Opinion
3:01-CV-1340-X.
August 7, 2001
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, the subject cause has previously been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for writ of error coram nobis filed pursuant to the All Writs Act, 28 U.S.C. § 1651, by a detainee in the custody of the United States Immigration Naturalization Service (INS).
Parties: Petitioner is currently confined at the Navarro County Jail in Corsicana, Texas. Respondent is the State of Texas. The court has not issued process in this case.
Statement of Case: Petitioner requests the court to reduce his 1998 state sentence for burglary of a building by one day. A one-day reduction in his one-year sentence allegedly will permit Petitioner to request administrative relief from deportation. Petitioner states he has filed a state application for a writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. The state court, however, has refused to ruled on his application. (Petition at 6).
Findings and Conclusions: A writ of coram nobis must be filed with the convicting court. Blake v. Florida, 395 F.2d 758, 759 (5th Cir. 1968); Brinkley v. State, 239 F.2d 166, 167 n. 1 (5th Cir. 1956). It is not available in federal court to attack state criminal judgments." Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (citations omitted).
Since Petitioner seeks a one-day reduction of his state sentence, the District Court is without jurisdiction to entertain his petition for writ of coram nobis. RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of coram nobis be dismissed for lack of jurisdiction.
A copy of this recommendation will be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.