Opinion
Criminal Case No. 13-cr-00286-PAB
01-21-2021
UNITED STATES OF AMERICA, Plaintiff, v. BEN CHRISTOPHER WATTS, III, Defendant.
ORDER
This matter is before the Court on defendant Ben Watts' Writ of Error Coram Nobis and Writ of Audita Querela [Docket No. 49]. The government has filed a response opposing the motion. Docket No. 51.
On September 12, 2013, Mr. Watts pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Docket No. 28. The Court sentenced Mr. Watts to 70 months imprisonment and three years of supervised release. See Docket No. 47 at 1-3. On February 21, 2018, four years after sentencing, Mr. Watts filed the present Writ of Coram Nobis and Audita Querela. See Docket No. 49. He argues that his three-year term of supervised release violates his due process rights. See id. at 1.
The Court finds that Mr. Watts may not bring either a Writ of Coram Nobis or Audita Querela. "[A] prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis." See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (citations omitted). Additionally, the writ of Audita Querela is "not available to a petitioner when other remedies exist, such as a motion to vacate a sentence under 28 U.S.C. § 2255." Id. (citations omitted). Although Mr. Watts was incarcerated at the time he filed his motion, he is currently on supervised release. Supervised release is considered custody. See United States v. Estrada, 580 F. App'x 672, 673 (10th Cir. 2014) (unpublished) ("[A] movant serving a term of supervised release remains 'in custody' for purposes of § 2255 and cannot file a coram nobis proceeding." (citation omitted)). As a result, Mr. Watts may not seek relief through either of the writs requested.
"But even if [a] [d]efendant's incarceration on the challenged conviction is not an absolute bar to relief . . . he is not entitled to such relief unless relief under 28 U.S.C. § 2255 was unavailable or would have been inadequate." United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011); see also id. at 1112-13 (noting that "relief is only available if the petitioner no longer satisfies the custody requirement for seeking relief under" § 2255). Mr. Watts makes no argument that relief under § 2255 is unavailable. Nor could he. That section is available for "[a] prisoner in custody under sentence of a court established by Act of Congress." See 28 U.S.C. § 2255. At the time of his motion, Mr. Watts was incarcerated and currently is on supervised release, making him "in custody" for purposes of § 2255. See Estrada, 580 F. App'x at 673. Moreover, the fact that a § 2255 motion may be time barred is not grounds for unavailability or inadequacy. See Payne, 644 F.3d at 1113 ("It is irrelevant that a § 2255 motion would have been untimely by the time he filed his petition for a writ of coram nobis." (citations omitted)). As a result, even if Mr. Watts' being in custody did not prevent him from seeking relief under either writ, the availability of a § 2255 claim would.
Mr. Watts also filed a Motion for Default Judgment [Docket No. 52], wherein he argues that, because the government failed to respond to his claims for relief under the writs, the Court should grant that motion. See Docket No. 52. However, the government did respond, see Docket No. 51, and, in any event, Mr. Watts does not explain how a lack of response from the government would entitle him to relief.
Wherefore, it is
ORDERED that the motion for Writ of Error Coram Nobis and Writ of Audita Querela [Docket No. 49] is DENIED. It is further
ORDERED that defendant's Motion for Default Judgment [Docket No. 52] is DENIED.
DATED January 21, 2021.
BY THE COURT:
/s/_________
PHILIP A. BRIMMER
Chief United States District Judge