Opinion
Civil No. 00-178-P-S, Criminal No. 94-34-P-S.
November 26, 2001.
RECOMMENDED DECISION
Before the court are Stuart Smith's pleading styled as a petition forwrit of error coram nobis, (Docket No. 730) filed June 26, 2000, and Smith's motion for reconsideration of the court's endorsement made on that motion/petition on September 26, 2000, that Smith filed July 9, 2001(Docket No. 749). For the reasons discussed below I now recommend that the court DENY both motions.
Background
This case began in 1994 when Smith, along with nine other individuals, was indicted for various offenses including conspiracy to distribute marijuana and conspiracy to defraud the United States by defeating and obstructing the functions of the Internal Revenue Service. In 1995 Smith went to trial on the drug related charges only and was acquitted. He then filed a motion to dismiss the tax related charge and it was denied. Smith took an interlocutory appeal that was likewise denied. Finally on February 14, 1997, following a jury trial, Smith was convicted on the remaining count. He took a direct appeal. The First Circuit affirmed his conviction on June 10, 1998. United States v. Smith, 145 F.3d 458 (1st Cir. 1998).
On October 14, 1999, Smith filed his first motion to vacate pursuant to 28 U.S.C. § 2255. (Docket No. 698.) He supplemented that motion with additional petitions. (See Docket Nos. 704 and 711.) The petitions were considered in a unified manner by the magistrate judge who issued a recommended decision denying collateral relief. (Docket No. 721). The decision was affirmed by the District Court on May 15, 2000. (Docket No. 723). Another appeal ensued.
Smith filed one additional appeal during the spring 1999 when the sentencing court denied his motion for in forma pauperis status. At the time the motion was denied there was nothing else pending in District Court. Around the time the first § 2255 petition was filed, the Court of Appeals affirmed the District Court order. (See Docket No. 699.)
While that appeal was still pending, Smith filed the current motion on June 26, 2000. (Docket No. 730.) During July 2000 a brief skirmish developed over a request for an immediate hearing filed by Smith. The issue that Smith was attempting to raise related to the length of time he had already been under supervision; he apparently believed the issue deserved immediate consideration. On September 26, 2000, the District Court entered an order directing that no further action would be taken in regard to the present 28 U.S.C. § 2255 motion until the First Circuit had ruled on Smith's appeal from his first § 2255 petition. (See Docket No. 730, at 11, endorsement.) On November 15, 2000, the Court of Appeals issued an order dismissing Smith's appeal for lack of diligent prosecution. (Docket No. 740). On July 9, 2001, Smith filed his motion seeking reconsideration of the September 26, 2000, order. (Docket No. 749). On November 14, 2001, the trial judge entered an order of recusal from the entire case and the matter was reassigned to another judge.
Discussion
In this petition, which he styles as a petition for a writ of error coram nobis, Smith attempts to attack his sentence on the underlying conviction by arguing that the term of supervised release imposed upon him exceeds the statutory maximum of five years. In order to reach that result, Smith argues that the three-year term of supervised release imposed by the court has been augmented by over two years of pretrial supervision while he was on bail pending trial.
The United States' response succinctly and accurately explains why this petition is not cognizable as styled. (See Docket No. 736, at 1 n. 1.) The writ of coram nobis is "all but extinct," to use the United States' phrasing and is not an alternative to habeas corpus relief. See Carlisle v. United States, 517 U.S. 416, 429 (1996). Smith is "in custody" pursuant to the terms of his supervised release that is due to terminate on June 1, 2003. Accordingly, 28 U.S.C. § 2255 provides the only avenue for Smith to obtain the sought-after relief from his sentence.United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997) (holding with respect to a person serving a supervised release term that the available statutory habeas remedy precluded coram nobis relief).
If I were to construe this pleading as a 28 U.S.C. § 2255, the record clearly shows that Smith's instant petition is a second and successive petition. His first petition, which was a collateral attack on the exact same judgment and sentence, was fully considered and denied. The arguments that Smith attempts to raise now could have been raised in the first petition. As noted above, § 2255 exists to address situations such as this one where it is alleged that the sentence imposed exceeds the statutory maximum. See 28 U.S.C. § 2255 (providing remedies for defendant's claims "that the sentence was in excess of the maximum authorized by law"). This being Smith's second attempt to get relief from his sentence, the only avenue of relief available to Smith is that found under 28 U.S.C. § 2255 ¶ 8, that provides that a "second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." Smith has not obtained this certification and, therefore, his petition is subject to dismissal by this court. United States v. Barrett, 178 F.3d 34, 57 (1st Cir. 1999).
With respect to his motion for reconsideration of the September 26, 2000, endorsed order, that matter became moot on November 15, 2000, when the First Circuit issued its order dismissing Smith's appeal of his first § 2255 motion.
Conclusion
Based upon the foregoing, I recommend that the court DISMISS Smith's motion/petition for writ of coram nobis (Docket No. 730) and DENY Smith's motion for reconsideration of the court's endorsement made on September 26, 2000. (Docket No. 749.)