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United States v. Hill

United States District Court, M.D. Florida, Tampa Division

February 1, 2017



          JAMES D. WHITTEMORE United States District Judge

         BEFORE 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.

         Procedural History

         Defendant 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).[1] His convictions and sentences were affirmed (Dkt, 148).[2]Hill v. United States, 193 F.3d 522 (11th Cir.), cert, denied, 120 S.Ct. 1206 (2000).

         Defendant 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).

         Defendant 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).

         Defendant 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).


         Defendant's 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 37-46 months.[3]

         In 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.[4] 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).

         In 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.

         Writ of Coram Nobis

         "Federal 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).

         As 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 ...

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