Opinion
No. 3:93-CR-0368-G, No. 3:03-CV-0839-G
March 22, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case ; This is a petition for writ of error coram nobis filed by a federal prisoner.
B. Parties : Petitioner, an inmate in a federal prison in Beaumont, Texas, names the United States of America as respondent.
C. Procedural History; On April 23, 2003, the Court received the instant petition for writ of error coram nobis. Petitioner seeks to correct an error in his sentence imposed in No. 3:93-CR-368-G. (Writ of Error Coram Nobis at 1.) He claims that the Court erroneously applied the career offender guideline to him. (Id.) No process has been issued in this case.
II. CORAM NOBIS
The instant challenge to No. 3:93-CR-368-G is before the Court on petitioner's writ of error coram nobis. Pursuant to the All Writs Act, 28 U.S.C. § 1651 (a), an individual may file such a writ in the court in which he was convicted. See United States v. Morgan, 346 U.S. 502, 504 (1954); United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998). The Fifth Circuit Court of Appeals recently reaffirmed the continued viability of such a writ. See United States v. Esogbue, 357 F.3d 532, 533-35 (5th Cir. 2004).The writ "is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate his criminal conviction." United States v. Hatten, 167 F.3d 884, 887 n. 6 (5th Cir. 1999). Because petitioner remains in custody on the sentence imposed in his federal criminal action, Cause No. 3:93-CR-368-G, this Court lacks jurisdiction to consider his writ of error coram nobis. See Esogbue, 357 F.3d at 534-35 (recognizing that custody status is a factor in whether the court has jurisdiction over a writ of error coram nobis); United States v. Solomon, Nos. 3:98-CR-299-X, 3:01-CV-2583-X, 2001 WL 1609344, at *2 (N.D. Tex. Dec. 11, 2001) (accepting recommendation to dismiss writ of error coram nobis for lack of jurisdiction because petitioner was still in custody). When a petitioner is in custody on the challenged conviction, the writ of coram nobis is "not available to him." Hatten, 167 F.3d at 887 n. 6. "Where a petitioner is still in federal custody, relief from a prior invalid conviction must be sought by means of § 2255; for coram nobis survives only to the extent that it has not been replaced by statute and, therefore, is open to a prisoner only when his statutory remedies are unavailable or inadequate." Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973).
The Court declines to construe the writ as a motion to vacate filed under 28 U.S.C. § 2255 because petitioner filed a motion to vacate in February 2004 which the Court recently dismissed as a successive § 2255 motion. However, the Clerk of Court should file a copy of the writ and a copy of these findings and recommendation in the criminal action for record-keeping purposes.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of error coram nobis be DISMISSED for lack of jurisdiction. It is further recommended that the Clerk of Court file, in the underlying criminal case, a copy of the instant writ, a copy of these findings and recommendation, and any other order entered in this civil action.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).