United States District Court, N.D. Illinois, Eastern Division
Charles P. Kocoras United States District Judge
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.
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
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.
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.
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.
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)).
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.
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
of Procedural Due Process and Ineffective Assistance of
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.
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).
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.
Trial Counsel's Failure to Inform Florian of Her Right to
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.
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 ...