Collins v. State of Nevada
Filing
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MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall LIST, on the CM/ECF cover sheet, Antony Dion Collins as an alias designation for Petitioner Anthony D. Collins. 2. Collinss 28 U. S. C. § 1651 petition for a writ of error coram nobis [R. 1] is DENIED, and the Court will enter an appropriate Judgment. 3. This matter is STRICKEN from the docket.. Signed by Judge Karen K. Caldwell on 4/18/2016.(JMB)cc: COR, Anthony Collins via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
ANTHONY D. COLLINS,
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a/k/a/ ANTHONY DION COLLINS,1
Petitioner,
v.
STATE OF NEVADA,
Civil Action No. 6:15-CV-55-KKC
MEMORANDUM OPINION
AND ORDER
Respondent.
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Petitioner Anthony D. Collins, a/k/a/Anthony Dion Collins, is a federal inmate in the
custody of the BOP, and is currently confined at the United States Penitentiary (“USP”)Beaumont, located in Beaumont, Texas.2 Collins has filed a pro se petition for a writ of a
petition for a writ of error coram nobis [R. 1] pursuant to 28 U. S. C. § 1651, challenging his
1996 state court drug conviction in Nevada.
Collins’s petition for writ of error coram nobis petition is in the nature of a petition
for writ of habeas corpus under 28 U.S.C. § 2241, and the Court conducts an initial review
of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419
F. App’x 544, 545 (6th Cir. 2011). The Court must deny the petition “if it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief.”
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable
to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Collins’s error coram nobis
petition under a more lenient standard because he is not represented by an attorney.
The Bureau of Prisons (“BOP”) identifies Collins, BOP Register No. 30693-048, as “Antony Dion Collins.” See
https://bop.gove/inmateloc/ (last visited on April 18, 2016). The Clerk of the Court will be instructed to list, on
the CM/ECF cover sheet, “Anthony Dion Collins” as an alias designation for Collins.
1
When Collins filed this proceeding in March 2015, he was confined in the USP-McCreary, located in Pine Knot,
Kentucky.
2
1
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.
2003). At this stage, the Court accepts Collins’s factual allegations as true, and liberally
construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). Having reviewed the petition, however, the Court must deny it because Collins has
not set forth grounds entitling him to the error coram nobis relief which he requests.
1.
BACKGROUND
Collins’s State and Federal Convictions
On December 8, 1992, criminal charges were filed against Collins in the District
Court of Clark County, Nevada, in the case styled as: “The State of Nevada vs Anthony D.
Collins,” Case No. 92-CI-109813-1 (“the State Court Case”). [R. 1-1, p. 14] Collins was
apparently charged with “Unlawful for Any Person to Import, Transport, Manufacture,
Compound, Sell.” [R. 1-1, p. 14] On October 24, 1994, an “Amended Information” was filed
in the State Court Case, alleging that:
…ANTHONY DION COLLINS…committed the crime of SALE OF
CONTROLLED SUBSTANCE (Felony, NRS 453.321) on or about the 1st
day of October 1, 1993, at and within the County of Clark, State of Nevada….
[Id., p. 4]
Activity in the State Court Case ensued over the next two years, culminating in the
entry of the “Judgment of Conviction (Plea)” on January 10, 1996, which stated:
WHEREAS, on the 10th day of December, 1993, the defendant
ANTHNY [sic] DION COLLINS appeared before the Court herein with his
counsel and entered a plea of guilty to the crime of SALE OF
CONTROLLED SUBSTANCE (Felony) committed on the 1st day of
October, 1993, in violation of NRW 453.321 and
WHEREAS, thereafter on the 3rd day of January 1996, the
Defendant being present in court with his counsel…; the above entitled Court
did adjudge the Defendant guilty thereof by reason of his plea of
guilty…and… sentenced Defendant to SIX (6) years in the Nevada State
prison and a $50,000.00 Fine. Credit for time served 173 days.
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[Id., p. 1]
On August 30, 1995, (while the State Court Case was pending), Collins was charged
in federal court in Las Vegas, Nevada, with possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1). United States v. Anthony Dion Collins, No.
2:95-CR-216-LDG-RJJ-1 (D. Nev. 1995)3 (“the Federal Case”). The jury convicted Collins of
the § 841(a)(1) drug offense, and on October 23, 1996, the district court sentenced Collins to
a mandatory term of life imprisonment. Collins appealed, but his conviction was affirmed.
United States v. Collins, 125 F.3d 859 (9th Cir. 1997).4
Fast-forwarding almost eighteen (18) years, Collins filed a petition for writ of coram
nobis in the State Court Case on September 2, 2014, alleging that that Nevada and federal
authorities violated his rights under the Interstate Agreement on Detainers Act. Collins
argued that his transfer between Nevada and federal custody was improper, and that he
did not receive a proper pre-transfer hearing. Collins also argued that he was innocent
because the judgment in the State Court Case improperly stated he committed the
underlying drug offense in 1993, instead of 1992. See R. 1-1, p. 11 (summarizing history of
Collins’s petition for writ of error coram nobis filed in the State Court Case).
Collins’s federal criminal proceeding preceded the advent of the Public Access to Court Electronic Records
(“PACER”), the federal judiciary’s online database. The docket sheet of the Federal Case, which is accessible
via PACER, identifies August 30, 1995 as the start date of the proceeding, and identifies December 31, 2001, as
the date on which the case from continued from paper to electronic docketing. The electronically accessible
docket entries of the Federal Case do not begin until January 30, 2008, on which date Collins filed a motion
seeking a sentence reduction under 18 U.S.C. § 3582, based on the retroactivity of the federal sentencing
guidelines. The information which this Court has obtained about the Federal Case is derived primarily from
the opinion rendered by the Sixth Circuit Court of Appeals when it affirmed the Collins’s criminal conviction,
see United States v. Anthony Dion Collins, 125 F.23d 759, 1997 WL 599863 (6th Cir. Sept. 24, 1997), and from a
decision rendered in another 28 U.S.C. § 2241 habeas corpus proceeding which Collins filed in 2014. See
Anthony D. Collins v. Warden Ebbert, No. 3:CV-14-1394, 2014 WL 3955155 (M.D. Pa. Aug. 13, 2014)
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The docket sheet in the Federal Case reveals that Collins filed several motions seeking a sentence reduction
under 18 U.S.C. § 3582(c)(2), see R. 136-37; R. 140-41, therein, and a motion to amend or correct his sentence
pursuant, see id., R. 139, therein, which was denied on June 3, 2015 [R. 145, therein]
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On September 24, 2014, the District Court of Clark County, Nevada, conducted a
hearing on Collins’s petition for writ of error coram nobis, but on November 12, 2014, that
court entered an order denying Collins’s petition. [Id., p. 7-9]5 Collins appealed, and on
January 6, 2015, the proceeding was transferred to the Court of Appeals for the State of
Nevada for disposition. [Id., p. 10] On February 24, 2015, the Court of Appeals for the
State of Nevada entered an Order affirming the lower court’s order denying Collins’s
petition for writ of error coram nobis. [Id., pp. 11-12] The Court of Appeals for the State of
Nevada stated as follows:
Appellant [Collins]’s claims were not properly raised in a petition for a writ of
coram nobis because they were claims arising from alleged factual errors that
are on the record, the claims could have been raised earlier, or they involved
legal and not factual errors. See Trujillo v. State, 129 Nev.__, __, 310 P.3d
594, 601-02 (2013). Moreover, appellant has previously litigated a petition
for a writ of coram nobis, Collins v. State, Docket No. 39841 (Order of
Affirmance, May 8, 2003), and appellant failed to demonstrate that he could
not have raised his current claims in that petition or in a timely filed postconviction petition for a writ of habeas corpus. See Trujillo, 129 Nev. At _,
310 P.3d at 601-02 (explaining that it is the petitioner’s burden to
demonstrate that he could not have reasonably raised his claims at an earlier
time). Therefore, the district court did not err in denying the petition.
[Id., pp. 11-12]
2.
Claims Asserted in Current Error of Coram Nobis Petition
In the instant proceeding, Collins continues to collaterally challenge his January 10,
1996, criminal judgment rendered in the State Court Case. Collins again alleges that his
conviction in the State Court Case is substantively defective because it incorrectly states
that he sold a controlled substance on October 1, 1993, and that he committed no crime, of
any kind, on October 1, 1993. Collins further alleges that at the time of his state court
The order denying Collins’s state court error coram nobis petition stated that Collins was not present “IN
PRO PER PERSON,” [sic] but that Collins was represented by (Nevada) District Attorney, through a Deputy
District Attorney. [Id., p. 7] The order further stated that the court “…ADOPTED the Procedural History as
set forth by the State FINDING it is an accurate recitation of the events in this case, stated its FINDINGS,
and ORDERED, Motion DENIED.” [Id., p. 8]
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conviction, he relied on his defense counsel, whom he identified as John Moffet, but that
Moffet “…said nothing about the crime alleged to have been committed on October 1, 1993,
nor did the State of Nevada.” [R. 1, p. 2] Collins alleges that he is “…actually and factually
innocent of the conviction of January 12, 1996 alleged to have occurred on October 1, 1993,
nor can the State of Nevada refute this claim.” [Id., at p. 3] At the conclusion of his error
coram nobis petition, Collins seeks the following relief:
Wherefore…Petitioner requests this Court Grant this Corum [sic] Nobis and
vacate the conviction against him in Clark County NV. District Court Case
No. 92-C109813 under actual innocence.
[Id., at p. 4]
Collins further contends that McQuiggin v. Perkins, ___U.S.___, 133 S.Ct. 1924
(2013) permits him to seek an “actual innocence” through the mechanism of a petition for
writ of coram nobis. See id., pp. 2. In McQuiggin, the Supreme Court held that if the
petitioner makes a “convincing showing of actual innocence”—meaning evidence indicating
that the petitioner did not actually commit the crime for which he was convicted—then he
may overcome a procedural bar to consideration of his constitutional claim on the merits if
the evidence establishes that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence. McQuiggin, 133 S.Ct. at 1931–33, 35–36.
Thus, where a defendant can produce sufficient evidence to demonstrate actual innocence,
McQuiggin permits him to overcome a procedural bar to habeas relief. Collins asserts that
the ineffective assistance which he received from his state court trial counsel renders him
actually innocent of the drug offense that resulted in his January 10, 1996, criminal
judgment in the Nevada state court.
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DISCUSSION
This Court was not court in which Collins was convicted of Sale of a Controlled
Substance on January 10, 1996, and this Court did not pronounce the judgment which
Collins challenges in this proceeding. Thus, Collins is not entitled to pursue a writ of error
coram nobis, because this Court lacks the power to issue such a writ.
“The writ of error coram nobis is used to vacate a federal sentence or conviction
when a [28 U.S.C.]§ 2255 motion is unavailable—generally, when the petitioner has served
his sentence completely and thus is no longer ‘in custody’ as required for § 2255 relief.”
Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996). “Because of the similarities
between coram nobis proceedings and § 2255 proceedings, the § 2255 procedure is often
applied by analogy in coram nobis cases.” Id. at 235. The writ of error coram nobis is an
extraordinary writ that allows a person who is no longer “in custody” and thus, is barred
from bringing a 28 U.S.C. § 2255 petition, to collaterally attack his conviction. United
States v. Morgan, 346 U.S. 502, 510-11 (1954). The writ is only available where “petitioner
demonstrates a factual error that was unknown at the time of trial and that is “of a
fundamentally unjust character which probably would have altered the outcome of the
challenged proceeding if it had been known.” Pilla v. United States, 668 F.3d 368, 372 (6th
Cir. 2012) (quotations and citations omitted).
“Coram nobis is an extraordinary writ, used only to review errors of the most
fundamental character--e.g., errors rendering the proceedings themselves invalid.” United
States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). The Sixth Circuit has recognized that
coram nobis proceedings are substantially similar to § 2255 proceedings. Id. at 754. In
order to prevail on a claim for a coram nobis writ, the petitioner must demonstrate (1) an
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error of fact, (2) unknown at the time of trial, (3) of a fundamentally unjust character which
probably would have altered the outcome of the challenged proceeding if it had been known.
Johnson, 237 F.3d at 755. When considering a petition for coram nobis, “[i]t is presumed
the proceedings were correct and the burden rests on the accused to show otherwise.”
Morgan, 346 U.S. at 512.
In the instant proceeding, however, Collins collaterally challenges and seeks relief
from only his January 10, 1996, conviction imposed in the State Court Case; Collins does
not collaterally challenge his life sentence imposed in the Federal Case. To the extent that
Collins collaterally challenges his Nevada state court conviction under the mechanism of an
error coram nobis petition, he cannot proceed because the “extraordinary remedy” of coram
nobis is available only in the court which rendered the judgment under attack; it is not
available in federal courts as a means of attacking a state conviction. Fegley v. McClain,
802 F.2d 457 (6th Cir. 1986); United States v. Watkins-El, 37 F. App’x 716, 717 (6th Cir.
2002) (affirming the denial of coram nobis petition and holding that “the district court
properly noted that the writ could not be used to attack [defendant’s] ... state conviction.”);
see also Meyers v. Ohio, No. 1:14-CV-1694, 2015 WL 871545, at *1 (N.D. Ohio Feb. 27, 2015)
(Magistrate Judge’s Report and Recommendation (“R & R”) that Meyers’s petition for writ
of error coram nobis challenging his state court sentence be denied); Meyers v. Ohio, No.
1:14-CV-1694, 2015 WL 1954546, at *4 (N.D. Ohio Apr. 29, 2015) (adopting R & R and
denying Meyers’s petition for writ of error coram nobis challenging his state court
conviction).
Another district court in this circuit addressed this same situation, and, consistent
with the above decisions, denied the prisoner’s petition for writ of error coram nobis
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challenging his Michigan state court conviction. In Wade v. Rapelje, No. 12-12790, 2012
WL 3776482, at *3 (E.D. Mich. Aug. 24, 2012), Wade filed a petition for a writ of error
coram nobis in federal court, challenging his life (and two years’) state court sentence for
murder and a felony firearm offense, which the state court in Macomb County, Michigan,
imposed after the jury convicted Wade of the offenses. The district court denied Wade’s
petition of error coram nobis, explaining:
The petitioner’s convictions did not occur in this Court. The writ is available
to correct an error of fact in the same court that rendered the judgment and
is not available in federal court for errors of law. Johnson, 237 F.3d at 753;
see also Campbell v. Breck, 113 F.3d 1234, 1997 WL 211251, at *1 (6th
Cir.1997) (table) (“A petition for a writ of error coram nobis must be
presented to the court that pronounced the judgment, and it is not available
in federal courts for errors of law.”).
Wade, at *3.
Based on these cases, Collins is not entitled to relief in the form of a writ of error
coram nobis, because this Court did not enter the judgment which Collins is challenging in
this proceeding (i.e., his January 10, 1996, criminal judgment rendered in the State Court
Case). Thus, the remedy Collins seeks in this proceeding is not available to him.
If Collins had wished to assert a federal challenge to his January 10, 1996, criminal
judgment rendered in the State Court Case, he could have, and should have, done so by
filing a petition for writ of habeas corpus in the federal court in Nevada under 28 U.S.C. §
2254, pursuant to which a federal court may “entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a) (emphasis added).” A collateral attack by a prisoner on a final
judgment of conviction rendered in a state court must be based on 28 U.S.C. § 2254. See
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Felker v. Turpin, 518 U.S. 651, 662 (1996); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.
2000).
Collins does not allege that he filed a § 2254 habeas petition in federal court in
Nevada challenging his January 10, 1996, state court criminal judgment, and a search of
the PACER database does not reveal that Collins filed a § 2254 habeas petition in the
Nevada district court. At this juncture, more than twenty-years after the fact, any habeas
petition that Collins might file under § 2254 in the Nevada federal court, challenging his
January 12, 1996, state court criminal judgment, would almost certainly fail because: (1) it
would be time-barred under 28 U.S.C. § 2244(d)(1), and (2) the federal court in Nevada
would lack subject matter over such a § 2254 petition, because Collins is no longer “in
custody” pursuant to his January 10, 1996, state court conviction. See Maleng v. Cook, 490
U.S. 490-92 (1989).6 Collins is now in federal custody.
Further, even if Collins’s situation qualified for a writ of error coram nobis (which it
does not) McQuiggin likewise would not afford Collins any relief.
In McQuiggin, the
Supreme Court held that “actual innocence, if proved, serves as a gateway” through which a
In Maleng, the Supreme Court specifically considered “whether a habeas petitioner remains ‘in custody’
under a conviction after the sentence imposed for it has fully expired, merely because” that conviction was later
used to enhance the sentence imposed for a subsequent conviction. Maleng, 490 U.S. at 493. The Court held
unequivocally that a petitioner in this situation is not “in custody” pursuant to the earlier conviction. Instead,
“[w]hen the second sentence is imposed, it is pursuant to the second conviction that the petitioner is
incarcerated and is therefore ‘in custody.’” Id. A few years later, in Daniels v. United States, 532 U.S. 374, 382
(2001), the Court held that a federal prisoner generally cannot attack a prior state conviction used to enhance
his federal sentence through filing a § 2255 motion, unless that conviction has already been set aside on direct
or collateral review. The Court further noted that when a federal prisoner's prior state conviction has been used
to enhance his federal sentence under the Armed Career Criminal Act, the petitioner’s only recourse is to
pursue whatever post-conviction or other channels might still be available for challenging the state sentence. If
no such channels remain open, “because the defendant failed to pursue those remedies while they were
available (or because the defendant did so unsuccessfully),” the petitioner is simply out of luck. Id.
Such would likely be the situation here if Collins is challenging his life sentence (imposed in the Federal
Case) under 28 U.S.C. § 2241, on the grounds that his January 10, 1996, Nevada state court conviction qualified
as a predicate offense to find that he was a career offender when his life sentence was imposed. Broadly
assuming that Collins is making this argument, he cannot proceed because of Maleng: this Court would lack
jurisdiction over Collins’s construed § 2241 petition, because his state sentence, imposed on January 12, 1996,
has expired, and Collins was not “in custody” pursuant to that conviction when he filed his construed § 2241
petition on March 30, 2015. Collins would be out of luck because his construed § 2241 petition would be subject
to dismissal for lack of subject-matter jurisdiction. See Saulter v. Tennessee, No. 3:13-CV-1415, 2014 WL
1665069, at *3 (M. D. Tenn. Apr. 25, 2014)
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petitioner may obtain review of constitutional claims even after expiration of the statute of
limitations. 133 S.Ct. at 1928. In other words, a “convincing actual-innocence claim” can
constitute an exception to the state of limitations if a miscarriage of justice would otherwise
result. Id. at 1931–33. The Supreme Court specifically “underscore [d]” the fact that “[t]he
miscarriage of justice exception ... applies to a severely confined category: cases in which
new evidence show ‘it is more likely than not that no reasonable juror would have convicted
the petitioner.’” Id. at 1933 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
No miscarriage of justice occurred with respect to Collins’s January 10, 1996,
criminal judgment imposed in the State Court Case. Collins re-asserts the same claim in
this proceeding which he recently but unsuccessfully asserted in the State Court Case, i.e.,
that his January 10, 1996, criminal judgment in the State Court Case identified the wrong
date (October 1, 1993) of the underlying drug offense, and that allegedly incorrect date
rendered him actually innocent of the drug offense.
But as previously discussed, on
February 24, 2015, the Court of Appeals for the State of Nevada addressed and rejected this
very same claim in Collins’s state court petition for writ of error coram nobis, explaining
therein that Collins could not obtain coram nobis relief because the claim that he was
asserting (a belated challenge to the fact that the state court criminal judgment identified
“October 1, 1993,” as the date of the underlying drug offense) was one that Collins could
and should have asserted--but failed to assert--earlier in the State Court Case. Further,
the “Amended Information” filed in the State Court Case on October 24, 1994, specifically
alleged that “on or about October 1, 1993,” Collins committed the crime of “Sale of
Controlled Substance (Felony NRS 453.321)” in Clark County, Nevada. [R. 1, p. 4] Thus,
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the Nevada state court record contains sufficient evidence which supports the “October 1,
1993,” date set forth in the Nevada criminal judgment entered on January 10, 1996.
Given these facts, this Court ascertains no miscarriage of justice, and thus, no basis
on which McQuiggin would or could afford Collins any collateral relief from his January 10,
1996, state court conviction.
CONCLUSION
Accordingly, IT IS ORDERED that:
1.
The Clerk of the Court shall LIST, on the CM/ECF cover sheet, “Antony Dion
Collins” as an alias designation for Petitioner Anthony D. Collins.
2.
Collins’s 28 U. S. C. § 1651 petition for a writ of error coram nobis [R. 1] is
DENIED, and the Court will enter an appropriate Judgment.
3.
This matter is STRICKEN from the docket.
This April 18, 2016.
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