Petition for Writ of Certiorari — Dwayne Mitchell Littlejohn, Petitioner v. United States

Supreme Court briefMay 9, 2023

Ask Donna

What actually matters in this document.

Text

32-7543

IN THE

SUPREME COURT OF THE UNITED STATES I

filed

MY 0 9 2023

^^^LJ2rtLu%k

DWAYNE MITCHELL LITTLEJOHN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES APPEALS COURT FOR

THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Dwayne Mitchell Littlejohn

P O Box 1255

Cherokee, NC 28719

Pro Se

QUESTION(S) PRESENTED

Whether a defendant’s reliance on erroneous

advice from counsel, the Court of Appeals and novelty of a legal

interpretation constitutes valid reasons” for not attacking the

conviction earlier under the All Writs Act, 28 U.S.C. § 1651(a)..

Is there an error committed by the Fourth

Circuit in failing to conduct a Strickland v. Washington, 466

U.S. 668 (1984) analysis of Mr. Littlejohn’s ineffective

assistance of counsel which often conflation of the Fifth

Amendment right to due process with Sixth Amendment rights

when analyzing assistance of counsel in deciding whether he

failed establish a valid reason for the delay in filing a coram

nobis petition and failure to address the novelty of the question

as a basis for the delay?

Whether a petitioner who is "in custody" can

utilize a coram nobis to challenge non-custodial aspects of a

criminal judgment.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

United States District Court (W. D. N.C.):

United States v. Littlejohn, 2:08-cr-00036-MR-WCM-2

United States v. Littlejohn, l:22-cv-00090-MR

United States Court of Appeals (4th Cir):

United States v. Littlejohn, 422 Fed. Appx. 225 (2011)

United States v. Littlejohn, No. 22-6726 (2023)

TABLE OF CONTENTS

QUESTION(S) PRESENTED........................................

LIST OF PARTIES..........................................................

RELATED PROCEEDINGS............................................

TABLE OF AUTHORITIES.............................................

INDEX OF APPENDICES..............................................

PETITION FOR A WRIT OF CERTIORARI................

OPINION BELOW............................................................

JURISDICTION................................................................

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS....................................................................

STATEMENT OF THE CASE................ .........................

REASONS FOR GRANTING THE WRIT......................

I. OVERVIEW OF CORAM NOBIS AND THE

COMPETING PRINCIPLES LEADING TO THE

CIRCUIT SPLIT.........................................................

THE DISTRICT COURT ERRED IN

DETERMINING THAT LITTLEJOHN DID NOT

PROVIDE A VALID REASON FOR FAILING TO

SEEK COLLATERAL RELIEF SOONER...............

THE COURT ERRED IN DETERMINING THAT

A PRISONER IN CUSTODY CANNOT SEEK RELIEF

VIA CORAM NOBIS WHEN A GAP EXISTS IN THE

POST CONVICTION SCHEME.

CONCLUSION....................................

PROOF OF SERVICE.......................

TABLE OF AUTHORITIES

Cases:

Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.

2000)....................................................................................... 18

United States v. Bernard, 351 F.3d 360, 361 (8th Cir.

2003)....................................................................................... 18

United States v. Brown, 117 F. 3d 471, 475 (11th Cir.

1997)....................................................................................... 19

Carlisle v. United States, 517 U.S. 416 (1996)............... 18

Kaminski u. United States, 339 F. 3d 84, 89 (2d Cir. 2003)

Moody v. United States, 874 F.2d 1575, 1576-78 (11th Cir.

1989)

Smullen v. United States, 94 F.3d 20, 26 (1st Cir. 1996). 18

Strickland v. Washington, 466 U.S. 668, (1984)

2, 15

Trenkler v. United States, 536 F. 3d 85, 95 (1st Cir. 2008).

Triestman u. United States, 124 F.3d 361, 380 n.24 (2d

Cir. 1997)............................................................................... 20

United States v. Akinsade, 686 F.3d 248, 252 (4th Cir.

2012)....................................................................................... 18

United States v. Ayala., 894 F.2d 425, 428 (D.C. Cir. 1990).

United States v. Barrett, 178 F.3d 34, 56-57 (1st Cir.

1999)....................................................................................

United States v. Blanton, 94 F. 3d 227, 232 (6th Cir.

1996)....................................................................................

United States v. Brown, 413 F.2d 878, 879 (9th Cir. 1969)

cert, denied, 397 U.S. 947, 25 L. Ed. 2d 127, 90 S. Ct. 965

(1970)..................................................................................

United States v. Bush, 888 F. 2d 1145, 1146 (7th Cir.

1989)................................................................................ 13,19

United States v. Denedo, 129 S. Ct. 2213, 2221 (2009).... 13

United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012).

United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999)

United States v. Little, 608 F.2d 296, 299 n.5 (8th Cir.

1979), cert, denied, 444 U.S. 1089, 62 L. Ed. 2d 777, 100 S.

Ct. 1053 (1980) ............................................................. ’

United States v. Littlejohn, 422 Fed. Appx. 225 (4th Cir.

2011).......................................................................

3, 9

United States u. Morgan, 346 U.S. 502 (1954)

passim

United States u. Peter, 310 F.3d 709, 715 (11th Cir. 2002)

United States u. Thiele, 314 F.3d 399, 402 (9th Cir. 2002)

Utah v. Rees, 125 P.3d 874, 876 (Utah 2005)

Virsnieks v. Smith, 521 F.3d 707, 720-21 (7th Cir. 2008)18

Constitution and statutes:

18 U.S.C. § 2......................

18U.S.C. §1111..................

18 U.S.C. § 3664.................

28 U.S.C. § 2255.................

passim

28 U.S.C. § 1651(a)..............

28 U.S.C. § 1915(a)..............

passim

Sixth Amendment...................

Fifth Amendment....................

Miscellaneous.

David Wolitz, The Stigma of Conviction: Coram Nobis,

Civil Disabilities, and. the Right to Clear One’s Name,

2009 B.Y.U.L. Rev. 1277, 1281 (2009)

passim

Peter Hack, The Roads Less Traveled: Post Conviction

Relief Alternatives and the Antiterrorism and Effective

Death Penalty Act of 1996, 30 AM. J. CRIM. L. 171, 22223 (2003)

passim

Michael A. Millemann, Collateral Remedies in Criminal

Cases in Maryland: An Assessment, 64 MD. L. REV. 968,

968 (2005)..................................................................... 19

W.W. Allen, Delay as Affecting Right to Coram Nobis

Attacking Criminal Conviction, 62 A.L.R.2D 432, § 1

(1958) ........................................................................... 20

Romualdo R. Eclavea, Annotation, Availability, Under 28

U.S.C.A. § 1651, of Writ of Error Coram Nobis to Vacate

Federal Conviction Where Sentence Has Not Yet Been

Served, 37 A.L.R. FED. 499, §2[a] (1978)

INDEX OF APPENDICES

Appendix A

Appendix B

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Dwayne Mitchell Littlejohn,

respectfully submit this petition for certiorari seeking

review of the judgment rendered by the United States

Court of Appeals for the Fourth Circuit.

OPINION BELOW

The Fourth Circuit issued its opinion on January 4,

2023 not addressing the questions raised the questions

raised and conducting an analysis under Strickland u.

Washington nor did the court address the novel question

of whether a person in custody can seek a coram nobis or

whether it constitutes a “valid reason.” The opinion of the

United States court of appeals appears at Appendix A to

this petition and is unpublished. Upon filing of a petition

for rehearing, the Court sought to time bar petitioner, and

after filing a reconsideration, removed the time bar

denied rehearing on March 30, 2023.

The opinion of the United States district court

appears at Appendix B to this petition and is

unpublished.

JURISDICTION

The Fourth Circuit issued its unpublished opinion

on January 4, 2023. (See Petitioners’ Appendix (“Pet.

App”) A, 1-2). The Fourth Circuit sought to time bar

Petitioner. (See Pet. App. A, 3). Subsequently the Fourth

Circuit rescinded its time bar denial and denied rehearing

on March 30, 2023. This petition for a writ of certiorari is

timely filed under Rule 13 of the Rules of this Court. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS

The All Writs Act authorizes courts to issue 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). The Supreme Court has held

that the Act permits courts to issue writs of error coram

nobis to correct errors in criminal cases that are no longer

subject to direct review. United States v. Morgan, 346

U.S. 502 (1954). A writ of coram nobis should be allowed

only under circumstances compelling such action to

achieve justice. Morgan, 346 U.S. at 511. If no other

remedy is available and sound reasons existing for failure

to seek appropriate earlier relief, a motion of the writ of

coram nobis must be heard by the federal court. Morgan,

346 U.S. at 512.

The Sixth Amendment provides "[i]n all criminal

prosecutions, the accused shall enjoy the right to the

assistance of Counsel for his defence." Amendment VI.

and the Fifth Amendment provides guarantees "No

person shall be held to answer for a capital, or otherwise

infamous crime ... nor be deprived of life, liberty, or

property, without due process of law..." Amendment V.

STATEMENT OF THE CASE

Petitioner, Littlejohn and one co-defendant was

convicted after pleading guilty to second-degree murder, a

violation of 18 U.S.C. §§1111 and 2. On December 4,

2009 during the sentencing proceeding, they court ordered

Littlejohn to pay restitution jointly and severally under

the Mandatory Victims Restitution Act, 18 U.S.C. § 3664.

The district court entered a restitution order that

included speculated "future wages" of $383,173 for a

victim for whom there was no evidence presented that he

ever actually worked. This was entered in violation of the

statute, which requires "actual loss."

Littlejohn filed an appeal. United States v.

Littlejohn, 422 Fed. Appx. 225 (4th Cir. 2011). The Fourth

Court of Appeals dismissed the matter based on an

ambiguous waiver in the plea agreement.1 Littlejohn

filed motions to challenge the restitution and a motion to

vacate. The Court dismissed it after conflating the Fifth

amendment right to due to process and the right of

effective assistance of counsel under the Sixth

Amendment.

At issue, an ambiguous reference to restitution

being ordered and that it authorizes the district court to

impose a restitution amount in violation of the statute.

The Court of Appeals and Littlejohn's then attorney

informed him that there was no means to collaterally

attack a restitution order. Littlejohn contacted various

attorneys seeking pro bono representation to collaterally

attack his conviction because his monies were being

garnished by the government. He acted pro se and

1 At the time of the appeal, Littlejohn did not have benefit of

this Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019) which

limited deference with interpretation of ambiguous language and

agency interpretations. Kisor’s limitation should apply to courts as

well.

identified the legal error that no lawyer in his case or

court this circuit has identified — including the judge, that

a coram nobis could be used to set aside a restitution

order since no other remedy was available. Indeed , no

attorney has sought to litigate whether a person “in

custody” and has no other remedy could challenge a

restitution order imposed in violation of law and the

constitution using a writ of coram nobis.

The district court concluded that Littlejohn failed

to provide a valid reason for failing to seek collateral relief

sooner, specifically that mis-advice from the Court of

Appeals and his attorney is not a valid reason for the

delay, simply stating that “ignorance of the law”2 is no

excuse and that since the question of whether a person in

custody can file a coram nobis has not been decided by the

Fourth Circuit relief would be precluded. The Fourth

Circuit also declined to address the unsettled question of

whether a person in custody can seek a writ of coram

nobis and whether the novelty of the question constitutes

valid reason for the delay in filing a coram nobis petition.

2 If as suggested by the district court “ignorance of the law is

no excuse, then why ever appoint counsel to provide any guidance in

any criminal proceeding? After all, it is ignorance the law is why

criminal defendants are often charged with offenses and require

attorneys. Ignorance of the law was what led to a plea with an

attorney that failed to explain the full scope of waiver.

The Fourth Circuit also declined to conduct a Strickland

analysis as to whether the misadvice from the Court of

Appeals and his attorney are valid reasons for the delay

in seeking relief via coram nobis. The Fourth Circuit

affirmed.

REASONS FOR GRANTING THE WRIT

This Court should grant a writ of certiorari to

review the decision of the Fourth Circuit in this case as

further delineated herein. The Fourth Circuit's decision

creates further conflict with other circuits and Supreme

Court precedent regarding the Sixth Amendment right to

effective assistance of counsel and the availability of the

writ of coram nobis through the lack of guidance through

the years. The lack of guidance from this Court has left

the lower courts without appropriate legal standards in

these two areas.

Specifically, the Fourth Circuit erred by conflating

the Fifth Amendment plea colloquy and the Sixth

Amendment right to counsel, thereby failing to recognize

the crucial role of competent counsel in ensuring the

voluntariness of a guilty plea. This led to issue presented

in this case is whether misadvice by defense counsel and

the Court of Appeals, the novelty of a coram nobis petition

being used to collaterally set aside a restitution order can

constitute a valid reason for a delayed filing of a coram

nobis petition.

In this case, the defendant was not properly

advised by counsel as to availability of coram nobis to

collaterally attack a restitution order as did the Court of

Appeals which advised that there was no other means to

correct the error. When Littlejohn brought his coram

nobis petition, the lower court denied his petition on the

grounds of a delayed filing without a valid reason and the

absence of authority for a petitioner in custody to seek

coram nobis relief for non-custodial aspects of a criminal

judgment. In doing so it conducted a reasonable analysis

under Strickland nor addressing the novelty of the

question of an “out of custody requirement” can constitute

a valid reason for the delay either individually or in

combination.

The lack of guidance from this Court, the Fourth

Circuit's decision creates further uncertainty and a split

among circuits on the availability of coram nobis relief for

individuals who are "in custody" and the contours of the

write. The Fourth Circuit failed to recognize the unsettled

law in this area and ignored the possibility that the writ

of coram nobis could be used to challenge non-custodial

aspects of a criminal judgment.

This case raises significant constitutional issues

regarding the Sixth Amendment’s guarantee of effective

assistance of counsel and the right to seek relief for

constitutional violations through the coram nobis remedy.

The courts below failed to address the crucial question of

whether misadvice by counsel, novelty of a legal question

can constitute a valid reason for a delayed filing of a

coram nobis petition, and whether a petitioner in custody

can utilize the coram nobis remedy for non-custodial

aspects of a criminal judgment..

The resolution of this issue has far-reaching

implications for the protection of defendants' rights in the

plea process, the effectiveness of the Sixth Amendment's

guarantee of effective assistance of counsel which has

consistently been conflated with the Fifth Amendment

right, and the availability of the coram nobis remedy as a

means of seeking relief for constitutional violations.

Therefore, the issues presented in this case are of

national importance and warrant review by the Supreme

Court. The decision of the Fourth Circuit conflicts with

other circuits and Supreme Court precedent, creates

uncertainty, and limits the availability of relief for

individuals who have been prejudiced by the misadvice of

counsel.

Accordingly, the Petitioner respectfully urges this

Court to grant a writ of certiorari and provide muchneeded guidance on these critical issues.

I. OVERVIEW OF CORAM NOBIS AND THE

COMPETING PRINCIPLES LEADING TO

THE CIRCUIT SPLIT.

The writ of coram nobis has its roots in the common

law of 16th-century England. David Wolitz, The Stigma of

Conviction: Coram Nobis, Civil Disabilities, and the Right

to Clear One’s Name, 2009 B.Y.U.L. Rev. 1277, 1281

(2009) at 1283. In its traditional form, coram nobis

provided a narrow opportunity for a court to reconsider a

final judgment, primarily where new facts had come to

light. Id. The phrase itself means “before us,” which is a

reference to the sovereign reviewing its own judgment.

Black’s Law Dictionary 338 (7th ed. 1999).

The writ came to the United States with the

common law, and it maintained its traditional role as a

means for trial courts to correct factual errors in decided

cases. Wolitz, supra, at 1283.

The United States Constitution is the supreme law

of the United States. Article One of the Constitution

creates the legislature and provides Congress with the

means to create and enact laws. Article Three of the

Constitution creates the judiciary and provides courts

with the means to interpret laws. Other than the writ of

habeas corpus, the Constitution has no language

permitting or restricting courts from issuing specific

writs, including the writ of coram nobis. 3

As courts crafted other mechanisms for correcting

factual and clerical mistakes into the 1930s and 1940s,

however, coram nobis became more and more rare. Id. at

1284. Indeed, the writ was abolished in civil cases by

Federal Rule of Civil Procedure 60(b). What life remained

in coram nobis was then squarely presented to this Court

in United States v. Morgan, 346 U.S. 502 (1954).

3 Section 9 of Article One states that "the Privilege of the Writ

of Habeas Corpus shall not be suspended, unless when in Cases of

Rebellion or Invasion the public Safety may require it."

In Morgan this Court held that coram nobis was

alive and well. Wolitz, supra, at 1284. The defendant

there had pleaded guilty, without counsel, to various

federal offenses when he was 19 years old. Morgan, 346

U.S. at 511. Years after his release, he sought coram

nobis relief to vacate the conviction based on the denial of

his right to counsel. Id. at 504. The Second Circuit

concluded coram nobis was available, and this Court

affirmed.

Though this Court recognized that the writ was not

explicitly authorized by federal statute and had been

abolished in civil proceedings, the Court found sufficient

statutory authority for coram nobis in the All Writs Act of

1789, which authorizes federal courts to “issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” Id. at 506 n.6 (quoting 28 U.S.C. § 1651(a)). The

Court further delineated when coram nobis relief was

available, holding that it “should be allowed . .. only

under circumstances compelling such action to achieve

justice”—namely, (a) to cure errors “of the most

fundamental character,” when (b) “no other remedy [is]

then available, and (c) when “sound reasons [exist] for

failure to seek appropriate earlier relief.” Id. at 511-12.

The Court noted that the “wrong” of an unlawful

conviction includes the abstract injustice in the system

and may also include “results of the conviction,” noting,

for example, that “civil rights may be affected.” Id. at

512—13. The Court concluded as follows:

“As the power to remedy an invalid sentence exists,

we think [Morgan] is entitled to an opportunity to

attempt to show that his conviction was invalid.”

Id.

Ultimately, this Court described a petition for

coram nobis relief as “of the same general character as

one under 28 U.S.C. § 2255.” Id. at 506 n.4. Thus, coram

nobis “became, in essence, habeas for those not in federal

custody and “a vital part of the post-conviction legal

landscape.” Wolitz, supra, at 1287, 1289.

This Court recently reaffirmed the viability of the

writ. See United States u. Denedo, 129 S. Ct. 2213, 2221

(2009) (stating that a federal court’s “authority to grant a

writ of coram nobis is conferred by the All Writs Act”).

Other than providing military courts the authority to

issue the writ, the Supreme Court has declined to provide

federal courts additional guidance in coram nobis

proceedings.

Appellate courts have occasionally criticized the

Supreme Court for failing to provide this additional

guidance. The Seventh Circuit called the writ of coram

nobis, "a phantom in the Supreme Court's cases"4 and

contends "[t]wo ambiguous decisions on the subject in the

history of the Supreme Court are inadequate." Id. The

Sixth Circuit took a similar stance saying, "[t]he Supreme

Court has decided only one coram nobis case in the last

forty-two years, Morgan, and that opinion is ambiguous

concerning whether proof of an ongoing civil disability is

required."5 The First Circuit wrote that its decision of

time limitations "derives from the Morgan Court's cryptic

characterization of coram nobis as a 'step in the criminal

case'".6 In another case, the First Circuit writes, "The

metes and bounds of the writ of coram nobis are poorly

defined and the Supreme Court has not developed an

easily readable roadmap for its issuance."7

•' United States v. Bush, 888 F. 2d 1145, 1146 (7th Cir. 1989).

3 United States v. Blanton, 94 F. 3d 227, 232 (6th Cir. 1996).

6 Trenkler v. United States, 536 F. 3d 85, 95 (l6t Cir. 2008).

7 United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012).

THE DISTRICT COURT ERRED IN

DETERMINING THAT LITTLEJOHN DID

NOT PROVIDE A VALID REASON FOR

FAILING TO SEEK COLLATERAL RELIEF

SOONER.

The district court committed an error in its decision

to deny Littlejohn’s petition for collateral relief, as it

wrongly concluded that he had not provided a valid

reason for the delay in seeking such relief. Littlejohn’s

delay was due to the misinformation he received from

both his then attorney and the Court of Appeals, which

misstated the law and failed to conduct the required

analysis under Strickland v. Washington, 466 U.S. 668,

686 (1984). The crucial question of whether misadvice by

counsel can constitute a valid reason for a delayed filing

of a coram nobis petition was not addressed, nor was the

novelty of the issue of whether a prisoner in custody,

either individually or in combination with misadvice,

constitutes a valid reason for delay.. The court effectively

without analysis rubber stamp the district court’s decision

and concluded ...

“we are satisfied the district court did not abuse its

discretion in denying the petition based on

Littlejohn’s failure to establish a valid reason for

his delay in seeking relief.”

The Sixth Amendment guarantees effective

assistance of counsel, which is violated when counsel's

conduct falls below an objective standard of

reasonableness and results in prejudice to the defendant's

case. A defendant’s Sixth Amendment rights can be

violated by counsel's affirmative misadvice, causing the

defendant to enter a guilty plea or take other actions that

result in prejudice. Strickland v. Washington, 466 U.S.

668, 687 (1984). In such cases, the defendant's ability to

file a timely petition for coram nobis relief is hindered by

the ineffective assistance of counsel. United States v.

Cronic, 466 U.S. 648, 656-57 (1984). Littlejohn's attorney

misadvised him as to the scope of the waiver as it related

to restitution in his plea agreement, and both the Fourth

Circuit and his attorney informed him that he had no

recourse to challenge the wrongful restitution judgment.

Littlejohn was left with no way to challenge the

restitution order, as the Court deprived him of all funds to

retain other counsel. It was only after significant due

diligence that Littlejohn was able to formulate valid

arguments for a coram nobis petition, including the

novelty of the question of availability in restitution cases

and in custody prisoners. The district court suggested

that “ignorance of the law” is no excuse. However, the

district court failed to observe that it was “ignorance of

the law” under the guidance of counsel was what led to

the illegally imposed restitution order and failure to

explain an ambiguous waivers’ scope.

In this case, Littlejohn provide two reasons for the

delay in bringing the coram nobis petition, (1) advice by

both his attorney and the Fourth Circuit that there was

no way to collaterally attack an illegal restitution order

after a direct appeal; (2) the novelty of the question

whether a coram nobis can be used to set aside a

restitution order or filed by a prisoner in custody. Both of

these reasons are valid, and reasonable given that

Littlejohn required the assistance of counsel previous. A

delay in filing of a coram nobis petition in such cases

would promote justice and fairness. It would provide a

remedy for those who have been denied effective

assistance of counsel on issues which cannot be raised

through any other procedural means and would enhance

the integrity of the criminal justice system. Furthermore,

this would not unduly burden the courts, as coram nobis

relief is already limited to exceptional cases.

Thus, the writ of coram nobis is essential for

correcting fundamental errors in the criminal justice

system, and a delay in filing based on misadvice of

counsel and novelty of the legal questions presented

would further the interests of justice and fairness. As

such, the misadvice of counsel and the novelty of legal

questions interpretations should be recognized as valid

reasons to delay fifing a coram nobis petition.

THE COURT ERRED IN DETERMINING

THAT A PRISONER IN CUSTODY CANNOT

SEEK RELIEF VIA CORAM NOBIS WHEN A

GAP EXISTS IN THE POST CONVICTION

SCHEME.

The court erred in determining that a prisoner in

custody cannot seek relief via coram nobis when there is a

gap in the post-conviction scheme. The writ of coram

nobis can be used to challenge a criminal judgment by a

petitioner in custody, even if they are not seeking to be

released from custody. However, the Fourth Circuit and

many other courts have grafted on a rule that federal

courts may grant relief from a conviction by way of coram

nobis only after a petitioner has completed the sentence

at issue. Coram nobis relief is appropriate only when

there is no and was no other available avenue of relief,

and the error involves a matter of fact of the most

fundamental character which has not been put in issue or

passed upon and which renders the proceeding itself

irregular and invalid.

In Morgan, the Supreme Court held that a

petitioner in custody may use the writ of coram nobis to

challenge a criminal judgment, even if the petitioner is

not seeking to be released from custody. This Court

reasoned that a petitioner in custody has a continued

interest in the validity of his conviction and sentence, and

that the writ of coram nobis is available to address errors

that would not otherwise be reviewable on direct appeal

or in a habeas corpus proceeding.

Here, Littlejohn is in custody and has a continued

interest in the validity of his criminal judgment.

Littlejohn is not seeking to challenge the validity of his

custodial sentence, but rather the non-custodial aspects of

his judgment. Therefore, the writ of coram nobis is an

appropriate mechanism for him to challenge the noncustodial aspects of his criminal judgment.

The greatest point of contention between the

majority and the dissent in Morgan—whether a prisoner

can file a coram nobis petition while in custody when no

other remedy is available.

In the Fourth Circuit, in order to be eligible for

relief through a coram nobis a petitioner must establish:

(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. United

States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012). The

Fourth Circuit and many other courts have grafted on a

rule that federal courts may grant relief from a conviction

by way of coram nobis only after a petitioner has

completed the sentence at issue, see 28 U.S.C. § 1651

(2006); United States v. Morgan, 346 U.S. 502, 512-513

(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 u. United States, 517 U.S. 416, 429

(1996); See also Kaminski v. United States, 339 F. 3d 84,

89 (2d Cir. 2003); Bernard, 351 F.3d 360, 361 (8th Cir.

2003)(collecting cases); United States v. Thiele, 314 F.3d.

399, 402 (9th Cir. 2002); United States v. Hatten, 167 F.3d

884, 887 (5th Cir. 1999); Smullen v. United. States, 94

F.3d 20, 26 (1st Cir. 1996); see also Virsnieks u. Smith,

521 F.3d. 707, 720-21 (7th Cir. 2008).

The Eleventh Circuit also recognizes that “the bar

for coram nobis relief is high.” Alikhani v. United States,

200 F.3d 732, 734 (11th Cir. 2000). Coram nobis relief is

appropriate only when: (1) “there is no and was no other

available avenue of relief;” and (2) “the error involves a

matter of fact of the most fundamental character which

has not been put in issue or passed upon and which

renders the proceeding itself irregular and invalid.” Id.

(citing Morgan, 346 U.S. at 512; Moody v. United States,

874 F.2d 1575, 1576-78 (11th Cir. 1989)); see United

States v. Peter, 310 F.3d 709, 715 (11th Cir. 2002)

(reversing district court’s dismissal of Peter’s coram nobis

petition after sentence expired where subsequent

Supreme Court decision held that conduct to which Peter

pled guilty did not constitute a crime).

In Peter, the Eleventh Circuit explained that

“[coram nobis relief affords a procedural vehicle through

which [jurisdictional] error may be corrected.]” 310 F.3f at

/■09.1n the Eleventh Circuit “[a] petition for a writ of

coram nobis may only be filed after a sentence has been

served and the petitioner is no longer in custody.” Brown,

117 F. 3d 471, 475 (11* Cir. 1997); United States v. Bush,

888 F.2d 1145, 1147 (7th Cir. 1989) (same); United States

u. Little, 608 F.2d 296, 299 n.5 (8th Cir. 1979), cert,

denied, 444 U.S. 1089, 62 L. Ed. 2d 777, 100 S. Ct. 1053

(1980) ("Coram nobis lies only where the petitioner has

completed 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 attack"); United States v. Brown, 413 F.2d 878, 879

(9th Cir. 1969) (holding coram nobis relief unavailable to

a prisoner in custody), cert, denied, 397 U.S. 947, 25 L.

Ed. 2d 127, 90 S. Ct. 965 (1970). 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. [Blanton] 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. Indeed, the Eleventh

Circuit, for example, the lack of guidance from this Court

has let to a complete bar to collaterally attacking a

restitution order even if it involves custodial aspects in a

2255 motion. See Blaik u. United States, 161 F.3d 1341,

1343 (11th Cir. 1998) (holding that § 2255 cannot be used

by a federal prisoner who challenges only the restitution

portion of his sentence); Manione v. United States, 559

F.3d 1209, 1211 (11th Cir. 2009)(despite the presence of

claims challenging his custody and requesting release

from custody, prisoner could not utilize § 2255 to

challenge his restitution order).

No uniform custody requirement for coram nobis

exists among jurisdictions.8 The Eleventh Circuit in

8 Compare 536 F.3d at 98 (adopting that coram nobis

available for defendant no longer in custody), with Utah v. Rees, 125

P.3d 874, 876 (Utah 2005) (considering in-custody petitioner’s coram

nobis petition).

Peter suggest that “[a] writ of error coram nobis is a

remedy available to vacate a conviction when the

petitioner has served his sentence” and going on to

further suggested that a coram nobis is only available

when the person “is no longer in custody, as is required

for post-conviction relief under 28 U.S.C. § 2255.” This

proposition appears to stem from mis-analogized law.9

The seminal case resurrecting coram nobis, Morgan,

involved a defendant challenging his sentence after

serving it. Since that decision, some courts have

narrowly applied coram nobis by analogizing that it

applies only to those with completed sentences.10 Indeed,

the Supreme Court rejected the government's argument

that Congress had intended to restrict other post

conviction remedies when it enacted section 2255.n

3 See Hack, supra note 31, at 211 (explaining courts applying

AEDPA to coram nobis without considering purpose ignore AEDPA’s

language). Hack also concedes that defendants regularly use coram

nobis after their completed convictions, but the “contours of [the]

writ” are subject to heated debate. Id. at

211-12.

10 See Hack, supra note 31, at 211-12 (noting since Morgan

petitioners use coram nobis regularly after defendant completed

sentence); Millemann, supra note 31 and accompanying text

(outlining coram nobis for

petitioners out of custody).

11 Id. at 510. The Court found that § 2255's puipose was "'to

meet practical difficulties' in the administration of federal habeas

corpus jurisdiction.” Id. at 511 (quoting United States v. Hayman, 342

U.S. 205, 219 (1952)). See supra note 18. The Court further added

Based on Morgan and under the All Writs Act, 28

U.S.C. § 1651, courts “may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” This Court

has also held that section 2255 does not preempt other

forms of relief authorized under the All Writs Act.12

While section 2255 is available only to in-custody

prisoners seeking release, those with served sentences

may not challenge post-conviction consequences under the

statute.13 Declaring the opposite, i.e., only those out of

custody can use coram nobis, however, commits a logical

fallacy. AEDPA does not address coram nobis

requirements, so its legislative history does not support

such restrictions.14 Therefore the Court of Appeals

that [njowhere in the history of Section 2255 do we find any purpose to

impinge upon prisoners' rights of collateral attack upon their convictions."' Id.

(quoting Hayman, 342 U.S. at 219).

u 536 F.3d at 97 (reminding that Supreme Court preserved common-law writs

despite section 2255); see also Peter Hack, The Roads Less Traveled: Post

Conviction Relief Alternatives and the Antiterrorism and Effective Death

Penalty Act of 1996, 30 AM. J. CR1M. L. 171,222-23 (2003) (opining courts’

readings of AEDPA’s procedural hurdles strictly limit postconviction

alternatives); Michael A. Millemann, Collateral Remedies in Criminal Cases in

Maryland: An Assessment, 64 MD. L. REV. 968, 968 (2005) (categorizing

coram nobis as remedy for those not in or under custody).

13 See Eclavea, supra note 23, § 2[b] (noting section 2255 not available

to those not in custody).

14 See United States v. Barrett, 178 F.3d 34, 56-57 (I st Cir. 1999)

(highlighting situations where section 2255 inadequate for in-custody prisoners);

Triestman v. United States, 124 F.3d 361, 380 n.24 (2d Cir. 1997)

suggestions that coram nobis is only available to those out

of custody in unsupported. Nor should the Supreme

Court’s holding in Morgan relating section 2255 incustody wording preclude coram nobis relief.15 As one

court of appeals has explained, “[t]he teaching of Morgan

is that federal courts may properly fill the interstices of

the federal post-conviction remedial framework through

remedies available at common law.” United. States v.

Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990).

In sum, the Supreme Court in Morgan, held that a

person who regardless of custody may bring a writ of error

coram nobis if the person can show that the writ is

necessary to correct a fundamental error that would have

prevented the person’s conviction if it had been known at

(maintaining possibility coram nobis available to in-custody

defendant if section 2255 unavailable); Hack,supra note 31, at 211

(asserting application AEDPA without considering coram nobis

purpose ignores common-law and AEDPA language).

13 See Triestman v. United States, 124 F.3d 361, 380 n.24 (2d

Cir. 1997) (maintaining coram nobis possibly available to in-custody

defendant if section 2255 unavailable); W.W. Allen, Delay as Affecting

Bight, to Coram. Nobis Attacking Criminal Conviction, 62 A.L.R.2D

432, §1 (1958) (noting section 2255 requirement of “in custody”

prisoner “does not cover whole field of needed relief’); Romualdo R.

Eclavea, Annotation, Availability, Under 28 U.S.C.A. § 1651, of Writ

of Error Coram Nobis to Vaca te Federal Conviction Where Sentence

Has Not Yet Been Served, 37 A.L.R. FED. 499, §2[a] (1978)

(explaining coram nobis normally applied when movant no longer in

custody); Wheatley, supra note 2, § 6 (explaining restraint not

prerequisite for coram

nobis relief).

the time of trial. The Court stated that the writ of error

coram nobis is a powerful remedy that is available to a

person who has been convicted of a crime and who is

seeking relief from a fundamental error that occurred

during their trial. Section 2255 equally coexists with a

coram nobis to address those issues that cannot properly

be raised in a 2255.

Accordingly, there is no well-reasoned legal

authority to support the proposition that coram nobis

relief is limited to persons who are out of custody. As this

court has held, the only requirement is that the petitioner

demonstrate that a fundamental error occurred that

would have resulted in a different outcome if it had been

corrected at the time of proceeding and no other avenues

of relief are available.

This Court should not pass on the opportunity to

answer the question of whether a petitioner in custody

can use a coram nobis to challenge non-custodial aspects

of a criminal judgment, so others are not delayed in

making a petition in appropriate cases.

There is also a substantial question as to whether

this grafted on requirement into the existing legal

framework is a valid reason for not seeking relief earlier

which went unanswered by both the lower court and this

Court. Often courts rejects filings as frivolous or without

merit any may preclude later relief or improperly

recharacterize them based on lack of guidance from this

court. See 28 U.S.C. 1915(a).

CONCLUSION

Littlejohn's case presents important questions of

law that are critical to the fair administration of justice.

The lower court's decision departs from well-established

principles of law and conflicts with the decisions of other

circuit courts. The issues raised in this case are of

national importance and require clarification by this

Honorable Court.

Therefore, Littlejohn respectfully requests that this

Honorable Court grant his petition for a writ of certiorari,

review the decision of the Court of Appeals for the Fourth

Circuit, reverse the decision of the district court, and

provide guidance on the standards that should be applied

in determining whether a defendant has presented a valid

reason for fading to seek collateral relief sooner

Alternatively, Littlejohn requests that this

Honorable Court remand the case to the lower courts for

further proceedings consistent with this petition to

address the open novel questions.

Respectfully submitted this 2nd day of May, 2023,

Dwayne M. Littlejohn

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.