Opinion
No. 94-2577-Ml/A
March 29, 2001
ORDER DENYING PETITIONER'S MOTION FOR A STAY OF EXECUTION AND DENYING A WRIT OF ERROR CORAM NOBIS
Petitioner, Philip R. Workman, is confined as an inmate on death row at the Riverbend Maximum Security Facility in Nashville, Tennessee. His execution is scheduled for 1:00 a.m. on Friday, March 30, 2001.
On March 28, 2001, less than forty-eight hours prior to Petitioner's scheduled execution, Petitioner filed in this Court a Petition for Writ of Error Coram Nobis, accompanied by a motion for stay of execution. Petitioner withdrew that Petition and the accompanying motions that same afternoon. Now, approximately fourteen hours prior, to Petitioner's execution, Petitioner has refiled these motions.
In his current application, Petitioner alleges that "material facts were hidden from this" Court by the State, warranting the issuance of a writ of error coram nobis. In particular, Petitioner alleges that (1) the only eyewitness to the murder, Harold Davis, committed perjury during Petitioner's criminal trial; (2) the State failed to produce a purportedly exculpatory post-mortem x-ray of Lieutenant Oliver's chest; and (3) after obtaining the x-ray in 2000, Petitioner obtained an expert opinion that tends to undermine the Sixth Circuit's conclusion in Workman v. Bell, 178 F.Sd 759 (6th Cir. 1998) ("Workman I"), cert. denied, 528 U.S. 913 (1999), that the bullet that killed the victim came front Petitioner's gun.
For the reasons set forth in this Order, Petitioner's motions for a stay of execution and for a writ of error coram nobis are DENIED.
A. Procedural Background
The facts surrounding Petitioner's conviction and the procedural history in state court are set forth in the various other opinions already written in this matter and will not be recounted here. Suffice it to say that Petitioner commenced this action seeking a writ of habeas corpus on July 18, 1994. On October 29, 1996, this Court, the Honorable Julia Smith Gibbons, entered an order granting Respondent's motion for summary judgment on all claims. A final judgment denying relief to the Petitioner was entered November 14, 1996. The Sixth Circuit affirmed inWorkman I.
Thereafter, Petitioner filed an application with the Sixth Circuit seeking to reopen this matter on the grounds of (1) fraud upon the court and (2) newly discovered evidence that may cast doubt upon the validity of his murder conviction. That petition was denied by an equally divided Sixth Circuit sitting en banc. Workman v. Bell, 227 F.3d 331 (6th Cir. 2000) ("Workman II"), cert. denied, 121 S.Ct. 1194 (2001). The factual basis for. the Petitioner's motions in Workman II were identical to those made in the current application to this Court.
Earlier, Petitioner filed with the Sixth Circuit a motion for leave to file a second habeas corpus petition and a motion seeking a declaration that 28 U.S.C. § 2244 does not apply to specified claims. Those motions were denied by a Sixth Circuit panel in an unpublished order. See Workman II, 227 F.3d at 338 (opinion of Siler, J.).
Earlier this month, Petitioner filed a motion with the Sixth Circuit, pursuant to the All Writs Act, codified at 28 U.S.C. § 1651 (1994), Federal Rules of Civil Procedure 53(c) and 60(b)(6), and the court's inherent power to protect the integrity of the judicial process, asking to reopen the case and to appoint a special master because of alleged irregularities in the clemency proceedings. That motion was denied by a panel of the Sixth Circuit. Workman v. Bell, Nos. 96-6652, 00-5367 (6th Cir. Mar. 23, 2001) ("Workman III").
B. This Court Is Barred from Hearing Petitioner's Motion
Petitioner does not cite any authority for the proposition that a district court has the power, under the All Writs Act or otherwise, to reopen a case after a final judgment has been entered, the Court of Appeals has issued its decision, certiorari has been denied, and the mandate has issued. Moreover, this Court does not perceive any basis on which it could undertake to vacate its final judgment and grant Petitioner an evidentiary hearing when the effect of the Sixth Circuit's opinions in Workman II was to deny Petitioner's request to remand the case for an evidentiary hearing.
1. This Court Cannot Entertain a Second or Successive Habeas Petition
If Petitioner's motion constitutes a petition for habeas corpus, this Court cannot consider it. The statute provides:
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.28 U.S.C. § 2244(b)(3)(A). Unquestionably, Petitioner has not obtained an order from the Sixth Circuit authorizing this Court to consider his application. Indeed, Petitioner's unsuccessful efforts to obtain such an order were the subject of the opinions in Workman II.
The seven members of the Sixth Circuit Court of Appeals who voted against the motion to reopen clearly viewed Petitioner's request as an effort to circumvent the rules against second and successive habeas petitions contained in 28 U.S.C. § 2244(b)(2). That opinion explained that "[t]his is a second or successive petition that has already been denied by the original panel." Workman II, 227 F.3d at 341; see also id. at 342 (Petitioner's request for an evidentiary hearing "is a claim under 28 U.S.C. § 2244 (b)(2)(B)").
The facts that (1) a Sixth Circuit panel denied Petitioner leave to file a second habeas petition and (2) seven members of the Sixth Circuit viewed what is apparently an identical application by Petitioner as a second or successive habeas petition, are critical. As the Sixth Circuit has held, "[u]nder the law of the case doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court in the same case." Bowling v. Pfizer, Inc., 132 F.3d 1147, 1150 (6th Cir. 1998) (quoting Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 (6th Cir. 1996)). Regardless of whether this Court looks to the panel decision denying leave to file a second habeas petition or the en banc opinions on the motion to reopen, the result is the same: the Sixth Circuit has decided that this Court may not consider Petitioner's new evidence. In the face of that decision, this Court may not issue a stay of execution or grant a writ of error coram nobis.
Moreover, the Sixth Circuit's mandate has issued in this case and this Court is foreclosed from revisiting issues that the appellate court decided. Youghiogheny Ohio Coal Co. v. Milliken, 200 F.3d 942, 950 (6th Cir. 1999).
2. This Court cannot issue a Writ of Error Coram Nobis
In the present petition, Petitioner seeks a writ of coram nobis as to his original habeas corpus petition filed with this Court and ruled upon by Judge Gibbons. The writ of coram nobis has been expressly abolished in federal civil cases by Federal Rule of Civil Procedure 60(b), but retained in criminal cases pursuant to the All Writs Act, codified at 28 U.S.C. § 1651 (1994). This petition arises in a civil setting and a writ of error coram nobis is not allowed by Rule 60(b).
The writ of error coram nobis is an extraordinary remedy developing from English common law. United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). The writ is designed to correct fundamental errors of fact not in the record which, if known, would have precluded the court from entering its particular judgment. Id.
Petitioner argues that the abolition of the writ of coram nobis in Rule 60(b) is not applicable here because the Rules Governing Section 2254 Cases apply in lieu of the Federal Rules of Civil Procedure. However, Rule 11 of the Rules Governing Section 2254 Cases states that "the Federal Rules of Civil procedure, to the extent that they are not inconsistent with these rules, may be applied, where appropriate, to petitions filed under these rules." since there is no inconsistency among the Rules Governing Section 2254 Cases and Rule 60(b), Rule 60(b) applies.
Furthermore, as the Sixth Circuit Court of Appeals has stated,
writs in the nature of coram nobis are limited to former prisoners who seek to escape the collateral civil consequences of wrongful conviction. . . . Persons still in custody must look to [28 U.S.C.] § 2254 or § 2255 for relief; they cannot use § 1615(a) to escape statutory restrictions on those remedies.Owens v. Bovd, 235 F.3d 356 (6th Cir. 2001, as amended Jan. 22, 2001) (emphasis in original; internal citations omitted); see also United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001) ("a prisoner in custody is barred from seeking a writ of coram nobis"). Because Petitioner remains in custody at this time, a writ of coram nobis is fundamentally inappropriate and the Court may offer no relief through such a writ.
3. Federal Rule of Civil Procedure 60(b) is inapplicable
To the extent that this motion could be construed as a motion under Rule 60(b), such a motion is not well-taken. As the Sixth Circuit held inWorkman II, a post-judgment motion under Rule 60(b) is a second or successive application for habeas corpus relief pursuant to § 2244(b). Workman II, 227, F.3d at 339. As discussed above, Petitioner's request, though labeled as an attempt to correct an error before this Court, actually constitutes a successive petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 and can only be appropriately addressed to the Court of Appeals.
Conclusion
Petitioner' s motions for a stay of execution and for a writ of error coram nobis are DENTED.
IT IS SO ORDERED this 29th day of March, 2001.