Opinion
CIVIL ACTION NO. 03-2070, SECTION "A"(4)
August 4, 2003
ORDER AND REASONS
Petitioner, Clinton C. Howard Jr., is currently incarcerated in the United States Penitentiary at Leavenworth, Kansas, serving a sentence for his 1991 drug conviction in this federal court. Howard now files an Application for Writ of Error Coram Nobis in which he is challenging the constitutionality of his 1984 state court manslaughter conviction, which was used to some extent to enhance his 1991 federal conviction. For the following reasons, this Court is without jurisdiction to consider the Application for Writ of Error Coram Nobis and, alternatively, is without jurisdiction to consider the petition under the federal habeas corpus statute at 28 U.S.C § 2254.
See U.S. v. Howard, Criminal Action 91-149"F."
It is well settled that the writ of error coram nobis is not available in a federal court to attack a state criminal conviction. Sinclair v. Louisiana, 679 F.2d 513, 514-515(5th Cir. 1982); Obado v. New Jersey, 328 F.3d 716 (3rd Cir. 2003). In Sinclair, the petitioner sought to file a third challenge to his state robbery conviction on the basis that his plea was not voluntary. The federal district court construed the matter to be a prohibited second or successive petition under 28 U.S.C. § 2254. In affirming the district court, the United States Fifth Circuit Court of Appeals held as follows:
A writ of error coram nobis can only issue to aid the jurisdiction of the court in which the conviction was had. A federal court which did not impose the sentence has no jurisdiction to issue a writ of error coram nobis regardless of whether it is called coram nobis, habeas corpus or some other type of relief. Because this Court did not sentence the petitioner and since the function of the writ of error coram nobis is to permit a court to review its own judgment because of alleged errors not evident on the face of the record, petitioner's writ of error coram nobis filed with this federal court is inappropriate and therefore must be denied. However, the Court will treat the writ of error coram nobis as an application for writ of habeas corpus.Sinclair, 679 F.2d at 514-15 (citations omitted).
In the instant case, Howard has filed this third federal challenge to his 1984 manslaughter conviction in this Application for Writ of Error Coram Nobis. For the foregoing reasons, this Court is without jurisdiction to consider Howard's application. Sinclair. The Application for Writ of Error Coram Nobis must therefore be denied and dismissed with prejudice.
Alternatively, affording Howard the benefit of liberal construction and those of the Sinclair holding, the Court will consider the viability of his Application as one seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. However, for the following reasons, the Court is also without jurisdiction to consider the application under that provision.
To support his challenge, Howard raises the following grounds for relief:
1) Ineffective assistance of trial counsel during pretrial proceedings.
2) His guilty plea is invalid because of ineffective assistance of counsel.
3) The State knowingly withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83(1963).
4) The guilty plea is invalid because he was not informed of the nature of the offense, the factual basis nor the elements of the offense.
A review of this Court's records reflects that petitioner has filed three prior petitions for writ of habeas corpus related to this same conviction. The first § 2254 petition, entitled Clinton Howard Jr. v. Frank Blackburn Jr., Civil Action 86-5390 "E"(6), was denied on the merits by Judgment entered April 7, 1987. The Judgment was affirmed by the Fifth Circuit on November 5, 1987.
Ten years later, Howard filed a second petition under § 2254,Clinton Howard Jr. v. Criminal District Court, Civil Action 96-1275 "E"(6), which was construed as a motion to vacate his 1991 federal conviction under 28 U.S.C. § 2255. The motion was denied by Judgment entered September 4, 1996. The Judgment was affirmed by the Fifth Circuit on July 30, 1997.
Howard filed a third § 2254 petition, Clinton Howard v. N.L. Conner, Warden, which was determined to be a second or successive petition. The district court construed the petition in part as a request for authorization to proceed with a second or successive petition and transferred the case to the Fifth Circuit to cure jurisdiction pursuant to 28 U.S.C. § 1631. See In re Epps, 127 F.3d 364 (5th Cir. 1997). The Fifth Circuit denied the request for certification by Order issued March 11, 2003. In that same Order, the Fifth Circuit determined that Howard is no longer "in custody" for purposes of bringing a § 2254 petition challenging the 1984 manslaughter conviction.
Thus, the same is true for purposes of the instant application. This a second or successive petition and Howard is not in custody for the 1984 conviction. To be eligible for habeas relief, a petitioner must be "in custody" for the conviction being challenged. Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). Title 28 U.S.C. § 2241 (d) "gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are `in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook., 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241 (c)(3)) (emphasis added); 28 U.S.C. § 2254(a). Jurisdiction exists when the petitioner is "in custody" when the habeas petition is filed.Spencer v. Kemna, 523 U.S. 1, 7 (1998); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Port v. Heard, 764 F.2d 423, 425 (5th Cir. 1985).
In the instant case, the records reflect that Howard was discharged from his state sentence on March 12, 1991. The petition before the Court is considered filed under the mailbox rule on June 27, 2003, more than twelve years after Howard's state court sentence was completed. Howard concedes this to be true. Thus, at the time of the filing of this petition for habeas corpus relief, Howard was not in custody for purposes of bringing a challenge to his 1984 manslaughter conviction pursuant to § 2254. This Court is without jurisdiction to consider his habeas corpus claims under § 2254. Because of this, the Court need not transfer the Application for certification pursuant to In re Epps. Accordingly,
See Application, Exhibit L, State Trial Court Judgment, July 3, 2001.
The Fifth Circuit has recognized that a "mailbox rule" applies to pleadings, including habeas corpus petitions filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). Howard dated the signature June 27, 2003. This is the earliest date Howard could have submitted the documents to prison officials for mailing.
Application, p. 5, ¶ 2.
IT IS ORDERED that Clinton C. Howard Jr.'s Application for Writ of Error Coram Nobis be DENIED and DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction.