United States District Court, D. Maryland
WILLIAM M. NICKERSON SENIOR UNITED STATES DISTRICT JUDGE
the Court is a Petition for Writ of Error Coram Nobis
Pursuant to 28 U.S.C. § 1651(a) filed by Petitioner Gary
Robinson. ECF No. 133. The Government has opposed the Petition,
ECF No. 145, and Petitioner has replied. ECF No. 17 in Civil
Action No. WMN-15-1532. For the reasons set forth below, the
Court will deny the Petition.
was convicted on November 5, 2002, of two counts of
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g). He was sentenced on March 7, 2003, to
concurrent terms of 216 months imprisonment under the Armed
Career Criminal Act (ACCA). Petitioner filed a timely appeal
of his conviction and that conviction was affirmed on
September 10, 2003. United States v. Robinson, 73
Fed.App'x 662 (4th Cir. 2003). Petitioner's petition
to the Supreme Court for certiorari was denied on January 12,
2004. From November 2003 through April 2004, Petitioner also
filed a number of pro se post-conviction motions raising a
variety of issues. See ECF Nos. 76, 77, 78, 83, 84, 88, 89,
92, 103. On January 11, 2005, Petitioner submitted a motion
which he actually captioned as a motion pursuant to 28 U.S.C.
§ 2255, duplicating some of his previous arguments and
raising some new arguments as well. Paper No. 105. Treating
all these motions as a motion under § 2255, .the Court
denied them on September 13, 2005. ECF No. 111.
25, 2014, Petitioner, through counsel, filed a consent motion
to correct his sentence on the ground that he was improperly
classified as an Armed Career Criminal because his conviction
for Maryland second degree assault no longer qualified as a
"violent felony" in light of Descamps v. United
States, 133 S.Ct. 2276 (2013} and United States v.
Royal, 731 F.3d 333, 340-42 (4th Cir. 2013). ECF No.
126. The Court granted the motion on that same date and
reduced Petitioner's sentence on both counts to time
served plus two weeks. ECF No. 127.
August 28, 2014, Petitioner's counsel requested that the
Court amend that judgment to reflect a specific sentence of
77 months for each count. ECF No. 130. Counsel explained that
he had discovered that Petitioner was serving a federal
sentence of 240 months on an unrelated federal conviction in
the Western District of Virginia. Crim. No.
07-00014-JPJ-RSB-2. Amending the judgment would allow
Petitioner's sentence in the Virginia case to start
running sooner, giving him credit for the years he served on
the sentence on his § 922 (g) convictions that went
beyond the non-ACCA guideline range. The Court granted that
motion on September 10, 2014. ECF No. 131.
instant Petition for a Writ of Error Coram Nobis, Petitioner
raises, for the first time, the argument that that he was
deprived of his Fifth and Sixth Amendment rights to
confrontation and effective assistance of counsel because his
trial counsel stipulated to certain elements of the charged
offenses at trial - specifically, that he had previously been
convicted of a crime punishable by more than one year; that
the Colt, .45 caliber handgun and ammunition allegedly
possessed by the petitioner met the statutory definitions of
"firearm" and "ammunition"; and that the
firearm and ammunition traveled in interstate commerce. The
Government opposes the Petition both on its merit and on the
ground that Petitioner's claims are procedural barred
because he cannot demonstrate any valid reason why he did not
raise these arguments years ago. The Court finds that
Petitioner's claims are procedurally
writ of error coram nobis is a remedy of last resort and is
granted only where an error is "of the most fundamental
character" and there exists no other available remedy.
United States v. Mandel, 862 F.2d 1067, 1076 (4th
Cir. 1988). The writ is narrowly limited to
"'extraordinary' cases presenting circumstances
compelling its use 'to achieve justice.'"
United States v. Denedo, 556 U.S. 904, 911 (2009)
(quoting United States v. Morgan, 346 U.S. 502, 511
(1954)). The burden placed on a petitioner who seeks a writ
of coram nobis exceeds the burden placed on a petitioner who
seeks collateral relief through a habeas petition. Hanan
v. United States, 402 F.Supp.2d 679, 684 (E.D. Va.
2005). This heavier burden is justified because where, as
here, a petitioner has completed his sentence, the government
is unlikely to allocate scarce prosecutorial resources to
retry a defendant who will not be resentenced. Id.
Indeed, the United States Supreme Court has stated 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.'" Carlisle v.
United States, 517 U.S. 416, 429 (1996) (quoting
United States v. Smith, 331 U.S. 469, 475 n.4
petitioner seeking this relief must show that "Ml) a
more usual remedy is not available; (2) valid reasons exist
for not attacking the conviction earlier; (3) adverse
consequences exist from the conviction sufficient to satisfy
the case or controversy requirement of Article III; and (4)
the error is of the most fundamental character.'"
United States v. Akinsade, 686 F.3d 248, 252 (4th
Cir. 2012) (quoting Hirabayashi v. United States,
828 F.2d 591, 604 (9th Cir. 1987)). The Court finds that
Petitioner has not shown any valid reason for not raising
these same attacks on his conviction years ago.
been present throughout his trial, Petitioner was clearly
aware of the stipulations about which he now complains. With
his Petition, he submits a letter that he wrote to his
counsel on November 7, 2002, just two days after the trial,
complaining about stipulations submitted at trial that he
never saw or signed. Despite that awareness, Petitioner
waited over 12 years to present the issue to this Court.
"there is no firm limitation of time within which a writ
of coram nobis will lie, petitioners are required to
demonstrate that "'sound reasons exist for failure
to seek appropriate earlier relief.'" United
States v. Rocky Mountain Corp., Inc., 442 F.App'x
875, 876 (4th Cir. 2011} (quoting Morgan, 346 U.S.
at 512). Petitioner seems to suggest that, because he was
unable to bring a petition for writ of coram nobis until he
was no longer "in custody" on his conviction in
this Court, his petition is timely because it was brought
within one year of the reduction of his sentence to time
served. ' See ECF No. 17 in WMN-15-1532 at 2. It
is true that "a writ of error coram nobis is available
only when the petitioner is not in custody." United
States v. Smith, 77 F.App'x 180 (4th Cir. 2003)
(citing United States v. Sawyer, 239 F.3d 31, 37
(1st Cir. 2001)). Petitioner's claims relating to the
stipulations, however, could have been brought along with the
other issues Petitioner raised under 28 U.S.C. § 2255
and the writ of coram nobis cannot be used to circumvent the
requirements of § 2255. Trenkler v. United
States, 536 F.3d 85, 98 (1st Cir. 2008).
posits that he could not assert his claims related to the
stipulations until he "found the [United States v.]
Williams, 632 F.3d 129 (4th Cir. 2011)] decision and
needed time to research law and find the Coram Nobis vehicle
following [the] July, 2014 [reduction in his sentence]. ECF
No. 1 at 6. Williams did not create new law and
certainly not new law that would assist Petitioner. In
Williams, the defendant's counsel signed, with
the court's permission, a stipulation over an
on-the-record objection by the defendant. The Fourth Circuit
held that the district court erred when accepting the
stipulation, stating that "[w]e can find no reasoning or
case law that would uphold a waiver of a Sixth Amendment
right by defense counsel over a defendant's
objection." 632 F.3d at 133 (emphasis added). The
court opined that while it was "inclined to require that
defendants make a clear waiver of their Sixth Amendment
right, [it] need not reach this question here since both
counsel and the district court were aware that Williams
objected to the introduction of the stipulation."
Id. Even after finding a clear constitutional
violation, the court noted that it also must consider whether
the violation was harmless. It held that it was not harmless
because, inter alia, the stipulation was the "only
evidence of the amount of heroin" connected to the
defendant and, from questions sent out by the jury and
answers returned by the court, it was clear that the jury
relied on the stipulation to determine that defendant
possessed the heroin with the intent to distribute.
Id. at 134.
although Petitioner was present in the courtroom when the
stipulations were read, he did not object to those
stipulations. Furthermore, the stipulations were clearly
harmless as there was a witness who was prepared to testify
that the firearm and ammunition met the required statutory
definitions and that they were manufactured out of state and
therefore traveled in interstate commerce in order to arrive
in Maryland. Evidence that Petitioner had been convicted of
several crimes punishable by more than one year was also
readily available. Thus, regardless of the stipulations, the
result of the trial would have been the same. Finally, the
Court notes that Petitioner waited more than four year after
Williams was decided before submitting his Petition.
the Court concludes that Petitioner's claims presented in
his Petition are procedurally barred, the Court will deny