 (2d Cir. 1974) (finding the

“standards applied in federal coram nobis are similar” to those

applied under federal habeas petitions). In the habeas context,

to establish a claim of actual innocence, a petitioner must show

that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Murray v. Carrier,

477 U.S. 478, 496 (1986). To meet his evidentiary burden,

petitioner “must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the

new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995).

The court agrees with the government’s contention that

petitioner’s assertion that he is innocent of the drug

trafficking offenses he was convicted of is conclusory and

unsupported by any new evidence. Prior proceedings are presumed

to have been conducted correctly until the petitioner shows

otherwise, and the burden to prove the existence of errors in

the challenged proceedings rests with the petitioner. See

Nicks, 955 F.2d at 167. Petitioner has asserted, in conclusory

fashion, that he is innocent and had no knowledge of the cocaine

hidden inside the suitcase he was carrying. Petitioner has

failed to offer any new evidence supporting his assertions, and

thus has not met his evidentiary burden. (Mot. at 1.)

Petitioner’s conclusory assertions are insufficient to justify

coram nobis relief. See Dixon v. United States, 2015 WL 851794,

at *9 (S.D.N.Y. Feb. 27, 2015); see also Dennis v. Corcoran,

2010 WL 5072124, at *3 (W.D.N.Y. Dec.7, 2010) (“A conclusory

assertion of a deprivation of constitutional rights does not

state a viable claim for habeas corpus relief.”). Nor were

there any other allegations in Mr. Angus’s petition that

demonstrated any fundamental error in his 1989 convictions.

Foont, 93 F.3d at 80 (“Claims of new evidence, however, without

constitutional or jurisdictional error in the underlying

proceeding, cannot support a coram nobis claim.”).

ii. Petitioner Has Failed to Show Ineffective

Assistance of Counsel.

When construed most liberally, petitioner’s argument

appears to be that he received ineffective assistance of counsel

because he was not advised of the potential immigration

consequences of going to trial, and that he would have accepted

a plea deal in order to avoid deportation. (Mot. at 2.) As

noted below, however, Mr. Angus does not assert that he was

offered a plea agreement to a charge for which he would not have

faced deportation. Because Mr. Angus’s threadbare allegations

are insufficient to meet the heavy burden set forth in

Strickland v. Washington, the court finds that petitioner has

failed to identify any fundamental error that led to his 1989

convictions, as a result of alleged ineffective assistance of

counsel.

Under the Sixth Amendment, a criminal defendant is

afforded “the right . . . to have the assistance of counsel for

his defense.” U.S. Const. amend. VI. This right does not

guarantee a defendant “perfect counsel,” but rather effective

assistance of counsel. Constant v. Martuscello, 119 F. Supp. 3d

87, 142 (E.D.N.Y. 2015) (citations and internal quotation marks

omitted), aff’d, 677 F. App’x 727 (2d Cir. 2017). To establish

an ineffective assistance of counsel claim, a petitioner must

satisfy the two-pronged test announced in Strickland v.

Washington, i.e. that (1) counsel’s performance “fell below an

objective standard of reasonableness,” and (2) “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would be different.” 466

U.S. 668, 694 (1984). The two prongs may be addressed in either

order, and the court is not required “to address both components

of the inquiry if the defendant makes an insufficient showing on

one.” Id. at 697. “A court hearing an ineffectiveness claim

must consider the totality of the evidence before the judge or

jury,” id. at 695, and the petitioner must “affirmatively prove

prejudice arising from counsel’s allegedly deficient

representation,” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.

2008) (citations and internal quotation marks omitted).

As the government notes, ineffective assistance of

counsel can be grounds for granting a writ of coram nobis. See

Chhabra v. United States, 720 F.3d 395, 406 (2d Cir. 2013).

Petitioner, however, has failed to meet the two-pronged

Strickland standard, and his claim is therefore respectfully

denied.

First, petitioner has failed to show any deficient

performance by his defense counsel falling below an objective

standard of reasonableness. Petitioner asserts that his counsel

did not inform him of the immigration consequences of the

charged crimes and erroneously assured him that the crimes were

not deportable offenses, which caused petitioner to elect to go

to trial and forgo the possibility of a plea agreement that

could avoid his deportation. (Mot. at 1-2.)

First, assuming his allegations to be true, petitioner

has not adequately alleged that his counsel’s performance fell

below an objective standard of reasonableness. Though the

Supreme Court held in Padilla v. Kentucky that an attorney

representing a criminal defendant in plea negotiations has an

affirmative duty to advise his client of the immigration

consequences of a conviction, Padilla does not apply in this

case because petitioner’s conviction became final before Padilla

was decided. Padilla, 559 U.S. 356, 367-71 (2010); Chaidez v.

United States, 133 S. Ct. 1103, 1113 (2013) (holding that the

ruling in Padilla is inapplicable on collateral review of a

conviction that was final when Padilla was decided.) Even if

petitioner could avail himself of the Padilla line of cases, his

allegations concerning ineffective assistance of counsel fall

short because, as noted above, they are conclusory statements

without supporting evidence. See Dixon, 2015 WL 851794, at *9

(“[C]onclusory assertions [of extraordinary circumstances] are

insufficient to justify coram nobis relief.”).

Second, petitioner has not shown a reasonable

probability of prejudice under the second prong of Strickland.

Petitioner does not allege that he was ever offered a plea

agreement. Instead, he merely asserts that his counsel “other

wise [sic] could have negotiated a plea to the crime with no

effect on respondent [sic] Immigration status[.]” (Mot. at 2.)

Petitioner’s assertion is speculative, and as the government

notes, there is no evidence that the government would have been

willing to offer a plea agreement, much less one that shielded

petitioner from immigration consequences resulting from his

aggravated felony convictions. (ECF No. 6, at 6; Kovacs v.

United States, 744 F.3d 44, 52 (2d Cir. 2014) (holding that in

order to show prejudice under Strickland, a petitioner must

“demonstrate a reasonable probability that the prosecution would

have accepted, and the court would have approved, a deal that

had no adverse effect on the petitioner’s immigration status”).)

Additionally, there is no basis for the court to

conclude that, absent counsel’s alleged deficient performance at

trial, petitioner would not have faced immigration-related

consequences. As the government notes, petitioner was convicted

of two counts of felony drug trafficking, following a jury

trial, and petitioner does not allege – nor could he plausibly

allege – that his counsel’s advice regarding the immigration

consequences could have changed the outcome of trial. Because

petitioner has failed to demonstrate a “reasonable probability”

of prejudice, petitioner’s claim of ineffective assistance of

counsel is respectfully rejected.

As set forth above, petitioner has not demonstrated

that his 1989 convictions were tainted by fundamental errors,

that he is actually innocent, or that counsel was ineffective.

Thus, the court respectfully denies petitioner’s coram nobis

petition on this independent ground.

B. Petitioner Failed to Demonstrate Sound Reasons for Failure

to Seek Appropriate Relief Before 2016.2

Petitioner has also failed to meet the second

requirement for coram nobis relief, i.e. demonstrating sound

reasons for his failure to seek appropriate before 2016. Foont,

93 F.3d at 79. “[A]lthough coram nobis relief has no specific

statute of limitations, such relief ‘may be barred by the

passage of time,’” and unless the petitioner demonstrates

“’sufficient justification for his failure to seek relief at an

earlier time, the writ is unavailable and [the] petition . . .

should be dismissed.’” Sahin v. United States, No. 13–CV–358,

2014 WL 2177088, at *2 (N.D.N.Y. May 22, 2014) (internal

citations omitted); Dixon, 2015 WL 851794, at *9 (the timeliness

requirement is a “threshold procedural hurdle to obtaining coram

nobis relief”); Rodriguez v. United States, No. 98-CR-764 (MHD),

2012 WL 6082477, at *9 (S.D.N.Y. Dec. 4, 2012) (failure to

fulfill the timeliness requirement is “alone sufficient to bar .

. . coram nobis petition”). Moreover, “[t]he sufficiency of the

reasons bears an inverse relationship to the length of the delay

— the longer the delay, the more compelling must be the

2 Because petitioner has failed to satisfy the first requirement for coram nobis

relief, the court need not address the government’s remaining contentions.

Nevertheless, for the sake of completeness, the court will address the rest of

the government’s arguments.

reasons.” Tocci v. United States, 178 F. Supp. 2d 176, 181

(N.D.N.Y. 2001).

The calculation of the time for filing a petition

begins when the petitioner “knew or should have known . . . of

the facts underlying his current claim.” Foont, 93 F.3d at 80;

Rodriguez, 2012 WL 6082477, at *10; Evangelista v. United

States, No. 11-CV-5085, 2012 WL 3818109, at *3 (E.D.N.Y. Sept.

4, 2012), aff’d, 523 F. App’x 12 (2d Cir. 2013). Further, an

unjustified delay of nearly three decades is fatal to

petitioner’s application for coram nobis relief. See Sash, 374

F. App’x at 199 (finding no sound reasons for four-year delay);

Dorfmann, 2014 WL 260583, at *6 (same for three-year delay); Ahn

v. United States, No. 02-CV-8031 (JFK), 2003 WL 21910855, at *3

(S.D.N.Y. Aug. 8, 2003) (same for four-year delay), aff’d sub

nom. Hyun Ahn v. United States, 96 F. App’x 43 (2d Cir. 2004).

The court agrees with the government that Mr. Angus

either “knew or should have known” of the facts underlying his

current claim by August 1991, when he was served with an I-221

Order to Show Cause, and charged with being subject to

deportation pursuant to Sections 241(a)(2)(A)(iii) and

241(a)(2)(B)(i) of the INA. (ECF No. 6-3, at 18-20.) Not only

did the Form I-221 alert Mr. Angus that he was subject to

deportation, but he was subsequently placed into deportation

proceedings later that year, which resulted in an immigration

judge issuing a permanent order for his removal in 1994. (ECF

No. 6-4, at 22-24.) Then, after breaching his bond on his

immigration case and sustaining another felony conviction, he

was deported in 1999. (ECF No. 6-7, at 36; ECF No. 6-8, at 39-

41.) Petitioner reportedly returned to the United States

illegally in 2000 and was ultimately convicted of additional

crimes and reinstated into deportation proceedings in 2013.

(ECF No. 6-11, at 54; ECF No. 6-9, at 43.) Despite receiving

notice of the immigration consequences of his 1989 convictions

in August 1991, petitioner delayed until August 22, 2016 to file

the instant petition challenging his convictions, and he has not

identified any reasons that would excuse his failure to seek

appropriate relief for more than 25 years.

Furthermore, though petitioner has actively challenged

his deportation proceedings commencing in the 1990s and the more

recent proceedings starting in 2013, courts within the Second

Circuit have repeatedly found that being engaged in immigration

proceedings “does not excuse [petitioner’s] failure to initiate

proceedings to challenge his conviction.” Dorfmann v. United

States, 2014 WL 260583, at *6 (S.D.N.Y. Jan. 23, 2014), aff’d,

597 F. App’x 6 (2d Cir. 2015); see also United States v. Sash,

374 F. App’x 198, 200 (2d Cir. 2010) (finding “unavailing”

petitioner’s argument that he delayed filing petition “because

he was preoccupied with other proceedings”); Korac v. United

States, 2011 WL 2365811, at *4 (S.D.N.Y. June 6, 2011) (finding

that “where a petitioner has learned that a conviction carries

possible immigration consequences and nevertheless waits to seek

coram nobis relief for a period of several years, or until he

has exhausted other means of attacking the conviction, no sound

reason exists”); Sahin, 2014 WL 2177088, at *2-3 (finding

petitioner had failed to demonstrate sound reasons for his

eight-year delay between exhaustion of administrative appeals

and filing of coram nobis petition).

Accordingly, the court finds that petitioner has

failed to satisfy the second prong for coram nobis relief, and

his petition is respectfully denied on this additional ground.

C. Continuing Legal Consequences from Petitioner’s 1989

Convictions Would Not Be Remedied by Coram Nobis Relief.

Petitioner has failed to satisfy the third prong for

coram nobis relief because he has not, and indeed could not,

demonstrate that he continues to suffer legal consequences

resulting from his 1989 convictions that would be remedied by

the relief he seeks.

“The prospect of deportation certainly constitutes the

type of ongoing legal consequence that could be remedied by a

writ of coram nobis.” Korac, 2011 WL 2365811, at *3; see Lee v.

United States, No. 05–CV-5844 (JSR), 2007 WL 1987868, at *5

(S.D.N.Y. July 9, 2007) (report and recommendation) (consequence

of deportation “clearly” establishes third requirement for coram

nobis relief); see also Chhabra, 2010 WL 4455822, at *3

(petitioner determined to be deportable on the basis of a prior

conviction continues to suffer legal consequences from that

conviction). If petitioner faced deportation only due to his

1989 convictions, the third requirement for coram nobis relief

would be met. But this is not the case here.

“Where a separate conviction forms an independent

basis for deportation, the extraordinary relief of coram nobis

is inappropriate because vacating the challenged conviction

would not prevent the deportation, and is therefore not required

to achieve justice.” Korac, 2011 WL 2365811, at *4; Foreman v.

United States, 247 F. App'x 246, 248 (2d Cir.2007) (affirming

denial of coram nobis relief where, inter alia, issuance of writ

would not remedy consequence of deportation because petitioner

had been convicted of separate aggravated felony that formed

independent basis for removal); Shushansky v. United States, No.

93–5632, 1995 WL 108668, at *2 (E.D.N.Y. Mar. 1, 1995) (denying

coram nobis relief where, among other things, petitioner's

independent conviction made him deportable regardless of

challenged conviction).

Mr. Angus has been convicted of at least three

aggravated felonies: the 1989 drug trafficking convictions, the

2014 illegal reentry conviction, and – according to the

government - the 1998 drug conviction. (ECF No. 6, at 9.)3

Petitioner’s 2014 illegal reentry conviction, which his instant

petition does not challenge, provides an independent basis for

his deportation pursuant to 8 U.S.C. §§ 1101(a)(43)(O) and

1227(a)(2)(A)(iii) (codifying the term “aggravated felony” as

“an offense described in section 1325(a) or 1326 of this title

committed by an alien who was previously deported on the basis

of a conviction for an offense described in another subparagraph

of this paragraph”). As a result, even if petitioner’s 1989

convictions were vacated, he would still be subject to

deportation from the United States on the basis of the 2014

felony conviction. Accordingly, petitioner has not shown that

he suffers from continuing legal consequences that may be

remedied by the requested relief, and thus the court

respectfully denies the petition on this ground as well.

Conclusion

For the reasons stated above, Mr. Angus’s coram nobis

petition is respectfully DENIED. The Clerk of Court is

respectfully directed to enter judgment in favor of respondent

3 The 1998 Tennessee state court proceeding resulted in petitioner’s conviction

of a drug-trafficking-related violation of state law. Though the government

contends that the 1998 state conviction constitutes an “aggravated felony” under

8 U.S.C. § 1101(a)(43)(B), which would make petitioner deportable under 8 U.S.C.

§ 1227(a)(2)(A)(iii), the government does not explain why the state criminal

conviction necessarily constitutes an aggravated felony under the federal

statute, which by its own terms, applies to terms “[a]s used in this chapter[.]”

Further, because the court has found that other bases for denial of the petition

exist, the court respectfully declines to rule on this issue.

and close this case. Respondent is directed to make reasonable

efforts to serve Mr. Angus with a copy of this Memorandum and

Order and the judgment, whenever his current address is

obtained, and to note service on the docket.

SO ORDERED.

Dated: July 8, 2020

Brooklyn, New York

__________/s/________________

HON. KIYO A. MATSUMOTO

United States District Judge