GARRETT v. UNITED STATES OF AMERICA

Filing 14

OPINION. Signed by Judge Renee Marie Bumb on 4/1/21. (dd, ) n.m.

Case 1:19-cv-12359-RMB Document 14 Filed 04/01/21 Page 1 of 6 PageID: 77

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ALAN DUPREE GARRETT,
Petitioner
v.
UNITED STATES OF AMERICA,
et al.,
Respondents

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CIV. NO. 19-12359(RMB)
OPINION

BUMB, DISTRICT JUDGE
This

matter

comes

before

the

Court

upon

Petitioner’s

application to proceed in forma pauperis under 28 U.S.C. § 1915(a),
which

he

submitted

from

Camden

County

Correctional

Facility

(“CCCF”) on March 10, 2021, with a civil complaint for damages 1
and an “Addendum” to his previously dismissed petition for writ of
error coram nobis in this action, asserting jurisdiction under the
All Writs Act, 28 U.S.C. § 1651. (IFP App., Dkt. No. 11; Complaint,
Dkt. No. 11 at 4-5; Addendum, Dkt. No. 12.)
For the reasons discussed below, the Court will construe
Petitioner’s Addendum as an amended petition for writ of error

The Court takes judicial notice under Federal Rule of Evidence
201(b) that on November 17, 2020, the Honorable Noel L. Hillman,
in Civil Action No. 20-12904, dismissed a Bivens complaint filed
by Petitioner, pursuant to the three strikes rule in 28 U.S.C. §
1915(g). Garrett v. United States, No. CV2012904NLHJS, 2020 WL
6739542, at *2 (D.N.J. Nov. 17, 2020)
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coram nobis and deny the petition. Petitions for relief from
criminal convictions and sentences, such as habeas petitions and
petitions for writ of error coram nobis, must be filed separately
from civil actions for damages. Therefore, the Court will direct
the Clerk to file a copy of the IFP application and complaint in
a new civil action, where the complaint is subject to sua sponte
screening for dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b)(1) and 42 U.S.C. § 1997e(c)(1). The Court will address
Petitioner’s request for relief from his criminal convictions
below.
I.

BACKGROUND
Petitioner

Federal

Alan

Correctional

Dupree

Garrett

was

incarcerated

Institution-Schuylkill

in

in

the

Minersville,

Pennsylvania (“FCI Schuylkill”) when he filed a petition for writ
of error coram nobis in this matter on May 8, 2019. (Pet., Dkt.
No. 1.) On May 13, 2019, the Honorable Robert B. Kugler entered an
Opinion and Order dismissing the petition. (Opinion, Dkt. No. 2;
Order, Dkt. No. 3.) The Court noted that a writ of error coram
nobis is an extraordinary remedy typically reserved to attack
convictions when the petitioner is no longer “in custody” for
purposes of a motion under 28 U.S.C. § 2255. (Opinion, Dkt. No. 2
at 4-5.) When the petition was filed, Petitioner remained in
custody after violating supervised release, arising out of his
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conviction in Criminal Action No. 11-cr-242(JBS) for being a felon
in possession of a firearm. (Id. at 2-3.) Petitioner appealed the
denial of his petition for writ of error coram nobis (Notice of
Appeal, Dkt. No. 6), and the Third Circuit Court of Appeals
dismissed the appeal. (Certified Order of USCA in lieu of formal
Mandate, Dkt. No. 10.) Petitioner’s amended petition for writ of
error coram nobis is now before the Court.
II.

DISCUSSION
A.

Petitioner’s Claims

In Petitioner’s amended petition for writ of error coram nobis
and his civil complaint, he is seeking (1) monetary damages arising
out of alleged medical malpractice that occurred while he was
housed in a halfway house, The Kintock Group, in Philadelphia,
Pennsylvania; (2) monetary damages arising out of a claim of
wrongful incarceration; and (3) to vacate all New Jersey criminal
convictions

pursuant

to

New

Jersey

Court

Rule

4:26-4,

which

precludes final judgment entered against a person designated with
a fictitious name, allegedly applicable to Petitioner because his
name was misspelled in all of his criminal cases. (Addendum, Dkt.
No. 12; Compl., Dkt. No. 11 at 4-5.) Claims for damages are not
properly brought in a petition for writ of error coram nobis, and
the Court will dismiss those claims from the petition without
prejudice to bringing the claims in a separate civil action, and
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the

Court

will

direct

the

Clerk

to

file

Petitioner’s

civil

complaint in a new civil action.
B.

Jurisdiction Over Request to Vacate Criminal Judgments

Petitioner seeks to vacate all New Jersey criminal judgments
against him since age twelve because his name was misspelled.
(Addendum, Dkt. No. 12.) This Court lacks jurisdiction to vacate
all of Petitioner’s criminal judgments, each conviction must be
challenged separately by means of a petition for writ of habeas
corpus under 28 U.S.C. § 2254 for state convictions, and a motion
to vacate, set aside or correct sentence under 28 U.S.C. § 2255
for federal convictions, both of which have a one-year statute of
limitations

and

restrictions

on

filing

second

or

successive

motions. See 28 U.S.C. §§ 2254, 2255, 2244. Further, to support
his claim for relief, Petitioner relies on New Jersey Court Rule
4:26-4, “No final judgment shall be entered against a person
designated by a fictitious name.” (Addendum, Dkt. No. 12 at 2.)
This New Jersey court rule governs civil actions in New Jersey
Superior Courts, not criminal actions in state and federal courts.
Putting aside the lack of authority for relief under N.J. Ct.
R. R. 4:26-4, Petitioner is not entitled to a writ of error coram
nobis

in

Criminal

Action

No.

11-cr-242

based

on

the

alleged

misspelling of his name. There are five prerequisites for coram
nobis relief:
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the petitioner (1) is no longer in custody;
(2) suffers continuing consequences from the
purportedly invalid conviction; (3) provides
sound reasons for failing to seek relief
earlier; (4) had no available remedy at the
time of trial; and (5) asserted error(s) of a
fundamental kind.
Ragbir

v.

United

States,

950

F.3d

54,

62–63

(3d

Cir.

2020)

(citations omitted).
Petitioner

cannot

establish

the

third

through

fifth

prerequisites described above. Petitioner could have corrected the
spelling of his name at any time, but in any event, the error is
harmless. The alleged misspelling of his name in the criminal
proceeding does not render the conviction invalid. See United
States

v.

Fawcett,

115

F.2d

764,

767

(3d

Cir.

1940)

(“An

indictment, then, is an accusation of a person of crime. It is an
accusation against a person, and not against a name. A name is not
of the substance of an indictment.”) See also Ragbir, 950 F.3d at
62 (“coram nobis relief is limited and seeks out error of the most
fundamental character—the kind that renders the proceeding itself
irregular and invalid”) (citations omitted). Therefore, the Court
denies the misspelling claim in the amended petition for a writ of
error coram nobis.
III. CONCLUSION
For the reasons discussed above, the Court denies the amended
petition for a writ of error coram nobis in part and dismisses the
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remaining

claims

for

damages

for

lack

of

subject

matter

jurisdiction. The Court will direct the Clerk to file Petitioner’s
civil complaint in a new civil action.
An appropriate Order follows.
DATE:

April 1, 2021

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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