United States District Court, D. Massachusetts
MEMORANDUM AND ORDER DENYING WRIT OF ERROR CORAM
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
Vincent M. Marino, previously known as Vincent M. Portalla,
is currently serving a thirty-five-year sentence following
his December 1999 convictions for violations of the Racketeer
Influenced and Corrupt Organizations statute, 18 U.S.C.
§ 1962, and conspiring to murder thirteen individuals in
aid of racketeering in violation of 18 U.S.C. § 1959.
See United States v. Marino, No. 97-40009-NMG
(D.Mass.), ECF Nos. 1079, 1151; see also United States v.
Marino, 277 F.3d 11 (1st Cir. 2002).
before this Court is Petitioner's motion for a writ of
error coram nobis with respect to his 1984 convictions on
three counts of knowingly making a false statement in the
acquisition of a firearm, in violation of 18 U.S.C. §
922(a)(6), and two counts of receiving a firearm while under
indictment, in violation of 18 U.S.C. §
922(h)(1). For the reasons explained below,
Petitioner's motion for a writ of error coram nobis is
April 12, 1984, Petitioner was indicted on three counts of
knowingly making a false statement in the acquisition of a
firearm and two counts of receiving a firearm while under
indictment. [ECF No. 1]. The charges stemmed from
Petitioner's purchasing of three firearms while under
indictment in New Hampshire for conspiring to commit armed
robbery and other offenses and his failing to acknowledge the
indictment on an ATF form that he completed in connection
with the firearms purchase. Petitioner pled guilty to all
five counts on July 16, 1984. Id. at 4. He was
sentenced on August 3, 1984 to eighteen months imprisonment
on each count to be served concurrently, and he received a
judicial recommendation that the sentences be served
concurrently with a term of imprisonment Petitioner was then
serving for a different conviction. Id. at 5.
Petitioner did not appeal his conviction or sentence, nor did
he pursue post-conviction relief under 28 U.S.C. §
2255. Id. In December 1999, long after
he finished serving the eighteen-month sentence for his 1984
convictions, Petitioner was convicted by a jury of
racketeering and conspiracy to murder in aid of racketeering
and sentenced to 420 months imprisonment. See United
States v. Marino, C.R. No. 97-40009-NMG-10 (D. Mass.
Apr. 13, 2000), ECF No. 1151, aff'd Marino, 277
F.3d 11. Petitioner claims that his 1984 convictions
influenced the sentence that he received for the 1999
convictions,  and that he was not warned of this
potential collateral consequence at the time of the 1984
guilty plea-among numerous other supposed violations of his
federal criminal cases, the writ of error coram nobis is a
remedy of last resort for the correction of fundamental
errors of fact or law. United States v. Morgan, 346
U.S. 502, 507 n.9 (1954); United States v. George,
676 F.3d 249, 253 (1st Cir. 2012). “The authority to
grant coram nobis relief derives from the All Writs Act, 28
U.S.C. § 1651(a), which empowers federal courts to
‘issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law.'” See United States v.
Sawyer, 239 F.3d 31, 38- 39 (1st Cir. 2001) (reviewing
history of the writ). The writ is ordinarily only available
to a criminal defendant who is no longer in custody and for
whom the writ of habeas corpus or relief under 28 U.S.C.
§ 2255 is unavailable. Trenkler v. United
States, 536 F.3d 85, 98 (1st Cir. 2008). Successful
petitions for a writ of error coram nobis are exceptionally
rare, and the Supreme Court has held that they should be
granted “only under circumstances compelling such
action to achieve justice.” George, 676 F.3d
at 253-54 (quoting Morgan, 346 U.S. at 511).
First Circuit has adopted a tripartite test that is
administered in a flexible, common-sense manner to determine
whether a petitioner is eligible for coram nobis relief.
Id. at 255. A petitioner must: (1) explain his
failure to seek earlier relief from the judgment; (2) show
that he continues to suffer significant collateral
consequences from the judgment; and (3) demonstrate that the
judgment resulted from an error of the most fundamental
character. Id. at 254 (citing United States v.
Barrett, 178 F.3d 34, 56 n.20 (1st Cir. 1999); Hager
v. United States, 993 F.2d 4, 5 (1st Cir. 1993)).
Satisfying the three-part test “is a necessary, but not
a sufficient, condition for the issuance of the writ.”
Id. at 255. Even if the petitioner meets all three
of the conditions in the test, the court retains discretion
to withhold the remedy “where the interests of justice
so dictate.” Id. at 251. Ultimately, issuing
or denying a writ of error coram nobis must hinge on what is
most compatible with the interests of justice. Id.
having pled guilty to the crimes at issue, Petitioner argues
that his 1984 conviction involved fundamental errors and
violations of his due process rights because his
counsel's representation was constitutionally deficient,
the prosecution withheld evidence, and the court failed to
inform Petitioner of the nature of the charges he faced and
to ensure that his plea was voluntary. [ECF No. 3].
Petitioner also claims that he did not intend to waive his
rights to a speedy trial under the Speedy Trial Act of 1974,
18 U.S.C. §§ 3161 et seq., and that the
circumstances of his conviction violated the Federal Rules of
Criminal Procedure. [ECF No. 3 at 3-6]. Petitioner asserts
that he continues to suffer collateral consequences from his
1984 convictions because they adversely affected the
sentenced imposed for his 1999 convictions. He attempts to
justify his failure to seek earlier relief by suggesting that
his then defense counsel spent the time that “would
have been [spent] appealing this instant conviction”
secretly serving as a government informant to implicate
Petitioner on other charges. See [ECF No. 14 at 4].
Failure to Seek Earlier Relief From 1984
satisfy the tripartite test related to a coram nobis
petition, Petitioner first has the burden of adequately
explaining his failure to seek earlier relief from his 1984
conviction, taking into account the procedural posture and
the time that has elapsed. See George, 676 F.3d at
258 (“The further a case progresses through the
remedial steps available to a criminal defendant, the stiffer
the requirements for vacating a final judgment.”). A
writ of error coram nobis is “not available where other
remedies would have existed but for the failure to raise the
attack in a timely fashion, or where the attack is restricted
as second or successive.” United States v.
Brimage, No. 95-10046-PBS, 2012 WL 5398471, at *3 (D.
Mass. Oct. 31, 2012). “The law does not require [a
petitioner] to challenge his conviction at the earliest
opportunity, but it does require him to have sound reasons
for not doing so.” Savarese v. United States,
No. 86-00251, 2014 U.S. Dist. LEXIS 43404, at *21 (D. Mass.
Feb. 18, 2018) (quoting United States v. Kwan, 407
F.3d 1004, 1014 (9th Cir. 2005)).
Petitioner did not appeal his 1984 conviction or seek other
post-conviction relief, even though these remedies were
available at the time of his conviction. See [ECF
No. 1]; see also Strickland v. Washington, 466 U.S.
668, 687 (1984) (clarifying standard for an ineffective
assistance of counsel claim on habeas review following a
guilty plea); Brady v. United States, 397 U.S. 742,
748 (1970) (“Waivers of constitutional rights not only
must be voluntary but must be knowing, intelligent acts done
with sufficient awareness of the relevant circumstances and
likely consequences.”). Petitioner's failure to
proceed through the appellate process counsels strongly
against a grant of writ of error coram nobis. See United
States v. Travers, 514 F.2d 1171, 1177 (2d Cir. 1974)
(limiting decision to coram nobis petitioners who “had
gone through the full appellate process”).
in addition to not timely appealing his conviction, the
resulting delay in any review of this case means that
pertinent evidence that once existed is no longer available.
Specifically, the transcript of the proceedings in question
was likely destroyed in accordance with government policy.
See 10 Guide to Judiciary Policy, Appx. 6B, Records
Disposition Schedule 2(f)(1), available at
(last updated December 19, 2018) (stating that records in
non-trial criminal cases that result in a sentence of 15
years or less be destroyed within 15 years after the closing
of the case). Petitioner attempts to explain his failure to
seek earlier relief by suggesting that he was unable to
appeal his conviction due to his defense attorney acting as a
“source of information” for the FBI and ATF
“during the time [Petitioner] would have been appealing
this instant conviction [and/or] sentencing, ” [ECF No.
14 at 4]. While deficiencies in the record when coupled with
“sound reasons . . . for failure to seek appropriate
earlier relief” may justify allowing the writ to
proceed in some cases, see Morgan, 346 U.S. at
512-13, Petitioner's explanation for seeking relief ...