United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT are Defendant's Petition for Writ of Coram
Nobis (Dkt.234), and the Government's Response (Dkt.
239). Upon consideration, the Petition is DENIED.
was charged in a Superseding Indictment with maintaining a
place for the purpose of manufacturing and distributing
marijuana (Count One), possession with intent to distribute
marijuana (Count Two), felon in possession of a firearm
(Count Three) and possession of equipment, product, and
material used to manufacture marijuana (Count Four) (Dkt.
16). After a jury trial, he was convicted on all counts. On
May 27, 1998, he was sentenced as a career offender to 240
months on Counts One and Two, 120 months on Count Three, and
48 months on Count Four, concurrent, and to terms of
supervised release on each count, concurrent, totaling 4
years (Dkt. 103). His convictions and sentences were
affirmed (Dkt, 148).Hill v. United States,
193 F.3d 522 (11th Cir.), cert, denied,
120 S.Ct. 1206 (2000).
sought collateral relief under 28 U.S.C. § 2255 (Dkt
160; Case No. 8:00-cv-02416-HLA, Dkt. 1). His § 2255
motion was denied (Dkt. 182); (Case No. 8:00-cv-02416-HLA,
Dkt. 4). He voluntarily dismissed his appeal from that denial
(Dkt. 192). His subsequent Motion for Relief From Judgment
Pursuant to Fed.R.Civ.P. 60(b) (Dkt. 193) was denied as a
second or successive § 2255 motion (Dkt. 195), and his
appeal from that denial was dismissed (Dkt. 204).
then filed a "Civil Rule 60(b)(5-6) Motion for Relief of
March 20, 2003 Judgment Denying 2255 Motion" (Dkt. 206),
which was likewise dismissed as a second or successive §
2255 motion (Dkt. 216). He then filed a "Motion
Requesting Judicial Recommendation That Appellate Court
Recall the Mandate" (Dkt. 217), which was denied (Dkt.
224). His application to file a second or successive motion
under § 2255 based on Johnson v. United States,
135 S.Ct. 2551 (2015) was denied by the Eleventh Circuit
(Case No. 8:00-cv-02416-HLA, Dkt. 9).
then attempted to file a second appeal from his original
judgment (Dkt. 230). His Motion to Proceed In Forma Pauperis
was denied, as his attempt to file a second appeal was
frivolous (Dkt. 233). The Eleventh Circuit dismissed his
appeal as duplicative of his first appeal (Dkt. 237). The
instant Petition for Writ of Coram Nobis followed (Dkt. 234).
underlying contention is that he was erroneously sentenced as
a career offender based on his 1987 conviction for carrying a
concealed weapon, since a concealed weapon conviction is no
longer a crime of violence for career offender purposes.
United States v. Archer, 531 F.3d 1347
(11th Cir. 2008) (crime of carrying a concealed
weapon may no longer be considered a crime of violence under
the guidelines); see also United States v. Canty,
570 F.3d 1251, 1255 (11th Cir. 2009) (We agree with the
parties that carrying a concealed weapon is not a violent
felony that may be used as a predicate conviction to enhance
a defendant's sentence under the ACC A). Defendant also
argues that his 1983 Florida conviction for cultivating
marijuana "was not scorable under U.S.S.G. §
4A" and therefore "did not qualify as a
career-offender predicate." Finally, he argues that he
was sentenced under the (then) mandatory sentencing
guidelines which were declared unconstitutional in 2005, and
"[i]n all probability, [his] punishment would have been
less than four years instead of twenty." He contends
that a non-career offender guidelines range would have been
support of his contention that coram nobis relief is
available, Defendant urges that although his federal sentence
was completed on December 6, 2016, that conviction
"continues to have a substantial effect on [his] liberty
and life." He explains that while he was in federal
custody, he was convicted in state court of attempted murder,
a crime which was committed before his federal arrest, and
was sentenced to 16.65 years. He returned to federal custody to
complete his federal sentence, and when his federal sentence
ended in December 2016, he returned to state custody, where
he remains. He contends:
"If this court had imposed the correct federal sentence,
then [his] state sentence would have commenced immediately
(his federal sentence should have been completed). Thus,
[his] state sentence would have ended in March 2016,
rather than sometime in 2029.
Dkt 234, p. 6).
response, the United States contends that coram nobis relief
is unavailable because (1) Defendant remains in
"custody, " since he must still complete his term
of supervised release, (2) his contention that his prior
convictions were too old was available to him and he shows no
reason for not having raised it previously, and (3) Circuit
precedent forecloses his contention that his carrying a
concealed firearm conviction is not a violent felony for
career offender purposes.
of Coram Nobis
courts have authority to issue a writ of error coram nobis
under the All Writs Act, now codified as 28 U.S.C. §
1651(a)." United States v. Swindall, 107 F.3d
831, 834 (11thCir. 1997). The writ is an extraordinary remedy
of last resort, however, "available only in compelling
circumstances where necessary to achieve justice."
United States v. Mills, 22 F.3d 1201, 1203 (11th
Cir. 2000). Fundamental error must be shown, such that the
underlying criminal proceedings are deemed "irregular
and invalid." United States v. Morgan, 346 U.S.
502, 509 n.5 (1954) (quoting United States v. Mayer,
235 U.S. 55, 69 (1914)). Moreover, the writ of coram nobis is
only available to one who has completed his sentence and is
no longer "in custody, " and § 2255 remains
the exclusive remedy for one in custody wishing to challenge
a federal conviction. United States v. Peter, 310
F.3d 709, 712 (11th Cir. 2002).
noted by the Supreme Court, "it is difficult to conceive
of a situation in a federal criminal case today where that
remedy would be necessary or appropriate." Carlisle
v. United States,517 U.S. 416, 429 (quoting United
States v. Smith,331 U.S. 469, 476 n.4 (1947)). The
Court further noted: "Continuation of litigation after
final judgment and exhaustion or waiver of any statutory
right of review should be allowed through this extraordinary
remedy only under circumstances compelling such action to
achieve justice." Morgan, 346 U.S. at 511
Having exhausted his appellate and post conviction remedies
under § 2255, Defendant urges that the writ should issue
to "remedy manifest injustice." Acknowledging that
"every federal court has been powerless to correct the
erroneous sentence, " he suggests that this court has a
"rare opportunity to meaningfully correct a previously
irremediable judicial error." Notwithstanding, he
"attempts to do what the Supreme Court in
Morgan instructed should be allowed in only the most
compelling circumstances. [He] seeks to continue litigating
the legality of his conviction after his conviction has
become final ...