Carroll v. United States

Full title: CRAIG COURTNEY CARROLL, BOP Reg. # 59761-019, Movant, v. UNITED STATES OF…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Date published: Aug 9, 2019

CRIMINAL ACTION NO. 1:09-CR-245-TCB-AJB-1 (N.D. Ga. Aug. 9, 2019)

Opinion

CRIMINAL ACTION NO. 1:09-CR-245-TCB-AJB-1 CIVIL ACTION NO. 1:19-CV-3191-TCB-AJB

08-09-2019

CRAIG COURTNEY CARROLL, BOP Reg. # 59761-019, Movant, v. UNITED STATES OF AMERICA, Respondent.

ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE

PRISONER HABEAS CORPUS 28 U.S.C. § 2241

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

Movant, Craig Courtney Carroll, is confined in the United States Penitentiary in Atwater, California. Movant submitted a pro se petition for a writ of audita querela, coram nobis, mandamus, and other relief under 28 U.S.C. § 1651. [Doc. 254.]¹ Movant also submitted a motion for leave to proceed in forma pauperis, [Doc. 255], and a letter that the Clerk docketed as a "motion for release on bail," [Doc. 256], and a motion regarding bond, [Doc. 256].

1 Citations to the record in this Order and Final Report and Recommendation refer to case number 1:09-cr-245-TCB-AJB-1.

The Clerk docketed Movant's petition as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, but Movant did not characterize his petition as a § 2255 motion. Accordingly, the undersigned will consider this matter as a petition for a writ of habeas corpus under 28 U.S.C. § 2241.

The Court must conduct a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, which also applies to Section 2241 actions, as provided in Rule 1(b). Summary dismissal of a habeas petition under Rule 4 is proper when the petition and the attached exhibits plainly reveal that relief is not warranted. See McFarland v. Scott, 512 U.S. 849, 856 (1994) (stating that Rule 4 dismissal is appropriate when petition "appears legally insufficient on its face").

For the reasons discussed below, the undersigned RECOMMENDS that (1) the petition, [Doc. 254], be DISMISSED, and (2) Movant's "motion for release on bail," [Doc. 256], and motion regarding bond, [Doc. 256], be DENIED. For the purpose of dismissal only, Movant's motion for leave to proceed in forma pauperis, [Doc. 255], is GRANTED.

I. Discussion

A jury found Movant guilty of (1) interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 2 & 1951, (2) use of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. §§ 2 & 924(c)(1)(A)(ii), and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Doc. 202 at 1.] Movant was sentenced to 295 months of imprisonment, followed by five years of supervised release. [Id. at 2-3.] The United States Court of Appeals for the Eleventh Circuit affirmed. See United States v. Carroll, 450 Fed. Appx. 937 (11^th Cir. Jan. 12, 2012) (per curiam). [Doc. 225.] Movant filed a counseled § 2255 motion, but he voluntarily dismissed it after the United States Supreme Court issued a decision rejecting the argument in his § 2255 motion. [See Docs. 230, 237.]

In the present case, Movant claims that his criminal judgment "is satisfied" because "a security has been deposited upon notice to all parties." [Doc. 254 at 8-12.] However, Movant may not obtain a writ of audita querela, coram nobis, mandamus, or other relief under § 1651. The Eleventh Circuit has explained the following:

Certain common-law writs may be used to "fill the interstices of the federal post-conviction remedial framework." [United States v. Holt, 417 F.3d 1172, 1175 (11^th Cir. 2005) (internal quotation marks omitted)]. However, a "writ of audita querela may not be granted when relief is cognizable under § 2255," regardless of whether a § 2255 motion would have succeeded. Id. In addition, a writ of coram nobis is unavailable to federal prisoners. See United States v. Garcia, 181 F.3d 1274, 1274 (11^th Cir. 1999) ("Coram nobis relief is unavailable to a person . . . who is still in custody.").

United States v. Searcy, 448 Fed. Appx. 984, 985 (11^th Cir. Dec. 14, 2011) (per curiam). Section 1651 may not be used to circumvent the restriction on second or successive § 2255 motions. See Morales v. Fla. Dep't of Corr., 346 Fed. Appx. 539, 540-41 (11^th Cir. Sept. 29, 2009) (per curiam). To challenge his criminal judgment, Movant may seek authorization from the Eleventh Circuit for the District Court to consider a second or successive § 2255 motion. See 28 U.S.C. §§ 2244(b)(3)(A) & 2255(h). Movant previously filed a complaint for mandamus relief, which was dismissed as frivolous. See Order, Carroll v. United States, No. 1:19-cv-1360-TCB (N.D. Ga. May 22, 2019). Therefore, Movant is not entitled to any relief in the present case.

II. Conclusion

For the reasons stated above,

IT IS ORDERED that Movant's motion for leave to proceed in forma pauperis, [Doc. 255], is GRANTED for the purpose of dismissal only.

IT IS RECOMMENDED that Movant's (1) petition for a writ of audita querela, coram nobis, mandamus, and other relief under 28 U.S.C. § 1651, [Doc. 254], be DISMISSED,² and (2) "motion for release on bail," [Doc. 256], and motion regarding bond, [Doc. 256], be DENIED.

2 Because a federal prisoner does not require a certificate of appealability (COA) to appeal the dismissal of a § 2241 petition, the undersigned offers no COA recommendation in this matter. See Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11^th Cir. 2003). --------

The Clerk is DIRECTED to terminate the referral to the undersigned.

IT IS SO ORDERED, RECOMMENDED, AND DIRECTED, this 9^th day of August, 2019.

/s/ _________

ALAN J. BAVERMAN

UNITED STATES MAGISTRATE JUDGE