                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA      )
                              )
          v.                  )      Criminal Action No. 99-79 (RWR)
                              )
BURUDI FAISON,                )
                              )
          Defendant.          )
______________________________)

                    MEMORANDUM OPINION AND ORDER

       Petitioner Burudi Faison seeks a writ of coram nobis to

vacate his 1999 conviction for carrying a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c), arguing

that trial counsel provided ineffective assistance and that there

was not a factual basis for his guilty plea.    The government

opposes Faison’s motion.   Because Faison has not demonstrated any

entitlement to coram nobis relief, his petition will be denied.

                              BACKGROUND

       In June 1999, Faison pled guilty to one count of using and

carrying a firearm during a drug trafficking offense in violation

of 18 U.S.C. § 924(c).   Pre-Sentence Investigation Report (“PSR”)

¶ 2.   Faison was sentenced to 60 months in prison, J. in a

Criminal Case, Sept. 8, 1999, and completed his sentence in

September 2003, Pet. for Writ of Coram Nobis (“Pet.”) at 1.      In

2007, Faison was found guilty of a drug conspiracy charge in an

unrelated case in New York.    Id.   Faison asserts that, because of

his previous conviction here under 18 U.S.C. § 924(c), the
                                - 2 -

government had filed in the New York case prior felony

enhancement papers.   As a result, his statutory minimum and

maximum sentence for the drug conspiracy charge was increased

from 5 to 40 years to 10 years to life.   Id. at 2.

     On March 9, 2012, Faison filed for a writ of coram nobis

under 28 U.S.C. § 1651, seeking to vacate his 1999 conviction.

He claims principally that coram nobis relief is warranted

because he received ineffective assistance of counsel and the

record failed to “reflect a factual basis for [his] plea.”     Id.

The government opposes his motion, contending that coram nobis

relief is unavailable because Faison does not offer sufficient

reasons for his twelve-year delay in challenging his conviction,

did not seek direct review of his conviction and sentence, and

fails to show that there was a fundamental error affecting his

conviction or sentence.   Govt.’s Mem. in Opp’n at 6-8.

                            DISCUSSION

     “Through a writ of error coram nobis, the federal judge who

imposed a sentence has the discretionary power to set aside an

underlying conviction and sentence which, for a valid reason,

should never have been entered.”   United States v. Hansen, 906 F.

Supp. 688, 692 (D.D.C. 1995).   “Unlike the ‘in custody’

limitation of the habeas statute, a petitioner may collaterally

attack a federal conviction under” coram nobis even if he is “no

longer serving a sentence pursuant to that conviction.”    Id.
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(citations omitted); cf. 28 U.S.C. § 2255 (providing that a

habeas defendant must be in custody for the conviction or

sentence he challenges).   Coram nobis is an “extraordinary”

remedy, United States v. Denedo, 556 U.S. 904, 911 (2009), and

such relief is “rarely granted,” Craven v. United States, 26 Fed.

App’x 417, 419 (6th Cir. 2001).    A petitioner seeking a writ of

coram nobis must show 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.

Hansen, 906 F. Supp. at 692-93 (citations omitted).     In Hansen,

where the defendant sought to vacate his conviction and sentence,

the court found that “a more usual remedy” of relief under § 2255

was unavailable to the defendant because he had completed his

sentence and “ha[d] long since exhausted his usual appeal

rights[,]” but that coram nobis relief was available.    Id. at

693.

       Here, Faison has shown that a more usual remedy is not

available because he is not in custody for the conviction he

challenges, Pet. at 3, and thus cannot attack his conviction

under 28 U.S.C. § 2255.    See United States v. Williams, 630 F.

Supp. 2d 28, 30 (D.D.C. 2009).    However, even though coram nobis

relief is Faison’s exclusive avenue to challenge his conviction,

Faison has not demonstrated that the other requirements for a
                                 - 4 -

writ of coram nobis are met.    Faison fails to show that “valid

reasons exist for not challenging the conviction earlier.”    See

Hansen, 906 F. Supp. at 692.     To show that he has valid reasons

for a delay in challenging a conviction, a defendant must show

why he did not seek to appeal the conviction directly.    See Foont

v. United States, 93 F.3d 76, 80 (2d Cir. 1996).     The bar is

high; coram nobis is not “a free pass for attacking criminal

judgments long after they have become final.”    United States v.

Riedl, 496 F.3d 1003, 1004 (9th Cir. 2007).

        Faison submits that he did not attack his conviction earlier

because “he had no reason to believe that a 924(c) offense was

classified as a felony drug offense rather than a firearm

offense” before United States v. Nelson, 484 F.3d 257 (4th Cir.

2007), was decided.    The Nelson opinion was issued eight years

after Faison pled guilty to violating 18 U.S.C. § 924(c), but

several months before the New York charges were filed.    See Pet.

at 3.    Nelson held that a defendant’s previous conviction for

carrying a firearm during and in relation to a drug trafficking

offense in violation of 18 U.S.C. § 924(c) constituted a felony

drug offense that made the defendant eligible for a sentence

enhancement for a later federal drug offense.    See Nelson, 484

F.3d at 258.

        Faison’s proffered rationale fails to justify his delay in

seeking coram nobis relief for at least two reasons.    First, he
                                 - 5 -

neither demonstrates a valid reason for his ten-year delay in

challenging his conviction, nor explains why he waited five years

after his 2007 New York sentence was imposed and Nelson was

decided to seek coram nobis relief.      Second, that Faison had no

reason to challenge his 1999 plea and conviction until he was

convicted for a subsequent offense and received a sentence

enhancement in 2007 is not a valid reason for his delay.     In

Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992), the

court held that “[t]he fact that [defendant] . . . ha[s] had no

reason to challenge [his first] conviction until after the

sentence was imposed in” a later trial for a separate offense “is

not, standing alone, a sound reason” for a five-year delay.       See

id.   Furthermore, Faison has not shown that either the court or

Faison’s trial counsel bore any obligation to explain to Faison

that, if he were to commit a subsequent offense after serving his

sentence for his 1999 guilty plea, his guilty plea could be used

to enhance a future sentence.    See McCarthy v. United States, 320

F.3d 1230, 1234 (11th Cir. 2003); Wright v. United States, 624

F.2d 557, 561 (5th Cir. 1980).    Thus, Faison has not shown that

he had valid reasons for his delay in challenging his conviction.

      Faison also has not shown that the consequences of his

conviction have been sufficiently adverse to justify a writ of

coram nobis.   Faison asserts that a writ is justified because he

“is suffering from and will continue to suffer from adverse
                                - 6 -

consequences from the prior conviction” due to the sentence

enhancement for his 2007 New York conviction.     Pet. at 4.   The

fact that a previous sentence makes a defendant eligible for an

enhanced sentence for a subsequent conviction does not constitute

a sufficiently adverse consequence to justify a writ of coram

nobis.    United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.

1990).    The sentence enhancement for Faison’s 2007 drug

conviction therefore provides no grounds for coram nobis relief.

See id.

     Finally, Faison has also failed to show that his conviction

was the result of fundamental error.    An error is fundamental if

it is “(1) an error of fact; (2) unknown at the time of trial;

(3) of a fundamentally unjust character which probably would have

altered the outcome of the challenged proceeding if it had been

known.”   United States v. Johnson, 237 F.3d 751, 755 (6th Cir.

2001) (citing United States v. Blanton, 94 F.3d 227, 230 (6th

Cir. 1996)); see also United States v. George, 676 F.3d 249, 257

(1st Cir. 2012) (explaining that a defendant’s decision to “enter

into a plea bargain . . . counts against finding an error of the

most fundamental character”).   Faison alleges that fundamental

error is present because he was deprived of his right to

effective assistance of counsel and his Fifth Amendment

substantive due process rights.   Pet. at 2, 4.
                                - 7 -

       Faison claims that his “pretrial counsel was ineffective in

her representation and advisement.”     Id. at 2.   “To prove

constitutionally deficient representation, the defendant must

show (1) ‘that counsel’s performance was deficient,’ and

(2) ‘that the deficient performance prejudiced the defense.’”

United States v. Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

The defendant bears the burden of overcoming the “strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.”    Strickland, 466 U.S. at

689.   Vague allegations of ineffective assistance are

insufficient to establish grounds for coram nobis relief.

Foreman v. United States, 247 Fed. App’x 246, 248 (2d Cir. 2007)

(denying coram nobis to petitioner who “failed to present any

evidence, save his own conclusory allegations, demonstrating that

counsel was ineffective”); Tejada v. Dugger, 941 F.2d 1551, 1559

(11th Cir. 1991); United States v. Talley, 674 F. Supp. 2d 221,

224-25 (D.D.C. 2009).   That counsel advised a defendant to plead

guilty is not by itself grounds for a claim of ineffective

assistance.   United States v. Thomas, 541 F. Supp. 2d 18, 25

(D.D.C. 2008).

       Faison asserts that he received ineffective assistance of

counsel prior to his plea because his attorney spoke with him

only about “the amount of time to plead to, rather than those
                                 - 8 -

matters that make a guilty plea voluntary and knowing.”      Pet. at

5.   Furthermore, he argues, the court should have “ascertained

. . . whether [he] was willing to proceed with his present

attorney or whether he wanted another.”     Id. at 4.   Faison does

not present any evidence to support his assertions, and the fact

that trial counsel advised him to plead guilty does not alone

make counsel’s assistance ineffective.     See Thomas, 541 F. Supp.

2d at 25.    Because Faison’s claims are conclusory and vague, they

are insufficient to establish a claim of ineffective assistance.

See id.     Because he provides no evidence to bolster his

allegations, Faison cannot overcome the presumption that his

counsel was effective.    See Strickland, 466 U.S. at 689; Foreman,

247 Fed. App’x at 248; cf. United States v. Wilson, Crim. Action

No. 96-319-01 (CKK), 2005 WL 6293747, at *13 (D.D.C. Sept. 12,

2005).

      In addition to claiming that his counsel was ineffective,

Faison asserts that his guilty plea violated his Fifth Amendment

due process rights because “the record fails to reflect a factual

basis for the plea.”1    Pet. at 2, 6.   Federal Rule of Criminal



      1
       Within his challenge to the factual basis of his plea,
Faison also alleges that the court failed to advise him of the
elements of the 924(c) offense that the government would be
required to prove beyond a reasonable doubt at trial, and ask him
whether the facts the government proffered it could prove were
true. See Pet. at 6. Aside from such failures being an
unprecedented deviation from the court’s consistent practice,
Faison presents no evidence to support his allegations.
                               - 9 -

Procedure 11(b)(3) requires that, prior to “entering judgment on

a guilty plea, the court . . . determine that there is a factual

basis for the plea.”   Fed. R. Crim. P. 11(b)(3).   However, a writ

of coram nobis “is only appropriate when claims could not have

been raised by direct appeal,” Sun v. United States, 342 F. Supp.

2d 1120, 1127 (N.D. Ga. 2004), aff’d, 151 Fed. App’x 860 (11th

Cir. 2005), and coram nobis is “‘not a substitute for appeal,’”

United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000)

(quoting Foont, 93 F.3d at 78).   In his reply, Faison does not

dispute the government’s claim that he never sought to attack the

factual basis of his plea prior to filing his petition for coram

nobis.   See Pet.’s Reply to Govt.’s Mem. in Opp’n at 3-4.

Because he failed to raise the alleged lack of a factual basis

for his plea on direct appeal, Faison is not entitled to coram

nobis relief on the grounds that his plea lacked a factual basis.

                       CONCLUSION AND ORDER

     Faison is not entitled to coram nobis relief because he has

failed to offer valid reasons for not attacking his conviction

earlier, and his 2007 sentence enhancement is not an adverse

consequence sufficient to justify coram nobis relief.   He has not

demonstrated as a fundamental error that trial counsel was

ineffective, and his claim that his plea lacked a factual basis

is barred because he did not challenge it on direct review.

Therefore, it is hereby
                              - 10 -

     ORDERED that Faison’s motion [52] for a writ of coram nobis

be, and hereby is, DENIED.

     SIGNED this 29th day of July, 2013.



                                     /s/
                              RICHARD W. ROBERTS
                              Chief Judge
