United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER OF COURT
M. DiGirolamo United States Magistrate Judge
matter is before the Court on Orell McDaniel Jr.
(“McDaniel”)'s “Motion to Withdraw
Guilty Plea and Request for a Hearing” (ECF No. 16),
which the Court construes as a petition for writ of error
coram nobis under the All Writs Act, 28 U.S.C.
§ 1651. The Government filed a response. ECF No. 17.
McDaniel did not file a reply within the time prescribed by
L.R. 105.2.a, 207, and Fed. R. Crim. P. 45(c). No hearing is
necessary. L.R. 105.6. For the reasons stated below,
McDaniel's “Motion to Withdraw Guilty Plea and
Request for a Hearing, ” construed as a petition for
writ of error coram nobis, is DENIED.
the United States Park Police's stop of McDaniel's
vehicle on the Baltimore-Washington Parkway on August 16,
2015, McDaniel was charged with operating a motor vehicle
with a blood alcohol concentration (“BAC”) of
0.08 or above in violation of 36 C.F.R. § 4.23(a)(2);
unsafely operating a motor vehicle in violation of 36 C.F.R.
§ 4.22(b)(1); operating a motor vehicle while under the
influence of alcohol in violation of 36 C.F.R. §
4.23(a)(1); and failing to stay in one lane in violation of
Md. Code Ann., Transp. § 21-309(b). ECF Nos. 1, 3-5. On
January 14, 2016, McDaniel, represented by his former
counsel, pleaded guilty to violating 36 C.F.R. §
4.23(a)(2). On the Government's motion, the Court
dismissed McDaniel's other charges. ECF No. 13. The Court
sentenced McDaniel to probation for six months and imposed a
fine and costs in the total amount of $250.00. ECF No. 13.
After completing his probation, McDaniel, through new
counsel, filed on September 6, 2016, the present motion
seeking to “withdraw his plea . . . pursuant to Rule
11(d) of the Federal Rules of Criminal Procedure”
because his former counsel did not advise him of the
collateral consequence of a one-year disqualification of his
Maryland commercial driver's license (“CDL”)
endorsement as a result of his DUI conviction. Def.'s
Mot. ¶¶ 3-7, ECF No. 16. According to McDaniel, he
would not have pleaded guilty if he had known that doing so
would cause him to lose his Maryland CDL. Id. ¶
Writ of Error Coram Nobis
Fed. R. Crim. P. 11(e), after the Court imposes sentence, a
defendant may not withdraw a plea of guilty, and the plea may
be set aside only on direct appeal or collateral attack.
See United States v. Fisher, 711 F.3d 460, 464 (4th
Cir. 2013) (“After the imposition of a sentence, a
guilty plea may be set aside pursuant to 28 U.S.C. §
2255.”). McDaniel thus now may not withdraw his guilty
plea under Fed. R. Crim. P. 11(d). He did not appeal to a
United States District Judge under 18 U.S.C. § 3402 the
sentence imposed by the undersigned under 28 U.S.C. §
636(a)(4) within the time prescribed by Fed. R. Crim. P.
58(g)(2)(B). See United States v. Baxter, 19 F.3d
155, 156-57 (4th Cir. 1994) (per curiam). McDaniel also did
not file while on probation a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Because he
has completed his probation, McDaniel may not now seek relief
under § 2255 because he is no longer “in
custody.” See 28 U.S.C. § 2255(a);
United States v. Bryson, 981 F.2d 720, 726 (4th Cir.
1992) (petitioner filed § 2255 motion before
probationary period expired, satisfying custody requirement).
Thus, the only avenue of relief available to him at this
point is through a petition for a writ of error coram
nobis under 28 U.S.C. § 1651(a), as “[a]
petition for a writ of coram nobis provides a way to
collaterally attack a criminal conviction for a person . . .
who is no longer ‘in custody' and therefore cannot
seek habeas relief under 28 U.S.C. § 2255 or §
2241.” Chaidez v. United States, 568 U.S. __,
__ n.1, 133 S.Ct. 1103, 1106 n.1 (2013). But see
Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct.
1460, 1468 (1996) (noting that “it is difficult to
conceive of a situation in a federal criminal case today
where [a writ of coram nobis] would be necessary or
appropriate” (alteration in original) (quoting
United States v. Smith, 331 U.S. 469, 475 n.4, 67
S.Ct. 1330, 1334 n.4 (1947))).
of error coram nobis, however, is an extraordinary
remedy not to be granted unless an error “of the most
fundamental character” has occurred and no other remedy
would apply to correct the error. United States v.
Akinsade, 686 F.3d 248, 252 (4th Cir. 2012) (quoting
United States v. Mandel, 862 F.2d 1067, 1075 (4th
Cir. 1988)). Specifically, “[i]n order for a district
court to reach an ultimate decision on coram nobis relief, a
petitioner is obliged to satisfy four essential
prerequisites.” Bereano v. United States, 706
F.3d 568, 576 (4th Cir. 2013).
First, a more usual remedy (such as habeas corpus)
must be unavailable; second, there must be a valid
basis for the petitioner having not earlier attacked his
convictions; third, the consequences flowing to the
petitioner from his convictions must be sufficiently adverse
to satisfy Article III's case or controversy requirement;
and, finally, the error that is shown must be
“of the most fundamental character.”
Id. (emphasis added) (citing Akinsade, 686
F.3d at 252). “[A]n error ‘of the most
fundamental character' is one that has ‘rendered
the proceeding itself irregular and invalid.'”
Id. (quoting United States v. Mayer, 235
U.S. 55, 69, 35 S.Ct. 16, 20 (1914)). “When a defendant
seeks to vacate a guilty-plea conviction by way of coram
nobis, great caution is warranted.” United States
v. George, 676 F.3d 249, 257 (1st Cir. 2012). This is so
because “[w]ords have meaning, ” and an error of
the most fundamental character, at the very least,
“must be more than a factual insufficiency that the
petitioner's voluntary decisions may have caused.”
Id. at 258; see United States v. Reed, No.
3:05-CR-3, 2016 WL 3580770, at *5 (N.D. W.Va. June 28, 2016),
appeal filed, No. 16-6902 (4th Cir. July 12, 2016).
as noted previously, McDaniel “cannot seek relief under
the typical remedies for a direct or collateral attack of a
federal judgment and sentence because he is no longer in
custody, ” so the first prerequisite is met.
Akinsade, 686 F.3d at 252. Further, the third
prerequisite is satisfied, as “the loss of the right to
hold occupational licenses might be a sufficient collateral
consequence to justify issuance of a writ of error coram
nobis.” Thomas v. United States, Civil Action
No. RWT-10-2274, 2011 WL 1457917, at *2 (D. Md. Apr. 15,
2011) (citing United States v. Keane, 852 F.2d 199,
203 (7th Cir. 1988)), amended, No. RWT 10CV2274,
2012 WL 37521 (D. Md. Jan. 6, 2012). McDaniel presents no
valid reason for not attacking his conviction earlier to
satisfy the second prerequisite, however. According to
McDaniel, while he was on probation, the Maryland Motor
Vehicle Administration (the “MVA”) notified him
on April 19, 2016, of his one-year disqualification of his
CDL endorsement beginning on May 4, 2016. Def.'s Mot.
¶¶ 4, 11, ECF No. 16. Without explanation, McDaniel
did not file a § 2255 motion while he was on probation,
but he instead filed the present “Motion to Withdraw
Guilty Plea” almost five months after the MVA's
notification. Absent “sound reasons . . . for failure
to seek appropriate earlier relief, ” McDaniel cannot
avail himself of the remedy of a writ of error coram
nobis. United States v. Morgan, 346 U.S. 502,
512, 74 S.Ct. 247, 253 (1954).
event, even if McDaniel had valid reasons for failing to
attack his conviction earlier, he fails to demonstrate an
error “of the most fundamental character.” He
contends that his plea was not knowing and intelligent
because neither his former counsel nor the Court informed him
of the “direct consequences” of pleading guilty
that “would cause him to lose his Maryland CDL and
ultimately cause him to lose his sole source of
employment.” Def.'s Mot. ¶ 9, ECF No. 16. He
also asserts that he was denied the effective assistance of
counsel. Id. ¶ 12. As discussed below,
McDaniel's arguments are unavailing.