Notice of Motion Pursuant to Title 28 USCA Section 22551 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION UNITED STATES OF AMERICA, : Plaintiff, : : v. : CR-93-91 CA-96-545-R : JULIEN MODICA, MPH, MPP, : (aka: JULIEN K. DILKS) : Defendant, : SIR: PLEASE TAKE NOTICE that upon the annexed petition2 of JULIEN MODICA, verified the 27th day of September, 2010 and upon all the files and records had heretofore, the undersigned will move this Court at a Motion Term thereof, to be held at Court Room #2 (2nd Floor), in the United States Court House, Poff Building, in the City of Roanoke, State of Virginia, on October 20th at 1:30PM, or as soon thereafter as petitioner can be heard, for an order vacating and setting aside the judgment of conviction entered the 17th day of October, 1994 and for such other and further relief as may be just and proper”3 4 1 The current practice in federal court is to proceed by notice of motion together with accompanying petition setting forth the judgment of conviction together with facts relied on, the errors contained, and a prayer that the judgment of conviction be vacated. It should be noted that a motion for Coram Nobis is always heard by the sentencing judge. 2 The Court of Appeals has stated the rule that a motion for Coram Nobis will lie only in the court where the original judgment of conviction was rendered. The fact that a conviction has been reviewed and affirmed by a higher court, either by appeal of writ of error, does not preclude a subsequent Coram Nobis proceeding which is properly founded. 3 The Court of Appeals held that when the defendant had raised an issue within the scope of Coram Nobis and his contention had not been conclusively shown to be false by opposing affidavits and documents, a hearing on the disputed issue should have been ordered. People v. Richetti, 276 AppDiv 1091, 1092, 96 NYS2d 355, 356 (1950). Dated 27th day of September, 2010 Yours, ______________________________ Julien Modica, MPH, MPP Pro Se 1101 Connecticut Ave., NW Suite 805 Washington, DC 20036 TO: UNITED STATES ATTORNEY Western District of Virginia 310 First Street, SW Room 906 Roanoke, VA 24011 CLERK OF THE UNITED STATES DISTRICT COURT Western District of Virginia Poff Federal Building 210 Franklin Rd, SW Rm 540 Roanoke, VA 24011 4 On the return date of the motion, the U.S. Attorney may either (1.) appear in open court and acquiesce in the granting of the petition and the relief demanded, (2.) submit affidavits in opposition and so rebut any or all of the statements set forth in the petitioner’s papers, or (3.) ask for a formal hearing.
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