Criminal Case No. 93-40001-01-SAC, Civil Case No. 02-3358-SAC
March 5, 2003
MEMORANDUM AND ORDER
On January 5, 1994, this court sentenced the defendant Williams to a primary term of incarceration of 292 months on the drug conspiracy count and to a concurrent sentence of 60 months on the money laundering count. On March 27, 1995, the Tenth Circuit affirmed the sentence imposed by this court. See United States v. Williams, 51 F.3d 287 (10th Cir. 1995) (Table). In April of 1996, Williams filed his first petition for relief pursuant to 28 U.S.C. § 2255 (Dk. 227), which this court denied, United States v. Williams, 948 F. Supp. 956 (D.Kan. 1997), appeal dismissed, 118 F.3d 717 (10th Cir.), cert. denied, 522 U.S. 1033 (1997).
The defendant Williams filed his second and third § 2255 motions (Dks. 249 and 256), both of which this court transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631. United States v. Williams, 2001 WL 789406 (D.Kan. May 3, 2001); United States v. Williams, 1999 WL 316930 (D.Kan. Apr. 14, 1999). The Tenth Circuit denied the defendant permission to file successive petitions.
The case comes again before the court on yet another post-conviction filing by the defendant. Hoping to avoid the same procedural fate of his prior successive petitions, the defendant entitles this pleading as an application for writ of habeas corpus and writes that this is not a successive petition under 28 U.S.C. § 2255. (Dk. 261). The defendant contends his application is for an original writ of habeas corpus under the All Writs Act, 28 U.S.C. § 1651, and insists it remains available when § 2255 proves to be an inadequate and ineffective remedy. What the defendant argues as the basis for his relief — insufficient allegations in the indictment and Apprendi — are issues that are raised and decided in § 2255 proceedings and controlled by those statutory requirements.
"[T]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling," Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal quotation marks and citation omitted). Section 2255 is applicable to the defendant's issues and addresses the situation by barring a successive petition unless it meets the strict standards of § 2244. When a defendant attempted to use the All Writs Act to circumvent the procedural bars of § 2255, the First Circuit held:
He cannot evade the restrictions of § 2255 by resort to the habeas statute, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651.
. . . .
That § 2255 does not provide Barrett with a means to obtain the relief he seeks does not mean that it is not a "controlling" authority for the purposes of determining whether the All Writs Act applies. The fact that § 2255 bars his second petition at its inception does not make that provision any less controlling.
. . . .The writ of coram nobis may not be used to circumvent the clear congressional directive embodied in the "second or successive" provisions of § 2255, which are themselves a sort of "timeliness" requirement. . . .
. . . .But we have no cause to explose those potential situations in this case, since § 2255 is not "inadequate or ineffective" and so plainly "specifically addresses" the situation that we face. . . .
. . . .
The scope of relief obtainable under the All Writs Act is narrowed when a statute governing a particular issue is enacted. Here § 2255, as amended by AEDPA, governs. There is no contention that the AEDPA provisions themselves have somehow amended the All Writs Act. We conclude merely that Barrett is not permitted to proceed with a § 1651 petition under the circumstances of this case.United States v. Barrett, 178 F.3d 34, 38, 55-56 (1st Cir. 1999) (citations and footnotes omitted), cert. denied, 528 U.S. 1176 (2000). The procedural requirements governing successive § 2255 motion do not make § 2255 any less controlling of the defendant's motion, nor do they make § 2255 an inadequate or ineffective remedy for the defendant.
The Tenth Circuit's approach is the same as in Barrett:
The All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), authorizes the issuance of writs of error coram nobis. See United States v. Morgan, 346 U.S. 502 (1954). However, the writ is an extraordinary remedy which is allowed only under compelling circumstances. See id. at 511. As such, it is available only when § 2255 motions or other forms of relief are not. See Adam v. United States, 274 F.2d 880, 882 (10th Cir. 1960) (holding that, while a prisoner is in federal custody, § 2255 is the exclusive means for challenging his conviction); see also Carlisle v. United States, 517 U.S. 416, 428-29 (1996) (stating that "`[w]here a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling'" (quoting Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985))).
Since Beasley is in federal custody, § 2255 clearly addresses any collateral challenge to his conviction, and he may not circumvent the requirements of that statute by styling his motion as a writ of coram nobis. See Adam, 274 F.2d at 882. Therefore, the district court properly construed Beasley's motion under § 2255, subject to a one year time bar.
United States v. Beasley, 182 F.3d 933, 1999 WL 333116 (10th Cir. May 26, 1999) (Table). More recently, the Tenth Circuit has said:
Indeed, to allow a petitioner to avoid the bar against successive § 2255 petitions by simply styling a petition under a different name would severely erode the procedural restraints imposed under 28 U.S.C. § 2244(b)(3) and 2255. See Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) ("`Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions'") (quoting Felker v. Turpin, 101 F.3d 657, 661 (11th Cir. 1996)); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (holding that petitioners cannot escape AEDPA's bar against successive petitions by filing their motions under the All Writs Act). Therefore, we conclude that the district court acted properly in recharacterizing Torres's January 16 petition as a successive § 2255 petition, assuming, as Torres claims, this is what the district court did.United States v. Torres, 282 F.3d 1241,1246 (10th Cir. 2002) (footnote omitted). Under the weight of these authorities, the defendant who remains in federal custody must pursue his claims for relief under § 2255 and clear the procedural hurdles facing him. Thus, the court recharacterizes the defendant's application for writ of habeas corpus as a successive § 2255 motion.
When a defendant files a successive § 2255 motion without first seeking the required authorization, the district court must transfer the motion to the appellate court in the interest of justice pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997).
IT IS THEREFORE ORDERED that the defendant's application for a writ of habeas corpus (Dk. 261) is treated as a successive motion for relief pursuant to 28 U.S.C. § 2255 and is transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motion (Dk. 261) to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk also shall send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.