Evangelista v. United States

LOUIS EVANGELISTA, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

CV 11-5085

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date: September 4, 2012

MEMORANDUM AND ORDER

(Wexler, J.)

APPEARANCES:

LARUSSO & CONWAY, LLP

BY: ROBERT O. LARUSSO, ESQ.,

JOSEPH R. CONWAY, ESQ.

Attorneys for Petitioner

LORETTA E. LYNCH, ESQ.,UNITED STATES ATTORNEY

BY: DEMETRI M. JONES, ESQ., ASSISTANT UNITED STATES ATTORNEY

EASTERN DISTRICT OF NEW YORK

Attorneys for Respondent

WEXLER, District Judge

In October of 1996, Petitioner Louis Evangelista ("Petitioner" or "Evangelista") was convicted after a jury trial, of tax evasion. Evangelista was thereafter sentenced to a 51 month term of imprisonment. Evangelista's conviction was affirmed on appeal, United States v. Evangelista, 122 F.3d 112 (2d Cir. 1997). Further direct review by way of certiorari was denied. Evangelista v. United States, 522 U.S. 1114 (1998). Evangelista thereafter sought a writ of habeas corpus which was also denied. See Evangelista v. Ashcroft, 232 F. Supp.2d 30 (E.D.N.Y. 2002). That judgment was affirmed, Evangelist v. Ashcroft, 359 F.3d 145 (2d Cir. 2004), andcertiorari was denied, Evangelista v. Gonzales, 543 U.S. 1145 (2005).

Presently before the court is Evangelista's petition for a writ of error coram nobis. Like his prior direct and collateral appeals, this application is also denied.

BACKGROUND

I. Evangelista's Background and Prior Proceedings

Evangelista is a native of Italy who has been a lawful permanent resident of the United States since 1961. Although Evangelista never became a citizen of this country, his wife is a naturalized United States citizen. His five adult children were all born in this country and remain residents of the United States.

As noted, in October of 1996, Evangelista was convicted, after a jury trial, of several counts of tax evasion. Specifically, Evangelista was convicted of conspiracy to impede the IRS in collection of income and payroll taxes in violation of 18 USC § 371, failure to collect or pay income/FICA taxes in violation of 26 USC § 7202, and attempt to evade or defeat tax in violation of 26 USC § 7201. Evangelista appealed his conviction, which was affirmed by the Second Circuit Court of Appeals. Affirming the conviction, the Second Circuit rejected Evangelista's claim that he was entitled to particularized instructions with respect to the issue of willfulness and, instead, endorsed this court's instruction as to that issue. Evangelista, 122 F.3d at 116. The appellate court also reaffirmed that the proper statute of limitations for offenses under 26 U.S.C. §7202 ("Section 7202") is six years, and rejected a defense argument based upon alleged prosecutorial misconduct. Id. at 120. Finally, the court held that Section 7202 is violated where the taxpayer willfully failed to either "account for" or to "pay over" taxes due. Id. at 121. In 1999, while his direct appeal was pending, Evangelista was placed in removalproceedings by the INS.¹ The government's decision to seek to remove Evangelista from this country was based upon his conviction of an aggravated felony. See 8 U.S.C. §1101(a)(43)(M)(ii). Evangelista sought administrative relief from deportation before the INS. In a decision dated April 11, 2000, an Immigration Judge ("IJ") denied the application. The decision of the IJ held, specifically, that Evangelista was convicted of an "aggravated felony," within the meaning of the relevant statute. Further, the IJ held that Evangelista was ineligible for a waiver of deportation pursuant to 8 USC § 1182(c) (referred to by the IJ and hereinafter as "Section 212(c)"). The rejection of the request for a waiver hearing was based on the holding that Section 212(c) was repealed and no longer available to individuals who, like Evangelista, were facing deportation as a result of a conviction dated after the statute's repeal.

Evangelista moved for reconsideration of the decision of the IJ, which application was denied on June 2, 2000. On October 25, 2000, the initial and reconsideration decisions of the IJ were upheld by the Board of Immigration Appeals ("BIA"). The BIA agreed that Evangelista was convicted of an aggravated felony and therefore held that he was subject to removal. The BIA held further that it did not matter that the conduct for which Evangelista was punished took place prior to the effective date of the repeal of Section 212(c); Evangelista was nonetheless ineligible to apply for a waiver of deportation pursuant to the repealed statute.

In September of 2001, Evangelista, having served his full sentence, was released from the custody of the Federal Bureau of Prisons, and, because of the foregoing proceedings, was placed in INS custody. On September 13, 2001, after being placed in the custody of the INS, Petitionercommenced a proceeding seeking release. Meanwhile, upon being transferred to the custody of the INS, Evangelista was advised, by notice dated December 3, 2001, that the decision to detain him would be reviewed, after ninety days, by the INS District Director (the "District Director"). Petitioner was advised that any release that might be granted would be dependent upon his ability to demonstrate to the satisfaction of the INS that he neither posed a risk of flight nor was a danger to the community. Evangelista applied for release while the action was pending.

At argument held before this court in October of 2001, counsel informed the court that on December 12, 2001, the District Director would be reviewing Petitioner's claim for release pursuant to an order of supervision under 8 U.S.C. §1231(a)(6). In view of the impending INS action, this court denied the request for release without prejudice to renewal after the INS determination.

In a decision issued in January 2002, the District Director denied Petitioner's request for release. In support of its decision, the INS cited Evangelista's history of involvement in criminal activities, which involvement spanned several years, as well as his behavior during his incarceration. These factors led the INS to conclude that Evangelista would present a threat to the community. Accordingly, the request for bail was denied.

In view of the INS decision to deny Petitioner's request for release, he renewed the application previously denied without prejudice by this court. In May of 2002, this court issued an opinion denying Petitioner's request for a writ of habeas corpus releasing him from custody pending a decision on the merits of his claim.

In the context of his habeas proceeding, Evangelista argued that he was not convicted of an aggravated felony within the meaning of the relevant statute. He also argued that, because theconduct for which he was convicted and his entry of a plea of not guilty took place prior to the repeal of Section 212(c), he remained entitled to a discretionary relief from deportation hearing. A prior opinion of this court held that neither claim had merit. This court held that Evangelista was, indeed, convicted of an "aggravated felony," in the form of his conviction, after a jury trial on the counts referred to above. The court further held that Evangelista was not eligible for relief from deportation, and largely because he did not plead guilty, but was, instead, convicted after trial, he had no right to a Section 212(c) hearing. Finally, the court held that a remand to the Board of Immigration Appeals was not warranted. Today, Evangelista remains in the custody of the INS pending deportation.

II. The Present Application

Evangelista's present application for relief from his 1996 conviction comes in the form of a petition for a writ of error coram nobis. Evangelista first petitioned the court for coram nobis relief in 2009, in a case filed under docket number 09-2092, That case was later closed due to inactivity. Thereafter, in 2011, the present coram nobis application, filed under docket number 11-5085, was commenced. In the context of this coram nobis proceeding Evangelista argues that his conviction on count 26 of the indictment - the charge of evasion of personal income tax - was wrongfully decided, and requires the grant of his petition. He raises what he refers to as a "corresponding" ineffective assistance of counsel claim based upon the failure of Evangelista's prior attorneys to recognize and raise the argument raised here, i.e.. that Evangelista actually did not owe the tax alleged when his 1987 personal income taxes were filed in 1991. The court turns now to consider the merits of this latest application.

DISCUSSION

I. Legal Principles

This court has jurisdiction, under the All Writs Act, 28 U.S.C. § 1651(a), to grant a petition for error coram nobis, where "extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992): Echendu v. United States, 2003 WL 21653370 *4 (E.D.N. Y. 2003). Coram nobis, referred to as a remedy of "last resort," Echendu. 2003 WL 21653370 *4, is not a substitute for appeal, and relief is "strictly limited" to cases "in which 'errors ... of the most fundamental character' have rendered the proceeding "irregular and invalid.' " Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (citations omitted). The burden of proving the right to coram nobis relief lies with the petitioner Id. at 79. Such relief may be granted only where the petitioner shows that: (1) circumstances compel such action to achieve justice, (2) there are "sound reasons" for failing to earlier seek relief, and (3) the petitioner "continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. at 78.

District courts decide the timeliness of a coram nobis petition, i.e., whether there are "sound reasons" for delaying in bringing the petition, "in light of the circumstances of the individual case." Echendu, 2003 WL 21653370 *6. Specifically, the court considers particular reasons as to why the petitioner failed to earlier raise the issues set forth in the cora...