Gibbons v. State of Texas

Full title: ROMAN SHEA GIBBONS, Petitioner, v. THE STATE OF TEXAS, Respondent

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Jul 19, 2004

3:04-CV-1156-L (N.D. Tex. Jul. 19, 2004)

Opinion

3:04-CV-1156-L.

July 19, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS :

This is a petition for writ of error coram nobis filed pursuant to the All Writs Act, 28 U.S.C. § 1651. Petitioner is serving a ten-year term of probation imposed pursuant to his conviction for the offense of engaging in organized criminal activity. State v. Gibbons, 21776-CR, 40^th District Court of Ellis County, Texas. He seeks to challenge his conviction and claims that the State trial court has refused to enter a final judgment on his state habeas application thereby denying him the right to appeal the adverse determination. Gibbons asks this Court to "direct the [State] trial court to enter a final judgment . . . so that Petitioner can appeal the denial of relief to the appropriate court of appeals." Petition at p. 6.

In the context of a criminal case, the writ of error coram nobis is an extraordinary remedy available only to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where he can demonstrate (1) civil disabilities resulting from the criminal conviction, and (2) that the challenged error has resulted in a complete miscarriage of justice. Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996) (citing United States v. Castro, 26 F.3d 557 (5th Cir. 1994)). The writ of error coram nobis was abolished by Federal Rule of Civil Procedure 60(b). However, despite the language of the civil rule, the writ remains available to former criminal defendants. The purpose of the writ of error coram nobis in a criminal case is to correct errors of fact which, if known at the time of the conviction, would have prevented entry of the judgment in question. Therefore, the petition should be directed to the court that rendered the judgment. See United States v. Morgan, 346 U.S. 502, 506 n. 4 (1954) (noting that a request for coram nobis relief "is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding."); see also Morgan, 346 U.S. at 508 n. 9 (noting that "upon a judgment in the King's Bench, if there be error in the process, or through the default of the clerks, it may be reversed in the same court, by writ of error coram nobis.") (emphasis added). "It is well settled that the writ of error coram nobis is not available in federal court to attack state criminal judgments." Sinclair v. State of Louisiana, 679 F.2d 513, 514 (5th Cir. 1982). "A writ of error coram nobis can only issue to aid the jurisdiction of the court in which the conviction was had." Id. Therefore, this Court lacks jurisdiction to consider the instant petition.

To the extent that Petitioner seeks mandamus-type relief, this Court is without authority to act.

The Mandamus Act, 28 U.S.C. § 1361, vests the district court with original jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992); 28 U.S.C. § 1361. Mandamus is an extraordinary form of relief which the court may grant only when the petitioner is able to establish that: 1) he is clearly entitled to the relief requested; 2) the respondent has a clear duty to act, and; 3) no other adequate remedy is available. Herbert v. Exxon Corp., 953 F.2d 936, 938-39 (5th Cir. 1992); In re Sessions, 672 F.2d 564, 566 (5th Cir. 1982). While this Court has statutory mandamus authority with respect to officers and employees of the United States, the Court lacks the general power to issue writs of mandamus directing state courts and their judicial officers in the performance of their duties. Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973). Therefore, this Court lacks the authority to order the state court to enter judgment.

RECOMMENDATION :

For the foregoing reasons, the undersigned Magistrate Judge recommends that the petition for writ of error coram nobis be dismissed for lack of subject matter jurisdiction.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).