                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2007

USA v. Foster
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4826




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"USA v. Foster" (2007). 2007 Decisions. Paper 997.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/997


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CLD-238                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-4826


                            UNITED STATES OF AMERICA

                                             v.

                               BALDWIN NEAL FOSTER
                                  a/k/a Ringo Foster,

                                            Baldwin Neal Foster, Appellant
                       ____________________________________

                     On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Crim. No. 94-cr-00071-2)
                     District Judge: Honorable William W. Caldwell
                             __________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    May 17, 2007

           Before:   RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                   (Filed: June 6, 2007)


                                        OPINION


PER CURIAM

       Appellant Baldwin Neal Foster, a citizen and now a resident of Jamaica, was

indicted in United States District Court for the Middle District of Pennsylvania for,
among other offenses, conspiracy to distribute 50 grams or more of crack cocaine. In July

1994, he pleaded guilty to distributing crack cocaine. Subsequently, he moved to

withdraw the plea, alleging that his counsel had pressured him into pleading guilty and

that the plea was involuntary. He requested a psychiatric evaluation on the ground that

his extensive use of cocaine had caused him to suffer auditory and visual hallucinations.

Foster was evaluated by a psychologist, who determined that he suffered from cocaine

abuse and dependence, but otherwise he was malingering. He was determined to be

competent to enter a guilty plea, participate in sentencing, and, if necessary, to stand trial.

         A hearing was scheduled at which Foster was represented by new counsel. He

chose to proceed to sentencing on the plea of guilty previously entered. He asked the

District Court for a downward departure or probation on the ground that an immigration

detainer had been lodged against him and he was subject to deportation anyway. The

District Court declined to grant him one on that basis. The court calculated the guideline

range at 33 to 41 months, and sentenced Foster to a term of imprisonment of 36 months,

to be followed by 4 years of supervised release. The judgment of sentence provided that,

if Foster was ordered deported, supervised release would be on a non-reporting basis. We

affirmed on appeal in United States v. Foster, C.A. No. 95-7363 (3d Cir. February 1,

1996).

         In July 1996, Foster filed a motion to vacate sentence pursuant to 28 U.S.C. §

2255, in which he claimed that (1) his sentence was imposed in violation of due process

because the government failed to prove that he distributed “crack” cocaine as opposed to

                                               2
powder cocaine; (2) counsel was ineffective for (a) failing to recognize that “cocaine

base” and “crack” are the same chemical compound, (b) failing to request an independent

psychological evaluation, (c) failing to present a letter written by a co-defendant that

would have exonerated him, (d) failing to argue at sentencing that he was a victim for

purposes of a downward departure, and (e) failing to perfect an appeal; and (3) the court

failed to follow the “rule of lenity” in sentencing him. The District Court denied the

section 2255 motion, and we denied Foster a certificate of appealability in Foster v.

United States, C.A. Nos. 96-7618 & 96-7774 (3d Cir. April 1, 1997).

       Foster served his sentence, during which time he unsuccessfully petitioned the

District Court for collateral relief on several other occasions. On June 21, 2000, he was

deported to Jamaica.

       In July 2006, Foster filed a petition for writ of error coram nobis in United States

District Court for the Middle District of Pennsylvania, in which he raised numerous

challenges to his conviction and sentence, including new challenges to the voluntariness

of his plea and counsel’s stewardship with respect to his guilty plea. He sought relief on

the basis of United States v. Castro, 26 F.2d 557 (5th Cir. 1994). In an order entered on

September 8, 2006, the District Court denied the petition. The court reasoned that, under

the law of this circuit, although Foster was no longer in custody and had suffered the

collateral consequence of deportation, see United States v. Stoneman, 870 F.3d 102, 105-

06 (3d Cir. 1989); United States v. Cariola, 323 F.2d 180, 182 (3d Cir. 1963), coram

nobis is an extraordinary remedy and was not appropriate in his case because he had not

                                              3
shown that he had reasonable grounds for not raising the challenges to his guilty plea

earlier. The court noted that Foster was aware of the deportation consequences of his

guilty plea at the time of sentencing.

       Foster appeals. Our Clerk granted him leave to appeal in forma pauperis.

       We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is

frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989). Coram nobis may be used to attack a conviction with continuing

consequences when the petitioner is no longer in custody for purposes of 28 U.S.C. §

2255. Stoneman, 870 F.2d at 105-06. However, it is an extraordinary remedy, and the

standard for granting relief is more stringent than even the standard applicable to section

2255 motions. Id. at 106. We conclude that Foster’s assertions of error are

unexceptional, could have been raised earlier, and do not warrant coram nobis relief.

Something much more fundamental-- the assertion of an error that resulted in a conviction

for conduct not constituting a crime, for example -- is required before coram nobis relief

may be granted. United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988). Nothing of

the kind has been asserted here.

       The Castro decision does not support relief simply because the Fifth Circuit did

not deny relief on the ground that the alien could have raised his claims previously under

28 U.S.C. § 2255. In Castro, 26 F.3d 557, counsel failed to move for a Judicial

Recommendation Against Deportation ("JRAD"), a discretionary action by which a court

could prevent the deportation of an individual convicted of a crime involving moral

                                             4
turpitude, 8 U.S.C. § 1251 (1990). The Fifth Circuit held that coram nobis relief was

available. The JRAD, however, was repealed by the Immigration Act of 1990, as of

November 29, 1990, Castro, 26 F.3d at 558 n.1. It was not available when Foster was

sentenced. Moreover, even when it was an available means of relief, such relief was

precluded for an alien who had committed a controlled substance violation, 8 U.S.C. §

1251(b).

      We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i).




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