United States District Court, E.D. Virginia, Alexandria Division
OPINION & ORDER
HENRY COKE MORGAN, Jr., Senior District Judge.
This matter is before the Court upon Petitioner Johnny Lee Wesley's ("Petitioner") Petition for a Writ of Error Coram Nobis, Doc. 163 ("Coram Nobis Motion"), and his Motion to Vacate Under 28 U.S.C. § 2255, Doc. 169 ("Section 2255 Motion"). The Court also collaterally addresses Petitioner's Application to Proceed without Prepayment of Fees, Doc. 162 ("Fee Application"), and Motion for Leave to Supplement, Doc. 172. Based on the following reasoning, Petitioner's Motion to Supplement is GRANTED so his additional case citation might be considered in the preparation of this Order, his Fee Application is DENIED as moot, his Coram Nobis Motion is DENIED, and his Section 2255 Motion is DISMISSED as successive.
I. Procedural History
On January 27, 1998, Petitioner was convicted on the following three counts: (1) conspiracy to distribute and to possess with intent to distribute fifty (50) grams or more of crack cocaine, cocaine, and marijuana; (2) murder in furtherance of drug trafficking and aiding and abetting; and (3) interstate transportation in aid of racketeering with the intent to commit robbery and murder and aiding and abetting. Doc. 38. On May 8, 1998, Petitioner was sentenced to concurrent terms of life imprisonment on each count. Doc. 47. Petitioner was also ordered to pay, jointly and severally with his co-defendant, one hundred thousand dollars ($100, 000.00) in restitution to the murder victim's three (3) children. Id . The United States Court of Appeals for the Fourth Circuit affirmed Petitioner's conviction and sentence on July 19, 1999, and entered its judgment on August 11, 1999. Docs. 57-59; United States v. Wesley, 187 F.3d 633, 1999 WL 507243 (4th Cir. July 19, 1999) (unpublished). Petitioner did not petition the Supreme Court of the United States for a writ of certiorari on direct review. Since his conviction, Petitioner has filed numerous motions seeking relief from his conviction and sentence, including numerous motions under 28 U.S.C. § 2255. See, e.g., Docs. 60, 96, 101, 109, 118, 135 & 147. Petitioner has since filed an additional Section 2255 Motion, on August 26, 2014, that is addressed by the instant Order. Doc. 169.
Petitioner filed the instant Coram Nobis Motion on December 26, 2012, Doc. 163, accompanied by an Application to Proceed without Prepayment of Fees, Doc. 162. On April 28, 2014, Petitioner filed a Motion for Leave to Supplement Petition for a Writ of Coram Nobis with New Authority. Doc. 166. The Court granted this request on May 8, 2014. Doc. 167. The brief was filed on May 22, 2014. Doc. 168. The Court entered a Notice & Order on September 24, 2014, informing Petitioner of its intent to construe the Coram Nobis Motion as a successive Section 2255 Motion. Doc. 170. Petitioner responded on October 16, 2014, objecting to the construal. Doc. 171. Accordingly, the Court will address the Coram Nobis Motion as it was originally filed. Petitioner then filed a Motion to Supplement his Response to the Notice & Order on October 24, 2014, seeking leave for the Court to consider one additional case. Doc. 172.
II. LEGAL STANDARD
A. Coram Nobis Motion
District courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C.A. § 1651. Specifically, the modern writ of error coram nobis is "available in criminal cases whether the error was in fact or law, but applied only to that very small number of legal questions which concerned the regularity of the proceeding itself." United States v. Sawyer , 239 F.3d 31, 37 (1st Cir. 2001) (quoting United States v. Mayer , 235 U.S. 55, 68 (1914)). "[C]oram nobis is an extraordinary remedy, used only when the errors are of the most fundamental character, such as to render the underlying criminal proceeding irregular and invalid." United States v. Allegheny Bottling Co. , 854 F.Supp. 430, 434 (E.D. Va. 1994).
Due to its extreme nature, the writ will not be granted ifany other remedy is available to the petitioner. United States v. Mandel , 862 F.2d 1067, 1075 (4th Cir. 1988). Accordingly, thewrit canonly serve "as an alternative to relief under 28 U.S.C. § 2255 when the defendant is no longer, or never was, in custody' as required by that section." Allegheny Bottling Co. , 854 F.Supp. at 434 (citing United States v. Morgan , 346 U.S. 502, 511 (1954)).
B. Section 2255 Motion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") created a gate-keeping function for federal district courts presented with "second or successive" petitions for collateral review of criminal sentences. See In re Goddard , 170 F.3d 435, 436 (4th Cir. 1999). Indeed, "[b]efore filing such a petition in the district court, the applicant must obtain leave to do so from the court of appeals." In re Williams , 444 F.3d 233, 235 (4th Cir. 2006). Consequently, "[i]n the absence of pre-filing authorization, the district court lacks jurisdiction to consider a [successive] application." United States v. Winestock , 340 F.3d 200, 205 (4th Cir. 2003).
Nevertheless, "it is settled law that not every numerically second petition is a second or successive' petition within the meaning of the AEDPA." Williams , 444 F.3d at 235; see also Panetti v. Quarterman , 551 U.S. 930, 944 (2007) ("The Court has declined to interpret second or successive' as referring to all... applications filed second or successively in time, even when the later filings address a... judgment already challenged in a prior... application."). Instead, where "the purported defect did not arise, or the claim did not ripen, until after the conclusion of the previous petition, the later petition based on that defect may be non-successive." Leal Garcia v. Ouarterman , 573 F.3d 214, 222 (5th Cir. 2009); see also Panetti , 551 U.S. at 947 ("We are hesitant to construe [§ 2244], implemented to further the principles of comity, finality, and federalism, in a manner that would require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party."): In re Taylor , 171 F.3d 185, 187-88 (4th Cir. 1999) (holding that petitioner's § 2255 motion was not "second or successive" because petitioner "expressly seeks to raise only those issues that originated at the time of his resentencing, after his first § 2255 petition had been granted").
But, a numerically second petition based on newly discovered evidence or on a new rule of constitutional law must be considered "second or successive" because any other holding would "permit an end-run" around Section 2255's requirement that such claims first be certified by the court of appeals. See 28 U.S.C. § 2255(h); Leal Garcia , 573 F.3d at 221 (holding that § 2244 "prohibits" any rule that would allow a petition based on either a new rule of constitutional law or newly discovered evidence to be considered "non-successive"). "In essence, if the purported defect existed, or the claim was ripe, at the ...