Bangura v. United States

248 A.3d 119

Hassan BANGURA, Appellant,

v.UNITED STATES, Appellee.

Nos. 19-CO-721 & 19-CO-722

District of Columbia Court of Appeals.

Submitted January 19, 2021

Decided April 1, 2021

Anne Keith Walton for appellant.

Michael E. McGovern, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Timothy R. Cahill, Assistant United States Attorneys, were on brief for appellee.

Before Glickman and Deahl, Associate Judges, and Ferren, Senior Judge.

Ferren, Senior Judge:

Hassan Bangura appeals the trial court's order denying his petition for writ of error coram nobis to reinstate his right to appeal his convictions. He argues that the trial court abused its discretion by applying incorrect legal standards in its evaluation of coram nobis requirements and making findings that lacked a firm factual foundation. For the reasons elaborated below, we affirm.

I. Facts and Proceedings

Bangura was indicted on July 12, 1995, in case 1995 FEL 005136 on a single count of Possession with Intent to Distribute a Controlled Substance-Cocaine (PWID). He was subsequently charged on December 19, 1995, in case 1996 FEL 002072 for violating the Bail Reform Act (BRA) when he failed to appear for his original trial date. The two cases were consolidated for trial. On December 10, 1996, Bangura was found guilty on both and given probationary sentences on each. For the PWID charge, Bangura was sentenced to ten to twenty years of incarceration, execution of sentence suspended as to all, with two years of probation. For the BRA charge he was sentenced to twenty months to five years of incarceration, execution of sentence suspended as to all, with two years of probation. Both of the two-year probationary periods, which were to be served concurrently, have since been completed. After pronouncing each sentence, the trial court informed Bangura of his appeal rights, but no notice of appeal was filed.

On October 15, 2018, more than two decades later, Bangura filed a motion pursuant to D.C. Code § 23-110 to vacate and reenter the trial court's judgments, alleging ineffective assistance from his trial counsel, who, Bangura said, had violated his duty by failing to file a notice of appeal, as Bangura had requested, within the time prescribed by D.C. Ct. App. R. 4(b)(l).¹ The government opposed Bangura's motion on December 10, 2018, arguing that he was no longer in custody, as required by § 23-110, when he filed the motion, and thus is not entitled to relief. The government further argued that the motion should be denied because, even if Bangura's motion is re-characterized as a petition for coram nobis relief, he cannot demonstrate that he satisfies the essential criteria for a grant of the writ, nor can he justify the delay in filing his motion.

On March 13, 2019, the trial court ordered Bangura to address whether D.C. Code § 23-110 is the proper vehicle for achieving his requested relief and to respond to the government's arguments. Bangura filed a reply on April 12, 2019, conceding that he was no longer in custody and that he therefore should have filed a petition for writ of error coram nobis. He also moved for coram nobis relief to advance his ineffectiveness claim, and to vacate and re-enter the judgments against him to facilitate a timely notice of appeal.

On July 12, 2019, the trial court held an evidentiary hearing on this matter. Both parties were provided an opportunity to present evidence and argument. Bangura introduced an affidavit in which he claimed to have instructed his trial attorney to file a notice of appeal after sentencing. At the hearing, Bangura also presented the case jackets for his cases, both of which contained notes that his appellate rights were explained by the trial court. Bangura chose not to testify or present any witnesses. His trial attorney testified for the government.

On July 29, 2019, the trial court denied Bangura's petition, concluding that he had failed to prove his allegations based solely on "an unsubstantiated affidavit indicating merely that he requested his trial counsel to file a notice of appeal." More specifically, the court ruled that Bangura could not demonstrate that he had met the first, second, and third requirements for a coram nobis claim. Bangura's timely appeal followed.

II. The Law

As explained in our Hamid decision:²

The writ of error coram nobis requires that: (1) the trial court be unaware of the facts giving rise to the petition; (2) the omitted information be such that it would have prevented the sentence or judgment; (3) petitioner be able to justify the failure to provide the information; (4) the error be extrinsic to the record; and (5) the error be of the most fundamental character.

"A writ of error coram nobis is an ‘extraordinary remedy’ which should be granted ‘only under circumstances compelling such action to achieve justice.’ "³ It is available only "to correct a miscarriage of justice resulting from errors of the most fundamental character, where no other remedy is available and sound reasons exist for failure to seek appropriate earlier relief."⁴ We review a trial court's denial of a petition for writ of error coram nobis for an abuse of discretion,⁵ which will occur when a trial court bases its decision on an incorrect legal standard⁶ or renders a decision that is not based on a "firm factual foundation."⁷

III. Analysis

A. The Trial Court's Ruling

The trial court denied Bangura coram nobis relief after addressing, in order, the first three requirements for the writ. First , the court opined that coram nobis relief is limited to "correct[ing] the record in matters of fact existing at the time of the pronouncement of the judgment."⁸ Accordingly, because "trial counsel's timing for filing an appeal could not have occurred until after the judgment was rendered," the trial court ruled that Bangura failed to satisfy the first requirement for the writ.

Second , the court observed that, even if the first requirement could be deemed satisfied by trial counsel's failure to file an appeal, the "omitted information" attributable to the notice of appeal — i.e., counsel's alleged ineffectiveness — "would not have prevented the sentence or judgment." Bangura's ineffectiveness claim was "perfunctory"; there was no "indication that he expressed to his trial counsel a clear interest in appealing his case"; and in any event the court "made its decision at trial with a full understanding of the facts and circumstances," thereby precluding any "prejudice such that the omitted information would have prevented the judgment."

Third , concluded the court, Bangura was "unable to justify his failure to provide the omitted information." He "failed to show he acted with due diligence in protecting his appellate rights," having waited "nearly twenty-two years to communicate the claimed error to the court" and thus diminishing the credibility of his claim. He therefore defaulted on the third requirement as well.

B. Bangura's Appeal

As to the first requirement for the writ, Bangura rejects the trial court's understanding that coram nobis relief is limited to correcting errors of fact. He points out, to the contrary, that this court has "expanded coram nobis relief to include the correction of fundamental legal errors in addition to factual errors,"⁹ and that long ago we granted a writ of error coram nobis to authorize a remand for resentencing after trial counsel had missed the filing deadline for noting an appeal.¹⁰ It follows, Bangura argues, that his ineffectiveness claim is not barred from coram nobis relief by the impossibility of "facts giving rise to the petition" that occur after sentence or judgment.

Next, observes Bangura, this court has "made clear that a meritorious ineffective assistance of counsel claim meets the second coram nobis requirement";¹¹ thus, the judgment here might have been vacated if a timely appeal had been filed.

Finally, according to Bangura, the third requirement was satisfied despite his nearly 22-year delay in raising the ineffectiveness claim. More specifically, he was "very reasonably unaware due to the lack of understanding of the appellate process" that trial counsel had failed to "provide the information" — i.e., to file the appeal — that would have erased his sentence or judgment.

C. Decision on Appeal

In his brief, Bangura has chosen, first, to argue the merits of his claim: that trial counsel was constitutionally ineffective in failing to "file a notice of appeal upon his request." Logically, however, that argument is preceded by the threshold question whether he satisfied the procedural requirements for claiming coram nobis relief — a question that embraces whether the merits can be reached. We therefore proceed to consider, initially, whether the trial court abused its discretion in concluding that Bangura failed to satisfy the first three coram nobis requirements at issue here.

We agree with Bangura that he has satisfied the first two requirements for coram nobis relief. We have said that the first requirement for the writ — that "the trial court be unaware of the facts giving rise to the petition" — is not limited (as the trial court believed) to a ruling based on a trial court unawareness of "facts." The first requirement can be met as well by reliance on the court's being unaware of legal error,¹² such as post-trial ineffective assistance of counsel in failing to note an appeal.¹³ Moreover, the second requirement can be satisfied if such ineffective assistance should have "prevented the sentence or judgment" or, as alleged here, should have resulted in vacation of the judgment, coupled with resentencing "to permit a timely appeal."¹⁴

We therefore turn to the third requirement: whether Bangura has "justif[ied] the failure to provide the information" — i.e., the failure to file his petition for the writ — for a period of 22 years since the gravamen of his complaint against trial counsel arose....