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United States v. Ausby

United States District Court, District of Columbia

September 27, 2019




         The defendant, John Milton Ausby, seeks reconsideration of the portion of this Court’s ruling entered on July 3, 3019, see United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232 (D.D.C. July 3, 2019), that denied his motion to vacate his 1972 rape while armed conviction. See Def.’s Mot. to Reconsider Denial of Vacatur of Rape Conviction (“Def.’s Mot.”), ECF No. 59. As support for reconsideration, the defendant asserts that the Court “clearly erred in determining it lacked jurisdiction” to vacate the conviction under either 28 U.S.C. § 2255 or a writ of coram nobis. Id. at 1. In addition, he argues that the Court is bound to vacate his rape conviction by the D.C. Circuit’s mandate in United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019). Id. at 2. For the reasons explained below, the defendant’s Motion to Reconsider is denied.

         I. BACKGROUND

         The full factual and procedural background for this case has been set out in prior decisions, see Ausby, 916 F.3d at 1090–92; Ausby, 2019 WL 2870232, at *1–3; and United States v. Ausby, 275 F.Supp.3d 7, 8–24 (D.D.C. 2017), rev’d and remanded, 916 F.3d at 1095, and thus only a brief review of the facts is provided here. The defendant was originally tried and convicted by a jury in 1972, on one count of felony murder and one count of rape while armed, for the rape and murder of Deborah Noel. Ausby, 916 F.3d at 1091. He was then sentenced to life in prison on the felony murder conviction and received a concurrent sentence of 10 to 30 years for his rape while armed conviction. Id.; United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2452988, at *1 (D.D.C. June 11, 2019). The defendant was also convicted at a separate trial, in 1973, of murdering two other women, Sharon Tapp and Sherry Frahm; for these murder convictions he was sentenced to 30-year sentences to run concurrently with his sentence for the rape and murder of Noel. Ausby, 2019 WL 2452988, at *1. He remains incarcerated solely for the felony murder conviction as to Noel. Id.

         In 2015, the government notified the defendant that expert hair testimony used in his original trial was “false or misleading, ” and “waived any statute of limitations and procedural-default defenses in the event [the defendant] sought relief under 28 U.S.C. § 2255.” Ausby, 916 F.3d at 1092. In 2016, the defendant filed a Motion to Vacate Conviction under 28 U.S.C. § 2255, arguing that “the government’s knowing presentation of false and misleading expert hair examination testimony” violated the Due Process Clause of the Fifth Amendment and required vacatur of “Mr. Ausby’s conviction” under the standard set out in Napue v. Illinois, 360 U.S. 264 (1959). Def.’s Mot. to Vacate Conviction under 28 U.S.C. § 2255, at 1, ECF No. 2. The defendant’s § 2255 motion was denied after this Court concluded that the “overwhelming evidence against him” left no “reasonable likelihood” that the outcome would have been different without the false hair evidence. Ausby, 275 F.Supp.3d at 32 (internal quotation marks and citation omitted). The D.C. Circuit reversed, finding that the forensic expert’s false hair-matching testimony “could . . . have affected the judgment of the jury.” Ausby, 916 F.3d at 1090 (alteration in original) (internal quotation marks omitted) (quoting Napue, 360 U.S. at 271).

         In coming to that conclusion, the D.C. Circuit explained that under § 2255, “[a] federal prisoner may move to have his sentence vacated . . . if ‘the sentence was imposed in violation of the Constitution or laws of the United States, ’” id. at 1092 (quoting § 2255(a)), and noted that the defendant had “fully served his rape sentence, leaving his life sentence for murder, ” id. at 1091. Then, upon finding a Napue violation, the D.C. Circuit ruled that this Court “should have granted [the defendant’s] § 2255 motion to vacate his conviction, ” id. at 1095, and “remanded for proceedings consistent with [its] opinion” to afford appropriate relief, id. The defendant did not, and has not, challenged his separate convictions in 1973 for the murders of Sharon Tapp and Sherry Frahm, sentences he has also fully served. Ausby, 2019 WL 2452988, at *7.

         On remand, the government sought to proceed with a new trial, see Min. Entry (Apr. 12, 2019), and the parties were directed to file a joint proposed order to effectuate the D.C. Circuit’s mandate, see Min. Order (June 7, 2019). The parties proposed vacatur of both of the defendant’s convictions. See Jt. Filing: Proposed Order Vacating the Conviction, Att. 1 (“Jt. Proposed Order”) at 3, ECF No. 34-1. Upon consideration of the parties’ response, the Court questioned sua sponte whether jurisdiction existed to vacate the defendant’s rape while armed conviction under § 2255, since both the Verdict Form and the Judgment & Commitment Order reflect two convictions, on two distinct charges, for rape while armed and for felony murder, and the defendant had fully served his rape while armed sentence at the time he filed his § 2255 motion. See Min. Order (June 17, 2019). The parties were directed to explain why jurisdiction to vacate the defendant’s rape while armed conviction was proper. Id. In response, the parties agreed that the conviction should be vacated, see Jt. Submission Regarding Def.’s Conviction for Rape (“Parties’ Jt. Submission”) ¶ 1, ECF No. 40, but neither party addressed the jurisdictional issue in detail. The defendant argued in a footnote that § 2255 conferred jurisdiction, see Def.’s Petition for Writ of Coram Nobis Vacating Conviction for Rape While Armed (“Def.’s Pet.”) at 5 n.2, ECF No. 41, while the government submitted no briefing on the issue. In the alternative, the parties jointly proposed vacating the rape while armed conviction through a writ of coram nobis. See Parties’ Jt. Submission ¶ 3. To that end, the defendant filed an unopposed Petition for a Writ of Coram Nobis. See generally Def.’s Pet.

         Upon consideration of these filings, this Court vacated the defendant’s felony murder conviction, but declined to vacate his rape conviction. Ausby, 2019 WL 2870232, at *8. The defendant has filed a Motion to Reconsider pursuant to Federal Rule of Civil Procedure 59(e), arguing that the Court’s denial of vacatur of the rape conviction was clear error. Def.’s Mot. at I. Following a hearing held on September 19, 2019, that motion is now ripe for review.


         Federal Rule of Civil Procedure 59(e) allows a party to file “[a] motion to alter or amend a judgment.” Fed.R.Civ.P. 59(e). “A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit has explained, alteration under Rule 59(e) “is an extraordinary remedy which should be used sparingly.” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (3d ed. 2012)). Thus, a Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018) (quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)). Whether to grant a Rule 59(e) motion is within the district court’s discretion. Mohammadi, 782 F.3d at 17.


         In urging reconsideration under Rule 59(e), the defendant argues that the denial of his coram nobis petition was erroneous for three reasons. First, he claims that the Court has subject-matter jurisdiction to vacate his rape conviction under § 2255 because this conviction was “intimately related” to his felony murder conviction. Def.’s Mot. at 12. Second, he argues that his coram nobis petition should have been granted because presumed and actual collateral consequences attend his rape conviction. See Id . at 13–18. Third, he argues that the mandate rule requires that his rape conviction be vacated. See Id . at 18–19. Each of these arguments is addressed in turn.

         A. Ruling That This Court Lacked Jurisdiction to Vacate the Defendant’s Rape Conviction Under 28 U.S.C. § 2255 Is Not in Error

         The defendant argues that in denying vacatur of his rape conviction for lack of jurisdiction, the Court misapplied Maleng v. Cook, 490 U.S. 488 (1989), and the “in custody” requirement for relief under §2255. Def.’s Mot. at 10–13. According to the defendant, jurisdiction may be exercised to vacate “a sentence for which the petitioner is no longer in custody” as long as said petitioner is still in custody “on a closely related challenged sentence.” Def.’s Mot. at 11. To support this claim, the defendant cites Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001) and Daniels v. U.S., ...

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