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United States v. McDaniel

United States District Court, D. Maryland

October 18, 2016

UNITED STATES OF AMERICA
v.
ORELL McDANIEL JR., Defendant

          MEMORANDUM OPINION AND ORDER OF COURT

          Thomas M. DiGirolamo United States Magistrate Judge

         This 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.

         BACKGROUND

         Following 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. ¶ 5.

         DISCUSSION

         A. Writ of Error Coram Nobis

         Under 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))).

         A writ 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).

         Here, 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).

         B. Fundamental Error

         In any 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.

         1.Voluntariness of ...


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