United States v. Abraham Ntreh

CLD-114 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2803
___________
UNITED STATES OF AMERICA
v.
ABRAHAM NEE NTREH,
Appellant
____________________________________
On Appeal from the District Court
of the Virgin Islands
(D.C. Crim. No. 1-02-cr-00007-001)
District Judge: Honorable Wilma A. Lewis
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 22, 2016
Before: FISHER, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: February 5, 2016)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
Abraham Ntreh appeals from an order of the District Court of the Virgin Islands,
which denied his petition for a writ of error coram nobis. In his petition, he argues that
his attorney was ineffective for failing to object when the trial judge failed to rule on his
renewed motion for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, at the end of his first trial. Because no substantial question is
presented by the appeal, we will summarily affirm the District Court’s judgment. See
Third Circuit LAR 27.4 and I.O.P. 10.6.
I.
Ntreh was charged with unlawful reentry into the United States in violation of 8
U.S.C. § 1326(a), and for making a false statement to a United States official in violation
of 18 U.S.C. § 1001. At his first trial, Ntreh made a Rule 29 motion for judgment of
acquittal at the end of the Government’s case in chief. The Court denied the motion.
Ntreh renewed his Rule 29 motion after he rested, arguing that the Government had failed
to show that prior to his reentry, he had been deported or removed pursuant to a valid
removal order. Ntreh’s argument was based primarily on the fact that INS Agent
Jahrman, when asked whether the Government’s “Exhibit 12” (an IJ’s checklist-style
“Memorandum of Oral Decision”) was “a deportation order entered by the immigration
judge, yes or no” answered “no.” N.T. 7/23/03 at 17. The Court stated that it would take
constitute binding precedent.
2
the motion under advisement, but never ruled on it. Because the jury voted 11-1 to
convict Ntreh, the Court declared a mistrial.
At a second trial, the Court denied Ntreh’s Rule 29 motion at the close of
evidence, and Ntreh was convicted on both counts. On appeal, Ntreh argued “that the
District Court should have granted the motions he made at each of his trials for judgment
of acquittal.” United States v. Ntreh, 142 F. App’x 106, 107 (3d Cir. 2005). In our
decision, we determined that “Ntreh’s second trial did not violate the Double Jeopardy
Clause and that the District Court did not err by failing to address the sufficiency of the
evidence at Ntreh’s first trial.” Id. at 109. We noted that Ntreh argued that Agent
Jahrman’s testimony at the first trial “regarding the existence of a prior deportation order
‘was confusing and susceptible to two interpretations.’” Id. at 110 n.6.1 But we
concluded that “Ntreh’s acknowledgment that Agent Jahrman’s testimony was
susceptible to two interpretations establishes that this evidence, viewed in the light most
favorable to the prosecution, was sufficient to prove the existence of a prior deportation
order and to sustain a conviction for unlawful reentry.” Id. We concluded that “even if
we were to reach the merits of Ntreh’s Rule 29 argument, his contention that there was
insufficient evidence to sustain a conviction on unlawful reentry at his first trial would
1
Before Agent Jahrman answered “no” to the question of whether Exhibit 12 was a
deportation order, he testified, “I belief [sic] that is one of several documents that are the
oral decisions of the immigration judge.” N.T. 7/23/03 at 17.
3
fail as a matter of law.” Id. We vacated Ntreh’s sentence, however, so that he could be
resentenced pursuant to United States v. Booker, 543 U.S. 220 (2005).2
At resentencing, Ntreh was sentenced to time served; because thereafter he was no
longer in custody, he was not able to file a motion to vacate sentence under 28 U.S.C.
§ 2255. Instead, Ntreh filed the petition for a writ of error coram nobis at issue here. See
Chaidez v. United States, 133 S. Ct. 1103, 1106 n.1 (2013) (“A petition for a writ of
coram nobis provides a way to collaterally attack a criminal conviction for a person, like
[the petitioner], who is no longer ‘in custody’ and therefore cannot seek habeas relief
under 28 U.S.C. § 2255.”). The District Court denied relief and Ntreh timely appealed.3
II.
Coram nobis is a “rare remedy,” and is appropriate only to (1) “correct errors for
which there was no remedy available at the time of trial,” and (2) “where ‘sound reasons’
exist for failing to seek relief earlier.” Mendoza v. United States, 690 F.3d 157, 159 (3d
Cir. 2012) (quoting United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989)). The
standard for coram nobis relief is even more stringent than that used to evaluate § 2255
motions, Stoneman, 870 F.2d at 106, and both we and the United States Supreme Court
have noted that “it is difficult to conceive of a situation in a federal criminal case today
2
After Ntreh was resentenced, we affirmed the District Court’s denial of his motion to
dismiss the indictment. United States v. Ntreh, 546 F. App’x 105 (3d Cir. 2014) (non-
precedential).
3
An appeal from the denial of a coram nobis petition does not require a certificate of
4
where a writ of coram nobis would be necessary or appropriate.” Mendoza, 690 F.3d at
159 (quoting Carlisle v. United States, 517 U.S. 416, 429 (1996)). While ineffective
assistance of counsel may constitute the kind of fundamental defect in a conviction
required to obtain a writ of error coram nobis, see United States v. Rad-O-Lite of Phila.,
Inc., 612 F.2d 740, 744 (3d Cir. 1979), in order to succeed the appellant must show both
“(1) that counsel’s representation fell below an objective standard of reasonableness and
(2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” See Carpenter v. Vaughn, 296 F.3d 138, 149
(3d Cir. 2002) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). In
reviewing a district court’s denial of a coram nobis petition, we apply a de novo standard
to the district court’s legal conclusions and examine its factual findings for clear error.
See Mendoza, 690 F.3d at 159.
The District Court denied relief because in our August 2005 opinion, we had
“already rejected [Ntreh’s] argument on the substantive issue underlying his ineffective
assistance of counsel claim.” Dkt. #343 at 6. As noted, we have previously held “that
the District Court did not err by failing to address the sufficiency of the evidence at
Ntreh’s first trial.” Because, as the District Court noted, an attorney cannot be ineffective
for failing to raise a meritless claim, coram nobis relief is not warranted. See Werts v.
Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).
appealability. See United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 2000).
5
But in the motion for summary reversal that Ntreh filed in our Court, Ntreh argues
that our August 2005 opinion does not foreclose relief as this is his first opportunity to
raise a claim of ineffective assistance of counsel (he was represented by the same
attorney at trial and on direct appeal). See United States v. DeRewal, 10 F.3d 100, 103-
04 (3d Cir. 1993). And he appears to argue that his claim is slightly different than the
one argued by counsel on direct appeal; i.e., he does not concede that Agent Jahrman’s
testimony was susceptible of two interpretations, and he suggests that his attorney was
ineffective for making that concession.4 Nonetheless, we find that the testimony was
susceptible of two interpretations, as Agent Jahrman suggested that Exhibit 12 was one of
the documents expressing the IJ’s deportation order. Further, we have already stated our
opinion that the evidence at Ntreh’s first trial was sufficient for his conviction. Thus,
Ntreh has not shown that had his attorney insisted that the District Court rule on the
renewed Rule 29 motion at his first trial, there is a reasonable probability that the District
Court would have found the evidence insufficient, and that the outcome would have been
different.
For the foregoing reasons, we will affirm the District Court’s judgment.
4
Ntreh did not raise this precise point in the District Court. Nevertheless, we will
address it. See United States v. Turner, 718 F.3d 226, 235 (3d Cir. 2013).
6