12-3705-cv
Evangelista v. United States


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of June, two thousand thirteen.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,
                                 Circuit Judges.
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LOUIS EVANGELISTA, SR.,
                                 Petitioner-Appellant,

                               v.                                         No. 12-3705-cv

UNITED STATES OF AMERICA,
                                 Respondent-Appellee.
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APPEARING FOR APPELLANT:                          ROBERT P. LARUSSO, LaRusso & Conway
                                                  LLP, Mineola, New York.

APPEARING FOR APPELLEE:                           DEMETRI M. JONES (David C. James, on the
                                                  brief), Assistant United States Attorneys, for
                                                  Loretta E. Lynch, United States Attorney for the
                                                  Eastern District of New York, Brooklyn, New
                                                  York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Leonard D. Wexler, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 7, 2012, is AFFIRMED.

       Louis Evangelista, Sr. was convicted in 1996 after a jury trial on multiple counts of

tax evasion. That conviction was affirmed on direct appeal, see United States v. Evangelista,

122 F.3d 112, 113 (2d Cir. 1997), cert. denied, Evangelista v. Untied States, 522 U.S. 1114

(1998), and a collateral challenge pursuant to 28 U.S.C. § 2241 was denied, see Evangelista

v. Ashcroft, 232 F. Supp. 2d 30 (E.D.N.Y. 2002), aff’d 359 F.3d 145 (2d Cir. 2004), cert.

denied sub nom., Evangelista v. Gonzales, 543 U.S. 1145 (2005). Evangelista now appeals

from the denial of his 2011 application for a writ of error coram nobis, see 28 U.S.C. § 1651,

to vacate one count of his 1996 conviction for personal income tax evasion, see 26 U.S.C.

§ 7201, on grounds of insufficiency of evidence and ineffective assistance of counsel.

Evangelista contends that the district court erred in concluding that he failed to satisfy the

coram nobis requirement that he demonstrate “sound reasons” for failing to pursue these

alleged errors earlier. Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996); see id. at 78

(collecting cases recognizing that coram nobis is remedy of last resort for petitioners no

longer in custody pursuant to challenged conviction, but “not a substitute for appeal”). We

review de novo whether the district court applied the proper legal standard, but absent such

legal error, we review its ultimate denial decision only for abuse of discretion. See United


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States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). We identify neither legal error nor

abuse of discretion. We assume the parties’ familiarity with the facts and records of prior

proceedings, which we reference only as necessary to explain our decision to affirm

substantially for the reasons stated by the district court. See Evangelista v. United States,

No. CV 11-5085, 2012 WL 3818109 (E.D.N.Y. Sept. 4, 2012).

       Evangelista argues that his own failure to recognize “the argument concerning the

legal and factual insufficiency of the personal income tax evasion count,” Pet’r’s Br. 38, and

counsel’s ineffectiveness in failing to inform him of the immigration consequences of

conviction after trial provide sound reasons for his delay in seeking the relief here at issue.

These points merit little discussion.

       As Evangelista himself acknowledges, his sufficiency claim relies entirely on “the

trial record and an examination of the relevant tax documents.” Id. at 22. Because this

material was available to him at trial and, thus, available to him for over 15 years thereafter,

he cannot claim to have been unaware during that time of the facts supporting his sufficiency

claim. See Foont v. United States, 93 F.3d at 80 (upholding district court’s determination

that petitioner failed to demonstrate sound reasons for five-year delay because “Foont knew

or should have known since the time of his conviction in 1990 of the facts underlying his

current claim”).

       Similarly, even if Evangelista did not know the immigration consequences of his

conviction at the time judgment was entered, but see INS v. St. Cyr, 533 U.S. 289, 322


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(2001) (recognizing, as general matter, that “alien defendants considering whether to enter

into a plea agreement are acutely aware of the immigration consequences of their

convictions”), he would certainly have had such knowledge by April 14, 1998, when the

Immigration and Naturalization Service issued a Notice To Appear, stating that Evangelista

was subject to removal based on his conviction for an “aggravated felony” as defined in the

Immigration and Naturalization Act. Evangelista v. Ashcroft, 359 F.3d 145, 148 (2d Cir.

2004). Thus, even if Evangelista’s counsel failed to raise this issue on direct appeal,

Evangelista presents no reason why he could not have pursued the matter in a petition

pursuant to 28 U.S.C. § 2255 asserting ineffective assistance of counsel. See Massaro v.

United States, 538 U.S. 500, 504 (2003) (holding that ineffective-assistance-of-counsel

claims need not be brought on direct appeal).

         Evangelista thus fails to provide “sound reasons” for his delay in asserting these

claims, and the district court acted well within its discretion in denying the writ of coram

nobis. In light of this conclusion, we decline to consider Evangelista’s arguments in support

of the merits of his underlying claims. Accordingly, we AFFIRM the judgment of the district

court.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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