Opinion
CASE NO. 20-23226-CV-WILLIAMS 18-20588-CR-WILLIAMS
09-04-2020
RANDY RAYSHON WHITEHEAD, Movant, v. UNITED STATES OF AMERICA, Respondent.
cc: Randy Rayshon Whitehead 18901-104 Pensacola FPC Federal Prison Camp Inmate Mail/Parcels Post Office Box 3949 Pensacola, FL 32516 PRO SE Daniel Marcet US Attorney's Office HIDTA 11200 N.W. 20th Street Miami, FL 33172 305-715-7642 Fax: 305-715-7639 Email: Daniel.Marcet@usdoj.gov Noticing 2255 US Attorney Email: usafls-2255@usdoj.gov
REPORT OF MAGISTRATE JUDGE
Movant has filed a "motion for writ of error coram nobis ('motion')." [Cv-ECF No. 1 at 1]. In January 2019, movant was sentenced to 148 months' imprisonment following pleading guilty to one count of possession of a firearm in furtherance of a drug trafficking offense. [Cr-ECF No. 56 at 1-2]. Movant is still incarcerated. [Cv-ECF No. 1 at 13-14].
All page citations to ECF entries refer to ECF entries refer to the page-stamp number at the top, right-hand corner of the page. --------
In this motion, movant appears to allege that the government lacked "standing" and jurisdiction to prosecute him because it failed to demonstrate that his possession of a handgun injured the United States and his crime was "victimless," and because the state of Florida "commenced actions against" him in connection with the same conduct. See [id. at 3-11]. He seeks the invalidation of his conviction and immediate release from BOP custody. [Id. at 13].
"A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255." Pena v. United States, 812 F. App'x 976 (11th Cir. 2020) (Mem) (per curiam) (citation omitted). "[E]rrors the petitioner could have raised earlier—but failed to—do not warrant coram nobis relief." United States v. Marchesseault, 692 F. App'x 601, 603 (11th Cir. 2017) (per curiam) (citation omitted).
Here, because petitioner is in custody, a writ of error coram nobis is unavailable to him. Also, he could have raised his claims in his criminal case. Although he raises a claim of "jurisdictional error [,]" id. (citation omitted), the claim is not "genuine," Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000); see also United States v. Lanza, 260 U.S. 377, 382 (1922) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."); United States v. Grimon, 923 F.3d 1302, 1305 (11th Cir. 2019) ("[I]f an indictment itself alleges a violation of a valid federal statute, the district court has subject matter jurisdiction of that case.").
Accordingly, it is recommended that the motion for writ of error coram nobis [Cv-ECF 1] be DISMISSED without prejudice as improperly filed and that this case be CLOSED.
Objections to this report may be filed with the district judge within fourteen days of receipt of a copy of the report. Failure to file timely objections shall bar movant from a de novo determination by the district judge of an issue covered in this report and shall bar the parties from attacking on appeal factual findings accepted or adopted by the district judge except upon grounds of plain error or manifest injustice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Resolution Tr. Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (citations omitted).
SIGNED this 4th day of September, 2020.
/s/_________
UNITED STATES MAGISTRATE JUDGE cc: Randy Rayshon Whitehead
18901-104
Pensacola FPC
Federal Prison Camp
Inmate Mail/Parcels
Post Office Box 3949
Pensacola, FL 32516
PRO SE
Daniel Marcet
US Attorney's Office
HIDTA
11200 N.W. 20th Street
Miami, FL 33172
305-715-7642
Fax: 305-715-7639
Email: Daniel.Marcet@usdoj.gov
Noticing 2255 US Attorney
Email: usafls-2255@usdoj.gov