Set back, but not willing to admit defeat on his claims of innocence, Senyszyn is back in court on his claim of innocence. In Senyszyn v. United States, 2016 U.S. Dist. LEXIS 156155 (D. NJ 2016), here, Senyszyn sought collateral relief from his conviction for tax evasion. The Court found that his pleading was inartful -- as often the case for parties representing themselves -- and recast the pleading in more lawyerly terms as a petition for writ of coram nobis which the court described as:
A writ of error coram nobis "is used to attack allegedly invalid convictions which have continuing consequences, when the petitioner has served his sentence and is no longer 'in custody' for purposes of 28 U.S.C.A. § 2255." See United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). "A district court has the power, under appropriate circumstances, to grant a writ of error coram nobis and vacate a conviction, but the writ is an extraordinary remedy, and a court's jurisdiction to grant relief is of limited scope." United States v. Dwumaah, 570 F. App'x 193, 195 (3d Cir. 2014) (quotations omitted). A petitioner must meet five requirements in seeking relief from a federal conviction: (1) petitioner is no longer in custody; (2) petitioner continues to suffer consequences of the conviction; (3) the relief sought must correct errors of the most fundamental character; (4) there was no remedy for the defect available at trial; and (5) there are sound reasons for failing to seek the relief earlier. See id. at 196. "Earlier proceedings are presumptively correct and the petitioner bears the burden to show otherwise." Stoneman, 870 F.2d at 106.Although there were some predicate procedural issues, the court addressed his claim as a claim of actual innocence. The Court then held against Senyszyn on the following basis:
"Petitioner's claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy 'has probably resulted in the conviction of one who is actually innocent.'" Bousley, 523 U.S. at 623 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)); see also Lynch, 807 F. Supp. 2d at 230-31 (applying the Bousley holding to a petition for a writ of error coram nobis). "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (quotations and citations omitted). "It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency." Id.
Petitioner claims that he has demonstrated his actual innocence of tax evasion because of the finding by the Tax Court that he was not liable for a deficiency on his 2003 income tax return. Pet'r's Br. at 15-17. To be clear, the Tax Court did find that Petitioner had repaid misappropriated funds to his business associate during that year and that "the evidence presented does not support the asserted deficiency." See Pet'r's Cert., Ex. B at 20-22.
The Tax Court's finding certainly contradicts a portion of the second count of the Information, which alleged tax evasion as a product of "embezzled taxable income from the sale of real estate." See S.I. at 6. To that extent, the Court acknowledges that the Tax Court's decision conclusively establishes that Petitioner is not guilty of evading taxes through the embezzlement of taxable income in 2003; however, that is not all that the Information alleges. Notably, the first paragraph under the second count reads: "The allegations contained in paragraphs 1 through 10 of Count One of this Superseding Information are repeated, realleged and incorporated by reference as though fully set forth herein." Id. In other words, Petitioner's conduct under the first count was also sufficient to establish his guilt under the second count. The Tax Court confirmed: "[Petitioner's] preparation of a fraudulent return on behalf of [the corporation] were themselves sufficient grounds to justify his conviction for tax evasion." See Pet'r's Cert., Ex. B at 28 n.7.
Consequently, Petitioner has not established his actual innocence of tax evasion. To the contrary, the Tax Court's decision confirms the propriety of his guilty plea and conviction. See id. As such, Petitioner has not demonstrated an error of the most fundamental character that warrants correction and his petition for a writ of error coram nobis is, therefore, denied. See Dwumaah, 570 F. App'x at 195; cf. United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988) ("Nevertheless, it appears to us that an assertion that a conviction was based on conduct not covered by a criminal statute class is of a 'fundamental character.'") (citations omitted).