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United States v. Portalla

United States District Court, D. Massachusetts

January 11, 2019

UNITED STATES OF AMERICA
v.
VINCENT M. PORTALLA a/k/a/ VINCENT M. MARINO, Defendant.

          MEMORANDUM AND ORDER DENYING WRIT OF ERROR CORAM NOBIS

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         Petitioner 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).

         Presently 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).[1] For the reasons explained below, Petitioner's motion for a writ of error coram nobis is DENIED.

         I. BACKGROUND

         On 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.[2] 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, [3] 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 fundamental rights.

         II. LEGAL STANDARD

         In 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).

         The 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. at 259.

         III. DISCUSSION

         Despite 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].

         a. Failure to Seek Earlier Relief From 1984 Convictions.

         To 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)).

         Here, 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”).

         Further, 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 http://www.uscourts.gov/sites/default/files/vol10ch6appx6b.pdf (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 ...


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