Opinion
4:16-CR-00019-CDL-MSH 4:20-CV-00054-CDL-MSH
03-11-2021
DELROY ANTHONY MCLEAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Petitioner Delroy Anthony McLean's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 97) and Respondent's motion to dismiss (ECF No. 103) the same. For the hereinbelow reasons, the Court recommends that Respondent's motion be granted and that Petitioner's motion to vacate be dismissed. Also pending is Petitioner's motion to appoint counsel (ECF No. 107). Petitioner's motion is denied.
BACKGROUND
On July 13, 2016, a federal grand jury indicted Petitioner for one count of influencing a federal official by threat in violation of 18 U.S.C. § 115(a)(1). Indictment 1, ECF No. 1. Following his arrest pursuant to this indictment, Petitioner had his initial appearance on July 27, 2016, and, through counsel, pled not guilty. Plea Sheet 1, ECF No. 6; Minute Entry 1, July 27, 2016, ECF No. 8. Petitioner proceeded to trial, which commenced on October 4, 2016. Minute Entry 1-2, ECF No. 40. After a two-day trial, the jury returned a verdict against Petitioner, finding him guilty of the only charge in the indictment. Minute Entry 1-2, ECF No. 42; Jury Verdict 1, ECF No. 43.
On October 12, 2016, Petitioner's court-appointed trial counsel filed a motion to withdraw from the representation due a conflict of interest arising from Petitioner's desire to file additional motions. Mot. to Withdraw 1, ECF No. 48. On October 13, 2016, the Court granted trial counsel's motion and appointed Petitioner new counsel on the same day. Text-only Order, Oct. 13, 2016, ECF No. 49; Order 1, ECF No. 50. Even though the Court had appointed Petitioner new counsel, Petitioner filed a pro se motion for new trial and appointed counsel (ECF No. 52), which the Court received on October 14, 2016. On February 9, 2017, Petitioner, through newly appointed counsel, filed a motion to supplement (ECF No. 61) his motion for new trial. On February 13, 2017, the Court denied, inter alia, Petitioner's motion for new trial and motion to supplement. Text-only Order, ECF No. 63.
On February 14, 2017, the Court sentenced Petitioner to 41 months imprisonment and a $100 mandatory assessment. Judgment 1-5, ECF No. 65; Sent'g Tr. 71:19-73:02, ECF No. 88. The Court specifically declined to impose a term of supervised release because Petitioner would be subject to immigration removal proceedings at the conclusion of his term of imprisonment. Sent'g Tr. 73:03-73:08. Petitioner appealed to the Court of Appeals for the Eleventh Circuit on February 16, 2017. Notice of Appeal 1, ECF No. 67. The Eleventh Circuit affirmed Petitioner's conviction and sentence and issued its Mandate on March 20, 2019. 11th Cir. Mandate 1, ECF No. 93; United States v. McLean, 891 F.3d 1308, 1309-11 (11th Cir. 2018). Petitioner appealed, and the Supreme Court denied 2 certiorari on March 25, 2019. McLean v. United States, 139 S.Ct. 1374 (Mem.) (2019). Petitioner was released from the Bureau of Prison's custody on August 2, 2019, and he is currently confined at the Immigration and Customs Enforcement Montgomery Processing Center in Conroe, Texas. Mot. to Vacate 1 (listing “Montgomery Processing Center” as current place of confinement); https://www.bop.gov/inmateloc/ (“BOP Inmate Locator”) (searched Delroy McLean) (last accessed Mar. 11, 2021) (indicating Petitioner was released on August 2, 2019). The Court received Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 97) on March 24, 2020. Respondent filed a motion to dismiss (ECF No. 103) in lieu of a response on May 14, 2020. Petitioner responded (ECF No. 105) on July 2, 2020. Petitioner's motion to vacate and Respondent's motion to dismiss are ripe for review.
DISCUSSION
Petitioner's motion to appoint counsel is denied. In his motion to vacate, Petitioner raises four grounds for relief: (1) trial counsel was ineffective in advising Petitioner not to testify, (2) trial counsel was ineffective in failing to inform Petitioner of a plea offer, (3) the evidence was insufficient to convict him of influencing a federal official by threat of violence, and (4) the Eleventh Circuit failed to appoint him counsel on appeal. Mot. to Vacate 5-8, ECF No. 97. Respondent moves to dismiss, arguing the Court lacks jurisdiction. Mot. to Dismiss 2-5, ECF No. 103. The Court agrees and recommends that Respondent's motion be granted.
I. Petitioner's Motion to Appoint Counsel
The Court received Petitioner's motion to appoint counsel (ECF No. 107) on March 9, 2021. In support of his motion, Petitioner argues that he is confined in a different state and that his place of confinement lacks a sufficient law library. Mot. to Appoint Counsel 1, ECF No. 107. Defendants are not generally entitled to appointment of counsel for collateral proceedings. See, e.g., Johnson v. Avery, 393 U.S. 483, 487 (“In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing.”). Under Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts, “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” According to that code section, a movant seeking relief under 28 U.S.C. § 2255 may be provided counsel if they are financially eligible and “the United States magistrate judge or the court determines that the interests of justice so require[.]” 18 U.S.C. § 3006A(a)(2).
Here, no evidentiary hearing is necessary, and the interests of justice do not require that Petitioner be appointed counsel. As explained below, the Court lacks jurisdiction over Petitioner's motion to vacate because Petitioner is no longer in custody pursuant to his sentence. Therefore, Petitioner's motion (ECF No. 107) is DENIED.
II. Respondent's Motion to Dismiss
Respondent moves to dismiss Petitioner's motion to vacate, arguing the Court lacks jurisdiction because Petitioner is no longer in custody pursuant to his criminal sentence. Mot. to Dismiss 2-5. The Court recommends that Respondent's motion be granted because (1) the Court lacks jurisdiction to afford Petitioner relief under 28 U.S.C. § 2255, and (2) assuming Petitioner's claims are cognizable in a petition for a writ of error coram nobis, he is not entitled to coram nobis relief.
The Court lacks jurisdiction to afford Petitioner relief under § 2255 because he is no longer “in custody” pursuant to his criminal conviction and sentence. Under 28 U.S.C. § 2255(a), in order for a petitioner to challenge a sentence imposed by a federal court, the petitioner must be “in custody under sentence of” the federal court. The in-custody requirement of the federal habeas statutes is jurisdictional. Llovera-Linares v. Florida, 559 Fed.Appx. 949, 951 (11th Cir. 2014) (per curiam) (citing Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988)). The Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citation omitted) (interpreting identical “in custody” language in 28 U.S.C. § 2241).
While a petitioner is in custody while serving a term of imprisonment, a petitioner remains in custody while serving a term of supervised release because “he [is] still subject to the restrictions on liberty that accompany a term of supervised release.” United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997); see also Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir.1995). Similarly, a petitioner who has been paroled from criminal confinement remains in custody for habeas purposes where the parole “involves significant 5 restraints on petitioner's liberty because of his conviction and sentence, which are in addition to those imposed by the State upon the public generally.” Jones v. Cunningham, 371 U.S. 236, 242 (1963).
Here, Petitioner was released from criminal confinement on August 9, 2019, and the Court did not sentence him to a period of supervised release. Judgment 1-5; Sent'g Tr. 73:03-73:08; BOP Inmate Locator (searched Delroy McLean) (last accessed Mar. 11, 2021). Petitioner, however, appears to claim that he remains in custody pursuant to his criminal conviction and sentence because he has been placed in immigration detention and because an immigration judge (“IJ”) considered the conviction in ordering Petitioner removed from the United States during his immigration proceedings. Exs. in Supp. of Mot. to Vacate 1, ECF No. 100 (citing the IJ's decision as “evidence showing [he is] still under sentence for this case”); Resp. to Mot. to Dismiss 1 (“[T]his case is the only reason I am still in prison.”). In support, Petitioner attached, inter alia, (1) his notice to appear before an IJ, charging him with removability due to his convictions for crimes involving moral turpitude in violation of 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) his removal order wherein the IJ references his conviction in this case. See Exs. in Supp. of Mot. to Vacate 1-2; Resp to Mot. to Dismiss Ex. 1, at 3-4, ECF No. 105-1; Resp. to Mot. to Dismiss Ex. 2, at 1-5, ECF No. 105-2.
Petitioner fails to show that he is still in custody pursuant to his criminal conviction and sentence. The Eleventh Circuit has held that while the commencement of removal proceedings against a petitioner and the petitioner's resulting placement in immigration detention constitute collateral consequences of a conviction, they do not show that the petitioner is in custody. Llovera-Linares, 559 Fed.Appx. at 952 (holding that an immigration detainee challenging his state-court convictions under § 2254 failed to show that he remained in custody pursuant to those convictions); United States v. Campbell, 778 F.2d 764, 767-68 (11th Cir. 1985) (“[D]eportation is a collateral consequence of a guilty plea.”), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010). Even assuming Petitioner's placement in immigration proceedings constitutes a collateral consequence flowing from his conviction and sentence, the Court still lacks jurisdiction to afford him relief under § 2255. “[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492 (1989). Here, once Petitioner was released from criminal confinement on August 2, 2019, he was no longer in custody pursuant to his criminal sentence. Because he was no longer in custody pursuant to his criminal sentence at the time he filed his motion to vacate on March 17, 2020, the collateral consequences of his criminal conviction are insufficient, alone, to sustain jurisdiction. Id. Accordingly, the Court lacks jurisdiction to afford Petitioner relief under § 2255.
Although the Court did not receive Petitioner's motion until March 24, 2020, he signed the motion on March 17, 2020. Motion to Vacate 9. “Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). “Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it.” Id.
B. Coram Nobis
Although the Court lacks jurisdiction to afford Petitioner relief under § 2255 because he is no longer in custody pursuant to his federal criminal conviction and sentence, Petitioner may be able to raise his claims through a petition for a writ of error coram nobis under 28 U.S.C. § 1651. The Court has “an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework.” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Specifically, the Eleventh Circuit has “held that pleadings erroneously styled as coram nobis petitions should be treated as § 2255 motions, and vice versa.” Brown, 117 F.3d at 475 (citations omitted). Even assuming, Petitioner's claims are cognizable in a coram nobis petition, he fails to show that he is entitled to such relief.
“Federal courts have authority to issue a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a).” United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). “A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for postconviction relief under 28 U.S.C. § 2255.” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). “The writ of error coram nobis is an extraordinary remedy of last resort available only in compelling circumstances where necessary to achieve justice.” Mills, 221 F.3d at 1203 (citation omitted). “Routine grant of coram nobis relief . . . would undermine the finality of criminal convictions, a finality achieved in most federal cases either at the time a conviction is affirmed on appeal or at the expiration of the period during which an appeal remains available.” Peter, 310 F.3d at 712.
“A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person . . . who is no longer ‘in custody' and therefore cannot seek habeas relief under 28 U.S.C. § 2255.” Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013) (citation omitted). However, “the writ is appropriate only when there is and was no other available avenue of relief[]” and “when the error involves a matter of fact of the most fundamental character which has not been put in issue or passed upon and which renders the proceeding itself irregular and invalid.” Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (citations and internal quotations omitted) (per curiam). “[C]ourts may consider coram nobis petitions only where no other remedy is available and the petitioner presents sound reasons for failing to seek relief earlier.” Mills, 221 F.3d at 1204 (citations omitted).
Petitioner is not entitled to a writ of error coram nobis because § 2255 provided him an avenue for relief, but he failed to timely seek relief under § 2255 and has not provided sound reasons for failing to do so. The Eleventh Circuit recently addressed a similar argument under analogous factual circumstances in United States v. Yadigarov, -- Fed.Appx. --, 2021 WL 71624 (11th Cir. Jan. 8, 2021) (per curiam). In Yadigarov, petitioner pled guilty to marriage fraud and conspiracy to commit marriage fraud. Yadigarov, 2021 WL 71624, at *1. Petitioner moved to withdraw his guilty plea, but the district court denied his motion and sentenced him to time served and one year supervised release. Id. Petitioner appealed his conviction and sentence, but he voluntarily dismissed his appeal. Id. At the time he dismissed his appeal, petitioner had eight months left in his term of supervised release. Id.
Four months after his term of supervised release ended, petitioner filed a petition for a writ of error coram nobis under the All Writs Act, claiming ineffective assistance of trial counsel. Id. at *2. The district court denied his petition without conducting a hearing, holding, inter alia, that petitioner could have raised his ineffective assistance claims in a § 2255 petition after he dismissed his appeal and he failed to explain why he did not pursue relief pursuant to § 2255. Id. On appeal, the Eleventh Circuit affirmed the district court's denial of the petition. Yadigarov, 2021 WL 71624, at *3-4. The Court recognized that “§ 2255 relief was unavailable when [petitioner] filed his coram nobis petition because he was no longer ‘in custody,' as is required for post-conviction relief under § 2255[, ]” but held that petitioner was not entitled to coram nobis relief because he “could have raised his ineffectiveness claim under § 2255 until October 10, 2019, when his term of supervised release ended.” Id. at *3 (citations omitted). Although petitioner could not have filed a § 2255 petition while his direct appeal remained pending, the Court emphasized that petitioner “chose to file a direct appeal rather than raise his ineffective assistance of counsel claim in a § 2255 motion[]” and did not excuse his failure to raise his claims during the pendency of his direct appeal. Id. (emphasis added). Additionally, the Court recognized that petitioner could have raised his ineffective assistance claims in a § 2255 petition during the eight-month period between the dismissal of his appeal and the end of his term of supervised release, but he failed to seek such relief. Id. Thus, petitioner was not entitled to coram nobis relief because “[t]here was an available avenue of relief for the claim [petitioner sought] to vindicate; he simply failed to pursue it.” Id.
Here, as explained above, Petitioner's § 2255 petition was untimely when he filed it on March 17, 2020, because he was no longer “in custody” pursuant to his criminal sentence. BOP Inmate Locator (searched Delroy McLean) (last accessed Mar. 11, 2021) (indicating Petitioner was released on August 2, 2019). Like in Yadigarov, however, Petitioner could have timely raised his claims in a § 2255 petition during the approximately four-month period between the Supreme Court's denial of certiorari in his direct appeal on March 25, 2019, and his release from criminal custody on August 2, 2019. Yadigarov, 2021 WL 71624, at *3. He does not explain why he failed to raise his claims in a § 2255 petition during this period. Moreover, although Petitioner filed his § 2255 petition within the one-year limitations period for doing so, this fact “is inapposite, as it still does not explain why he failed to seek relief under § 2255 when such relief was available[]” between March and August 2019. Yadigarov, 2021 WL 71624, at *3; see also 28 U.S.C. § 2255(f) (providing that a § 2255 petitioner must file his petition, inter alia, within one year of the date on which the conviction became final); Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir. 2001) (per curiam) (holding that a conviction becomes final when “when the Supreme Court either denies certiorari or issues a decision on the merits”).
While Petitioner had only four months to file a § 2255 petition compared to the eight-month period available in Yadigarov, his ability to pursue those claims during this four-month period still shows he is not entitled to a writ of error coram nobis under the All Writs Act because “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Pa. Bureau 11 of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985); see also Carlisle v. United States, 517 U.S. 416, 429 (1996). Additionally, unlike the petitioner in Yadigarov, Petitioner pursued a direct appeal, and the Eleventh Circuit ruled on the merits of his direct appeal. Thus, he also could have raised the grounds described in his § 2255 petition on direct appeal. See, e.g., Spellissy v. United States, No. 8:10-CV-661-T-27TBM, 2010 WL 3937381, at *5 (M.D. Fla. Oct. 6, 2010) (“[H]aving had the opportunity to challenge the sufficiency of the evidence [on direct appeal], [petitioner] may not relitigate the issue again in this coram nobis petition.”).
Although a writ of error coram nobis permits a petitioner to pursue extraordinary relief in narrow circumstances, “it does not provide a petitioner an opportunity to assert claims he neglected to bring in previously available proceedings.” Yadigarov, 2021 WL 71624, at *4 (citing Alikhani, 200 F.3d at 734(“[T]he writ is appropriate only when there is and was no other available avenue of relief.” (emphasis added)); see also Brown, 117 F.3d at 475 (“If [petitioner] was ‘in custody' within the meaning of § 2255 when he filed his appeal, then the statutory remedies of that provision were available to him, and coram nobis relief was unavailable as a matter of law.”). Therefore, even assuming Petitioner's claims are cognizable in a petition for a writ of error coram nobis, he is not entitled to such relief. The Court RECOMMENDS that Respondent's motion to dismiss be GRANTED and that Petitioner's motion to vacate-even if liberally construed as a petition for a writ of error coram nobis-be dismissed.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, the Court recommends that Respondent's motion to dismiss (ECF No. 103) be granted and that Petitioner's motion to vacate (ECF No. 97) be dismissed. Petitioner's motion to appoint counsel (ECF No. 107) is denied. Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Petitioner is hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED, this 11th day of March, 2021.