Zierke v. State of Nebraska

Filing 7

MEMORANDUM AND ORDER - Zierke's "Motion for Error Coram Nobis" (Filing No. 1 ) is denied, and this case is dismissed in its entirety. Zierke's request for leave to proceed in forma pauperis (Filing No. 2 ) is denied. The filin g fee shall be collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid, the zierke shall be obligated to pay, and the agency having custody of him shall forw ard to the clerk of the court, 20 percent of the preceding months income in such months as the account exceeds $10.00. The court will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARY A. ZIERKE,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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4:15CV3096

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Gary A. Zierke’s “Motion for Error
Coram Nobis,” brought pursuant to 28 U.S.C. 1651(a). (Filing No. 1.) For the
reasons set forth below, this case will be dismissed for lack of jurisdiction.
I. BACKGROUND
Zierke is incarcerated at the United States Penitentiary in Lewisburg,
Pennsylvania. (Filing No. 2 at CM/ECF p. 3.) He is serving a 360-month federal
prison sentence imposed by me on April 23, 2009, in United States v. Zierke, No.
4:08-cr-03067-RGK-DLP-1.
In this case, Zierke is attempting to challenge three Nebraska state court
criminal convictions that predate the federal conviction for which he is currently
incarcerated. Zierke claims the three convictions were obtained in violation of his
right to the effective assistance of counsel. (Filing No. 1 at CM/ECF p. 2.) Zierke
further claims these convictions were used to enhance his prison sentence in his
federal criminal case. For relief, Zierke seeks an order vacating these three state court
convictions. (Filing No. 1 at CM/ECF p. 1.)
It appears from Zierke’s allegations that he has fully served the sentences he
received for the three state criminal convictions. As such, Zierke recognizes that he
cannot challenge the convictions by means of a habeas corpus petition brought

pursuant to 28 U.S.C. § 2254 because he is no longer in custody pursuant to those
convictions. (Filing No. 1 at CM/ECF p. 4.) See Maleng v. Cook, 490 U.S. 488, 490
(1989) (per curiam ) (“[t]he federal habeas statute gives the United States district
courts jurisdiction to entertain petitions for habeas relief only for persons who are ‘in
custody in violation of the Constitution or laws or treaties of the United States’”),
quoting 28 U.S.C. § 2254(a) (emphasis added by the Supreme Court). Thus, he
argues a petition for a writ of coram nobis is the proper vehicle for seeking relief from
these convictions. (Filing No. 1 at CM/ECF p. 3.)
II. DISCUSSION
Zierke cannot use a petition for a writ of coram nobis in this case to challenge
his state criminal convictions. In United States v. Morgan, the Supreme Court held
a writ of coram nobis may be used to correct errors that occurred during the course of
a criminal proceeding, but only in the court of conviction as part of the original
criminal case. 346 U.S. 502, 505-511 (1954). See also Booker v. State of Arkansas,
380 F.2d 240, 243 (8th Cir. 1967) ( “[p]rocedurally, coram nobis is a step in the
original criminal proceeding itself”); Trackwell v. Nebraska, 126 Fed.Appx. 336 (8th
Cir. 2005) (unpublished opinion) (“a defendant may seek coram nobis relief only from
the court that rendered judgment”). In other words, “[b]ecause coram nobis relief
must be sought in the court of conviction, such relief is not available in federal court,
for individuals who are challenging a conviction entered in a state court.” Borrero
v. United States, No. 08-315(DSD/FLN), 2008 WL 2357834, *2 (D. Minn. June 5,
2008) (collecting cases).
For these reasons, the court finds Zierke cannot challenge his state criminal
convictions by seeking a writ of coram nobis in this court. Coram nobis relief is not
available in federal court to challenge his state criminal convictions because such
relief may only be granted by the court in which Zierke was convicted. Moreover, to
the extent Zierke is using this action to challenge the validity of his current federal
prison sentence, his claims cannot be entertained in a coram nobis proceeding,
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because 28 U.S.C. § 2255 provides the exclusive means by which a federal prisoner
can collaterally attack the validity of his sentence.
IT IS THEREFORE ORDERED that:
1.
Zierke’s “Motion for Error Coram Nobis” (Filing No. 1) is denied, and
this case is dismissed in its entirety.
2.
Zierke’s request for leave to proceed in forma pauperis (Filing No. 2) is
denied. The filing fee shall be collected and remitted, as funds exist, in the manner
set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid, the
zierke shall be obligated to pay, and the agency having custody of him shall forward
to the clerk of the court, 20 percent of the preceding month’s income in such months
as the account exceeds $10.00.
3.

The court will enter judgment by a separate document.

DATED this 23rd day of November, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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