460 F. App'x 776
10th Cir.2012Background
- Thody, a federal prisoner, filed pro se for coram nobis to overturn his 1991 conviction for 924(c)(1) and related offenses.
- District court denied the petition on procedural and substantive grounds; Thody appealed.</br>He was convicted of two bank robberies, felon in possession of a firearm, two 924(c)(1) counts, and conspiracy; sentenced to 35 years and 5 months.
- Thody previously appealed those convictions; co-defendant McIntosh also appealed and later pursued collateral review unsuccessfully.
- Bailey v. United States (1995) ruled on 924(c)(1) jury instructions, but Thody did not file a timely 2255 petition after Bailey’s retroactive application.
- Thody finally filed the coram nobis petition on May 19, 2011, challenging the second 924(c)(1) conviction.
- He seeks relief through coram nobis but the district court denied relief and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether coram nobis or audita querela is available. | Thody argues for coram nobis relief; seeks recharacterization as 2255. | The district court properly denied these writs; not available for his challenge. | Affirmed; coram nobis/audita querela not available. |
| Whether the district court should have construed the petition as a 2255 motion. | Thody contends liberal construction should treat pleadings as 2255. | Court should not construe as 2255 given original coram nobis posture. | No plain error; district court did not err in not treating as timely 2255. |
| Whether the § 2255 motion would be timely under AEDPA and tolling. | Equitable tolling or detainer could reset/start the 1-year period. | No tolling; detainer did not prevent filing; limitations expired. | Thody’s § 2255 motion untimely; tolling not shown. |
| Whether the second § 924(c)(1) conviction is supported by carry evidence after Bailey. | Bailey requires actual use; no evidence of use during second robbery. | Carry prong supports conviction; evidence sufficient. | Conviction sustained on carry prong; Bailey does not require both use and carry. |
| Whether Thody is actually innocent of the § 924(c)(1) charge. | Argues lack of use undermines guilt. | Carry evidence sustains guilt; actual innocence not shown. | Not shown; the carry evidence suffices. |
Key Cases Cited
- Bailey v. United States, 516 U.S. 137 (U.S. 1995) (redefines ‘use’ to exclude mere possession; carry prong viable)
- Bousley v. United States, 523 U.S. 614 (U.S. 1998) (actual innocence standard for 924(c)(1) collateral review)
- United States v. Morgan, 346 U.S. 502 (U.S. 1954) (extraordinary remedy limit for coram nobis; miscarriage of justice standard)
- United States v. Torres, 282 F.3d 1241 (10th Cir. 2002) (writs of coram nobis/audita querela available only in limited circumstances)
- Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000) (equitable tolling standard for AEDPA limitations)
- Lott v. United States, 310 F.3d 1231 (10th Cir. 2002) (use-or-carry analysis permissible in 924(c) jury instructions)
- United States v. Leopard, 170 F.3d 1013 (10th Cir. 1999) (carry sufficiency under 924(c) where evidence supports conviction)
- United States v. Martin, 357 F.3d 1198 (10th Cir. 2004) (timeliness and construction of pro se pleadings; harmless error)