Harris v. Koehane et al

Filing 8

OPINION AND ORDER dismissing 6 Report and Recommendations. Signed by Senior Judge Peter C Economus on 8/22/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT LEE HARRIS JR.,
CASE NO. 2:14-CV-0982
JUDGE PETER C. ECONOMUS
MAGISTRATE JUDGE AB EL

Petitioner,
v.
F. McANINCH, WARDEN,
Respondent.

OPINION AND ORDER
On July 28, 2014, the Magistrate Judge issued a Report and Recommendation under Rule
4 of the Rules Governing Section 2254 Cases in the United States District Courts recommending
that the instant petition for a writ of habeas corpus be dismissed.

Petitioner has filed an

Objection to the Magistrate Judge’s Report and Recommendation. For the reasons that follow,
Petitioner’s Objection, Doc. No. 7, is OVERRULED. The Report and Recommendation is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner asserts that he illegally was extradited from Canada to Maine, held in Maine
beyond expiration of his sentence, and illegally extradited from Maine to Ohio. He asserts that
he was denied effective assistance of counsel and coerced in relation to those proceedings. He
argues that his claims properly are construed under the All Writs Act, and as a petition for a writ
of coram nobis, under which he is entitled to relief. Petitioner contends that the one year statute
of limitations for the filing of habeas corpus petitions does not apply under these circumstances,
and that Ohio illegally holds him on charges of escape. He objects to the Magistrate Judge’s
recommendation of dismissal.

.

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Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The All
Writs Act of 28 U.S.C. § 1651, provides in relevant part:
The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
of law.
28 U.S.C. § 1651(a). This Act constitutes an “extraordinary remedy” and is permitted only where
justice so compels. United States v. Morgan, 346 U.S. 502, 511 (1954); see also United States v.
Acosta, 10 Fed.Appx. 294, unpublished, 2001 WL 505944, at *1 (6th Cir. 2001)(citing United
States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001) (“Coram nobis is an extraordinary writ,
used only to review errors of the most fundamental character, e.g., errors rendering the
proceedings themselves invalid.”) “[T]he coram nobis petitioner carries a heavy burden .... “it is
difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis]
would be necessary or appropriate.” Haddadd v. United States, 2007 WL 7230219, at * 1
(E.D.Mich. Oct.26, 2007) (citing Carlisle v. United States, 517 U.S. 416, 429 (1996)).
A writ of error coram nobis may vacate a federal conviction where the petitioner has
already served his sentence and relief under 28 U.S.C. § 2255 no longer remains available.
United States v. Johnson, 237 F.3d at 753. To obtain this extraordinary remedy, however, a
petitioner must establish: “1) an 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. “[A] defendant is not
entitled to a writ of coram nobis when he or she only alleges an error of law.”
In reviewing 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. Although no
statute of limitations applies to the filing of this writ, the Supreme Court has held that a petitioner
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must establish “sound reasons [ ] for failure to seek appropriate earlier relief.” Morgan, 346 U.S.
at 512. “[O]therwise there would be essentially no time limits for bringing coram nobis claims.
Sound policy dictates that coram nobis claims be brought as early as possible to prevent the
suffering imposed by illegal convictions and to prevent the government from being
prejudiced[.].” Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996); see also Johnson v.
United States, 334 F.2d 880, 883–84 (6th Cir.1964) (refusing to consider coram nobis petition
due to fifteen-year delay).
Petitioner has failed to meet the requirements for consideration of his petition under the
All Writs Act. He fails to explain why he failed to raise his claims in 1991, when he was
extradited to the United States, or in the many years thereafter. Likewise, he does not explain
why he failed to raise his claims in the many months that have passed since April 7, 2011, when
he was extradited from Maine to Ohio, and became aware of the basis for his claims.

Under

these circumstances, “It would be senseless to suppose that Congress” intended to permit a
Petitioner to “pass through the closed door” of 28 U.S.C. § 225[4] “simply by changing the
number to 1651 on their motions.” Petitioner fails to raise any claim of fundamental justice not
earlier known to him that likely would have altered the outcome of the proceedings at issue.
Johnson, 237 F.3d at 755 (Coram nobis only appropriate to review errors rendering the
proceedings themselves invalid.”).
Pursuant to 28 U.S.C. 636(b), this Court has conducted a de novo review. For the reasons
set forth above and those discussed in the Magistrate Judge’s Report and Recommendation,
Petitioner’s Objection, Doc. No. 7, is OVERRULED. The Report and Recommendation is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.

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IT IS SO ORDERED.
/s/ Peter C. Economus
UNITED STATES DISTRICT JUDGE

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