United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE.
Braxton (“Braxton”), a federal inmate currently
confined at the Federal Correctional Institution in Fort Dix,
New Jersey, has filed a Petition for Writ of Error Coram
Nobis seeking to vacate his 2015 conviction and sentence for
possession with intent to distribute one kilogram or more of
heroin in violation of 21 U.S.C. § 841. ECF
Respondent has moved to dismiss the petition (ECF 3) and
Braxton has filed a reply. ECF 6. A hearing is not needed to
resolve the case. See Loc. Rule 105.6 (D. Md. 2016).
For reasons stated herein, the petition shall be DENIED and
March 1, 2017, Braxton filed a petition for writ of error
coram nobis, seeking to set aside his 2015 federal conviction
and sentence, alleging that the enhancement of his sentence
under 21 U.S.C. § 851 was improper. ECF 1-1, p. 3.
Specifically, Braxton claims that his 1990 federal conviction
for heroin distribution did not qualify as a felony drug
conviction that could be used to enhance his 2015 sentence
because no quantity of drugs was alleged or proven in his
1990 case. ECF 1-1, pp. 10-12. He also claims that pursuant
to a memo written by former United States Attorney General
Eric Holder, the United States Attorney should not have
sought an enhanced sentence in his case. Id., pp.
13-15; ECF 1-2, pp. 1-3. Lastly, Braxton argues that due to
his infection with Hepatitis-C, his decision-making was
impaired during the prosecution of his case, causing him to
make poor decisions. Id., pp. 17-19.
to the criminal docket in United States v. Braxton,
Criminal No. JKB-09-478, on September 9, 2009, Braxton was
indicted on one count of possession with intent to distribute
one kilogram or more of heroin in violation of 21 U.S.C.
§ 841. United States v. Braxton, Criminal No.
JKB-09-478, ECF 8. A Notice of the government's intention
to seek an enhanced minimum mandatory sentence, pursuant to
21 U.S.C. § 851, based upon Braxton's 1990 federal
conviction for possession with intent to distribute heroin in
violation of 21 U.S.C. § 841(a), was filed on November
18, 2012. Id., ECF 49.
pled guilty before Judge Bennett and was sentenced to a
138-month term of confinement. The conviction and sentence,
however, were vacated on April 29, 2015, after Braxton
challenged the Rule 11 proceedings. Id., ECF 95.
After the case was remanded, the government filed a second
§ 851 notice of enhanced minimum mandatory sentence,
relying on the same 1990 conviction. Id., ECF 100.
Braxton proceeded to a jury trial, presided over by the
undersigned. He was convicted on July 24, 2015 (ECF 158), and
sentenced on November 4, 2015, to 240 months'
imprisonment. ECF 190. His enhanced sentence pursuant to 21
U.S.C. § 841(b)((1)(A) was imposed in accordance with
the § 851 Notice filed by the government. Id.,
ECF 100, 185 & 190.
judgment was affirmed by the United States Court of Appeals
for the Fourth Circuit on September 30, 2016. Id.,
ECF 214; see United States v. Braxton, 663 F.
App'x 253 (4th Cir. 2016), cert. denied,
Braxton v. United States, 137 S.Ct. 1102 (2017).
challenge to the 1990 conviction, upon which his current
sentence enhancement was predicated, is untimely under 21
U.S.C. § 851(e), which provides: “No person who
stands convicted of an offense under this part may challenge
the validity of any prior conviction alleged under this
section which occurred more than five years before the date
of the information alleging such prior conviction.”
1990 conviction became final no later than March 6, 1995,
when the Supreme Court denied his petition for writ of
certiorari. See Braxton v. United States, 514 U.S.
1007 (March 6, 1995). The government filed its second Section
851 Notice in United States v. Braxton, Criminal No.
JKB-09-478 (D. Md.), some ten years later on June 3, 2015
(ECF 100), and he was sentenced pursuant to the Section 851
Notice on November 3, 2015. Id., ECF 185. As such,
Braxton's challenge to his 1990 federal conviction is
time-barred. See United States v. Dixon, 398 F.
App'x 851, 2010 WL 4033999 (4th Cir. 2010) (unpublished)
(holding that because the underlying conviction was obtained
in 1996 and the § 851 notice was filed in 2009, the
challenge to the predicate offense was “clearly
precluded by the five-year statute of limitations in §
851(e)”); United States v. Mason, 628 F.3d
123, 133 (4th Cir. 2010) (explaining defendant's
challenge to the use of prior convictions based on claims
that the convictions were not counselled was “likely
barred by the statute of limitations in 21 U.S.C. §
851(e)” because the convictions “occurred more
than five years before the government submitted its §
851 information in this case”).
Braxton's filing was timely, he is not entitled to coram
nobis relief. The writ of error coram nobis is an
extraordinary remedy that may be used to correct a
fundamental error in a criminal conviction “presenting
circumstances compelling its use to achieve justice.”
United States v. Denedo, 556 U.S. 904, 911 (2009)
(internal quotation marks omitted); see also United
States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012).
Relief is limited to those petitioners who are no longer in
custody pursuant to their convictions, see Carlisle v.
United States, 517 U.S. 416, 429 (1996), and for whom
relief is no longer available by way of an alternative
remedy, such as habeas corpus. See Denedo, 556 U.S.
at 911; Akinsade, 686 F.3d at 252. Although federal
courts may grant relief from a conviction by way of coram
nobis after a petitioner has completed the sentence at issue,
see 28 U.S.C. § 1651 (2006); United States
v. Morgan, 346 U.S. 502, 512-13 (1954), the 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, 517 U.S. at 429.
entitled to coram nobis relief, a petitioner must demonstrate
that “(1) 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. Bazuaye,
399 F. App'x 822, 2010 WL 4366456, at *1 (4th Cir. 2010)
(unpublished) (citing Hirabayashi v. United States,
828 F.2d 591, 604 (9th Cir. 1987)).
his current conviction, Braxton is still serving the sentence
that he challenges. Moreover, as to his current conviction,
he has “more usual remed[ies]” available to him
such as through the filing of a motion pursuant to 28 U.S.C.
§ 2255. Therefore coram nobis relief is improper.
sentencing and on appeal of his current sentence, Braxton
maintained, as he does here, that the enhancement of his
sentence under 21 U.S.C. § 851 was vindictive and
violative of the “Holder Memorandum.” ECF 174,
179, 173; United States v. Braxton, 663 F. App'x
253 (4th Cir. 2016) (unpublished). This court and the Court
of Appeals both found that the government's seeking an
enhanced sentence in this case was proper. Additionally, as
discussed more fully below, Braxton ...