Embrey v. USA

Filing 3

ORDER entered by Judge Ortrie D. Smith dismissing petition for writ of error coram nobis. (Order mailed to Petitioner William J.R. Embrey.) (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
WILLIAM J.R. EMBREY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 13-5018-CV-SW-ODS

ORDER DISMISSING PETITION FOR WRIT OF ERROR CORAM NOBIS
Petitioner has filed a Petition for Writ of Error Coram Nobis to challenge his 1980
conviction for kidnapping. The petition is dismissed as a second or successive petition
barred by 28 U.S.C. §§ 2244 and 2255.
Petitioner was convicted on one count of armed bank robbery in violation of the
Federal Bank Robbery Act (“FBRA”) and one count of kidnapping in violation of the
Federal Kidnapping Act (“FKA”). His conviction was affirmed on direct appeal.
Petitioner then sought postconviction relief under 28 U.S.C. § 2255, but his request for
relief was denied. He appealed, and a panel of the Eighth Circuit reversed the denial of
relief after concluding the FKA conviction could not stand. The Eighth Circuit then
heard the matter en banc, vacated the panel’s opinion, and affirmed the district court’s
denial of postconviction relief. Embrey v. Hershberger, 131 F.3d 739, 739-40 (8th Cir.
1997) (en banc), cert. denied, 525 U.S. 828 (1998).
Meanwhile, Petitioner had been released on bond. After the Eighth Circuit
issued its en banc order, his bond was revoked and a warrant was issued for his arrest.
He was eventually stopped in a car containing weapons in the trunk, and he was
charged with being a felon in possession of a firearm. He pleaded guilty and was
sentenced to 262 months imprisonment; the conviction was affirmed on appeal. United
States v. Embrey, 250 F.3d 1181, 1182-83 (8th Cir. 2001), cert. denied, 538 U.S. 953
(2003).

Petitioner has filed what he has entitled a Petition for a Writ of Error Coram
Nobis, challenging the FKA conviction on the grounds expressed in the now-vacated
panel opinion. He also alleges he received ineffective assistance of counsel because
his appellate attorney failed to prevail on this issue when the en banc court ruled.
A Writ of Coram Nobis is a form of collateral attack on a conviction that is viable if
the petitioner is not in federal custody. E.g., Wall v. Kholi, 131 S. Ct. 1278, 1284-85
(2011) (describing writ of coram nobis as a collateral attack and differentiating it from
direct appeal); United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000) (per curiam)
(writ of coram nobis is not available to federal prisoner). Petitioner contends he is not a
federal prisoner because he has “finished” serving the kidnapping sentence. Even if
Petitioner’s reasoning is correct, his Petition must be dismissed because it constitutes a
second or successive collateral proceeding.
A second or successive collateral proceeding cannot be initiated in district court
unless the Court of Appeals has first given permission. 28 U.S.C. § 2255 (referencing
28 U.S.C. § 2244). When a second or successive proceeding is initiated without the
Court of Appeals’ permission, the proceeding must be dismissed. The Eighth Circuit
has consistently held that this statutory command cannot be circumvented through the
use of a Petition for Writ of Coram Nobis. E.g., Katz v. United States, 2012 WL
5974456 (8th Cir. Nov. 30, 2012); Noske, 235 F.3d at 406; United States v. CamachoBordes, 94 F.3d 1168, 1173 (8th Cir. 1996). Petitioner is not only filing a second or
successive collateral attack, but he is raising the same issue that was rejected in a
previous collateral proceeding. (He is also raising substantially the same arguments he
raised in his last Petition for Writ of Coram Nobis, which was dismissed in March of this
year. Embrey v. United States, No. 13-5018-CV-W-ODS). The Court is required to
dismiss the Petition; the dismissal is without prejudice to Petitioner’s right to seek the
necessary permission from the Court of Appeals.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: October 16, 2013
2