Opinion
5:05-cr-00013-LAG-CHW-1
03-21-2022
RICHARD BEN GLAWSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
PROCEEDINGS UNDER 28 U.S.C. § 2255 BEFORE THE U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Before the Court is a filing from Petitioner Richard Ben Glawson styled as a petition for a writ of error coram nobis. (Doc. 194). Upon review, however, the filing would be a second or successive Section 2255 motion, this time challenging his conviction by disputing the District Court's jurisdiction over his case. As discussed below, Petitioner is not entitled to coram nobis relief. Additionally, he has previously filed Section 2255 motions, and despite Petitioner being resentenced since his prior filings, his current petition is untimely and successive. It is RECOMMENDED that Petitioner's petition (Doc. 194) be DISMISSED for lack of jurisdiction.
Procedural History
Petitioner was first indicted on February 17, 2005. (Doc. 1). Prior to trial, two superseding indictments were filed against him. (Docs. 24, 84). Petitioner was sentenced on March 13, 2008, after being found guilty at trial. (Docs. 108, 110). Petitioner appealed, and his conviction was affirmed by the Eleventh Circuit. (Doc. 128). Petitioner filed his first Section 2255 petition in September 2010 (Doc. 131), which was denied on December 21, 2011 (Doc. 144). Petitioner subsequently filed several motions concerning his sentence. The District Court interpreted a 60(b) motion (Doc. 162) as seeking Section 2255 relief and dismissed it as successive. (Doc. 166). In the same order, the District Court denied Petitioner's motion for grand jury materials. (Id., Doc. 165). In October 2019, Petitioner again moved to have his sentenced reduced under the First Step Act. (Doc. 187). This request was successful. On April 27, 2020, the District Court reduced his sentence from 327 months to 210 months imprisonment and three years of supervised release. (Doc. 189). Defendant was released from federal prison on December 17, 2021. See (Docs. 194, 195). Petitioner filed the instant motion on January 14, 2022, asking that the Court vacate his conviction for lack of jurisdiction based upon his contention that no grand jury had ever returned an indictment against him. (Doc. 194). To support his motion, he attached the 2019 results from what appears to be a 2017 Freedom of Information Act Request for documents related to the grand jury that indicted him. (Doc. 194-1).
All Writs Act, 28 U.S.C. § 1651
The All Writs Act, 28 U.S.C. § 1651(a), gives federal courts the authority to issue writs of error coram nobis. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). “A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255.” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). It constitutes “an extraordinary remedy of last resort available only in compelling circumstances where necessary to achieve justice.” Mills, 221 F.3d at 1203. “The bar for coram nobis is high, and a petitioner may only obtain such relief where: (1) ‘there is and was no other available avenue of relief' and (2) ‘when the error involves a matter of fact of the most fundamental character which has not been put in issue or passed upon and which renders the proceeding itself irregular and invalid.'” United States v. Spellissy, 513 Fed.Appx. 915, 916 (11th Cir. 2013) (quoting Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (quotation omitted)). In addition, federal courts may consider a writ of error coram nobis only when a petitioner presents “sound reasons for failing to seek relief earlier.” Mills, 221 F.3d at 1204.
Discussion
Despite Petitioner's labeling his filing as a petition for writ of error coram nobis, it is properly considered a Section 2255 petition because Petitioner does meet any of the coram nobis criteria, particularly in that that he is still in custody as contemplated by Section 2255. Petitioner has not alleged any error to overcome the “in custody” bar or other applicable exceptions. Considered as a Section 2255 motion, the petition is untimely and successive. The Court is therefore without jurisdiction to consider the petition.
Petitioner is not entitled to a writ of error coram nobis because “[c]oram nobis relief is unavailable to a person … who is still in custody.” United States v. Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999). Petitioner argues that he is no longer in custody. (Doc. 194, p. 2). Petitioner was released from incarceration on December 17, 2021. See (Docs. 194, 195). When Petitioner's sentence was amended, he was sentenced to three years supervised release after his release from incarceration. (Doc.189). While on supervised released, Petitioner is considered “in custody” as contemplated under Section 2255. United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997). Because Petitioner is still in custody, coram nobis is unavailable to him. Garcia, 181 F.3d at 1274.
To the extent that Petitioner argues “that the ‘in custody' bar may be overcome by alleging a jurisdictional error, any such argument is without merit.” United States v. Chaff, 269 Fed.Appx. 878, 879 (11th Cir. 2008). Petitioner is not entitled to a writ of error coram nobis because he fails to demonstrate that his most recent claim involves “a matter of fact of the most fundamental character which has not been put in issue or passed upon and which renders the proceeding itself irregular and invalid.” Alikhani, 200 F.3d at 734. As the Supreme Court has explained, a writ of error coram nobis is “traditionally available only to bring before the court factual errors material to the validity and regularity of the legal proceeding itself, such as the defendant's being under age or having died before the verdict.” Carlisle v. United States, 517 U.S. 416, 429 (1996) (quotation omitted). In addition, Petitioner is not entitled to a writ of error coram nobis because he does not present “sound reasons for failing to seek relief earlier.” Mills, 221 F.3d at 1203.
In the current petition, Petitioner argues that the District Court did not have jurisdiction over his case because there was never an indictment filed against him. (Doc. 194). He contends that he only recently discovered this alleged error. The record contradicts his arguments because: (1) original and superseding indictments were filed against Petitioner in his case (Docs. 1, 24, 84); (2) his 2010 Section 2255 petition references his indictment (Docs. 131, p. 7; 139, p. 14); and (3) Petitioner made a prior request to receive grand jury information in 2014, which was denied. (Docs. 165, 166).
The evidence attached to Petitioner's latest petition does not support his contention that he was never indicted. Attached to his petition is a copy of a declaration prepared by a legal assistant at the United States Attorney's Office in response to Petitioner's Freedom of Information Act request. The declaration, dated May 28, 2019, notes that Petitioner had requested
(1) Instructions and charges given to the Grand Jury.
(2) Commencement, termination, and extension orders for Grand Jury.
(3) A certified copy of the original indictment. (Doc. 194-1, ¶ 4).
The declaration responds that no such documents are available because grand jury records “dating back ten years were destroyed in line with USAO/GAMD records management policy.” (Doc. 194-1, ¶ 13). The Court's own records show, however, that a properly signed indictment was returned in open court on February 17, 2005. (Doc. 1, p. 4). A superseding indictment was returned in open court on September 21, 2005. (Doc. 24, p. 6). Finally, a second superseding indictment was returned in open court on May 16, 2007. (Doc. 84, p. 4).
Whatever the merits of Petitioner's current arguments about the indictment or grand jury proceedings, they were known to him or discoverable well before this current filing. Even if Petitioner's arguments were true, he “discovered” the issue no later than May 28, 2019, when the United States Attorney's Office responded to his Freedom of Information request. Petitioner provides no sound reasons to excuse his delay in raising this claim.
Regardless of its merits, Petitioner's present petition is untimely and successive. Petitioner's sentence was amended on April 27, 2020. (Doc. 189). To the extent his resentencing may have provided a new time marker for seeking Section 2255 relief, the Section 2255 petition would have been due within one year from resentencing. 28 U.S.C. § 2255(f). Petitioner's motion was filed more than one-and-a-half years later, on January 14, 2022.
In addition, Petitioner has filed at least two prior petitions or motions that were construed as seeking Section 2255 relief. (Doc. 131, 162). His first Section 2255 petition was decided on the merits. (Doc. 144). Any issue regarding the validity of the indictment would have existed at the time of his first petition and could have been raised then. These two factors show that the current petition is successive. See Stewart v. United States, 646 F.3d 856, 859-860 (11th Cir. 2011) (discussing that “the phrase ‘second or successive' is not self-defining and does not refer to all habeas applications, ” especially when “a claim could not have been raised in a prior habeas petition”).
The Court cannot entertain successive Section 2255 motions absent prior authorization from the Eleventh Circuit Court of Appeals. See 28 U.S.C. § 2255(h). Petitioner has not obtained the required authorization, and the Court is without jurisdiction to consider the petition. Chaff, 269 Fed.Appx. at 879.
Based on the foregoing, Petitioner is not entitled to coram nobis relief because he remains in custody and failed to demonstrate any other exception applies. To the extent, his petition could be construed as a petition seeking Section 2255 relief, it is untimely and successive. It is therefore RECOMMENDED that the petition (Doc. 194) be DISMISSED for lack of jurisdiction.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.