Mauldin v. Boyd et al

Filing 3

ORDER TRANSFERRING CASE: Transferring this matter to the Middle District of Tennessee, Nashville Division; removing this matter from the Court's docket; directing the Clerk to mail to Petitioner a blank Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. Section 2241 and a Form Application to Proceed in Forma Pauperis and Authorization to Release Institutional Account Information and to Pay Filing Fee. Signed by Magistrate Judge Omar J. Aboulhosn on 4/3/2017. (cc: Petition (with Application for Writ of Habeas Corpus (2241); blank IFP Application, and Authorization to Release Institution Acct. Info. and to Pay Filing Fee); Clerk, U.S. District Court, Middle District of Tennessee) (slr)[Transferred from West Virginia Southern on 4/4/2017.]

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ALFRED LEE MAULDIN,
Petitioner,
v.
CAMP ADMINISTRATOR BOYD, et al.,
Respondents.

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Civil Action No. 5:17-02104

ORDER TRANSFERRING CASE
On March 30, 2017, Petitioner, acting pro se and incarcerated at FCI Beckley, filed his
Petition for Audita Querela pursuant to the All Writs Act, 28 U.S.C. § 1651. (Document No. 1.)
Collateral relief is available to persons under very limited circumstances through Writs of
Error Coram Nobis and Writs of Audita Querela issued under 28 U.S.C. § 1651, the All Writs
Act. The United States Supreme Court explained in Pennsylvania Bureau of Corrections v.
United States Marshals Service, 474 U.S. 34, 43, 106 S.Ct. 355, 361, 88 L.Ed.2d 189 (1985), as
follows:
The All Writs Act is a residual source of authority to issue writs that are not
otherwise covered by statute. Where a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs Act, that is controlling.
Proceedings may be held in coram nobis to consider errors “of the most fundamental character.”
United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954). Writs of
Error Coram Nobis, however, provide “essentially a remedy of last resort for petitioners who are
no longer in custody pursuant to a criminal conviction.” Fleming v. United States, 146 F.3d 66,
89 - 90 (2nd Cir. 1998); see also United States v. Sessoms, 488 Fed. Appx. 737 (4th Cir.
2012)(citing Carlisle v. United States, 517 U.S. 416, 428 - 429, 116 S.Ct. 1460, 1468, 134

L.Ed.2d 613 (1996))(a writ of error coram nobis is limited to those petitioners who are no longer
in custody pursuant to their convictions); United States v. Mandanici, 205 F.3d 519, 524 (2nd
Cir. 2000). “[C]ourts may consider coram nobis petitions only where no other remedy is
available and the petitioner presents sound reasons for failing to seek relief earlier.” United
States v. Mills, 221 F.3d 1201, 1204 (11th Cir. 2000), cert. denied, 531 U.S. 1144, 121 S.Ct.
1079, 148 L.Ed.2d 956 (2001). Writs of Audita Querela are available when there is a legal
objection to a conviction which has arisen after sentencing for which there is no other remedy.
United States v. Hairston, 2009 WL 891929, * 2 (N.D.W.Va. March 30, 2009)(quoting United
States v. LaPlante, 57 F.3d 252, 253 (2nd Cir. 1995)). Writs of audita querela, however, may be
issued “only to the extent that they ‘fill the gaps’ in the current system of federal post-conviction
relief.” Hairston, 2009 WL 891929 at 2(quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997)).
The proper jurisdiction for filing a Petition for Writ of Audita Querela or Petition for
Writ of Coram Nobis is the district of conviction. See Corrigan v. United States, 2014 WL
5460607 (N.D.W.Va. Oct. 27, 2014)(finding that the Court lacked subjected matter jurisdiction
over petitioner’s writ of error coram nobis because petitioner challenged a conviction and
sentence entered in another court); Harris v. United States, 2012 WL 3637250 (E.D.N.C. Aug.
22, 2012)(transferring petition filed under the All Writs Act, 28 U.S.C. § 1651, to the district of
conviction); Short v. Schultz, 2008 WL 305594 (N.D.N.J. Jan. 28, 2008)(transferring petition
filed under the All Writs Act to the district of conviction); Whitley v. North Carolina, 2012 WL
8123581 (E.D.N.C. Aug. 16, 2012), aff’d, 488 Fed.Appx. 755 (4th Cir. 2012)(citing Thomas v.
Cunningham, 335 F.2d 67, 69 (4th Cir. 1964)(“[t]he Fourth Circuit has held that a writ of error
coram nobis must be brought to the same court that convicted and sentenced the defendant”);
Neal v. Francis, 2008 WL 2704520 (N.D.W.Va. July 3, 2008)(transferring petition for writ of
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coram nobis to the district of conviction). In his Petition, Petitioner indicates that he was
convicted in the Middle District of Tennessee. (Document No. 1.) Therefore, this Court does not
have jurisdiction as Petitioner was not convicted or sentenced in the Southern District of West
Virginia. Accordingly, the Court finds that the transfer of this matter is in the interest of justice
and therefore warranted. See 28 U.S.C. § 1631.
Pursuant to 28 U.S.C. § 1631, it is hereby ORDERED that this matter be
TRANSFERRED to the Middle District of Tennessee, Nashville Division, 801 Broadway,
Room 800, Nashville, TN 37203. The Clerk is directed to REMOVE this matter from the
Court’s docket.
Furthermore, Petitioner is advised that the Southern District of West Virginia is the
correct District to file an Application for Writ of Habeas Corpus by a Person in Federal Custody
under 28 U.S.C. § 2241 as Petitioner is currently incarcerated at FCI Beckley. The Clerk is
therefore DIRECTED to mail to Petitioner a blank Application for Writ of Habeas Corpus by a
Person in Federal Custody under 28 U.S.C. § 2241 and a Form Application to Proceed in Forma
Pauperis and Authorization to Release Institutional Account Information and to Pay Filing Fee.
To the extent Petitioner wishes to seek relief pursuant to Section 2241, Petitioner should
complete and return these forms to this Court.
The Clerk is directed to mail a copy of this Memorandum Opinion and Order to
Petitioner, who is acting pro se, and transmit a copy to the Clerk of the Court for the United
States District Court for the Middle District of Tennessee.
ENTER: April 3, 2017.

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