Petition for Writ of Certiorari — Vernon Allen Collins, Petitioner v. United States

CQHiefFS OF APPENDIX

1. United States District Court for tbs District of Maryland Order denying 2S U.S.C. 1651 Petition ter Writ of

Error Coram Nobis RsiteiCivil Action No, CCB-17-S54 (Ftel. Grim. Cass No, CCB-87-338: Fifed November t,

2019} { unpublished X

.APPENDIX (A).

2. United States Court of Appeals ter tbs Foortb Ciroute No. 20-6013». Decided;. August 25. 2020.

unpublished par curiam opinion.

Kt/

APPENDIX (S).

■~7f

Case i:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VERNON ALLEN COLLINS, # 529-762

*,

Petitioner

*

v.

*

UNITED STATES OF AMERICA

*

Respondent

*

***

Civil Action No. CCB-17-954

(Rel. Crim. Case No. CCB-87-338)

MEMORANDUM OPINION

Pending is Vernon Collins’s Petition for Writ of Error Coram Nobis pursuant to 28 U.S.C.

§ 1651, seeking vacatur of ten years of the twenty-year sentence imposed after his conviction as a

felon in possession of a firearm; (Pet. for Writ of Error Coram Nobis at 11, ECF No. I).1,2 The

government filed a response in opposition. (ECF No. 5). Collins filed a reply, and thereafter filed

a “supplement” to the petition and to the reply. (ECF No. 7).3 No hearing is necessary. See Local

Rule 105,6 (D. Md. 2018). For the following reasons, the petition will be denied.

I.

BACKGROUND

On October 9, 1987, Collins was found guilty by a jury of one count of conspiracy to

distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846; one count

of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(b)(1); and one count

i

Unless otherwise noted, citations to ECF refer to Case No. CCB-17-954.

2 Collins filed similar copies of the Petition and exhibits on April 6, 2017, and April 21,2017. (ECF Nos. 1, 3).

3 Collins filed supplements on March 21,2019, and March 29,2019. (ECF Nos. 7,8). Collins, however, did not seek

leave to amend the petition. See Fed. R. Civ. P. 15(a)(2). Nor did Collins seek leave to file a suneply. See Local

Rule 105.2 (D. Md. 2018). “Surreplies may be permitted when the moving party would be unable to contest matters

presented to the court for the first time in the opposing party’s reply.” Khoury v. Mesen’e, 268 F. Supp. 2d 600,605

(D. Md. 2003), Sufreplies are generally not permitted where they merely identify inaccuracies in the opposing party’s

reply brief. See id. at 606 (denying the plaintiff a surreply where the plaintiff wished to correct “[djefendanf s

misrepresentations” of the record and the law). Recognizing that Collins is a self-represented litigant and his most

recent supplements essentially repeat already presented arguments, the court will address relevant portions of the later

filings.

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Case l:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 2 of 7

of employing a minor to possess with intent to distribute heroin, in violation , of 21 U.S.C. §

845(a)(1) (now codified at 21 U.S.C. § 861) (Counts One, Two, and Three). See United States v.

Taylor, 857 F.2d 210, 212 (4th Cir. 1988) (affirming, on direct appeal, the convictions of Collins

and his codefendant). Collins was also found guilty of two counts of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts Four and Five). Id. Collins was

subject to enhanced punishment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e). He faced a mandatory minimum sentence of fifteen years’ imprisonment on Counts Four

and Five, based on three prior qualifying convictions: a July 26, 1966, robbery conviction; an.

October 19, 1972, assault with intent to murder conviction; and a May 2,-1973, assault conviction.

(Superseding Notice of Enhanced Penalties, Case No. CCB-87-338, ECF No. 116-1).

On November 24, 1987, the court sentenced Collins to fifteen years on Counts One, Two,

and Three, and twenty years without parole on Counts Four and Five, for a total sentence of thirtyfive years. The United States Court of Appeals for the Fourth Circuit affirmed the judgment of

conviction on September 13, 1988. Taylor, 857 F.2d at 215.

On January 4, 2016, Collins filed a “Motion to Correct an Illegal Sentence Pursuant to

Former Rule 35(a) of the.Federal Rules of Criminal Procedure,” which the court construed as a

Motion to Vacate under 28 U.S.C. § 2255. (Case No. CCB-87-338, ECF Nos. 116,11.7). Collins

argued that, pursuant to the Supreme Court’s decision in Johnsonv. UnitedStates, 135S. Ct. 2551,

2557 (2015), the sentence on his § 922(g) conviction4 was improperly enhanced under the ACCA’s

residual clause. (Motion to Correct at 1-2, Case No. CCB-87-338, ECF No. 116). In its response,

A Collins previously appealed his sentence, arguing, in part, that his sentences on Counts Four and Five—both § 922(g)

convictions—were unlawful. United States v. Collins, 95 F. App’x 505, 506 (4th Cir. 2004). In 2004, the Fourth

Circuit found that Counts Four and Five were duplicative and remanded the case to the district court with instructions

to vacate one of the counts and resentence Collins. Id. at 507.

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Case l:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 3 of 7

the government stated that Collins’s presentence report (PSR) showed, in addition to the three

convictions originally used to classify Collins as an Armed Career Criminal, three other qualifying

offenses. (Gov. Resp. at 3,’Case No. CCB-87-338, ECF No. 121). On this basis, the government

argued that the Johnson ailing did not change Collins’s status as an Armed Career Criminal. (Id.).

On July 7, 2016, the court denied Collins’s § 2255 motion because he had completed his

federal sentence, noting that in 2005, he was released to a detainer to begin serving a New Jersey

State sentence. (Case No. CCB-87-338, ECF No. 127).5 Collins’s appeal of this decision was

denied on January 5, 2017. United. Stales v. Collins, 672 F. App’x 302, 303 (4th Cir. 2017). On

October 2, 2017, the Supreme Court denied his Petition for Writ of Certiorari. Collins v. United

States, 138 S. Ct. 63, 2017 WL 1134351, at *1 (2017).

On April 6, 2017, Collins filed this Petition for Writ of Error Coram Nobis to challenge his

“illegal enhanced sentence that continues to subject him to remain on federal parole until 2022 and

causes or prevents his New Jersey State enhanced sentence of life imprisonment with twenty-five

years parole ineligibility to commence from 2001.” (Pet. at 4, ECF No. 1)

n.

DISCUSSION

The writ of error coram nobis is an extraordinary remedy that may be used to correct a

fundamental error in a criminal conviction “presenting circumstances compelling its use to achieve

justice.” United States v. Denedo, 556 U.S. 904, 911 (2009) (internal quotation marks omitted);

also United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012). Relief is limited to

petitioners who are no longer in custody pursuant to their convictions and for whom relief is no

longer available by way of an alternative remedy, such as habeas corpus. See Denedo, 556 U.S.

at 911; Akinsade, 686 F.3d at 252. Coram nobis is available only to remedy “factual errors material

5 Collins is presently incarcerated at the New Jersey State Prison in Trenton,' New Jersey.

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Case l:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 4 of 7

to the validity and regularity of the legal proceeding itself^.]” Carlisle v. United States, 517 U.S.

416, 429 (1996) (quoting United States v. Mayer, 235 U.S. 55, 67-68 (1914)) (internal quotation

marks omitted). Although federal courts may grant relief from a conviction by issuing a writ of

coram nobis after a petitioner has completed his sentence, see 28.U.S.C. § 1651 (2006), United

Slates v. Morgan, 346 U.S. 502, 512-13 (1954), the Supreme Court has stated that “it is difficult

to conceive of a situation in a federal criminal case, today where a writ of coram nobis would be

necessary or appropriate.” Carlisle, 517 U.S. at 429 (internal quotation omitted).

To be entitled to coram nobis relief, a petitioner must demonstrate that (1) a more usual

remedy is not available; (2) valid reasons exist for not attacking the conviction earlier, (->) adverse

con sequences 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.” United States v. Bazitaye, 399

Fed. App’x 822, 824 (4th C.ir. 2010) (citing Hirabayashi v. United States, 828 F.2d 591, 604 (9th

Cir. 1987));6 see also Withanachchi v. United States, 803 F. Supp. 2d 360, 364 (D. Md. 2011).

When reviewing a petition for a writ of coram nobis, the court presumes that the underlying

proceedings were correct, and the burden of showing otherwise rests on the petitioner. See

Morgan, 346 U.S. at 512.

Collins has met the first requirement for coram nobisTeliefras~heismo4ongernn-federal

cus tody and cannot seek relief under the typical remedies for a direct appeal or collateral challenge

to his federal sentence. However, Collins cannot meet the second requirement. He baldly asserts

that he has met his burden to overcome the presumption that his conviction was correct,7 but

provides no reason for not challenging the sentence earlier. (Pet. at 9-10, ECF No. 1).

proceedings were incorrect (Pet. at 10, ECF No. 1). He is mistaken.

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Case l:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 5 of 7

To meet the third requirement for coram'nobis relief, Collins must demonstrate that

“adverse consequences exist from the conviction sufficient to satisfy the case or controversy

requirement of Article III.” Bciznciye, 399 Fed. App’x at 824. Specifically, Collins must show that

“his claim is ripe and he is currently suffering a concrete injury as a result of his ACCA sentence.”

Wiihcmachchi, 803 F. Supp. 2d at 368. Collins argues that, but for his enhanced federal sentence,

he would have been released with good conduct time upon mandatory release from federal custody

in 2001. (Pet. at 10, ECF No. 1). Collins provides no evidence to substantiate this allegation.

Collins’s claim of “adverse.consequences” is premised on a Certificate of Parole, dated

November 8, 2000, which states that he was to be paroled on July 10, 1993, and was to “remain

within the limits of to and including July 10, 2022.” (Certificate of Parole, ECF No. 1-4). The

government disputes Collins’s interpretation of his federal parole, (Gov. Resp. at 3 n.4, ECF No.

5), and has provided a copy of the United States Parole Commission ( USPC ) Certificate of

Mandatory Release, dated May 24, 2005, (Gov. Resp. Ex. 1, ‘ECF No. 5-1). The Certificate of

Mandatory Release states that upon release on June 20, 2005, Collins was to remain under USPC ,

jurisdiction “as if on parole” until January 10, 2013. (Id.)} Collins counters that the later-issued

document, the Certificate of Mandatory Release, is not an official document of the USPC. (Pet’r

Reply at 3 n.3, ECF No. 6). He acknowledges, however, that it was signed by Warden Troy

Williamson, of USP Allenwood, Pennsylvania.9 (Id).

Collins also filed a letter dated October 19, 2017, from John Cooney, a classification officer

for the New Jersey Department of Corrections, addressed to the Honorable David J. Schroth, the

8 Neither the Certificate of Parole nor die Certificate of Mandatory Release specifically references Criminal Action

No. CCB-87-338. or.references the sentence imposed.

9 Collins was incarcerated at USP Allenwood on the date the Certificate of Mandatory Release was issued.

(Certificate of Mandatory Release, Gov. Resp. Ex. 1, ECF No. 5-1).

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Case l:17-cv-00954-GCB Document 9 Filed 11/01/19 Page 6 of 7

' judge who sentenced Collins on September 14, 1992, to a New Jersey state sentence of life

imprisonment with twenty-five years of parole ineligibility. (Pet’r Suppl. Ex.. 5, ECF No. 7-5).

The letter requests clarification ofthejail credit awarded to Collins at sentencing from ‘ 6/_> 0/1988—

9/31/1992” when he “was in service of a Federal term during this period.” (Id). The letter

continues:

Being as he was serving a Federalprison sentence during this time period, it is

the belief of the [New Jersey Department of Corrections] that he may not be

eligible to receive this period of time as jail credit. Please note, [Collins]

remained in Federal custody until being made available to New Jersey on June

20, 2005 at which point he began service on Indictment 86-08-00769-1.

(Id).

The calculation of Collins’s state sentence appears to have been subsequently amended to

remove jail time credits for “6/3/88 to 9/13/92.” (New Jersey State Prison Fact Sheet Reports at

2, Pet’r Suppl. Ex. 6, ECF No. 7-6).

Importantly, none of the exhibits Collins has filed explains or corroborates his contention

that the enhanced federal sentence prevented or delayed his eligibility for state parole. The

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information Collins provides suggests instead that his concerns involve the calculation and prior

custody credits applied to his New Jersey sentence, which is a matter for New Jersey authorities.

Collins’s concerns about the calculation of his New Jersey state sentence do not support a claim

for federal coram nobis relief, nor are they properly presented here.

Further, Collins does not demonstrate how the relief he requests will redress his purported

injury. Specifically, he fails to explain how a reduction in a federal sentence he completed long

ago will affect a separate and unrelated New Jersey state sentence. Even assuming that Collins’s

state parole eligibility date was delayed by his federal sentence, he fails to show how a reduction

of an already-served sentence will render him eligible for state parole sooner, or otherwise help

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Case l:17-cv-00954-CCB Document 9 Filed 11/01/19 Page 7 of 7

him meet state parole requirements. Success in federal court, even if it were warranted here, has

no guaranteed effect on his New Jersey sentence. Federal courts cannot “alter the judgment ot the

state trial courts by way of coram nobis.” FuJlard v. Maryland, No. CIV.A. CCB-l 1-3573, 2011

\VL 694.1493, at *1. (D. Md. Dec. 28, 2011) (citing cases). Consequently, Collins fails to show

adverse consequences from his conviction sufficient to satisfy the case or controversy requirement

of Article III, the third requisite for coram nobis relief.

Lastly, Collins fails to meet his burden to show how a purported parole eligibility delay on

the basis of his enhanced, completed sentence amounts to an error “of the most fundamental

character.” Akinsade, 6S6 F. 3d at 252 (quoting United Stales v. Mandel, 862 F.2d 1067, 1075

(4th Cir. 1988)). Collins does not demonstrate that Johnson changed his status as an Armed Career

Criminal subject to enhanced sentencing. Nor does he address the other prior offenses supporting

enhanced sentencing. Collins thus cannot satisfy the fourth requirement for coram nobis relief.

III.

CONCLUSION

Collins does not meet his burden to show he is entitled to the extraordinary relief provided

in a writ of corain nobis. Accordingly, his petition will be denied. A separate Order follows.

Date

UUM3

Catherine C. Blake

United States District Judge

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Case l:17-cv-00954-CCB Document 10 Filed 11/01/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VERNON .ALLEN.COLLINS, # 529-762

*

Petitioner

*

V.

UNITED STATES OF AMERICA

*

Respondent

*

***

Civil Action No. CCB-17-95.4

(Rel. Crim. Case No. CCB-87-338)

ORDER

r

L

&

For reasons stated in the foregoing Memorandum, it is on this

day of November,

2019, bv the United States District Court for the District of Maryland, hereby Ordered:

I. The Petition IS DENIED;

2. The Clerk SHALL CLOSE this case; and

3. The Clerk SHALL SEND a copy of this Order and Memorandum Opinion to Petitioner

Vernon Collins and to counsel for Respondent David I. Salem, Assistant United States

Attorney, and Ellen E. Cobb, Special Assistant United States Attorney.

Catherine C. Blake

United States District Judge

?

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6013

VERNON ALLEN COLLINS,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court for the District

of Maryland, at Baltimore.

Catherine C. Blake, District Judge. (l:17-cv-00954-CCB)

Submitted: August 20, 2020

Decided: August 25,2020

Before GREGORY, Chief Judge, WYNN, and QUATTLEBAUM,

Affirmed by unpublished per curiam opinion.

Vernon A. Collins, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Circuit Judges.

PER CURIAM:

Vernon A. Collins appeals the district court’s order denying his petition for a writ

of error coram nobis to lower his previously completed criminal sentence. We have

reviewed the record and find no reversible error. Accordingly, although we grant leave to

proceed in forma pauperis, we affirm substantially on the reasoning of the district court,

concluding that Collins failed to show sufficient injury to convey Article III standing.

Collins v. United States, No. l:17-cv-00954-CCB (D. Md. Nov. 1, 2019). We dispense

with oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

2