United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
Pending before the court is a petition for a writ of coram nobis (ECF No. 250) filed by defendant Steven Mensah-Yawson ("Mensah-Yawson" or "defendant") to challenge his conviction and sentence for conspiracy to manufacture, possess, and utter counterfeit checks in violation of 18 U.S.C. § 371. After consideration of the submissions of the parties, the court will deny defendant's writ of coram nobis motion for the reasons set forth herein.
On September 15, 2009, defendant was indicted with Stacy Nicholas ("Nicholas"), James Greer ("Greer"), and Daniel Poole ("Poole") for conspiracy to manufacture, possess, and utter counterfeit checks in violation of 18 U.S.C § 371. (ECF No. 1.) On December 14, 2010, a jury found defendant guilty of conspiracy to manufacture, possess and utter counterfeit checks. (ECF No. 161.) On January 7, 2011, the court sentenced defendant to time served, a term of supervised release of two years, and restitution in the amount of $43, 645.98. (ECF Nos. 172, 177.) On January 13, 2011, defendant filed a notice of appeal with the Third Circuit Court of Appeals. (ECF No. 181.) The court of appeals affirmed. United States v. Mensah-Yawson, 489 F. A'ppx 606 (3d Cir. 2012).
On November 5, 2012, defendant filed a petition under 28 U.S.C. § 2255 to vacate his conviction and sentence. (ECF No. 236 at 13.) Defendant raised three arguments in his § 2255 motion: (1) the indictment should be dismissed because this court lacked subject-matter jurisdiction; (2) this court erred in calculating the total loss attributed to the defendant; and (3) defendant's counsel, Sally Frick ("Frick") was ineffective. (ECF No. 236 at 5-7.) On March 11, 2013, the court denied defendant's § 2255 motion and a certificate of appealability was not issued. (ECF No. 244 at 15.)
On September 13, 2013, defendant filed a writ of coram nobis with the court seeking an evidentiary hearing "to determine all relief sought and any other relief that the court deem just and proper." (ECF No. 250 at 22.) On October 22, 2013, the government filed a response in opposition to defendant's motion for writ of coram nobis. (ECF No. 258.) On November 25, 2013, defendant filed a reply to the government's response. (ECF No. 260.)
III. Legal Standard
A federal court may hear petitions of error coram nobis (the "writ of coram nobis") as authorized by the All Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 506 (1954). A writ of coram nobis is a post-conviction remedy sought after a defendant has served his or her sentence and been released from federal custody. United States v. Babalola, 248 F.Appx. 409, 412 (3d Cir. 2007). The writ of coram nobis is an "infrequent and extraordinary remedy" and relief is granted only when a defendant establishes that there was a fundamental error rendering the proceeding irregular and invalid. Babalola, 248 F.Appx. at 411. A defendant has the burden to prove that his or her conviction is invalid. Id. at 412. "Earlier proceedings are presumptively correct and the petitioner bears the burden to show otherwise." United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989). The Third Circuit Court of Appeals has instructed:
"The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal." Gross, 614 F.2d at 368. It is even more stringent than that on a petitioner seeking habeas corpus relief under § 2255. See Osser, 864 F.2d at 1060-61; United States v. Keogh, 391 F.2d 138, 148 (2d Cir.1968) (unlike habeas, where part of sentence remained unserved, no opportunity or incentive in coram nobis setting to retry defendant using newly discovered evidence where sentence already served).
A fundamental error may be an assertion of an error that resulted in a conviction for conduct not constituting a crime. United States v. Foster, 236 F.Appx. 758, 759 (3d Cir. 2007). The Third Circuit Court of Appeals has held that ineffective assistance of counsel and deprivation of counsel constitute fundamental errors that can be remedied by a coram nobis petition. Babalola, 248 F.Appx. at 412 (citing United States v. Rad-O-Lite of Phila, 612 F.2d 740, 744 (3d Cir. 1979)). Technical errors, such as flawed jury instructions, which are usually remedied by a new trial, are not fundamental errors. Stoneman, 870 F.2d at 108.
A defendant must establish a valid claim in order to justify relief by writ of coram nobis. Babalola, 248 F.Appx. at 414. In order for the defendant to receive an evidentiary hearing in a coram nobis case he or she must "successfully establish a ground for a claim of relief." United States v. Dwumaah, Crim. Action No. 05-157, 2012 WL 3597174 (M.D. Pa. Aug. 20, 2012) (awarding an evidentiary hearing for defendant's ineffective assistance of counsel claims). If another remedy is currently available, such as an appeal or habeas corpus, or the error does not produce a complete miscarriage of justice, then the error is not fundamental, and a writ of coram nobis cannot be issued. Stoneman, 870 F.2d at 108.
In addition to showing that there was a fundamental error the defendant must also satisfy three other threshold conditions: "(1) the defendant is suffering from continuing consequences of the allegedly invalid conviction; (2) there was no remedy for the defect available at the time of trial; and (3) sound reasons' exist for failing to seek relief earlier." Babalola, 248 F.Appx. at 412 (quoting Stoneman, 870 F.2d at 106).
With respect to the first condition, i.e. the defendant is suffering from continuing consequences of the invalid conviction, subsequent convictions that lead to civil rights being affected can be considered a continuing consequence that would be remedied by the writ of coram nobis. Morgan, 346 U.S. at 512-13.
The sound reason standard of review is stricter than that of a § 2255 motion. Mendoza v. United States, 690 F.3d 157, 159 (3d Cir. 2012), cert denied, 133 S.Ct. 1456 (2013). A defendant must provide justification for any delay in seeking relief for any claims raised in a coram nobis petition. Babalola, 248 F.Appx. at 412. An unsettled law is not justification for an undue delay in seeking relief. Mendoza, 690 F.3d at 160. A defendant is precluded from raising an issue in a writ of coram nobis if he or she had an earlier opportunity to raise the issue in a § 2255 motion. United States v. Baptiste, 223 F.3d 188, 190 (3d Cir. 2000). The writ of coram nobis cannot be sought simply because the defendant could not meet the standards of a second or successive motion under § 2255. United States v. Rhines, 640 F.3d 69, 72 (3d Cir. 2011).
Defendant, who is not a citizen of the United States and may be subject to deportation by reason of the conviction at issue, argues that he is entitled to coram nobis relief based upon a number of allegedly fundamental errors that occurred during trial or on appeal to the Third Circuit Court of Appeals. Each of defendant's arguments will be addressed below.
A. Ineffective Assistance of Counsel
1. Sound Reasons
In defendant's writ of coram nobis, defendant asserts Frick was ineffective for several reasons. With respect to whether defendant asserted "sound reasons" for failing to earlier seek relief, defendant sets forth two arguments, neither of which have any merit, that apply to all his ineffective assistance of counsel claims. Defendant argues that he could not raise his ineffective assistance of counsel claims earlier because Frick, his trial counsel, represented him on appeal and would not herself raise claims of ineffective assistance of counsel. This argument does not consider that defendant could have raised his claims of ineffective assistance of counsel in his § 2255 motion, which was filed after Frick represented him on appeal; indeed, defendant raised some of his ineffective assistance of counsel claims in his § 2255 motion. According to defendant, because he raised some of the ineffective assistance of counsel issues in the § 2255 motion, he may present his other ineffective assistance of counsel claims in a writ of coram nobis. To the contrary, a defendant is precluded from raising an issue in a writ of coram nobis if he or she had an earlier opportunity to raise the issue in a § 2255 motion. Baptiste, 223 F.3d at 190. A defendant must provide justification for any delay in seeking relief for any claims raised in a coram nobis petition. Babalola, 248 F.Appx. at 412. Defendant did not provide sound reasons for failing earlier to seek relief for his claims of ineffective assistance of counsel. For that reason, defendant's coram nobis petition with respect to those claims will be denied. In any event and as detailed below, however, defendant's claims for ineffective assistance of counsel are meritless.
2. Fundamental Error Analysis
To support a claim that "counsel's assistance was so defective as to require reversal of conviction, " Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner must make two showings. "[A] habeas petitioner claiming a deprivation of his or her Sixth Amendment right to effective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) counsel's deficient performance caused the petitioner prejudice." Ross v. Dist. Att'y of the Cnty. of Allegh., 672 F.3d 198, 210 (3d Cir. 2012) (citing Strickland, 466 U.S. at 687). "To show deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness.... The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment.'" Ross, 672 F.3d at 210 (quoting Harrington v. Richter, 131 S.Ct. 770, 787 (2011)). "With respect to prejudice, a challenger must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ross, 672 F.3d at 210 (quoting Richter, 131 S.Ct. at 787). In other words, petitioner must show that there is a reasonable probability that his counsel's errors resulted in his conviction. See Glover v. United States, 531 U.S. 198, 203 (2001).
As both of these components must be demonstrated to support a claim of ineffective assistance of counsel, the absence of one negates the need to address the other. The United States Court of Appeals for the Third Circuit has directed district courts to address the prejudice prong of the analysis first. See McAleese v. Mazurkiewicz, 1 F.3d 159, 170 (3d Cir. 1993), cert. denied, 510 U.S. 1028 (1993) ("Indeed, this Court has read Strickland as requiring the courts to decide first whether the assumed deficient conduct of counsel prejudiced the defendant.") (internal quotations and citations omitted). The court of appeals in McAleese quoted the Court in Strickland as follows:
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."
McAleese, 1 F.3d at 171 (quoting Strickland, 466 U.S. at 697).
With respect to the deficient representation prong, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected... if they are based on professional judgment." Strickland, 466 U.S. at 681. "The Supreme Court directs that our scrutiny of counsel's performance must be highly deferential' to avoid holding counsel incompetent because of reasonable strategic or tactical judgments which, with the benefit of tactical hindsight, might prove not to have best served his client's interests." United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (quoting Strickland, 466 U.S. at 689).
a. Frick did not "move the court to strike" the evidence with respect to the check printer and ink analysis
Defendant argues that "his guilty verdict arose substantially on the evidence of checks presented to the jury... [that were] found in [a] check printer as well as vague images of checks found in [a] laptop computer[, ]" both of which were recovered from the home of defendant's ex-girlfriend, Ericka Thomas ("Thomas"). (ECF No. 250 at 10.) According to defendant, there was insufficient evidence to establish the counterfeit checks were printed from the check printer found in Thomas' home and that the laptop computer belonged to defendant. (Id. at 9-10.)
During defendant's trial, four individuals testified about defendant's involvement in the conspiracy. Robert Opat ("Opat"), one of the government's witnesses, testified that he met defendant through his roommate, and defendant asked Opat to cash a counterfeit check for him. (ECF No. 194 at 328-31.) Opat agreed originally to cash the counterfeit check, but later refused to participate and did not cash the counterfeit check for defendant. (Id. at 330-34.)
A special agent testified that:
- the day after defendant was arrested, the special agent went to Thomas' home to look for the check printer and laptop computer used to make and print counterfeit checks (id. at 247);
- Thomas led the special agent to a bedroom in which she last saw defendant use his computer (id. at 248);
- the special agent found in a closet in the bedroom a laptop computer and check printer (id.);
- the check printer contained black VersaInk and was stored with a bag from G7 Productivity Systems ("G7"), which contained an additional two cartridges of black VersaInk (id. at 293-94); and
- G7 sells check printers and ink (id.)
Thomas testified that defendant brought the laptop computer to her home one or two weeks prior to the special agent's visit. (Id. at 183.)
A forensic expert testified that a search conducted of the laptop computer found in Thomas' home, pursuant to a search warrant revealed:
- there was a check-making program on the laptop;
- in February 2009, files-some of which included bank account numbers for victims of defendant's crimes-were deleted from the check-making program (id. at 208-18);
- the names of defendant's co-conspirators and Opat were found on the laptop computer (id. 211-14); and
- email addresses, bank accounts, and a Facebook account (which were all in defendant's name), photographs of defendant's son, and files related to defendant's business were found on the laptop computer (id. at 174-78, 214-25.)
Representatives from the victims of defendant's conspiracy identified the payroll checks involved in the conspiracy and testified they were counterfeit. (Id. at 42-54, 85-91.)
A representative from G7 testified that:
- defendant had an account with the company and previously on five different occasions placed orders for check-making ink (ECF No. 194 at 144-64);
- on a date after defendant learned about the criminal investigation into his conspiracy, he contacted G7 and asked the company to erase his name and account from its records; (id. at 164-65); and
- the check printer found in Thomas' home was ordered from G7 by an individual other than defendant, but the individual refused to pay G7 for the printer because she did not order the check printer and suspected someone made an unauthorized use of her credit card to purchase it (id. at 167-69).
As defendant points out, evidence was presented to the jury that the government was unable to prove by a forensic test whether the ink found in the check printer was the same ink used on the counterfeit checks. (ECF No. 195 at 135.) Defendant argues that on that basis, Frick's performance was deficient because she did not move to strike all evidence of the counterfeit checks submitted to the jury, and he was prejudiced by her deficient performance because "his guilty verdict arose substantially on the evidence of checks presented to the jury, " the ink found in the check printer, and "vague images of checks found in th[e] laptop computer." (ECF No. 250 at 9.)
To prove Frick's alleged deficient performance, i.e., failing to move to strike all evidence of the counterfeit checks based upon the inconclusive forensic analysis of the ink used to print the checks, defendant must show that but for Frick failing to make the objection, the result of the proceeding would have been different. Defendant failed to make such a showing in this case because if Frick had objected to the introduction of the counterfeit checks into evidence, the objection would have been denied. Although the forensic test of the ink used to print the counterfeit checks was inconclusive, the evidence presented by the government circumstantially proved defendant printed the counterfeit checks. The government presented evidence to the jury that:
- individuals testified that they cashed counterfeit checks with defendant and shared the proceeds with him;
- Opat testified defendant asked him to cash a counterfeit check;
- Thomas saw defendant using his laptop computer in a bedroom in her home;
- a laptop computer containing email addresses, bank accounts, and a Facebook account (all in defendant's name), photographs of defendant's son, files related to defendant's business, bank account numbers of the victims of defendant's offense, images of checks, and the names of defendant's co-conspirators, and Opat, were found in a closet inside the bedroom in Thomas' home;
- a check printer and check printing ink were found with the laptop in the closet inside the bedroom in Thomas' home; and
- defendant purchased check printing ink from G7.
In light of the foregoing evidence, sufficient evidence was presented to the jury for it to find that the counterfeit checks were printed on the check printer found in Thomas's home. There was no basis upon which Frick could have objected to the introduction of the counterfeit checks. Although the forensic test was inconclusive, meaning it could not positively identify that the checks were printed from the check printer found in Thomas' home, there was no evidence presented to the jury conclusively indicating the checks were not printed from the check printer found in Thomas' home. Under those circumstances, and in light of the other evidence presented with respect to defendant's extensive involvement in the conspiracy, defendant was not prejudiced by Frick's failure to "move to strike" the evidence of the counterfeit checks.
Defendant argues, however, that there was insufficient evidence to prove that the laptop computer found in Thomas' home belonged to him. Defendant in his writ of coram nobis argues:
[The government] failed to establish a clear and convincing evidence that laptop actually belongs to the petitioner. His child's mother who testified during trial stated that petitioner brought that laptop to her house months before it seized by investigated. But she also testified that she was not sure whom the laptop belonged to because when petitioner dropped-off that laptop, he gave her an address in Minnesota to mail it through federal express to the owner. Most importantly record indicates that investigator stated in their report that there was evidence that some checks were printed in Minnesota. The government witness from the company that sold the check printer testified that the check printer was purchased and shipped to a Minnesota address.
(ECF No. 250 at 10.) Contrary to defendant's argument, Thomas actually testified at trial that:
- in late January 2009, two agents came to her home (ECF No. 194 at 182);
- the agents informed her defendant was arrested and evidence of the crime may be inside her home, i.e., they were looking for a computer they believed was inside her home (id. at 182-83);
- she told the agents that defendant brought a computer to her home one or two weeks prior to the agents' visit, and she remembered seeing defendant on the computer in her home (id. at 183-84);
- she previously saw defendant use the laptop computer when defendant and she were in college (id. at 188);
- she took the agents to the last place she saw defendant use the computer, a bedroom in her home (id. at 184);
- there was only a loveseat in the bedroom, and she last remembered seeing the laptop computer on the loveseat, but it was no longer there (id.);
- the agents looked inside a closet in the bedroom and found the laptop computer and a printer (id.); and
- she turned the laptop computer, printer, and other items over to the agents. (id. at 185, 189).
Thomas did not testify that defendant brought the laptop computer to her home "months" before the agents' visit or that she did not know to whom the laptop computer belonged. Thomas' testimony was sufficient to establish that-at the very least-defendant had access to the computer and used it on more than one occasion. The government presented evidence that personal identifiers of defendant's were on the computer such as email addresses and banks accounts in his name and pictures of his son with Thomas. Sufficient evidence was presented to the jury for it to find that defendant had access to the laptop and used it on more than one occasion. Defendant, therefore, was not prejudiced by Frick's failure to object to evidence with respect to the laptop or the counterfeit checks because there was no basis upon ...