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United States v. Florian

United States District Court, N.D. Illinois, Eastern Division

September 6, 2016

UNITED STATES OF AMERICA, Plaintiff-Respondent
OLGA FLORIAN, Defendant-Petitioner.


          Charles P. Kocoras United States District Judge

         Now before the Court is Defendant Olga Florain's (“Florian”) Petition for Writ of Error Coram Nobis (“writ of error coram nobis”) pursuant to 28 U.S.C. § 1651. Dkt. 58. For the following reasons, the writ of error coram nobis is denied.


         As both parties acknowledge, due to the age of this case, there are no trial or sentencing transcripts, nor are there any prior orders or opinions from this case. However, the record before the Court, which includes Florian's writ of error corma nobis, Dkt. 58, the Government's Response to Defendant's Petition For A Writ of Error Coram Nobis, Dkt. 65, and the exhibits submitted by the parties is sufficient to resolve the writ of error coram nobis.

         Florian has been a lawful permanent resident since 1976. Dkt. 58, Def. Ex. A ¶ 2. In 1986, Florian was charged with conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count I), distribution of approximately 22.8 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count II), and possession with the intent to distribute approximately 7.97 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count III). Dkt. 58, p. 4; Dkt. 65, p. 4. A jury convicted Florian on Count I and found her not guilty as to Counts II and III. Id. Subsequently, Florian's trial counsel filed a post-trial motion that raised several issues. See Dkt. 66, Gov. Ex. F. That motion was denied. Dkt. 65, p. 11.

         On September 16, 1987, Judge Plunkett, the district judge who presided over Florian's trial, sentenced Florian to five years probation and she was required to: (1) “reside in and participate in the Work Release Program at the Metropolitan Correctional Center” for six months; (2) “file timely income tax returns while on probation supervision;” and (3) “donate 300 hours to community service.” Dkt. 56, p. 7-8. No appeal was taken. On November 5, 1991, Judge Plunket granted Florian's motion for early termination of probation. Id.

         Thereafter, Florian received her Bachelor of Arts in Social Work and a Master of Arts in Social Work. Dkt. 58, Def. Ex. D. She has held a number of different jobs since her conviction. See id. She has also traveled to her home country of Guatemala several times and to Europe. Dkt. 58, Def. Ex. A ¶¶ 10, 12. In 2012, upon returning to the United States from a trip to Guatemala, she was stopped at customs. Dkt. 58, Def. Ex. A ¶ 12. As a result of her 1987 conviction, she was placed in removal proceedings before the Chicago Immigration Court. Dkt. 58, Def. Ex. E. She has been in removal proceedings since January 23, 2012 and she has been unable to travel due to the pending immigration removal proceedings. Id. Consequently, she now moves this Court to grant her writ of error coram nobis, which would vacate her criminal conviction.


         Under the All Writs Act, 28 U.S.C. § 1651(a), federal courts have the power to grant “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” “To the extent that the writ of coram nobis retains vitality in criminal proceedings, such relief is limited to (1) errors ‘of the most fundamental character' that render the proceeding invalid, (2) situations where there are sound reasons for the failure to seek earlier relief, and (3) instances when the defendant continues to suffer from his conviction even though he is out of custody.” United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (quoting United States v. Morgan, 346 U.S. 502, 509, n.15 (1954)). “A writ of error coram nobis generally provides the same relief as a writ of habeas corpus, ” except that a defendant can seek a writ of error coram nobis even after being released from custody. United States v. Medley, No. 88 CR 297-3, 1995 WL 755302, at *1 (N.D. Ill.Dec. 18, 1995). The Supreme Court has cautioned that “[c]ontinuation of litigation after final judgment . . . should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Morgan, 346 U.S. at 511. Moreover, the Supreme Court has stated that it is necessary to limit the writ to “truly extraordinary circumstances ‘so that finality is not at risk in a great number of cases.'” United States v. George, 676 F.3d 249, 254 (1st Cir. 2012) (citing United States v. Denedo, 556 U.S. 904, 911 (2009)).


         In the first paragraph of Florian's writ of error coram nobis it states that “by and through undersigned counsel” Florian submits “this Petition for Writ of Error Coram Nobis under 28 U.S.C. § 1651 and Motion Pursuant to Rule 52(b) (Review for Plain Error).” Dkt. 58, p. 1. This is the only mention of a “Motion Pursuant to Rule 52(b).” Florian makes no other reference to such a motion, nor does the Government's response addresses it. Thus, the Court will only address Florian's writ of error coram nobis.

         The parties agree that a writ of error coram nobis is a remedy that is rarely used, and that it should be used to “provide relief only from a conviction for ‘errors of the most fundamental character, '” Dkt. 65, p. 5, which have “rendered the proceedings irregular and invalid.” Dkt. 58, p. 8. Florian argues that her “conviction was obtained in violation of her Fifth Amendment right to due process and Sixth Amendment right to effective assistance of counsel.” Id., p. 9. According to Florian, this is an “error of the most fundamental character.” Florian advances seven specific grounds for relief which are primarily based on alleged violations of her Sixth Amendment right to effective assistance of counsel. She also claims that her denial of effective assistance of counsel “deprived [her] of fundamentally fair proceedings and due process of law.” Id., p. 21. The Court will address the seven grounds for relief advanced by Florian.

         Violation of Procedural Due Process and Ineffective Assistance of Counsel

         The Fifth Amendment states that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . .”. U.S. CONST. Amend. V. Florian contends that her “conviction was obtained in violation of her Fifth Amendment right to due process” but she fails to fully develop this argument. Instead, her writ of error coram nobis relies almost entirely on allegations that she was denied effective assistance of counsel in violation of her Sixth Amendment right. She seems to support her due process claim by asserting that she was denied a “fundamentally fair proceeding and due process of law” as a result of her trial counsel's ineffective assistance. However, as explained in greater detail below, because Florian cannot establish a claim for ineffective assistance of counsel, her due process claim, based on her trial counsel's alleged ineffectiveness, also fails.

         “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To succeed on an ineffectiveness claim, a defendant must establish that: (i) “counsel's representation fell below an objective standard of reasonableness, ” as indicated “by prevailing professional norms, ” and (ii) “that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different.” Avitia v. United States, No. 09 CV 4712, 2010 WL 4705167, at *2 (N.D. Ill. Nov. 10, 2010) (quoting Strickland, 466 U.S. at 687-88, 694). Courts must be highly deferential when examining allegations of deficient performance by a defendant's counsel. Strickland, 466 U.S. at 689; see also Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011) (“To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”). Thus, “because counsel is presumed effective, a party bears a heavy burden in making out a winning claim based on ineffective assistance of counsel.” United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).

         “To satisfy the first prong of the Strickland test, the petitioner must direct the court to specific acts or omissions of his counsel” and the court must “consider whether, in light of all the circumstances, counsel's performance was outside the range of professionally competent assistance.” Avitia, 2010 WL 4705167, at *2. “Counsel's performance must be evaluated while remembering that an attorney's trial strategies are a matter of professional judgment . . .”. Id. To establish the second prong of the Strickland test, a defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “A court need not address both prongs of the Strickland test if one provides the answer; that is, if a court determines that the alleged deficiency did not prejudice the defendant, the court need not consider the first prong.” Avitia, 2010 WL 4705167, at *2.

         A. Trial Counsel's Failure to Inform Florian of Her Right to Appeal

         Florian claims that she did not waive her right to an appeal. Instead, she asserts, that her trial counsel was ineffective because he failed to advise her of the need to file a timely notice of appeal and to request court appointed counsel. Dkt. 58, p. 13. The Government argues that even if the Court were to assume that Florian was not informed of her right to appeal and her right to court appointed counsel, she is unable to establish that she was prejudiced because none of her arguments that she would have pursued on appeal have merit. Dkt. 65, p. 9-10. Thus, the Government asserts, her writ of error coram nobis should be denied. Id., p. 10.

         Florian, relying on Rodriguez v. United States, 395 U.S. 327 (1969), argues that “[w]hen a defendant fails to file a notice of appeal because of the lawyer's lapse, the defendant is entitled to take a new appeal without showing that the appeal is likely to have any merit.” Dkt. 58, p. 13. However, this case is not applicable to the instant matter because, unlike Florian, the petitioner in Rodriguez alleged that he told his counsel to file an appeal. Rodriquez, 395 U.S. at 328. The Supreme Court held that “when counsel fails to file a requested appeal, a defendant is entitled to resentencing and to an appeal without showing that his appeal would likely have merit.” Pegu ...

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