# Petition for Writ of Certiorari — Mills v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1144

## Text

In The
Supreme Court of the United States

¢

OCIE MILLS AND CAREY MILLS,

Petitioners,
V.

UNITED STATES OF AMERICA,
Respondent.

.

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

RONALD W. JOHNSON
Kinsey, TROXEL, JOHNSON, & WaALsorsky, P.A.
438 East Government Street

Pensacola, Florida 32501
P.O. Box 12686

Pensacola, Florida 32574
(850) 434-5267

Florida Bar No.: 166489

Attorney of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

~
off.

i

QUESTION PRESENTED

WHETHER THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE DECISION OF THE
SUPREME COURT IN UNITED STATES Vv. MORGAN?

ii
PARTIES TO THE PROCEEDING

Petitioners are Ocie and Carey Mills. They were the
Defendants in a criminal prosecution in the trial court
and the Appellees in the Eleventh Circuit Court of
Appeals.

Respondent is the United States of America, which
was the Plaintiff/prosecution in the criminal case in the
trial court and was the Appellant in the Eleventh Circuit
Court of Appeals.

TABLE OF CONTENTS

Page(s)
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PARTIES TO THE PROCEEDING .................. ii
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STATEMENT OF JURISDICTION................... 1
CONSTITUTIONAL PROVISIONS INVOLVED...... 1
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REASONS FOR GRANTING THE WRIT ........... 4

I. THE DECISION OF THE COURT OF APPEALS
CONFLICTS WITH THE DECISION OF THE
SUPREME COURT IN UNITED STATES V.
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TABLE OF AUTHORITIES
Page(s)

CASES:

Bivens v. Six Unknown Named Federal Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.
RSPR, 2D Ee. TH. BE GOP RGAE) onc ccccssicccesscsces 2

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075,
111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)......... 4,8

Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6
ke SE Ae BO CUED cc cnccoccccusssvcetetewiawess 6, 7

Maddox v. United States, 146 U.S. 140, 13 S. Ct. 50,
Db En See ee, GE 6 cs ch ssdasicsb ceeds 8

Mills v. United States, 514 U.S. 1112, 115 S. Ct.
ROG Se Tex Ge ee Se dnb db chances occeesces 3

Mills v. United States, 36 F.3d 1052 (11th Cir. 1994) ...2, 3

Remmer v. United States, 347 U.S. 227, 74S. Ct. 450,
fe SF rrr rrr res ee 8

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,
ee & FF, Srey yer ee 7

Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13
= & 2 F:. ey rr rary errr ae 6, 7

United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59
es Se SOP CD dare nunead curednnateeeaens 4, 5, 6, 9

United States v. Mills, 221 F.3d 1201 (11th Cir. 2000) ...1, 2
United States v. Mills, 904 F.2d 713 (11th Cir. 1990) ..... 2

United States v. Mills, 817 F.Supp 1546 (N.D. Fla.
SONEP cs ceccdcsncscssesanicesesp buds tebunnuneneeenes 2

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TABLE OF AUTHORITIES - Continued
Page(s)

United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247,
DS es es ee (UPON he ka Wh vcbe vs dcecadensade 4,5, 6,9

United States v. Swindall,:107 F.3d 831 (11th Cir.
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STATUTES AND RULEs:

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Be Res OB ID ois ond ca codes ob dude ndesabiccwel 4
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Clean Water Act, 33 U.S.C. § 1251 et seq........... I
River and Harbors Act, 33 U.S.C. § 403 et seq....... 2
ee, Ah Cole Td GR 6 5 ok poh aban cvtcesgsadioes 9
WO. Th, EUG. BE Tee CH ocho cde cnscduveuadsasaaees 9
CONSTITUTION:

Sixth Amendment, United States Constitu-
SNR 4ks koa da be cede de ba cae 1, 4, 5, 9, 10

vi

TABLE OF APPENDICES

APPENDIX A

OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
DATED AND FILED AUGUST 8, 2000....... App. 1

APPENDIX B

ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
FLORIDA DATED AND FILED AUGUST 13,
ADDD occccccccccccccccccccccccccceccccesscess App. 11

' PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of cer-
tiorari to review the judgment of the Eleventh Circuit
Court of Appeals in this Case.

+

OPINIONS BELOW

The Eleventh Circuit Opinion (Appendix A) is
reported at United States of America v. Mills, 221 F.3d 1201
(11th Cir. 2000). The district court opinion (Appendix B)
was entered on August 13, 1999.

¢

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit Court of
Appeals was entered on August 8, 2000.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth Amendment to the
United States Constitution. The Sixth Amendment states
in pertinent part:

“In all criminal prosecutions, the accused shall
enjoy the right to a trial . . . by an impartial
i

STATEMENT OF THE CASE

In 1989, following a jury trial without assistance of
counsel, the Millses, father and son, were convicted of
discharging pollutants and unlawfully excavating a canal
in the waters of the United States, in violation of the
Clean Water Act, 33 U.S.C. § 1251 et seq., and the River
and Harbors Act, 33 U.S.C. § 403 et seq., respectively. The
unlawful conduct in question was the Millses’ (1) place-
ment of landfill on lots they had purchased knowing that
the United States Army Corps of Engineers, having desig-
nated a portion of the land a wetland, required a permit
for any further development, and (2) enlargement of an
existing drainage ditch. See United States v. Mills, 221 F.3d
1201, 1202 (11th Cir. 2000), Mills v. United States, 36 F.3d
1052, 1054 (11th Cir. 1994) (per curiam), and United States
v. Mills, 817 F. Supp. 1546-1548 (N.D. Fla. 1993).

Both were sentenced to twenty-one months’
imprisonment, one year of supervised release, and a fine
of $5,000. 817 F. Supp. at 1546. The convictions were
summarily affirmed on direct appeal. See United States v.
Mills, 904 F.2d 713 (11th Cir. 1990).

In 1990 Ocie Mills filed a Bivens! action challenging
his arrest and prosecution. The district court dismissed
the complaint. The Eleventh Circuit affirmed the dis-
missal.

In 1991, the district court denied the Millses’ motion
to vacate their sentences under 28 U.S.C. § 2255. See
United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

scaneiaediinieaitehinaina et —

The District Court stated in its opinion that, at the time in
question, the subject land was probably not a “wetland”
for purposes of the Clean Water Act. Id. at 1548. That
decision, too, was affirmed on appeal. See Mills, 36 F.3d
1052, 1057 (11th Cir. 1994). The United States Supreme
Court denied certiorari. See Mills v. United States, 514 U.S.
1112, 115 S. Ct. 1966, 131 L. Ed. 2d 856 (1995). As of
November 21, 1991, the Millses had completed their
terms of imprisonment and supervised release.

On April 11, 1996, the Millses filed a petition for writ
of error coram nobis. The basis for the petition was an
attached affidavit from Quentin Wise, one of the jurors in
the Millses’ 1989 criminal trial. Wise contacted Ocie Mills
after seeing Mills air his grievances against the govern-
ment in a television program. Wise’s affidavit stated that
the foreman of the jury, Thomas J. Smith, had given the
jury unfavorable information about the Millses that had
not been introduced into evidence at trial. According to
the affidavit, the source of Smith’s extrinsic information
was Smith’s son, who allegedly had worked for the “State
of Florida Water Management” and was familiar with the
Millses and their previous misconduct and problems with
the government. Wise’s affidavit also stated that Wise felt
intimidated by jury foreman Smith.

The district court declined to adopt the report and
recommendation and instead concluded that the Millses
had stated a cognizable basis for relief. It remanded the
matter to the magistrate judge for an evidentiary hearing
on the substance of the Millses’ allegations of jury mis-
conduct. The district court denied the government’s
motion for reconsideration, but granted its motion under
28 U.S.C. § 1292(b) to certify the matter for interlocutory

appeal. By order dated December 3, 1999, the court of
appeals granted the government permission to appeal '
under § 1292(b).

On August 8, 2000, the Court of Appeals reversed the
decision of the trial court and remanded for entry of
judgement for the government. Relying upon this Court’s
decision in United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16,-
59 L. Ed. 129 (1914), the Eleventh Circuit held that allega-
tions of jury impartiality are not cognizable on coram
nobis as error of the most fundamental character. (App. 8).

¢

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF APPEALS CON-
FLICTS WITH THE DECISION OF THE SUPREME
COURT IN UNITED STATES V. MORGAN.

The Sixth Amendment to the United States Constitu-
tion expressly guarantees every accused person the right
in a criminal prosecution to have the right to a trial by an
impartial jury. This Court has characterized this right as
one of the few most fundamental interests guaranteed by
the Constitution. See Gentile v. State Bar of Nevada, 501 ‘
U.S. 1030, 1075, 111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888 :
(1991). i

In 1954, the Supreme Court’s decision in United States
v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954), |
revived the ancient writ of coram nobis by holding that the
writ was available in federal courts pursuant to the All
Writs Act, 28 U.S.C. § 1651(a). Morgan, 346 U.S. at 506,
fn.6, 511, 74 S. Ct. at 250, fn.6, 252; see United States v.

ET EER ene a A

Swindall, 107 F.3d 831, 834 (11th Cir. 1997). The Supreme
Court specifically stated that the enactment of 28 U.S.C.
§ 2255 is not a bar to coram nobis, and a district court has
the power to grant coram nobis. Morgan, 346 U.S. at 511, 74
S. Ct. at 252. The Supreme Court held in Morgan:

Continuation of litigation after final judgment
and exhaustion or waiver of any statutory right
of review should be allowed through this
extraordinary remedy only under circumstances
compelling such action to achieve justice.

Id.

The Supreme Court also held:

[when] no other remedy being then available
and sound reasons existing for failure to seek
appropriate earlier relief, this motion in the
nature of the extraordinary writ of coram nobis
must be heard by the federal trial court. (foot-
note omitted) Otherwise a wrong may stand
uncorrected which the available remedy would
right.

Morgan, 346 U.S. at 512, 74 S. Ct. at 253. Morgan also
noted that in United States v. Mayer, 235 U.S. 55, 35 S. Ct.
16, 59 L. Ed. 129 (1914) the Supreme Court stated that
coram nobis included errors “of the most fundamental
character.” Id.

In Morgan, the defendant pled guilty in 1939 and
filed his petition for writ of coram nobis sometime after
1950, alleging a violation of his Sixth Amendment consti-
tutional right through failure, without his competent
waiver, to furnish him counsel. 346 U.S. at 503-04, 74
S. Ct. at 248-49. In 1954, the United States Supreme Court
held that although Morgan had served his prison term,

the power to remedy an invalid sentence exists, and
Morgan was entitled to an opportunity to attempt to
show that the conviction was invalid. Morgan, 346 U.S. at
512-13, 74 S. Ct. at 253.

Ocie and Carey Mills have met all the requirements
of United States v. Morgan. They have been deprived of
their Sixth Amendment constitutional right to a trial by
an impartial jury. The Millses have no other remedy
available and sound reasons. exist for failure to seek
appropriate earlier relief. Within approximately one
month of receiving information about the misconduct of
the jury, the Millses filed their petition for writ of error
coram nobis in the trial court. (App. 16). The extraordinary
writ of coram nobis must be heard by the district court or
otherwise a wrong will stand uncorrected which the
available remedy would right.

England, from whom the Western World has
largely taken its concepts of individual liberty
and of the dignity and worth of every man, has
bequeathed to us safeguards for their preserva-
tion, the most priceless of which is that of trial
by jury. This right has become as much Ameri-
can as it was once the most English.

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6
L. Ed. 2d 751 (1961). “The requirement that a jury’s ver-
dict must be based upon the evidence developed at the
trial goes to the fundamental integrity of all that is
embraced in the constitutional concept of trial by jury.”
Turner y. Louisiana, 379 U.S. 466, 472, 85 S. Ct. 546, 549, 13
L. Ed. 2d 424 (1965).

In essence, the right to jury trial guarantees to
the criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors. The failure to
accord an accused a fair hearing violates even
the minimal standards of due process. In re
Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682;
Tumey v. State of Ohio, 273 U.S. 510, 47 S. Ct. 437,
71 L. Ed. 749, ‘A fair trial in a fair tribunal is a
basic requirement of due process.’ In re Mur-
chison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99
L. Ed. 942. In the ultimate analysis, only the jury
can strip a man of his liberty or his life. In the
language of Lord Coke, a juror must be as ‘indif-
ferent as he stands unsworn.’ Co.Litt. 155b. His
verdict must be based upon the evidence devel-
oped at the trial. Cf. Thompson v. City of
Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d
654. This is true, regardless of the heinousness
of the crime charged, the apparent guilt of the
offender or the station in life which he occupies.
It was so written into our law as early as 1807 by
Chief Justice Marshall in 1 Burr’s Trial 416... . -

Irvin v. Dowd, 366 U.S. at 722, 81 S. Ct. at 1642.

In the constitutional sense, trial by jury in a criminal
case necessarily implies at the very least that all the
evidence developed against a defendant shall come from
the witness stand in a public courtroom where there is
full judicial protection of the defendant’s right of con-
frontation, of cross-examination, and of counsel. Turner v.
Louisiana, 379 U.S. at 472-73, 85 S. Ct. at 550. The right to
a trial by jury in serious criminal cases is “fundamental”
to the American scheme of justice, and includes as its
most important element the right to a trial by an impar-
tial jury. Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct.
2078, 2080, 124 L. Ed. 2d 182 (1993).

In a criminal case, any private communication, con-
tact, or tampering directly or indirectly with a juror dur-
ing a trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial, if
not made in pursuance of known rules of the court and
the instructions and directions of the court made during
the trial, with full knowledge of the parties. The pre-
sumption is not conclusive, but the burden rests heavily
upon the government to establish, after notice to and
hearing of the defendant, that such contact with the juror
was harmless to the defendant. Maddox v. United States,
146 U.S. 140, 148-50, 13 S. Ct. 50, 52-53, 36 L. Ed. 917
(1892), Remmer v. United States, 347 U.S. 227, 229, 74S. Ct.
450, 451, 98 L. Ed. 654 (1954).

In the instant case, the Eleventh Circuit Court of
Appeals held:

We understand why the district court might
consider juror misconduct to be an error of the
most fundamental character. Were we writing
on a clean slate, we might agree because, as a
theoretical proposition, this argument is not
without persuasiveness. After all, the Sixth
Amendment expressly guarantees the right to
trial by an impartial jury, and the United States
Supreme Court has characterized this right as
one of the few most fundamental interests guar-
anteed by the Constitution.” See Gentile v. State
Bar of Nevada, 501 U.S. 1030, 1075, 111 S. Ct.
2720, 115 L. Ed. 2d 888 (1991).

Nevertheless, the argument that allegations
of jury impartiality should be cognizable on
coram nobis as error of the most fundamental
character may be compelling, but it is not the
law. See Mayer, 235 U.S. at 69, 35 S. Ct. 16.

[The Supreme Court has told us] more
than once . . . that, “[i]f precedent of this
Court has direct application in a case, yet
appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals
should follow the case which directly con-
trols, leaving to this Court, the prerogative
of overruling its own decisions.” (Citations
omitted).

(App. 8-9). The decision of United States v. Mayer, supra,
and the Eleventh Circuit’s decision in the instant case,
conflicts with this Court’s decision in United States v.
Morgan, supra.

Relying upon United States v. Mayer, supra, the Elev-
enth Circuit held that claims of misbehavior or partiality
of jurors must be raised by a motion for new trial, as
newly discovered evidence. (App. 4, 9-10). In 1989 when
the Millses were convicted and in 1996 when they filed
their petition for writ of error coram nobis, there was a
two year statute of limitations to file a motion for new
trial alleging newly discovered evidence pursuant to Rule
33, Fed. R. Crim. P. (1988). Rule 33 was amended in 1998
and now provides for a three year statute of limitations to
file a motion for new trial alleging newly discovered
evidence.

United States v. Morgan, supra, did not place a statute
of limitations upon Constitutional error which was not
previously known to a person unjustly convicted of a
crime. Petitioners have suffered an error of the most
fundamental character. Ocie and Carey Mills’ Sixth
Amendment right to an impartial jury trial is no less
important than Morgan’s Sixth Amendment right to

10

counsel. Morgan was allowed by this Court to raise his
coram nobis claim more than eleven years after his Sixth
Amendment violation. The conflict is clear and irreconcil-
able. Certiorari is appropriate.

¢

CONCLUSION

For the foregoing reasons, the Petition for Writ of
Certiorari should be granted.

Respectfully Submitted,

RONALD W. JOHNSON
KINSEY, TROXEL, JOHNSON,

& Watsorsky, P.A.
438 East Government Street
Pensacola, Florida 32501
(850) 434-5267
Florida Bar No.: 166489

Attorney of Record for Petitioners

App. 1

APPENDIX A
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 99-14934

D.C. Docket No. 88-03100-CR-RV

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus
OCIE MILLS, CAREY MILLS,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Florida

(Filed August 8, 2000)
Before CARNES, MARCUS and FARRIS", Circuit Judges.
FARRIS, Circuit Judge:

We decide whether the defendants-appellees, Ocie
Mills and Carey Mills, may seek extraordinary relief by
way of a writ of coram nobis based on their allegation
that jurors in their criminal trial considered extrinsic

* Honorable Jerome Farris, U.S. Circuit Judge for the Ninth
Circuit, sitting by designation.

App. 2

evidence. We reverse and remand for entry of judgment
for the government.

The material facts are undisputed. In 1989, following
a jury trial, the Millses, father and son, were convicted of
discharging pollutants and unlawfully excavating a canal
in the waters of the United States, in violation of the
Clean Water Act, 33 U.S.C. § 1251 et seq., and the Rivers
and Harbors Act, 33 U.S.C. § 403 et seq., respectively. The
unlawfui conduct in question was the Millses’ (1) place-
ment of red clay landfill on lots they had purchased
knowing that the United States Army Corps of Engineers,
having designated a portion of the land a wetland,
required a permit for any further development, and (2)
enlargement of an existing drainage ditch. See Mills v.
United States, 36 F.3d 1052, 1054 (11th Cir. 1994) (per
curiam).

Both were sentenced to twenty-one months’
imprisonment, one year of supervised release, and a fine
of $5,000. The convictions were summarily affirmed on
direct appeal. See United States v. Mills, 904 F.2d 713 (11th
Cir. 1990).

In 1990, Ocie Mills filed a Bivens! action challenging
his arrest and prosecution. The district court dismissed
the complaint. The Eleventh Circuit affirmed the dis-
missal.

In 1991, the district court denied the Millses’ motion
to vacate their sentences under 28 U.S.C. § 2255. See
United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).

{J eee

App. 3

That decision, too, was affirmed on appeal. See Mills, 36
F.3d 1052, 1057 (11th Cir. 1994). The United States
Supreme Court denied certiorari. See United States v.
Mills, 514 U.S. 1112 (1995).

As of November 21, 1991, the Millses had completed
their terms of imprisonment and supervised release.

On April 11, 1996, the Millses filed a petition for writ
of error coram nobis. The basis for the petition was an
attached affidavit from Quentin Wise, one of the jurors in
the Millses’ 1989 criminal trial. Wise contacted Ocie Mills
after seeing Mills air his grievances against the govern-
ment in a television program. Wise’s affidavit stated that
the foreman of the jury, Thomas J. Smith, had given the
jury unfavorable information about the Millses that had
not been introduced into evidence at trial. According to
the affidavit, the source of Smith’s extrinsic information
was Smith’s son, who allegedly had worked for the “State
of Florida Water Management” and was familiar with the
Millses and their previous misconduct and problems with
the government. Wise’s affidavit also stated that Wise felt
intimidated by jury foreman Smith.

The district court declined to adopt the report and
recommendation and instead concluded that the Millses
had stated a cognizable basis for relief. It remanded the
matter to the magistrate judge for an evidentiary hearing
on the substance of the Millses’ allegations of jury mis-
conduct. The district court denied the government’s
motion for reconsideration, but granted its motion under
28 U.S.C. § 1292(b) to certify this matter for interlocutory
appeal. By order dated December 3, 1999, we granted the
government permission to appeal under § 1292(b).

App. 4

THE PARTIES’ CONTENTIONS
A. The Government's Position

Relying primarily on United States Supreme Court
authority, the government contends that the basis for the
Millses’ coram nobis petition - newly discovered evi-
dence that the jury considered extrinsic evidence and
therefore was not impartial - is unavailable to remedy
alleged “prejudicial misconduct in the course of the trial,
the misbehavior or partiality of jurors, and newly discov-
ered evidence.” See United States v. Mayer, 235 U.S. 55, 69
(1914); United States v. Morgan, 346 U.S. 502, 512 (1954).
The government points out that the writ of coram nobis is
available only to remedy errors “of the most fundamental
character,” see Mayer, 235 U.S. at 69, and argues that
expanding the availability of coram nobis relief by per-
mitting the Millses to proceed would undermine the
finality of criminal convictions and the sanctity of jury
deliberations.

B. The Millses’ Position

The Millses contend that the government has misread
Mayer, which, in their view, does not foreclose pursuit of
coram nobis relief on the basis they have asserted. In the
Millses’ view, coram nobis relief is available where, as
here, it is necessary to achieve justice when no other
remedy is available and sound reasons exist for failure to
seek earlier relief.

-———— -

App. 5

DISCUSSION

The issue is purely a question of law, which we
review de novo. See United States v. Duarte-Acero, 208 F.3d
1282, 1284 (11th Cir. 2000).

Federal courts have authority to issue a writ of error
coram nobis under the All Writs Act, 28 U.S.C. § 1651(a).
The writ of error coram nobis is an extraordinary remedy
of last resort available only in compelling circumstances
where necessary to achieve justice. See United States v.
Swindall, 107 F.3d 831, 834 (11th Cir. 1997). A court’s
jurisdiction over coram nobis petitions is limited to the
review of errors “of the most fundamental character.”
Mayer, 235 U.S. at 69.2 Such errors do not include “preju-
dicial misconduct in the course of the trial, the mis-
behavior or partiality of jurors, and newly discovered
evidence.” Id. In addition, courts may consider coram
nobis petitions only where no other remedy is available
and the petitioner presents sound reasons for failing to
seek relief earlier. See Morgan, 346 U.S. at 512.°

The Millses have challenged the applicability of the
holding in Mayer to this case. The defendant in Mayer,
Albert Freeman, was convicted in federal district court of

2 The writ of coram nobis has been abolished in civil cases.
See Fed. R. Civ. P. 60(b).

3 When Mayer was decided, district courts held formal
terms of operation lasting for a specified period. See 28 U.S.C.A.
§ 138 (West 1993) (in particular Historical and Statutory Notes,
1948 Acts). A district court could entertain a motion for new
trial only if it was filed during the same term of court in which
the judgment was entered. See Mayer, 235 U.S. at 67-69; Fed. R.
Civ. P. 77 advisory committee's note.

App. 6

misuse of the mails. See Mayer, 235 U.S. at 56. He
appealed his conviction. See id. Ten months later, after the
expiration of the term of court during which Freeman’s
judgment of conviction was entered, Freeman filed a
motion in district court to set aside his conviction or for a
new trial. One of the grounds for the motion was Free-
man’s allegation that, during voir dire, one juror con-
cealed a bias against Freeman. See id. at 57. Despite, (1)
the expiration of the term of court during which Freeman
was convicted, and (2) Freeman’s pending appeal. of his
conviction, the government purported to consent to the
district court’s jurisdiction over the new trial motion.
District Court Judge Mayer granted the motion. The gov-
ernment obtained an order from the court of appeals
directing Judge Mayer to show cause why a writ of
prohibition should not issue forbidding the granting of a
new trial.

The Supreme Court held that the district court was
without jurisdiction to entertain Freeman’s new trial
motion for two independent reasons: (1) the term during
which Freeman’s conviction issued had expired, and the
facts did not warrant recognizing any exceptions to this
jurisdictional bar, see id. at 67-69, and (2) once Freeman
appealed his conviction in the court of appeals, the dis-
trict court was deprived of jurisdiction over his case
despite the government's purported consent, see id. at 71.

The Court explained that where errors of the most
fundamental character existed, a district court might have

4 The government recognizes that no other remedy is
available to the Millses and that they have presented sound
reasons for failing to seek relief earlier.

sireriemeeeememiasiataiaiiaisiiiiiiiciiiieimiiaiiiaaiiae

App. 7

“correctional jurisdiction” like that available at common
law under coram nobis. Id. at 69. The Court, however, -
explicitly refused to decide whether the writ of coram
nobis remained an available remedy in the federal courts,
and further stated that, even if it was, such relief would
be unavailable to Freeman. See id. at 69. The Court ulti-
mately held that the proper remedy “[i}n cases of prejudi-
cial misconduct in the course of trial, the misbehavior or
partiality of jurors, and newly discovered evidence” is
“by a motion for a new trial.” Id.

Subsequent controlling opinions have confirmed the
applicability in federal courts of the writ of coram nobis
and, moreover, have treated Mayer as the source of the
applicable rule governing the circumstances under which
coram nobis relief is available. Specifically, the Court in
United States v. Morgan, 346 U.S. 502, 512-13 (1954), citing
Mayer, held that criminal defendants could pursue coram
nobis relief to remedy errors “of the most fundamental
character.” Morgan, 346 U.S. at 512 (citation omitted).°

Post-Morgan decisions by the Supreme Court, the
Fifth Circuit, and the Eleventh Circuit have treated Mayer
as the source of the controlling rule on the availability of
coram nobis relief. See Carlisle v. United States, 517 U.S.
416, 428-29 (1996) (citing Mayer for the applicable stan-
dard governing coram nobis petitions, and stating that it
is difficult to conceive of a situation in a federal criminal

5 The circumstances in Morgan warranting the defendant’s
pursuit of coram nobis relief were his allegations that, without
his competent waiver, the district court had failed to appoint
him counsel. See id. at 504.

App. 8

case today in which coram nobis relief would be neces-
sary or appropriate); United States v. Addonizio, 442 US.
178, 186 (1979) (citing Mayer for the proposition that
coram nobis relief is limited to errors of the most funda-
mental character); Lowery v. United States, 956 F.2d 227,
230 (11th Cir. 1992) (per curiam) (treating Mayer standard
as controlling); Moody v. United States, 874 F.2d 1575, 1577
(11th Cir. 1989) (treating Mayer standard as controlling, |
and affirming denial of coram nobis petition based on |
allegations of newly discovered evidence); Granville v. ©
United States, 613 F.2d 125, 126 n.1 (5th Cir. 1980) (per
curiam) (treating Mayer standard as controlling); United
States v. Carter, 437 F.2d 444, 445 (5th Cir. 1971) (same).

We understand why the district court might consider
juror misconduct to be an error of the most fundamental
character. Were we writing on a clean slate, we might
agree because, as a theoretical proposition, this argument
is not without persuasiveness. After all, the Sixth Amend-
ment expressly guarantees the right to trial by an impar- |
tial jury, and the United States Supreme Court has
characterized this right as one of the few most fundamen-
tal interests guaranteed by the Constitution. See Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1075 (1991).

Nevertheless, the argument that allegations of jury
impartiality should be cognizable on coram nobis as error
of the most fundamental character may be compelling,
but it is not the law. See Mayer, 235 U.S. at 69.

[The Supreme Court has told us] more than
once .. . that, “[i]f a precedent of this Court has
direct application in a case, yet appears to rest
on reasons rejected in some other line of deci-
sions, the Court of Appeals should follow the

Licmetinmieiiaiiiimcatie a ilcal

App. 9

case which directly controls, leaving to this
Court, the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/Ameri-
can Express, Inc., 490 U.S. 477, 484, 109 S.Ct.
1917, 1921-22, 104 L.Ed.2d 526 (1989); accord,
e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.
1997, 2017, 138 L.Ed.2d 391 (1997) (“We do not
acknowledge and we do not hold that other
courts should conclude our more recent cases
have, by implication, overruled an earlier prece-
dent.”). We have followed that admonition. See
Brisentine v. Stone & Webster Engineering Corp.,
117 F.3d 519, 525 (11th Cir. 1997) (“It may be that
the Supreme Court has cut Alexander [v. Gardner-
Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d
147 (1974)] back so far that it will not survive.
Perhaps, but we are not convinced we are autho-
rized to sing the dirge of Alexander. We will
leave that to the Supreme Court, which has
admonished courts of appeals . . . ‘[to leave
it] the prerogative of overruling its own deci-
sions.’ ”) (quoting Rodriguez de Quijas, 490 U.S.
at 484, 109 S.Ct. at 1921-22); Engineering Contrac-
tors Ass'n v. Metropolitan Dade County, 122 F.3d
895, 903 (11th Cir. 1997).

Jefferson County v. Acker, 210 F.3d 1317, 1319 (11th Cir.
2000).

Relying on Mayer, we have held that allegations of
newly discovered evidence are not cognizable in a peti-
tion for coram nobis. See Moody, 874 F.2d at 1577 (holding
that coram nobis is improper vehicle for claims of newly
discovered evidence, and observing that coram nobis
petitions are similar to motions for new trial).

App. 10

We therefore reject the Millses’ argument that the
government’s reading of Mayer is incorrect. In the
Millses’ view, Mayer simply decided that Freeman could
not seek relief in district court because he had another
remedy available to him, i.e., pursuit of the appeal of his
conviction.

The Millses, however, are mistaken. The Court’s two
grounds for concluding that the district court lacked
jurisdiction in Mayer were independent, each alone suffi-
cient to dispose of the case. The Supreme Court's holding
in Mayer that Freeman’s appeal of his conviction deprived
the district court of jurisdiction did not affect its separate
holding that Freeman had failed to allege error of a
fundamental character such as would have warranted
pursuit of coram nobis relief at common law.

We reverse and remand for entry of judgment for the
government.

REVERSED and REMANDED.

ee

App. 11

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

UNITED STATES
OF AMERICA,

V.

OCIE MILLS and
CAREY C. MILLS,

Defendants.

CASE NO. 88-03100/RV

/

ORDER

This matter is before me now for consideration of the
Magistrate Judge’s Report and Recommendation dated
March 17, 1999. The defendants have been furnished a
copy of the Report and Recommendation and have been
afforded an opportunity to file objections pursuant to
Title 28, United States Code, Section 636(b)(1). I have
made a de novo determination of those portions to which
an objection has been made.

The petition under consideration is the petition for
writ of error coram nobis filed by the defendants. The
defendants were originally convicted by jury trial in 1989
of five counts of discharging pollutants into the waters of
the United States without a permit, in violation of the
Clean Water Act 33 U.S.C. § 1251 et seq.], and one count of
unlawfully excavating a canal in the navigable waters of
the United States, in violation of the Rivers and Harbors
Act [33 U.S.C. § 403 et seq.]. The were each sentenced by
the late Senior Judge Winston E. Arnow to a term of

App. 12

twenty-one months imprisonment, followed by one year
of supervised release, and a fine of $5,000. The defen-
dants’ convictions were affirmed upon direct appeal in
United States v. Mills, 904 F.2d 713 (11th Cir. 1990) (table).
The defendants filed a motion to vacate sentence pur-
suant to Title 28, United States Code, Section 2255.
Although I determined that their offenses of conviction
were based upon seriously flawed legal principles, I was
forced to conclude that any change in the law had to be
made by Congress and not by the Courts. Therefore, |
denied their motion on March 31, 1993. United States v.
Mills, 817 F. Supp. 1546 (N.D. Fla. 1993). That decision
was subsequently affirmed by the Eleventh Circuit Court
of Appeals in United States v. Mills, 36 F.3d 1052 (11th Cir.
1994). The Supreme Court of the United States also
denied certiorari. Cert. denied, 514 U.S. 1112, 115 S.Ct.
1966, 131 L.Ed.2d 856 (1995).

In their current petition for writ of error coram nobis,
the defendants contend that they are entitled to a new
trial because of juror misconduct. Attached as an exhibit
to the petition is the affidavit of Quentin Wise, a member
of the jury that convicted the defendants. Wise states in
his affidavit that Mr. Smith, the foreman of the jury,
repeatedly told Wise that defendant Ocie Mills had prior
cases, that the defendant had threatened environmental
people on his property with a gun, and that if the defen-
dant was found guilty, he would not be sentenced to a
prison term and would only have to remove soil from the
property. (doc. 185, att.) Wise also states that Mr. Smith
told Wise that “he was familiar with Ocie Mills’ prior
problems and wrong doings because his son was
employed with the State of Florida Water Management.”

App. 13

Id. The defendants indicate that Quentin Wise contacted
the defendants after watching a television program fea-
turing defendant Ocie Mills on March 3, 1996.

According to the government, the defendants have
not stated a claim for which relief can be granted pur-
suant to a writ of error| coram nobis. Under the Rules of
Criminal Procedure, a motion for new trial on newly
discovered evidence must be filed within three years after
the verdict or finding of guilt. Rule 33, Fed. R. Crim. P.
The government contends that the issue of juror miscon-
duct should have been raised in a timely motion for new
trial, and cannot be raised in a petition for writ of error
coram nobis. The government concludes that because a
motion for new trial based upon newly discovered evi-
dence is untimely, the petition must be denied. The Mag-
istrate Judge agreed, and recommended denial of the
petition. (doc. 194)

Federal courts have authority to issue a writ of error
coram nobis under the All Writs Act [28 U.S.C. § 1651(a)].
The writ is a limited remedy of last resort, and is limited
to cases in which “no statutory remedy is available or
adequate.” Lowery v. United States, 956 F.2d 227, 228-29
(11th Cir.1992) (citations omitted). “Continuation of liti-
gation after final judgment and exhaustion or waiver of
any statutory right of review should be allowed through
this extraordinary remedy only under circumstances com-
pelling such action to achieve justice.” United States v.
Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 252, 98 L. Ed. 248
(1954). “Such compelling circumstances exist only when
the error involves a matter of fact of the most fundamen-
tal character which has not been put in issue or passed
upon and which renders the proceeding itself irregular

App. 14

and invalid.” Moody v. United States, 874 F.2d 1575, 1576
(11th Cir. 1989) (citing United States v. Mayer, 236 U.S. 55,
69, 35 S. Ct. 16, 19-20, 59 L. Ed. 129 (1914)).

The government relies primarily upon Moody v.
United States, 874 F.2d 1575 (11th Cir. 1989). In Moody, the
petitioner sought relief from a conviction on the ground
of newly discovered evidence that allegedly proved that
he did not commit the crime. The district court dismissed
the petitioner’s petition for writ of error coram nobis. On
appeal, the Eleventh Circuit defined the issue as whether
the petitioner’s allegation of newly discovered evidence
was the “fundamental type of irregularity” for which the
writ provided a remedy. Id. at 1577. The Eleventh Circuit
held that “[a] claim of newly discovered evidence rele-
vant only to the guilt or innocence of the petitioner is not
cognizable in a coram nobis proceeding.” Id. According to
the Eleventh Circuit, “[t]he rule that new evidence is not
a claim for which the writ . . . may be issued is consistent
with the limitation imposed on movants seeking a new
trial based upon newly discovered evidence.” Id. See Reid
v. United States, 149 F.2d 334 (5th Cir. 1945) (petitioner
was denied relief because coram nobis petition was, in
substance, merely an untimely motion for a new trial
based on newly discovered evidence).

In this case, the defendants allege that juror miscon-
duct occurred when the foreman of the jury obtained
information about the defendants from outside the court-
room and communicated such information to other jurors
during the trial. This is newly discovered evidence, but
the time for a new trial on that ground has long expired
and there is no statutory remedy now available. Thus, the
defendants’ only possible source of relief is via a writ of

App. 15

error coram nobis. The issue presented is whether the
substantive allegation supporting the defendants’ present
challenge to their convictions involve a “fundamental”
constitutional principle.

Among the most fundamental protections available
to an accused is the right to trial by an impartial jury
guaranteed by the Sixth Amendment. Ristaino v. Ross, 424
U.S. 589, 595 n.6, 96 S. Ct. 1017, 1020 n.6, 47 L. Ed. 2d 258
(1976); Singer v. United States, 380 U.S. 24, 36, 85 S. Ct. 783,
790, 13 L. Ed. 2d 630, 638 (1965). The requirement that the
jury verdict be based on the evidence produced at trial
“goes to the fundamental integrity of all that is embraced
in the constitutional concept of trial by jury.” Turner v.
State of Louisiana, 379 U.S. 466, 472, 86 S. Ct. 546, 549, 13
L. Ed. 2d 424 (1965). “Extrinsic evidence, evidence that
has not been subject to the procedural safeguards of a fair
trial, threatens such constitutional safeguards as the
defendant's right of confrontation, of cross-examination,
and of counsel.” United States v. Perkins, 748 F.2d 1519,
1533 (11th Cir. 1984). When jurors consider extrinsic evi-
dence, a new trial is required if the evidence “poses a
reasonable possibility of prejudice to the defendant.”
United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990).
Although the defendant has the burden of demonstrating
prejudice, the court must investigate an alleged impropri-
ety “upon merely a colorable showing of extrinsic influ-
ence.” Id.

The defendants’ allegation of juror misconduct is not
merely a “claim of newly discovered evidence relevant
only to the guilt or innocence of the petitioner.” Moody,
874 F.2d at 1577. Instead, the defendants have alleged a
constitutional violation that affects the validity of the

App. 16

underlying proceeding. The defendants have alleged a
fundamental constitutional error, as did the defendant in
United States v. Morgan, supra, who alleged that he was
not advised of his constitutional rights and did not com-
petently or intelligently waive counsel prior to entering
his plea of guilty. Upon consideration of the Morgan
petition, the Supreme Court of the United States held:

Where it cannot be deduced from the record
whether counsel was properly waived, we
think, no other remedy being then available and
sound reasons existing for failure to seek appro-
priate other relief, this motion in the nature of
the extraordinary writ of coram nobis must be
heard by the federal trial court.

United States v. Morgan, supra, 346 U.S. at 511-12, 74 S. Ct.
at 252-53.

In this case, the defendants did not become aware of
the alleged juror misconduct until well after the time
limits had expired on all normally available avenues of
relief. The defendants filed the present petition approxi-
mately a month after learning of the alleged misconduct.
Because the defendants have alleged facts that would
support a claim of constitutional error - a fundamental
error that could potentially render the underlying pro-
ceeding invalid - the defendants are entitled to an evi-
dentiary hearing and an opportunity to present evidence
supporting their petition. See, e.g., Lujan v. United States,
424 F.2d 1053 (5th Cir. 1970); United States v. Carlino, 400
F.2d 56 (2d Cir. 1968).

Having considered the report and recommendation
and all objections thereto timely filed by the parties, I
have determined that the report and recommendation

Sern Seer

App. 17

should not be adopted. Instead, the matter is remanded
to the Magistrate Judge for an evidentiary hearing on the
petition for writ of error coram nobis.

DONE AND ORDERED this 13th day of August,
1999.

/s/ Roger Vinson

ROGER VINSON
Chief Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1287%3A1. Public record. Not legal advice.