Kee v. United States of America

Filing 5

ORDER the Petition for Writ of Error Coram Nobis (Doc. 93 in CR94-266-PCT-GMS) is denied and the civil action opened in connection with this Petition (CV 12-8132-PCT-GMS(MEA)) is dismissed without prejudice. The Clerk of Court must enter judgment accordingly. The Court declines to issue a certificate of appealability. Signed by Judge G Murray Snow on 8/2/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Respondent,

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v.

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Michael Augustine Kee,
Petitioner.

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No. CV 12-8132-PCT-GMS (MEA)
No. CR 94-266-PCT-GMS
ORDER

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On June 28, 2012, Petitioner Michael Augustine Kee, who is confined in the Federal

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Correctional Institution-Safford in Safford, Arizona, filed a pro se Petition for Writ of Error

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Coram Nobis. On July 3, 2012, Respondent filed a Response. The Court will dismiss the

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Petition.

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I.

Procedural History

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In May 1995, pursuant to a plea agreement, Petitioner pled guilty to Aggravated

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Sexual Abuse, in violation of 18 U.S.C. §§ 1153, 2242(2)(A) and 2245. The plea agreement

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provided for a sentencing range of up to 300 months. On May 18, 1995, the Court sentenced

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Petitioner to a 300-month term of imprisonment.

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II.

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Petition
Petitioner seeks to correct “errors of facts not apparent on the face of the record and

unknown to the trial court” and a reduction in his sentence.
The Ninth Circuit Court of Appeals has explained the scope and nature of the federal
writ of error coram nobis:

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The writ of error coram nobis affords a remedy to attack an unconstitutional
or unlawful conviction in cases when the petitioner already has fully served a
sentence. The petition fills a very precise gap in federal criminal procedure.
A convicted defendant in federal custody may petition to have a sentence or
conviction vacated, set aside or corrected under the federal habeas corpus
statute, 28 U.S.C. § 2255.

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Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). Accordingly, an inmate still in
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custody may not apply for coram nobis relief because the more usual remedy of a habeas
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petition is still available. Matus-Leva, Matus-Leva v. United States, 287 F.3d 758, 761 (9th
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Cir. 2002).
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Petitioner is still in custody and therefore may not apply for coram nobis relief. The
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Court will dismiss the Petition.
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IT IS ORDERED:
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(1)

The Petition for Writ of Error Coram Nobis (Doc. 93 in CR 94-266-PCT-GMS)

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is denied and the civil action opened in connection with this Petition (CV 12-8132-PCT13
GMS (MEA)) is dismissed without prejudice. The Clerk of Court must enter judgment
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accordingly.
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(2)

In the event Petitioner files an appeal, the Court declines to issue a certificate

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of appealability because reasonable jurists would not find the Court’s procedural ruling
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debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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DATED this 2nd day of August, 2012.
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