Opinion
No. 3:03-CV-0794-G
February 20, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for writ of error coram nobis filed by a federal prisoner.
B. Parties: Petitioner, an inmate in a federal prison camp in Georgia, names the United States of America as respondent.
C. Procedural History: On April 16, 2003, the Court received the instant petition for writ of error coram nobis. Petitioner seeks a "rehearing" of his conviction for bank fraud in No. 3:96-CR-371-G. (Writ of Error Coram Nobis at 1.) He claims that "his current sentence was enhanced" due to that conviction and should be "overturned on a jurisdictional issue." ( Id.) He asserts that proof of FDIC insurance is an essential, jurisdictional element of bank fraud, and that the government did not prove that element. ( Id. at 2.) No process has been issued in this case. D. Prior Actions Relating to Bank Fraud Conviction: The instant action is not petitioner's first attempt to overturn his conviction in No. 3:96-CR-3 71-G. In fact, it is his fifth attempt. He has filed three motions to vacate under 28 U.S.C. § 2255 to challenge the conviction. See Anthony v. United States, 3:97-CV-2426-G (N.D. Tex.); Anthony v. United States, 3:01-CV-0507-G (N.D. Tex.); Anthony v. United States, 3:01-CV-1108-G (N.D. Tex.). The first motion was denied because his plea of guilty waived the claims sought to be asserted while the latter two actions were dismissed as successive motions. Petitioner has also filed a petition for writ of habeas corpus under 28 U.S.C. § 2241; this Court transferred the petition to the Northern District of Georgia, the district of his incarceration. See Anthony v. Atlanta Fed. Penitentiary Camp, 3:01-CV-1109-D (N.D. Tex.).
II. CORAM NOBIS
The instant challenge to No. 3:96-CR-371-G is before the Court on petitioner's writ of error coram nobis. Pursuant to the All Writs Act, 28 U.S.C. § 1651 (a), an individual may file such a writ in the court in which he was convicted. See United States v. Morgan, 346 U.S. 502, 504 (1954); United States v. Dyer, 136 F.3d 417.422 (5th Cir. 1998). The Fifth Circuit Court of Appeals recently reaffirmed the continued viability of such a writ. See United States v. Esogbue, ___ F.3d ___, ___, No. 03-20354, 2004 WL 73353, at *3 (5th Cir. Jan. 16, 2004). Despite its continued viability, the writ is proper only in very limited circumstances. Id. at *2-3.
Section 1651(a) provides that" [t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
The writ "is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate his criminal conviction." United States v. Hatten, 167 F.3d 884, 887 n. 6 (5th Cir. 1999). The petitioner must "demonstrate that he is suffering from civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify extraordinary relief." United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) (quoting United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989)); accord, Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996). The writ will issue only when there is no other available remedy and when "sound reasons exist for failure to seek appropriate earlier relief." Morgan, 346 U.S. at 512. Additionally, the petitioner bears the considerable burden of overcoming the presumption that previous judicial proceedings were correct. Id. The writ "will issue only to correct errors resulting in a complete miscarriage of justice." Esogbue, 2004 WL 73353, at *3; accord, Castro, 26 F.3d at 559. The Supreme Court has further stated that
"[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." As we noted a few years after enactment of the Federal Rules of Criminal Procedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate."Carlisle v. United States, 517 U.S. 416, 429 (1996) (citations omitted).
Because petitioner filed his petition in the court of his conviction, he faces the collateral consequence of an enhanced current sentence, and he is no longer serving the sentence imposed in No. 3:96-CR-371-G, the Court has jurisdiction over the instant writ of error coram nobis. See Esogbue, 2004 WL 73353, at *2. Nevertheless, the writ should not issue solely on the information provided to the Court by petitioner. If he has previously pursued the claim asserted in the instant action, he cannot again pursue such claim through the extraordinary writ of coram nobis. The writ does not permit a petitioner to revisit claims previously unsuccessfully raised while the petitioner was in custody on the challenged conviction. See Esogbue, 2004 WL 73353, at *3.
Even if petitioner raises the instant claim for the first time in the present action, the writ should still not issue because petitioner has provided no sound reasons why he failed to seek appropriate earlier relief. He had four previous opportunities to raise his claim regarding the FDIC insurance element. He provides no reason for his failure to raise the claim in his earlier collateral attacks to his conviction while he was still in custody on that conviction. Furthermore, he has not overcome the presumption that his previous judicial proceedings were correct. Finally, he has not made the requisite showing of a "complete miscarriage of justice." A petitioner does not make such a showing by asserting claims that could have reasonably been raised in a previous collateral attack. See id. at *3. Under the information provided in this action, there is no apparent reason why petitioner could not have previously raised the instant challenge to petitioner's bank fraud conviction.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of error coram nobis be DENIED.