finding that the petitioner failed to show valid reasons for not seeking relief earlier where “his claim derive[d] from materials the 50 defendant himself produced to the government through counsel” and “he and his appellate counsel had everything they needed in order to raise the claim on direct appeal” (internal quotation marks omitted)
How later courts described this case
- finding that the petitioner failed to show valid reasons for not seeking relief earlier where “his claim derive[d] from materials the 50 defendant himself produced to the government through counsel” and “he and his appellate counsel had everything they needed in order to raise the claim on direct appeal” (internal quotation marks omitted)
- applying a four-factor test requiring a coram nobis petitioner to establish that “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character” (quoting United States v. Hansen, 906 F. Supp. 688 , 692–93 (D.D.C. 1995))
- rejecting defendant’s petition because, “[a]s none of the material facts or applicable laws have changed since defendant’s conviction, he could have raised it in his direct appeal (which he voluntarily dismissed), or in a timely-filed motion pursuant to 28 U.S.C. § 2255”
- rejecting double-jeopardy challenge to imposition of a term of supervised release to follow a term of imprisonment
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
UNITED STATES, )
)
v. ) Criminal No. 11-022 (ESH)
)
RICHARD LEE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Defendant Richard Lee, proceeding pro se, has filed a petition for a writ of error coram
nobis pursuant to 28 U.S.C. § 1651(a). (Petition for Writ of Error Coram Nobis, Feb. 25, 2015
[ECF No. 65] (“Pet.”).) For the reasons stated herein, the petition will be denied.
BACKGROUND
On February 4, 2011, defendant entered a plea of guilty pursuant to a plea agreement
before Magistrate Judge Alan Kay to one count of armored car robbery in violation of 18 U.S.C.
§ 2113(a)(d), and 2, which was accepted by this Court on February 22, 2011. (Order Adopting
Report and Recommendation, Feb. 22, 2011 [ECF No. 39].) Defendant’s plea agreement
advised him that this offense “carries a maximum penalty of 25 years of incarceration, a fine of $
250,000, and a maximum term of supervised release of five years.” (Plea Agreement, Feb. 4,
2011 [ECF No. 36].) On July 26, 2011, defendant was sentenced to 110 months imprisonment
(with credit for time served) to be followed by 48 months of supervised release. (Judgment in a
Criminal Case, July 26, 2011 [ECF No. 55].) Defendant noticed an appeal (Notice of Appeal,
Aug. 5, 2011 [ECF No. 57]), but it was subsequently dismissed on defendant’s own motion.
(Order, Nov. 18, 2011 [ECF No. 63].)
Now, almost four years later, defendant has filed a petition for writ of error coram nobis
asking the Court to “expunge[] or terminate[]” his term of supervised release on the ground
imposing a term of supervised release to follow a sentence of imprisonment is an “illegal split
sentence” that violates the Double Jeopardy Clause of the United States Constitution. (Pet. at 5.)
The Court sought a response from the government (see Minute Order, Feb. 26, 2015), which has
now been filed. (See Gov’t Opp’n to Pet., Mar. 23, 2015 [ECF No. 68].)
DISCUSSION
At common law, “[t]he writ of coram nobis was available . . . to correct errors of fact . . .
that affect the validity and regularity of the judgment.” United States v. Morgan, 346 U.S. 502,
507 (1954). “It was allowed without limitation of time” and “was used in both civil and criminal
cases.” Id. Although now abolished in civil proceedings, see Fed. R. Civ. P. 60, federal courts
retain the authority to grant a writ of error coram nobis in criminal proceedings under the All
Writs Act, 28 U.S.C. § 1651(a).1 Morgan, 346 U.S. at 510-11 (rejecting argument that enactment
of 28 U.S.C. § 2255 “should be construed to cover the entire field of remedies in the nature of
coram nobis in federal courts”); United States v. Denedo, 129 S. Ct. 2213, 2220-21 (2009).
It is frequently observed that the writ of error coram nobis is an “extraordinary remedy.”
See Morgan, 346 U.S. at 511 (relief “should be allowed through this extraordinary remedy only
under circumstances compelling such action to achieve justice”); Denedo, 129 S. Ct. at 2220
(writ is “an extraordinary tool to correct a legal or factual error”). Yet, as the Supreme Court has
noted: “[i]n American jurisprudence, the precise contours of coram nobis have not been well
defined.” Denedo, 129 S. Ct. at 2220. In this Circuit, the “leading case” in defining the writ is
1
The All Writs Acts provides: “The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
2
United States v. Hansen, 906 F. Supp. 688 (D.D.C. 1995). United States v. Williams, 630 F.
Supp. 2d 28, 32 (D.D.C. 2009). The court in Hansen described the writ as “an equitable tool for
federal courts to ‘fill the interstices of the federal post-conviction remedial framework,’” through
which “the federal judge who imposed a sentence has the discretionary power to set aside an
underlying conviction and sentence which, for a valid reason, should never have been entered.”
Hansen, 906 F. Supp. at 692 (quoting United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir.
1990)); see also United States v. McCord, 509 F.2d 334, 341 (D.C. Cir. 1974) (petition for writ
“may collaterally attack only constitutional or jurisdictional errors or serious defects in the trial
either not correctible on direct appeal or where exceptional circumstances justify the failure to
appeal on those grounds”). In order to justify issuance of the writ, the petitioner must show that
(1) a more usual remedy is not available; (2) valid reasons exist for not attacking
the conviction earlier; (3) adverse consequences exist from the conviction
sufficient to satisfy the case or controversy requirement of Article III; and (4) the
error is of the most fundamental character.
Hansen, 906 F. Supp. at 692–93.
Defendant claims that his term of supervised release should be vacated because it is an
“illegal split sentence” imposed without Congressional authorization and in violation of the
Constitution’s Double Jeopardy Clause. (Pet. at 2.) More specifically, he contends that his term
of supervised release is unlawful because 18 U.S.C. § 1853(a), which provides that a court “in
imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a
part of the sentence a requirement that the defendant be placed on a term of supervised release
after imprisonment,” is not a Congressionally-enacted statute but rather an exercise of executive
authority. (See Pet. at 2 (“Supervised Release was not authorized to be tacked on to a sentence
of imprisonment. Supervised Release is a separate type of restraint of liberty which constitutes
3
Double Jeopardy. 18 U.S.C. § 3583 is a noncongressional statue that has been created by the
Executive Branch of government.”)
At a minimum, defendant has failed to show a valid reason for not raising this argument
earlier. As none of the material facts or applicable laws have changed since defendant’s
conviction, he could have raised it in his direct appeal (which he voluntarily dismissed), or in a
timely-filed motion pursuant to 28 U.S.C. § 2255.2 Accordingly, the Court rejects defendant’s
petition on the ground that he has shown no reason why he could not have attacked his
conviction earlier on the same grounds. See Hansen, 906 F. Supp. at 692–93.
In addition, defendant has failed to show fundamental error. See Williams (“A showing
of fundamental error is undoubtedly required to win coram nobis relief.”); see also United States
v. Addonizio, 442 U.S. 178, 186 (1979) (“coram nobis jurisdiction” exists only “in those cases
where the errors were of the most fundamental character, that is, such as rendered the proceeding
itself irregular and invalid”). Indeed, defendant has failed to show any error at all. Defendant
asserts that imposition of a term of supervised release constitutes “multiple punishments for the
same offense” in violation of the Double Jeopardy Clause.3 See Brown v. Ohio, 432 U.S. 161,
165 (1977). However, the Double Jeopardy Clause’s protection against multiple punishments “is
designed to ensure that the sentencing discretion of courts is confined to the limits established by
the legislature.” Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus, “[b]ecause the substantive
power to prescribe crimes and determine punishments is vested with the legislature, the question
under the Double Jeopardy Clause whether punishments are multiple is essentially one of
2
At this point, defendant would be procedurally barred by the one-year statute of limitations
from proceeding under 28 U.S.C. § 2255.
3
The Double Jeopardy Clause provides that no person shall “be subject for the same offence to
be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
4
legislative intent.” Id. Here, Congress has expressly authorized federal sentencing courts to
impose a term of supervised release as a part of the sentence for a felony or misdemeanor where
a term of imprisonment is imposed. See 18 U.S.C. § 3583(a). Accordingly, defendant has not
been subjected to multiple punishments in violation of the Double Jeopardy Clause. See Clayton
v. Martinez, No. CIV. 06-4047, 2006 WL 858977, at *1-2 (D.S.D. Mar. 31, 2006) (rejecting
Double Jeopardy challenge to imposition of term of supervised release to follow term of
imprisonment). Defendant’s attempt to avoid this conclusion by arguing that 18 U.S.C. §
3583(a) is “noncongressional statute” borders on frivolous. Congress enacted the provision
codified at 18 U.S.C. § 1853 as part of Public Law 98-473 on October 12, 1984. See P.L. 98-
473, Title II, § 212(a)(2). Accordingly, the Court will also decline to issue a writ of error coram
nobis on the ground that defendant has failed to show any error, much less error “of the most
fundamental character.” See Hansen, 906 F. Supp. at 692–93.
CONCLUSION
Accordingly, and for the reasons stated above, the Court will deny defendant’s petition
for a writ of error coram nobis. A separate Order accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 26, 2015
5