Friday, April 22, 2011

Coram nobis petition denied; Padilla & Second Amendment arguments fail

Thomas v. United States, No. PMD-06-4572, 2011 WL 1457917 (D. Md. Apr. 15, 2011):

Contract security guard with permission to carry an unconcealed firearm while on the job is arrested for carrying a concealed firearm while off duty (and while on the B-W parkway, which is regulated like a national park).  After completing his sentence and finding that he is now prohibited from returning to his chosen line of work, Petitioner files a petition for a writ of error coram nobis.

The coram nobis test.  To secure a writ of error coram nobis, a petition must demonstrate that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character."

Petitioner's analysis.  Petitioner meets the first requirement for coram nobis relief because he is not in custody and therefore cannot pursue habeas corpus relief.  Petitioner alleges that he meets the third requirement because he is unable to pursue his chosen career in law enforcement.  The Fourth Circuit has not addressed whether the inability to pursue a career in a given field is a sufficient "adverse consequence" to justify the issuance of a writ of error coram nobis.  However, the Supreme Court has stated in the related context of federal habeas corpus review that the "deprivation of the right . . . .to engage in certain businesses" may be a sufficient collateral consequence to justify habeas corpus relief.  The Seventh Circuit has similarly suggested that the loss of the right to hold occupational licenses might be a sufficient collateral consequence to justify issuance of a writ of error coram nobis. Therefore, it is likely that Petitioner's permanent inability to work in his chosen law enforcement profession is a sufficient adverse consequence to satisfy the third prong of the coram nobis test.

Petitioner, however, fails to explain the 43-month delay between the expiration of his sentence and his filing the current petition.  He also fails to identify a fundamental error that occurred in the taking of his guilty plea (for example, that petitioner suffered from a mental disability during the plea colloquy).

Padilla argument.  Petitioner makes an ineffective assistance of counsel argument, as well.  Petitioner argues that, under the Supreme Court's recent decision in Padilla v. Kentucky, his counsel was obligated to advise him of the potential employment-related consequences of his guilty plea. Padilla, however, is expressly limited to the deportation context.

Second Amendment argument.  Petitioner argues that his Second Amendment right to bear arms was impermissibly infringed.  Petitioner argues that the conduct of which he was convicted would not today constitute a crime due to an intervening amendment of Department of the Interior regulations, and asserts that he is entitled to the benefit of that amendment.  Two years after Petitioner pleaded guilty, the Secretary of the Interior promulgated amended regulations which allowed those who could legally possess a firearm under federal and state law to possess a firearm in a National Park.  Though a writ of error coram nobis may be issued where there is "a retroactive dispositive change in the law" the Fourth Circuit recently held that the Department of Interior amendment is not retroactively applicable. Absent explicit language to the contrary, the regulations in effect at the time the offense conduct occurred applied to the defendant.

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