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Corona v. United States

United States District Court, E.D. Tennessee, Knoxville

January 3, 2018

VICENTE CORONA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.

         Vicente Corona (“petitioner”) has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255; or in the alternative for Coram Nobis relief, or in the alternative for a new trial under F.R.Cr.P 33 [Doc. 592].

         Background

         Petitioner and two co-defendants, Dennis Richardson and Jermaine Hughes, were indicted in 2005 for various drug and related offenses, including a conspiracy to distribute and to possess with the intent to distribute cocaine and marijuana. Richardson and Hughes ultimately entered into plea agreements with the United States[1], but petitioner opted for a trial. Following a 9-day jury trial, petitioner was convicted of conspiring to distribute and to possess with the intent to distribute 5 or more kilograms of cocaine and a quantity of marijuana; conspiring to commit money laundering; and three counts of distributing more than 5 kilograms of cocaine.[2] Because of the quantity of cocaine involved and two prior felony drug convictions, petitioner was sentenced to a mandatory life sentence.[3] The Sixth Circuit Court of Appeals affirmed both his conviction and sentence.[4] Petitioner's request that the Supreme Court issue a writ of certiorari was denied in February 2013.[5]

         At petitioner's trial, Richardson and Hughes testified that petitioner supplied them with both cocaine and marijuana for distribution. Additionally, Richard Robinson and his wife Kimberly also testified that petitioner supplied Robinson with cocaine for distribution.[6] Petitioner's motion makes a single claim: that one of those witnesses, Dennis Richardson, has recanted his trial testimony to the extent that he now says that petitioner supplied him with only marijuana, never cocaine. He requests that he be granted an evidentiary hearing at which Richardson presumably will testify consistently with his recantation.[7]

         Standard of Review

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

         Analysis

         Preliminary issues

         Several matters can be disposed of quickly. First, the government asserts that petitioner's motion is untimely, pointing out that his application for the writ of certiorari was denied in February 2013, and he filed his motion in November 2014, much more than the one-year allowed by 28 U.S.C. § 2255 (f). However, § 2255(f)(4) recites that the one-year period begins to run from the latest of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Petitioner states in his motion that his attorney received an “unsolicited” phone call from Dennis Richardson on November 18, 2013 in which Richardson for the first time recanted his trial testimony. Assuming that to be true for the moment, petitioner had until November 18, 2014 in which to file his motion. He filed it on November 13, 2014. The motion is timely.

         Second, petitioner's alternative request for a Writ of Error Coram Nobis is denied. Resort to Coram Nobis cannot be had when a motion under 28 U.S.C. § 2255 is available: “Morgan[8] teaches that a writ of error coram nobis may sometimes be used to vacate a federal conviction after the petitioner has already served his sentence and relief under 28 U.S.C. § 2255 is unavailable.” U.S. v. Johnson, 237 F.3d. 741, 753 (6th Cir. 2001) [emphasis supplied.] As this court has just held in the paragraph preceding, § 2255 is available to petitioner, from which it follows that Coram Nobis is not.

         Third, petitioner's motion for a new trial under F.R.Cr.P. 33 is subsumed ...


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