Opinion
Criminal Action No. 93-55, Section "A"
May 5, 2000
ORDER AND REASONS
Before the Court is the defendant Michael Nelson's pro se "Writ of Error Coram Nobis." The threshold inquiry is whether a Writ of Error Coram Nobis lies and/or more to the point — whether this is a patent effort to invoke the ancient writ as a substitute for a third and successive Section 2255 petition which relief Nelson admits presents some substantial hurdles for him.
See, Nelson's Writ of Error Coram Nobis, at p. 1 (stating that "relief under Section 2255 is not available . . . .").
The docket sheet together with petitioner's affidavit executed in custody at Beaumont FCI answers the first question in the negative. The teaching of the Fifth Circuit which is in line with rest of the circuits compels the conclusion that petitioner can derive no comfort from the Writ of Error Coram Nobis. The Writ is inappropriately invoked here since a prerequisite for its use is that the defendant must have completely served his sentence. Applicable law is uniformly to the effect that the writ is available to attack allegedly invalid convictions which have continuing consequences, when the petitioner has served his sentence and is no longer "in custody" for purposes of 28 U.S.C. § 2255 .
Correa-Negron v. United States, 473 F.2d 684 (5th Cir. 1973),cert. denied, 94 S.Ct. 89 (1973) (Coram nobis normally lies only when the petitioner is no longer in federal custody). The Fifth Circuit explained that where a petitioner is still in federal custody, relief from a prior invalid conviction must be sought by means of § 2255, for coram nobis survives only to the extent it has not been replaced by statute. Id. at 685.
See, United States v. Woods, 986 F.2d 669, 676 (3rd Cir. 1993),cert. denied 114 S.Ct. 90 (1993); United States v. Travers, 514 F.2d 1171, 1172 (2nd Cir. 1974) (Friendly, J.) (citing United States v. Morgan, 74 S.Ct. 247, 249 (1954) as establishing that Writ of Coram Nobis will lie with respect to a felony conviction when the sentence has been fully served).
The Supreme Court in Carlisle v. United States, 116 S.Ct 1460 (1996) commented as follows:
[A] writ of coram nobis . . . was traditionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died before the verdict. . . . Moreover, "[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 the 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."116 S.Ct. at 1467-68.
Section 2255 permits a prisoner in custody to move the sentencing court to vacate, set aside or correct a sentence subject to collateral attack. That is precisely what the petitioner Nelson moves the Court to do here. The writ of coram nobis is, therefore, — neither necessary nor appropriate.
It is apparent from yet another review of the docket sheet and the record in this matter that petitioner's choice of the coram nobis may be prompted by the need to avoid the limitation of the Antiterrorism and Effective Death Penalty Act (AEDPA). This would constitute Nelson's third and successive habeas application to this Court and thus, again require permission of the Fifth Circuit to proceed with any such successive application. Also, there is the matter of the AEDPA's time-bar and exceptions which must be met — all of which Nelson is well-aware.
On April 12, 1994, the defendant was found guilty by a jury of Counts One, Two and Three of Superseding Indictment charging him with: (1) conspiracy to possess with the intent to distribute more than 50 grams of cocaine base; (2) distribution of a quantity of cocaine base on November 6, 1992; and (3) distribution of a quantity of cocaine base on November 10, 1992. Pursuant to a lengthy sentencing hearing on January 24, 1995, the Court sentenced the defendant Nelson to 235 months in custody of the United States Bureau of Prisons. See Judgment and Commitment Order, entered January 24, 1995 [Rec.Doc. No. 139]
From the time of his indictment on February 11, 1993 until his sentencing on January 24, 1995, Nelson retained and/or was appointed at least seven attorneys including Lawrence Blake Jones, Frank DeSalvo, Herb Larson, John Craft, John Mulvehill, Gerry Degan, and Mark McTernan. The last four were court-appointed, and all dismissed at the defendant's request. The defendant's sentencing was continued at least seven times, and each time at the request of the defense. The Court resolved three defense motions for new trial, one on December 16, 1994 [Rec.Doc. Nos. 122 123], the second on January 24, 1995 [Rec.Doc. Nos. 137 138], and the third order denying a defense motion for new trial was entered March 22, 1995 [Rec.Doc. No. 147]
On February 6, 1995, Notice of Appeal was filed on behalf of Michael Nelson. Prior to the resolution of his appeal, on May 3, 1995 Nelson filed his first Section 2255 application [Rec.Doc. No. 160], which was dismissed without prejudice to refile upon the conclusion of his appeal in the Fifth Circuit. [Rec.Doc. No. 161] Thereafter, on April 21, 1997 Nelson again filed a motion to vacate pursuant to Section 2255. [Rec.Doc. No. 179]. On July 23 and 24, 1997, this Court's written reasons and judgment issued denying relief and dismissing Nelson's second 2255 application. [Rec.Doc. Nos. 188 and 189]. On February 11, 1998, Nelson's request for a Certificate of Appealability was denied. [Rec.Doc. No. 194]
On April 30, 1999 Nelson's third Motion to Vacate pursuant to Section 2255 was filed. [Rec.Doc. No. 198]. This Court construed same as a motion for authorization to consider successive claims, and transferred the motion to the Fifth Circuit Court of Appeals to determine if the defendant has made the requisite showing. [Rec.Doc. No. 199]
On June 21, 1999, the Fifth Circuit Court of Appeals granted permission to the defendant, Michael Nelson ("Nelson"), to file a successive Section 2255 motion to vacate, set aside, or correct his sentence. [Rec.Doc. No. 201]. Limited permission was granted to address the defendant's arguments regarding the effects of the one page photocopy allegedly from the Baton Rouge crime lab [Defendant's Exhibit "II"] and the recent state court judgment consolidating Nelson's state convictions nunc pro tunc [Defendant's Exhibit "I"]. Pursuant to this Court's minute order [Rec.Doc. No. 202] the Government filed written opposition. On April 17, 1999, petitioner's second request for habeas relief was denied and his application was dismissed with prejudice. [Rec.Doc. Nos. 207 and 208]. Both this Court and the Fifth Circuit denied petitioner a certificate of appealability with respect to the denial of his second habeas petition. [Rec.Doc. Nos. 213 and 217]. Prior to the denying Nelson's requests for COA's, petitioner further filed a request with the Fifth Circuit to include a third claim with his second 2255 application which was denied. [Rec.Doc. No. 210]. Then invoking Rule 59(e) of the Federal Rules of Civil Procedure, petitioner again sought relief from his conviction. On September 3, 1999, this Court denied petitioner FRCP Rule 59(e) motion. Now, after the usual eight to nine month gestational period, petitioner seeks to employ the ancient "Writ of Error Coram Nobis." [Rec.Doc. No. 218].
This Court will not construe petitioner's pro se petition for writ of error coram nobis as a motion for authorization to consider successive claims, and thus, it will not be transferred to the Fifth Circuit Court of Appeals to determine if the petitioner has made the requisite showing. Nelson has stated in no uncertain terms that this is not a Section 2255 application having noted without explanation Section 2255 relief is not available to him.
Accordingly, and for all of the above and foregoing reasons
IT IS ORDERED, that Nelson's petitioner for writ of error coram nobis is DENIED.