Opinion
CASE NO. 2:09-cv-842.
April 29, 2010
ORDER
Petitioner has filed a "Motion for Change of Record," requesting that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be changed to a petition for a writ of coram nobis, so that he does not forfeit his claims for relief, because he is no longer incarcerated and has been released from confinement. See Doc. No. 10. For the reasons that follow, petitioner's motion, Doc. No. 10, is DENIED.
Petitioner requests that his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be chanced to a petition for a writ of coram nobis because, subsequent to the filing of his federal habeas corpus petition, he has been released from incarceration. Respondent has not filed a response to petitioner's request.
It appears from the record before this Court that petitioner's sentence has now completely expired. See Exhibit 4 to Return of Writ.
The All Writs Act, 28 U.S.C. § 1651, authorizes a district court to issue a writ of error coram nobis. U.S. v. Morgan, 346 U.S. 502, 511 (1954). As the Supreme Court admonished in Morgan, the writ is an "extraordinary remedy [to be used] only under circumstances compelling such action to achieve justice." Id. The Court of Appeals for the Sixth Circuit, likewise, cautions that "[c]oram nobis is an extraordinary writ, used only to review errors of the most fundamental character — e.g., errors rendering the proceedings themselves invalid." U.S. v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001); Blanton v. U.S., 94 F.3d 227, 230-31 (6th Cir. 1996). To obtain the extraordinary remedy of coram nobis relief, petitioner must show each of the following: "1) an error of fact; 2) unknown at the time of trial; 3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known." Johnson, 237 F.3d at 755. Upon consideration of a petition for coram nobis, "[i]t is presumed the proceedings were correct and the burden rests on the accused to show otherwise." Morgan, 346 U.S. at 512; see also Ybarra v. U.S., 461 F.2d 1195, 1198 (citing Morgan for the "presumption of regularity when a criminal judgment is assailed in a Coram Nobis proceeding.")
Once a federal court is vested with jurisdiction over habeas corpus petition, it is not divested by the release of the petitioner prior to completion of the proceeding on such petition. Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Here, the petitioner challenges his underlying criminal convictions. His release from incarceration does not cause the instant petition to become moot such that he may no longer obtain federal habeas corpus relief. Ward v. Knoblock, 738 F.2d 134, 135 (6th Cir. 1984) (citing Fiswick v. United States, 329 U.S. 211, 222 (1946); Carafas, 391 U.S. 234.)).
An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole-some "collateral consequence" of the conviction-must exist if the suit is to be maintained. See, e.g., Carafas, supra, at 237-238, 88 S.Ct., at 1559-60. In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur). See Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).Spencer v. Kemna, 523 U.S. 1, 7-8 (1998). Further, it does not appear from the record, that a writ of error coram nobis will provide petitioner the relief he seeks. See United States v. Morgan, supra.
Therefore, petitioner's motion, Doc. No. 10, is DENIED.