UNITED STATES OF AMERICA, Respondent-Appellee, v. CONRAD LEE JOHNSON, Petitioner-Appellant.
No. 98-5779
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: January 25, 2001
2001 FED App. 0028P (6th Cir.) | 01a0028p.06
NELSON and COLE, Circuit Judges; QUIST, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 92-00020—Jennifer B. Coffman, District Judge. Argued: May 2, 2000.
ARGUED: C. Mаrk Pickrell, Nashville, Tennessee, for Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appеllee.
OPINION
DAVID A. NELSON, Circuit Judge. This is an appeal from the denial of a motion to reconsider the denial of a federal prison inmate‘s petition for a writ of error coram nobis. The petitioner filed a nоtice of appeal 18 days after the denial of his motion. The threshold question — a question of first impression in this circuit — is whether the appeal is to be treated as a civil appeal under
Like the majority of courts of appeals thаt have been confronted with this question, we conclude that the 60-day appeal period applies. Although we hold that the petitioner‘s appeal is thus timely, we further hold that the appeal lacks merit because coram nobis relief is not available while the petitioner is in federal custody. The challenged order will be affirmed.
I
On May 21, 1992, a federal grand jury indicted the petitiоner, Conrad Lee Johnson, on drug and vehicle theft charges. The case ultimately went to trial on three counts: (1) conspiracy to manufacture marijuana with intent to
On December 8, 1992, the jury returned a verdict of guilty on each count. The district court subsequently sentenced Johnson to imprisonment for a term of 60 months, to be followed by a four-year term of supervised release. Johnson did not appeal.
On July 14, 1993 — Bastille Day, appropriately enough — Johnson escaped from prison. He remained at large until January 26, 1995, when he was recaptured. Convicted of escape, he was sentenced to an additional 12 months in prison. Again there was no appeal.
On March 10, 1997, proceeding pro se, Johnson filed a petition for a writ of error coram nobis seeking to have his 1992 conviction vacated.1 The petition asserted that the district court lacked jurisdiction, that the prosecutor was without statutory authority to prosеcute, and that venue was improper. When the petition was denied, Johnson filed an “objection” to the judgment. The district court treated this as a motion for reconsideration, which it deniеd on May 18, 1998.
Mr. Johnson filed a notice of appeal from the May 18 order on June 5, 1998. This court then entered a show cause order directing the petitioner to explain why the appeal should not be dismissed as untimely. See United States v. Johnson, No. 98-5779, Order (6th Cir. June 29, 1998).
II
At common law, the writ of error coram nobis was used as a device for correcting fundamental errors in both civil and criminal cases. Although use of the writ was suspended in civil cases pursuant to
Although Morgan confirmed that criminal convictions might be subject to review in coram nobis proceedings, the decision does not clearly specify which rules of procedure — criminal or civil — are applicable to such proceedings. Courts of appeals confronted with the issue have sought guidance from а rather Delphic footnote in which the Morgan Court said that a coram nobis motion “is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding . . . . This motion is of the same general character as one under
On its face, footnote 4 is self-contradictory. On the one hand, it charаcterizes the filing of an application for a writ of error coram nobis as a “step in the criminal case,” thus implying that the writ should be subject to criminal procedural rules — and the footnote goes on to contrast coram nobis with habeas corpus, where civil procedures apply. On
Given this сontradictory language, it is not surprising that a circuit split should have developed. A minority of appellate courts have treated the writ of error coram nobis as “a step in the criminal casе,” subject to the 10-day appeals period erected in Rule 4(b). See, e.g., Yasui v. United States, 772 F.2d 1496, 1499 (9th Cir. 1985); United States v. Mills, 430 F.2d 526, 528 (8th Cir. 1970), cert. denied, 400 U.S. 1023 (1971). A majority of courts, however, have treated the application for the writ as similar in character to a § 2255 motion and have held that appeals from judgments in both types of cases are subject to the more generous 60-day appeals period. See, e.g., United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993); United States v. Craig, 907 F.2d 653, 655-57 (7th Cir. 1990), cert. denied, 500 U.S. 917 (1991); United States v. Cooper, 876 F.2d 1192, 1193-1194 (5th Cir. 1989), abrogated in part on other grounds by Smith v. Barry, 502 U.S. 244 (1992); United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968).
Those courts that have applied criminal procedural rules to coram nobis proceedings have stressed that the Morgan footnote characterizes the coram nobis petition as “a step in thе criminal case.” We are not persuaded, however, that this statement should be read literally. A literal reading ignores the fact that § 2255 petitions can likewise be characterized аs “a further step in the movant‘s criminal case and not a separate civil action.” See Rules Governing Section 2255 Proceedings, Rule 1 and Rule 11, advisory committee notes.
As we have seen, the Morgan footnote itself recognizes the similarity between coram nobis petitions аnd motions under § 2255. Our court too has commented on the substantive similarities between § 2255 and coram nobis. See Pitts v. United States, 763 F.2d 197, 198 n. 1 (6th Cir. 1985), (noting that the standards for granting relief under § 2255 and coram
It should be added that the poliсy reasons for a shorter appeals period under Rule 4(b) are not normally present in the coram nobis context. The filing of a coram nobis petition usually becomes possible only after the defendant has served his sentencе and has been released from prison. That being so, “there is no societal or individual interest in prompt adjudication of the petition while a prisoner is languishing in jail.” See Craig, 907 F.2d at 656. When these interests are not present, the more relaxed time limits of Rule 4(a) seem appropriate. See id.
For all of these reasons, we believe that the 60-day appeals period рrescribed by
III
A district court‘s determination of legal issues in coram nobis proceedings is reviewed de novo. See Blanton, 94 F.3d at 230. The district court‘s findings of fact, however, must be upheld unless cleаrly erroneous. See id.
Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character — e.g., errors rendering the proceedings themselves invalid. See id. To be entitled to relief, the petitioner must demonstrate (1) an error of fact; (2) unknown at the time of trial; (3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known. See id. In addition, the writ of coram nobis is available only “when a § 2255 motion is unavailable — generally, when the petitioner has served his sentence completely and thus is no longer ‘in custody’ as required for § 2255 relief.” Id.
In the case at bar, althоugh § 2255 relief is no longer available to him, Mr. Johnson remains a prisoner in federal custody. A prisoner in custody is barred from seeking a writ of error coram nobis. See United States v. Brown, 117 F.3d 471, 474, 475 (11th Cir. 1997) (holding that coram nobis relief is not available to a prisoner in custody); United States v. Bush, 888 F.2d 1145, 1147 (7th Cir. 1989) (same); United States v. Little, 608 F.2d 296, 299 n. 5 (8th Cir. 1979), cert. denied, 444 U.S. 1089 (1980) (“Coram nobis lies only where the petitioner has сompleted his [or her] sentence and is no longer in federal custody, is serving a sentence for a subsequent state conviction, or has not begun serving the federal sentence under attаck“); United States v. Brown, 413 F.2d 878, 879 (9th Cir. 1969) (holding coram nobis relief unavailable to a
coram nobis has already served his or her full sentence.” Id.
Mr. Johnson contends that even if he is not entitled to coram nobis relief, we should remand the case to the district court for an evidentiary hearing on the challenges to the trial court‘s jurisdiction, the prosecutor‘s authority, and venue. We see no basis for doing so. If Johnson is procedurally barred, there is no point in taking evidence to determine whether relief might be warranted if it were not procedurally barred. Moreover, the district court addressed all of Johnson‘s stated grounds for relief and properly found them to be without merit.
AFFIRMED.