Bates v. Secretary, DOC et al

Filing 6

ORDER dismissing the case without prejudice, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 12/1/2011. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DONDRICKA T. BATES,
Petitioner,
vs.

Case No. 3:11-cv-1183-J-37TEM

SECRETARY, DOC, et al.,
Respondents.

ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner filed an Emergency Petition for Writ of Error Coram
Nobis, and for an Emergency Hearing Thereon [Bec]ause Petitioner is
Entitled to Immediate Release from Detention (Doc. #1) (hereinafter
Petition), and it was docketed as a petition for writ of coram
nobis.

In his Memorandum in Support of Writ of Error Coram Nobis

(Doc. #3), he explains that he is asking "for immediate suspension
of his state sentence, which if granted would entitle him to
immediate release from Florida's custody to the U.S. Marshal so
that he may begin service on his pending federal sentence which by
default has expired."

Id. at 1.

He seeks habeas relief pursuant

to 28 U.S.C. § 1651(a), the "All Writs Act."

Id.

He asserts that

his guilty plea before the state trial judge was made in exchange
for an agreement that he would receive concurrent sentences, and
that agreement has not been met.
Petitioner

is

currently

in

Petition at 3-4.
the

custody

of

the

Florida

Department of Corrections and is serving a five-year state sentence

for conspiracy to traffic in drugs.1

Simply labeling the Petition

a writ of error coram nobis will not, however, help Petitioner
avoid the requirements of 28 U.S.C. § 2254.

As noted in Medberry

v. Crosby, 351 F.3d 1049, 1058 (11th Cir. 2003), cert. denied, 541
U.S. 1032 (2004), "[a]fter reviewing the relevant history, it is
evident that there are two distinct means of securing postconviction relief in the federal courts: an application for a writ
of habeas corpus (governed by inter alia, §§ 2241 and 2254) and a
motion to vacate a sentence (governed by § 2255)."

This case, of

course, is not a challenge to a federal prisoner's sentence;
therefore, § 2255 is inapplicable.

Thus, this case is governed by

both § 2241 and § 2254.
The difference between the statutes lies
in the breadth of the situations to which they
apply. Section 2241 provides that a writ of
habeas corpus may issue to a prisoner in the
following five situations:
. . . .
(3) He is in custody in violation of
the Constitution or laws or treaties
of the United States; or . . . .
28 U.S.C. § 2241(c).
Section 2254, on the
other hand, applies to a subset of those to
whom § 2241(c)(3) applies – it applies to "a
person in custody pursuant to the judgment of
a State court" who is "in custody in violation
of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a) (emphasis
added).

1

See http://www.dc.state.fl.us/ActiveInmates/detail.asp.
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Medberry, 351 F.3d at 1059 (emphasis added).
"Section 2254(a) merely specifies the class of state prisoners
to which the additional restrictions of § 2254 apply."
351 F.3d at 1060.

Medberry,

Indeed, 28 U.S.C. § 2244(d)(1) states that a

one-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a state court.

Thus, Petitioner's habeas petition "is

subject

and

both

to

§

2241

to

§

2254,

with

its

attendant

restrictions[,]" Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir.
2004), cert. denied, 543 U.S. 1063 (2005), including the one-year
period of limitation.
Here, of course, Petitioner is challenging a state court
conviction. Apparently, he is also attempting to rely on the Great
Writ to challenge his conviction.

"Section 2254 presumes that

federal courts already have the authority to issue the writ of
habeas corpus to a state prisoner, and it applies restrictions on
granting the Great Writ to certain state prisoners-i.e., those who
are 'in custody pursuant to the judgment of a State court.'"
Medberry, 351 F.3d at 1059-60. Thus, there is "a limitation on the
preexisting authority under §2241(c)(3) to grant the writ of habeas
corpus to state prisoners."

Id. at 1060.

Circuit precedent reveals:
In summary, a state prisoner seeking
post-conviction relief from a federal court
has but one remedy: an application for a writ
of habeas corpus. All applications for writs
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of habeas corpus are governed by § 2241, which
generally authorizes federal courts to grant
the writ-to both federal and state prisoners.
Most state prisoners' applications for writs
of habeas corpus are subject also to the
additional restrictions of § 2254. That is, if
a state prisoner is "in custody pursuant to
the judgment of a State court," his petition
is subject to § 2254. If, however, a prisoner
is in prison pursuant to something other than
a judgment of a state court, e.g., a pre-trial
bond order, then his petition is not subject
to § 2254.
Id. at 1062 (emphasis added). There is no question that Petitioner
is a state prisoner in custody pursuant to the judgment of a state
court.

It follows his petition for writ of habeas corpus is

subject to 28 U.S.C. § 2254.
If Petitioner is attempting to raise his claims pursuant to
the All Writs Act, 28 U.S.C. § 1651,
The All Writs Act grants federal courts
the power to issue writs "necessary or
appropriate in aid of their respective
jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. § 1651(a).
However, "[t]he All Writs Acts [sic] is a
residual source of authority to issue writs
that are not otherwise covered by statute.
Where a statute specifically addresses the
particular issue at hand, it is that
authority, and not the All Writs Act, that is
controlling." Pennsylvania Bureau of Corr. v.
U.S. Marshals Serv., 474 U.S. 34, 43, 106
S.Ct. 355, 361, 88 L.Ed.2d 189 (1985).
Although the Act "empowers federal courts to
fashion extraordinary remedies when the need
arises, it does not authorize them to issue ad
hoc writs whenever compliance with statutory
procedures appears inconvenient or less
Accordingly, common law
appropriate."
Id.
writs, such as coram nobis and audita querela,
survive only to the extent that they fills
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[sic] gaps in the system of federal postconviction remedies. See United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005)
(holding that the common law "writ of audita
querala may not be granted when relief is
cognizable under § 2255"). Moreover, the Act
does not create any substantive federal
jurisdiction; "rather, it empowers a federal
court-in a case in which it is already
exercising subject matter jurisdiction-to
enter such orders as are necessary to aid it
in the exercise of such jurisdiction." In re
Hill, 437 F.3d 1080, 1083 (11th Cir. 2006).
Morales v. Florida Dep't of Corr., 346 Fed.Appx. 539, 540 (11th
Cir. 2009) (per curiam) (not selected for publication in the
Federal Reporter), cert. denied, 2010 WL 2262533 (U.S. Oct. 4,
2010) (No. 09-11194). Because Petitioner has an adequate statutory
remedy for attacking his conviction pursuant to 28 U.S.C. § 2254,
he may not raise his claims pursuant to the All Writs Act.
Simply, Petitioner must meet the exhaustion requirements of 28
U.S.C. § 2254.

Apparently, he has not exhausted his state court

remedies as he states that he currently has a Rule 3.850 motion
pending in the state circuit court challenging his state conviction
and sentence. Petition at 4. Until his proceedings in state court
are final (including any appeals), Petitioner cannot file a habeas
petition in federal court.
without prejudice.

Thus, this case will be dismissed

In recognition of the nature of comity between

the national and state sovereignties in our federal system, this
Court should give the state courts an opportunity to rule on

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Petitioner's claims.

See Rose v. Lundy, 455 U.S. 509 (1982); see

also 28 U.S.C. § 2254 (b)(1)(A).
If

Petitioner

is

attempting

to

challenge

his

federal

conviction and sentence, such relief should be sought pursuant to
28 U.S.C. § 2255 or by seeking relief in the federal criminal case.
See Case No. 3:99-cr-245-J-25TEM.2
Accordingly, it is now
ORDERED:
1.

This case is DISMISSED WITHOUT PREJUDICE.

2.

The Clerk of the Court shall enter judgment dismissing

the case without prejudice and close this case.
3.

The Clerk of the Court shall provide Petitioner with the

appropriate

habeas

corpus

petition

form

and

an

affidavit

of

indigency.

If Petitioner elects to file a federal habeas corpus

petition after exhausting state court remedies, he should not place

2

The Court will not address the question as to whether
Petitioner has timely sought post-conviction remedies with regard
to his federal criminal conviction and sentence.
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this case number on the form.

A new case number will be assigned

by the Clerk of the Court.
DONE AND ORDERED at Jacksonville, Florida, this 1st day of
December, 2011.

sa 11/30
c:
Dondricka T. Bates

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