United States District Court, D. Columbia.
For RICHARD LEE, Defendant: H. Heather Shaner, LAW OFFICES OF H. HEATHER SHANER, Washington, DC.
For USA, Plaintiff: Catherine K. Connelly, James Stephen Sweeney, LEAD ATTORNEYS, Barry Wiegand, U.S. ATTORNEY'S OFFICE, Washington, DC.
ELLEN SEGAL HUVELLE, United States District Judge.
Defendant Richard Lee, proceeding pro se, has filed a petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). (Petition for Writ of Error Coram Nobis, Feb. 25, 2015 [ECF No. 65] (" Pet." ).) For the reasons stated herein, the petition will be denied.
On February 4, 2011, defendant entered a plea of guilty pursuant to a plea agreement before Magistrate Judge Alan Kay to one count of armored car robbery in violation of 18 U.S.C. § 2113(a)(d), and 2, which was accepted by this Court on February 22, 2011. (Order Adopting Report and Recommendation, Feb. 22, 2011 [ECF No. 39].) Defendant's plea agreement advised him that this offense " carries a maximum penalty of 25 years of incarceration, a fine of $250,000, and a maximum term of supervised release of five years." (Plea Agreement, Feb. 4, 2011 [ECF No. 36].) On July 26, 2011, defendant was sentenced to 110 months imprisonment (with credit for time served) to be followed by 48 months of supervised release. (Judgment in a Criminal Case, July 26, 2011 [ECF No. 55].) Defendant noticed an appeal (Notice of Appeal, Aug. 5, 2011 [ECF No. 57]), but it was subsequently dismissed on defendant's own motion. (Order, Nov. 18, 2011 [ECF No. 63].)
Now, almost four years later, defendant has filed a petition for writ of error coram nobis asking the Court to " expunge or terminate" his term of supervised release on the ground imposing a term of supervised release to follow a sentence of imprisonment is an " illegal split sentence" that violates the Double Jeopardy Clause of the United States Constitution. (Pet. at 5.) The Court sought a response from the government ( see Minute Order, Feb. 26, 2015), which has now been filed. ( See Gov't Opp'n to Pet., Mar. 23, 2015 [ECF No. 68].)
At common law, " [t]he writ of coram nobis was available . . . to correct errors of fact . . . that affect the validity and regularity of the judgment." United States v. Morgan, 346 U.S. 502, 507, 74 S.Ct. 247, 98 L.Ed. 248 (1954). " It was allowed without limitation of time" and " was used in both civil and criminal cases." Id. Although now abolished in civil proceedings, see Fed.R.Civ.P. 60, federal courts retain the authority to grant a writ of error coram nobis in criminal proceedings under the All Writs Act, 28 U.S.C. § 1651(a). Morgan, 346 U.S. at 510-11 (rejecting argument that enactment of 28 U.S.C. § 2255 " should be construed to cover the entire field of remedies in the nature of coram nobis in federal courts" ); United States v. Denedo, 556 U.S. 904, 129 S.Ct. 2213, 2220-21, 173 L.Ed.2d 1235 (2009).
It is frequently observed that the writ of error coram nobis is an " extraordinary remedy." See Morgan, 346 U.S. at 511 (relief " should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice" ); Denedo, 129 S.Ct. at 2220 (writ is " an extraordinary tool to correct a legal or factual error" ). Yet, as the Supreme Court has noted: " [i]n American jurisprudence, the precise contours of coram nobis have not been well defined." Denedo, 129 S.Ct. at 2220. In this Circuit, the " leading case" in defining the writ is United States v. Hansen, 906 F.Supp. 688 (D.D.C. 1995). United States v. Williams, 630 F.Supp.2d 28, 32 (D.D.C. 2009). The court in Hansen described the writ as " an equitable tool for federal courts to 'fill the interstices of the federal post-conviction remedial framework,'" through which " the federal judge who imposed a sentence has the discretionary power to set aside an underlying conviction and sentence which, for a valid reason, should never have been entered." Hansen, 906 F.Supp. at 692 (quoting United States v. Ayala, 894 F.2d 425, 428, 282 U.S.App.D.C. 266 (D.C. Cir. 1990)); see also United States v. McCord, 509 F.2d 334, 341, 166 U.S.App.D.C. 1 (D.C. Cir. 1974) (petition for writ " may collaterally attack only constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify the failure to appeal on those grounds" ). In order to justify issuance of the writ, the petitioner must show that
(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.
Hansen, 906 F.Supp. at 692--93.
Defendant claims that his term of supervised release should be vacated because it is an " illegal split sentence" imposed without Congressional authorization and in violation of the Constitution's Double Jeopardy Clause. (Pet. at 2.) More specifically, he contends that his term of supervised release is unlawful because 18 U.S.C. § 3583(a), which provides that a court " in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment," is not a Congressionally-enacted statute but rather an exercise of executive authority. ( See Pet. at 2 (" Supervised Release was not authorized to be tacked on to a sentence of imprisonment. Supervised Release is a separate type of restraint of liberty which constitutes Double Jeopardy. 18 U.S.C. § 3583 is a noncongressional statue that has been created by the Executive Branch of government." )
At a minimum, defendant has failed to show a valid reason for not raising this argument earlier. As none of the material facts or applicable laws have changed since defendant's conviction, he could have raised it in his direct appeal (which he voluntarily dismissed), or in a timely-filed motion pursuant to 28 U.S.C. § 2255. Accordingly, the Court rejects defendant's petition on the ground that he has shown no reason ...