Opinion
Civil Action 1:23-CV-332
11-30-2023
FREDDIE M. PICKETT v. DIRECTOR, TDCJ-CID
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Freddie M. Pickett, a prisoner currently confined at the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this petition for writ of coram nobis pursuant to 28 U.S.C. § 1651.
The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background
On February 23, 1995, Petitioner was placed on deferred adjudication probation for five years for assault. Petitioner claims the prosecutor changed the offense to aggravated assault at some point. Petitioner states that he finally discharged the sentence on April 4, 2003, but the prior conviction for aggravated assault is allegedly causing the parole board to deny Petitioner release on parole for a different conviction and sentence. Petitioner seeks an order modifying the judgment to reflect that the offense was assault, not aggravated assault.
Analysis
A writ of coram nobis is available as an avenue of collateral attack when the petitioner has completed his sentence and is no longer in custody pursuant to the conviction. United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998). Coram nobis is an extraordinary remedy available in some circumstances to a petitioner who suffers civil disabilities as a consequence of the conviction, and the alleged error is of sufficient magnitude to justify relief. United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004). However, coram nobis is not an available remedy to attack a state criminal judgment in federal court. Back v. Amarillo Police Dept., 673 Fed.Appx. 458, 458 (5th Cir. 2017). As a result, Petitioner is not entitled to the relief he seeks.
Recommendation
This petition for writ of coram nobis should be denied.
Objections
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. '1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.