Mikell Jr. v. Ebbert

Filing 39

ORDER denying 34 Motion to Vacate ; denying 37 Motion for Certificate of Appealability. Mikell's implied motion for IFP status on appeal is denied. The Court assesses the full filing fee of $455. Signed by Judge B. Avant Edenfield on 2/28/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
BOB AARON MIKELL, JR.,
Petitioner,
v.

6:11-cv-47

DAVID J. EBBERT, Warden, and
SAMUEL S. OLENS, Attorney General,
Respondents.
ORDER
I. INTRODUCTION
Before the Court are Petitioner Bob
Aaron Mikell Jr.’s (“Mikell”) petition for a
writ of coram nobis and his motion for a
Certificate of Appealability (“COA”). See
Docs. 34; 37. The Court also construes the
motion for a COA as a motion for in forma
pauperis (“IFP”) status on appeal.
II. FACTS
Mikell has been on something of an
odyssey through state and federal courts. In
1994, Mikell was convicted in Georgia state
court of two counts of selling cocaine. See
Mikell v. United States, No. 6:11 -cv-20,
Doc. 10 at 1 (S.D. Ga. May 16, 2011). On
June 30, 2008, Mikell filed a state habeas
corpus action regarding this conviction. See
id. at 2.
In 1997, Mikell pled guilty in state court
to possession of cocaine with the intent to
distribute. See Doc. 26 at 1. The court
sentenced Mikell to five years' probation
with credit for time served. See id. at 1-2.
He filed no direct appeal. See id. at 2. His

sentence expired in November 2000. See id.
Mikell filed a state habeas corpus petition in
the Candler County Superior Court in 2008.
See id. According to Mikell, this habeas
petition was combined with the habeas
petition from his 1994 conviction and was
denied. See id; Doc. 9 at 2-3. He filed a
another state habeas corpus petition in the
same court in 2011, which was dismissed.
See Doc. 26 at 2. The Georgia Supreme
Court denied Mikell's appeal as to both
petitions in March 2011. See id. at 2.
On January 9, 2008, Mikell pled guilty
in federal court to one count of conspiracy to
possess with intent to distribute a quantity of
cocaine, hydrochloride, and a quantity of
cocaine base. United States v. Pinkston, No.
6:06-cr-26, Docs. 919, 702 (S.D. Ga. Jan. 9,
2008). This Court sentenced Mikell to
eleven years imprisonment followed by five
years of supervised release. See id., Doc.
702 at 2-3. The Court departed below the
guideline range upon a motion from the
government. See id., Doc. 751 at 37-38
(sentencing transcript). On September 8,
2009, Mikell filed a §2255 motion to vacate
his federal sentence. See Mikell v. United
States, No. 6:09-cv-65, Doc. 1 (S.D. Ga.
Sept. 8, 2009). The Court denied Mikell’s
motion. See id., Docs. 43; 44.
On March 1, 2011, Mikell brought a §
2254 petition in this Court challenging his
1994 state conviction. See Mikell, No. 6:11 cv-20, Doc. 1. This Court dismissed that
petition. See id., Docs. 13; 14.
Mikell brought this § 2254 petition on
May 10, 2011, challenging his 1997 state
conviction. See Doc. 1; see also Doc. 10.
The Magistrate Judge initially issued a

Report and Recommendation (“R&R”)
recommending that the Court dismiss
Mikell’s petition. See Doc. 5. The
Magistrate Judge reasoned that Mikell filed
his petition with regards to the 1994
conviction and that Mikell’s petition was an
unauthorized successive habeas petition.
See id. at 3.

also contested Mikell’s motion to recharacterize as “a patent attempt to
circumvent the one-year period of
limitations for state prisoners to file federal
habeas corpus actions and the ‘in custody’
jurisdictional requirement for § 2254 cases.”
Doc. 25 at 2.
The Magistrate Judge issued another
R&R agreeing with Respondents that a writ
of coram nobis was procedurally
inappropriate for Mikell’s federal civil
proceeding challenging a state criminal
conviction. See Doc. 26 at 3. Accordingly,
the R&R recommended vacating the
Magistrate Judge’s previous R&R recharacterizing Mikell’s motion. See id.

After receiving clarification from
Mikell, the Magistrate Judge vacated that
R&R, discerning that Mikell was actually
attacking his 1997 state conviction. See
Doc. 10 at 1. The Magistrate Judge added
Attorney General Samuel S. Olens as a
proper respondent in this suit, and
Respondents filed a motion to dismiss
Mikell’s petition. See Docs. 10; 15.
Respondents contended that Mikell’s
petition was improper both because he was
not “in custody” and because his petition
was untimely. See Doc. 15-1.

The Magistrate Judge then
recommended dismissing Mikell’s § 2254
petition, finding that Mikell was not in
custody. See id. at 3-4.
This Court adopted the Magistrate
Judge’s latest set of recommendations and
dismissed Mikell’s petition. See Doc. 32.
In his objections, Mikell had changed his
position on his custodial status, and claimed
that Lackawanna County District Attorney v.
Coss was applicable to his case. See Doc.
32 at 1; see also 532 U.S. 394 (2001).

Mikell responded by asking the
Magistrate Judge to construe his habeas
petition as a petition for a writ of coram
nobis. See Docs. 18; 19. Mikell stated that
he had completely served his state sentence
as of November 2000. See Doc. 19 at 1.
Accordingly, he admitted that he was not in
custody. See id. Mikell contended,
however, that he met the requirements for a
writ of coram nobis. See Doc. 18 at 4-5.

This Court rebuffed Mikell’s argument,
explaining that the only state sentence that
that Mikell could base his claim upon had
expired in 2000. See Doc. 32 at 2-3. The
Court explained that Coss applies only when
a petitioner, at the time he files his habeas
petition, is in state custody on a subsequent
sentence that has been enhanced as a result
of a petitioner’s prior state conviction and
sentence. See 532 U.S. at 401-02; see also
Doc. 32 at 2-3.
Mikell, however, is

The Magistrate Judge issued a R&R
granting Mikell’s motion to re-characterize
and ordering Respondents to respond. See
Doc. 22. Respondents argued that Mikell’s
new motion was procedurally improper
because writs of coram nobis are available
only to petitioners challenging federal
convictions. See Doc. 25 at 4. Respondents
2

currently serving a federal sentence that has
been enhanced as a result of a prior state
conviction and sentence. See Doc. 32 at 3.
The Court recognized that “[s]ection 2254 is
not an avenue of relief in challenging a
federal sentence.” Id. at 3.

For the reasons explained in the R&R
recommending dismissal of Mikell’s case,
Mikell’s latest petition is procedurally
improper. See Doc. 27. “A writ of error
coram nobis is not available in federal court
to directly attack a state criminal judgment.”
Wolfson v. Florida, 184 F. App’x 866, 866
(11th Cir 2006); see also United States v.
Morgan, 346 U.S. 502, 505 n.4 (1954)
(“Such a motion is a step in the criminal
case and not, like habeas corpus where relief
is sought in a separate case and record, the
beginning of a separate civil Proceeding.”);
Theriault v. Mississippi, 390 F.2d 657, 657
(5th Cir. 1968). Accordingly, Mikell cannot
use a writ of coram nobis in this Court to
attack either his 1994 state conviction or his
1997 state conviction. Mikell’s petition for
a writ of coram nobis is DENIED.

Mikell subsequently filed another
petition for a writ of coram nobis. See Doc.
34. Mikell reasserts that he is no longer in
custody as required by § 2254. See id. at 2;
see also 28 U.S.C. § 2254(b)(1). Mikell
avers that a writ of coram nobis is his only
adequate remedy. See Doc. 34 at 2. The
brief supporting Mikell’s latest motion
makes different claims than his amended
habeas motion. See Docs. 13; 35. As far as
the Court is able to discern, the latest
petition for a writ of coram nobis targets
Mikell’s 1994 conviction, not his 1997
conviction. See Doc. 34 at 2.

Mikell seeks a COA, primarily on issues
that go to the merits of his petition, not its
procedural propriety. See Doc. 37.

Mikell also appeals this Court’s
dismissal of his § 2254 petition regarding
his 1997 case. See Doc. 36.

“Before an appeal may be entertained, a
prisoner who was denied habeas relief in the
district court must first seek and obtain a
COA . . . .” Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003); see 28 U.S.C.
§ 2253(c). The Court will issue a COA
“where a petitioner has made a substantial
showing of the denial of a constitutional
right.” Miller-El, 537 U.S. at 336 (internal
quotations omitted); see also 28 U.S.C.
§ 2253(c)(2). Brewer “must show that
reasonable jurists could debate whether (or,
for that matter, agree that) the petition
should have been resolved in a different
manner or that the issues presented were
adequate to deserve encouragement to
proceed further.” Id. (internal quotations
omitted).

III. ANALYSIS

Mikell’s appeal does not divest this
Court of jurisdiction to consider his latest
petition for a writ of coram nobis. “The
filing of a notice of appeal is an event of
jurisdictional significance—it confers
jurisdiction on the court of appeals and
divests the district court of its control over
those aspects of the case involved in the
appeal.” United States v. Reed, 404 F.
App’x 464, 465 (11th Cir. 2010). Because
Mikell’s petition concerns the 1994
conviction, not the 1997 conviction at issue
in his habeas petition, his current petition
concerns different aspects of Mikell’s case
than those before the Eleventh Circuit.
3

v. Meridian Yachts, Ltd., 575 F.3d 1151,
1177 (11th Cir. 2009) (quoting Best Canvas
Prods. & Supplies, Inc. v. Ploof Truck Lines,
Inc., 713 F.2d 618, 621 (11th Cir. 1983));
see also Shuler v. Ingram & Assocs., 2011

When the district court denies a
habeas petition on procedural
grounds without reaching the
prisoner's underlying constitutional
claim, a COA should issue when the
prisoner shows, at least, that jurists
of reason would find it debatable
whether the petition states a valid
claim of the denial of a constitutional
right and that jurists of reason would
find it debatable whether the district
court was correct in its procedural
ruling.

WL 4495624, at *3 (11th Cir. Sept. 29,
2011) (“Judicial admissions are proof
possessing the highest possible probative
value . . . and are facts established not only
beyond the need of evidence to prove them,
but beyond the power of evidence to
controvert them.” (quoting Hill v. FTC, 124
F.2d 104, 106 (5th Cir. 1941))); Hunt v.
Liberty Lobby, 720 F.2d 631, 649 & n. 29
(11th Cir. 1983) (noting court’s willingness
to apply rule to amended complaint).

Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).
As illustrated by the case law supra, no
reasonable juror could find it debatable that
a writ of coram nobis attacking a state court
judgment is unavailable in a federal court.

Thus, Mikell is bound by his assertion
that he is no longer in custody “pursuant to
the judgment of a State court,” and a
reasonable jurist could not find otherwise.
28 U.S.C. § 2254(b)(1).

Furthermore, a reasonable jurist could
not possibly debate whether Mikell is in
“custody pursuant to the judgment of a State
court” as required by § 2254(b)(1). As
explained supra and in this Court’s previous
Order, Coss does not apply to Mikell’s case,
and § 2254 is not the appropriate tool with
which to challenge a federal sentence. See
Doc. 32 at 2-3.

The Court also construes the motion for
a COA as a motion for IFP status on appeal.
“An appeal may not be taken [IFP] if the
trial court certifies in writing that it is not
taken in good faith.”
28 U.S.C.
§ 1915(a)(3). Good faith means that an issue
exists on appeal that is not frivolous when
judged under an objective standard. See
Coppedge v. United States, 369 U.S. 438,
445 (1962); Busch v. Cnty. of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999). A claim
is frivolous if it is “without arguable merit
either in law or fact.” Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001).

Even if Coss availed Mikell, Mikell
admits that he is not in state custody. See
Doc. 34 at 2 (“Petitioner also avers that, ‘he
is no longer in custody for the purposes of
habeas relief under 28 U.S.C. § 2254, and
therefore, he has no adequate alternative
remedy,’ which gives this court coram nobis
jurisdiction to consider petitioner's claim on
the merits.”).

Mikell’s claims are without merit and
frivolous. Mikell’s appeal is not taken in
good faith. His motion is DENIED. The
Court assesses the full filing fee of $455.

“The general rule is that a party is bound
by the admissions in his pleadings.” Cooper
4

IV. CONCLUSION
Mikell’s motion for a writ of coram
nobis, see Doc. 34, is DENIED.
Mikell’s motion for a COA, see Doc. 37,
is DENIED.
Mikell’s implied motion for IFP status
on appeal is DENIED. The Court assesses
the full filing fee of $455.

This 28th day of February 2012.
)

fl/?fff7:

R AVANT EDENFIELØ, RIDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA