Fells v. United States of America

Filing 6

FINDINGS and RECOMMENDATION to Dismiss Petition for Lack of Jurisdiction 1 , signed by Magistrate Judge Michael J. Seng on 5/30/17: 30-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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QASIM SHANE FELLS,

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Petitioner,

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v.
UNITED STATES OF AMERICA,

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Case No. 1:17-cv-00615-LJO-MJS
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF
JURISDICTION
THIRTY (30) DAY OBJECTION DEADLINE

Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of error

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coram nobis or, in the alternative, audita querela.

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I.

Procedural History

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Petitioner is currently in federal custody at the United States Penitentiary, Atwater

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pursuant to the June 15, 1995 judgment of the U.S. District Court for the Eastern District

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of North Carolina, convicting Petitioner on the following counts: (1) conspiracy to

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possess with intent to distribute cocaine base (21 U.S.C. § 846); (2) continuing criminal

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enterprise (21 U.S.C. § 848); (3) use of a firearm during a drug trafficking crime and

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aiding and abetting (18 U.S.C. § 924(c)(1) and (2)); and (8-23) sixteen counts of

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possession with intent to distribute cocaine and aiding and abetting (21 U.S.C.

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§ 841(a)(1) and (2)). Fells v. Matevousian, No. 1:15-cv-00552-SKO HC, 2016 WL

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6875418, at *1 (E.D. Cal. Nov. 22, 2016). On May 7, 1996, the Court sentenced

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Petitioner to concurrent life terms for the convictions on counts 1 and 2; a consecutive

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term of 60 months for the conviction on count 3; and a 480-month term on counts 8-23,

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to be served concurrently with the sentence on counts 1 and 2. Id.

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On March 24, 2000, the U.S. Court of Appeals for the Fourth Circuit vacated

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Petitioner‟s conspiracy conviction and sentence, but otherwise affirmed the judgement.

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United States v. Peterson, 210 F.3d 363, 2000 WL 305137 (4th Cir. Mar. 24, 2000). The

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United States Supreme Court denied review. Fells v. United States, 530 U.S. 1219, 120

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S. Ct. 2227, 147 L. Ed. 2d 258 (2000).

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In late 2000 and early 2001, Petitioner made various attempts to pursue a petition

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or motion pursuant to either 28 U.S.C. § 2241 or § 2255 in the Eastern District of Texas

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(where he then was housed) and the Eastern District of North Carolina. See Fells v.

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Matevousian, No. 1:15-cv-00552-SKO HC, 2016 WL 6875418, at *1. Eventually, in

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March or April of 2001, Petitioner filed a motion under 28 U.S.C. § 2255 in the U.S.

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District Court for the Eastern District of North Carolina. The motion was denied, and his

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appeal therefrom was dismissed. Id; Petition (ECF No. 1 at 2); see also United States v.

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Fells, 32 F. App'x 102, 2002 WL 548825 (4th Cir. 2002).

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On April 10, 2015, Petitioner filed a petition for writ of habeas corpus pursuant to

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28 U.S.C. § 2241. See Fells v. United States of America, No. 1:15-cv-00552-SKO (E.D.

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Cal.). The petition raised essentially the same grounds for relief raised herein: that the

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United States Supreme Court‟s holdings in Watson v. United States, 552 U.S. 74 (2007),

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and Rosemond v. United States, 134 S. Ct. 1240 (2014), invalidated Petitioner‟s

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conviction on count 3 (violation of 18 U.S.C. § 924(c)(1) and (2)). (See ECF Nos. 1, 24,

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in No. 1:15-cv-00552-SKO.) The petition ultimately was dismissed for lack of jurisdiction

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under § 2241. (Id.)

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On August 13, 2015, Petitioner filed a motion to modify his sentence pursuant to

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18 U.S.C. § 3582(c). On August 30, 2016, the motion was granted and his life sentence

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was reduced to 327 months. See Petition (ECF No. 1 at 2); see also United States v.

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Fells, No. 16-7202, 2016 WL 7416199, at *1 (4th Cir. Dec. 22, 2016) (affirming grant of

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sentence reduction and finding no abuse of discretion in decision not to grant larger

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reduction).

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On November 29, 2016, Petitioner filed in the Fourth Circuit an application for a

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second or successive § 2255 motion. Therein, Petitioner raised a claim of actual

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innocence and argued that his appellate counsel was ineffective for failing to argue

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insufficient evidence under Bailey v. United States, 516 U.S. 137 (1995). The application

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was denied. In re Shane Fells, No. 16-3145 (4th Cir. Dec. 15, 2016).

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Petitioner filed the instant petition on April 21, 2017. (ECF No. 1.) He seeks to

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vacate his convictions and sentence for violations of 18 U.S.C. §§ 924(c)(1) and (2). He

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claims that he is innocent of the charges, that his convictions resulted from instructional

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error under Rosemond and Bailey, and that there is insufficient evidence to support the

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convictions.

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II.

Coram Nobis

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The common law writ of coram nobis is available in criminal cases under the All

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Writs Act. 28 U.S.C. § 1651(a); Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.

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2002). The All Writs Act provides that “all courts ... may issue all writs necessary or

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appropriate in aid of their respective jurisdictions and agreeable to the usages and

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principles of law.” 28 U.S.C. § 1651(a). However, the All Writs Act is not itself a source of

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jurisdiction. Chavez v. Superior Court of California, 194 F. Supp. 2d 1037, 1039 (C.D.

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Cal. 2002) (citing Lights of Am., Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 130 F.3d

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1369, 1370 (9th Cir. 1997) (per curiam)). A writ of coram nobis can only issue “in aid of

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the jurisdiction of the court . . . in which the conviction was had.” See Madigan v. Wells,

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224 F.2d 577, 578 n.2 (9th Cir. 1955).

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To warrant coram nobis relief, a petitioner must establish that (1) a more usual

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remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3)

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adverse consequences exist from the conviction sufficient to satisfy the case or

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controversy requirement of Article III; and (4) the error is of a fundamental character.

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Matus-Leva, 287 F.3d at 760 (citing Hirabayashi v. United States, 828 F.2d 591, 604

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(9th Cir. 1987)). “Because these requirements are conjunctive, failure to meet any one of

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them is fatal.” Id.

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Here, Petitioner‟s conviction was rendered in the Eastern District of North

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Carolina. Thus, this Court, as merely the custodial court, does not have jurisdicti on to

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order a writ of coram nobis.

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Moreover, Petitioner is not entitled to a writ of coram nobis because Petitioner is

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in custody, and thus, has the “more usual remedy” of seeking relief under Section 2255.

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See Ramos v. Ives, No. 2:10-CV-0848 KJN-P, 2011 WL 1261076, at *3 (E.D. Cal. Apr.

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4, 2011). Individuals in custody are “consistently” denied coram nobis relief. Matus-Leva,

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287 F.3d at 761 (citation omitted); United States v. Brown, 413 F.2d 878, 879 (9th Cir.

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1969) (“Coram nobis is not available, since [petitioner] is still in custody.”). That

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Petitioner may be precluded from seeking § 2255 relief is insufficient to establish that “a

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more usual remedy” is not available. See e.g., Matus-Leva, 287 F.3d at 761 (holding that

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a petitioner in custody could not resort to coram nobis simply because his § 2255 motion

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was time-barred under AEDPA).

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Accordingly, Petitioner is not entitled to a writ of coram nobis pursuant to Section

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1651.

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III.

Audita Querela

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“Audita querela, literally 'the complaint having been heard,' is a common law writ

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used to attack a judgment that was correct when rendered, but that later became

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incorrect because of circumstances that arose after the judgment was issued.”

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Carrington v. United States, 503 F.3d 888, 890 n.2 (9th Cir. 2007) (citation omitted). The

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writ of audita querela is available to “fill the interstices of the federal postconviction

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remedial framework.” U.S. v. Valdez Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001)

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(quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997)) (internal quotations omitted).

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However, “[a] prisoner may not circumvent valid congressional limitations on collateral

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attacks [contained in AEDPA] by asserting that those very limitations create a gap in the

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postconviction remedies that must be filled by the common law writs.” Id. at 1080.

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(citations omitted). Thus, “[a] writ of audita querela is not an available remedy where the

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claims raised would be cognizable in a § 2255 habeas petition.” Carrington, 503 F.3d at

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890 (citing Valdez Pacheco 237 F.3d at 1080). Moreover, “statutory limits on second or

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successive habeas petitions do not create a „gap‟ in the post-conviction landscape that

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can be filled with the common law writs.” Id.

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Petitioner contends that he was convicted of aiding and abetting in the use of a

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firearm during a drug trafficking crime under 18 U.S.C. § 924(c)(1) and (2)). Since

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Petitioner‟s conviction, the United States Supreme Court has held that (1) possessing a

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firearm kept near the scene of drug trafficking does not amount to “use” within the

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meaning of the statute, Bailey, 516 U.S. at 145; (2) a person who trades his drugs for a

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gun does not “use” the firearm during the drug trafficking crime, Watson, 552 U.S. at 83;

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and (3) a conviction for aiding and abetting under § 924(c) requires that the defendant

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have advanced knowledge that a firearm will be used in the drug trafficking crime,

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Rosemond, 134 S.Ct. at 1249-50. Petitioner contends that under these rulings, he is

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innocent of the offense and the jury was erroneously instructed.

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This claim falls squarely within the purview of § 2255. In general, a motion under

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§ 2255 is the exclusive means by which a federal prisoner may test the legality of his

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detention. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). Here, Petitioner has

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filed an unsuccessful § 2255 motion in the Eastern District of North Carolina, and

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unsuccessfully sought permission to file a second or successive § 2255 motion in the

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Fourth Circuit. See United States v. Fells, 2002 WL 548825.

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The “escape hatch” of § 2255 permits a federal prisoner to “file a habeas corpus

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petition pursuant to § 2241 to contest the legality of a sentence where his remedy under

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§ 2255 is „inadequate or ineffective to test the legality of his detention.‟” Hernandez v.

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Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per curiam) (quoting § 2255). The

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escape hatch is available when a petitioner “makes a claim of actual innocence, and (2)

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has not had an „unobstructed procedural shot‟ at presenting that claim.” Stephens, 464

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F.3d at 898 (citations omitted). Petitioner filed such a § 2241 petition, and it was

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dismissed on the ground that the petition did not set forth a proper claim of actual

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innocence. Fells v. Matevousian, 2016 WL 6875418. Indeed, the claim raised by

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Petitioner – that a later Supreme Court holding rendered the jury instructions in his case

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erroneous – has expressly been found insufficient, when standing alone, to support a

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claim of actual innocence. Stephens, 464 F.3d at 898-99.

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Petitioner now attempts to bring this claim in a petition for a writ of audita querela.

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However, the writ is not available because the claims raised would be cognizable in a

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§ 2255 motion. Carrington, 503 F.3d at 890 (citing Valdez Pacheco 237 F.3d at 1080).

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The Court acknowledges that Petitioner may be foreclosed under AEDPA from bringing

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these claims in a § 2255 motion absent permission from the Fourth Circuit under

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§ 2244(b)(3)(A). However, this statutory limitation does not vest the Court with

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jurisdiction to issue a writ of audita querela in these circumstances. Valdez Pacheco 237

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F.3d at 1080.

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IV.

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Conclusion and Recommendations
Based on the foregoing, it is HEREBY RECOMMENDED that the petition be

dismissed for lack of jurisdiction.

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The findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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thirty (30) days after being served with the findings and recommendations, Petitioner

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge‟s Findings and

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Recommendations.” Petitioner is advised that failure to file objections within the specified

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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 30, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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