Nowden v. USA
Filing
5
Memorandum Opinion and Order denying 1 Motion for Writ of Error Coram Nobis. (Ordered by Judge John McBryde on 6/22/2018) (bcr)
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CHARLES c. NOWDEN,
JUN 2 2 2018
§
§
Movant,
CLBERK, U.S. DISTRICT COURT
y
.
Deputy
§
§
vs.
§
§
UNITED STATES OF AMERICA,
NO. 4:18-CV-392-A
(NO. 4:96-CR-085-A)
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
The above-captioned civil action was initiated by the filing
in criminal case No. 4:96-CR-085-A, by Charles C. Nowden
("Nowden") on May 23, 2018, of a document titled "Motion for Writ
of Error Coram Nobis and Memorandum of Law in Support of Said
Motion," urging three reasons why Nowden contends the court
should set aside his December 1996 conviction in that case for
the offense of bank fraud in violation of 18 U.S.C.
§
1344.
The
court has concluded that the motion should be denied.
I.
Grounds of the Motion
Nowden alleged in his motion that this court has
jurisdiction under 28 U.S.C.
§
1651 to grant the relief he seeks,
citing as authority United States v. Morgan, 346 U.S. 502 (1954)
and United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989).
In summary form, Nowden alleges the following grounds for
his motion:
He currently is incarcerated in a prison facility of the
State of Texas, serving a sentence that was enhanced from a 2-to5 year imprisonment range to a 25-to-99 year range under the
Texas habitual offender provision as a result of the bank fraud
conviction Nowden received by a judgment of this court in 1996
based on his plea of guilty of that offense.
On August 8,
("Shaw")
1996, Nowden retained attorney Jim Shaw
to represent him in the bank fraud case.
He told Shaw
that he wanted to go to trial because he was actually innocent of
the charge against him.
When they first met,
Shaw told Nowden
that his services would cost $10,000, which would pay for legal
research, depositions, and interviewing government witnesses.
paid Shaw $5,000 when they had their first meeting.
He
When they
met the second time, on August 21, 1996, he informed Shaw that he
did not have the remaining $5,000 he was to pay, but that he
would pay Shaw the remaining amount at a later date.
responded that the trial was set for August 23,
Shaw
1996, that Shaw
needed his money before trial, and that if Nowden did not pay
him, Nowden would have to take a plea.
On August 23, 1996, the
date of trial, Nowden told Shaw that he did not have the rest of
the money, and Shaw responded that he had only one option, and
2
that was to enter a plea of guilty with the goal of obtaining the
shortest sentence he could possibly get.
Nowden told Shaw that he was innocent of the charges, and
Shaw responded that it did not matter because Shaw had not done
the things necessary to prepare for trial, having had only
sixteen days for trial preparation.
Shaw coerced Nowden into
believing that a guilty plea was his only choice.
Nowden
reluctantly allowed Shaw to coerce him into pleading guilty
although a guilty plea was against Nowden's wishes.
Nowden's
guilty plea was not knowingly, intelligently, or voluntarily
entered due to ineffective assistance of his counsel and
counsel's incompetent legal advice, and the plea should be set
aside.
If Nowden had gone to trial, for the government to prove
bank fraud,
the government would have been required to prove
beyond a reasonable doubt that Nowden committed the bank fraud
offense by false or fraudulent pretenses, representation, or
promises.
A review of the evidence in Nowden's case reveals that
Nowden did not commit bank fraud because "the depositing of a
series of known insufficient funds checks does not alone
constitute false or fraudulent pretenses, or representations."
3
Doc. 1 277 at 5, , 8 (omitting emphasis, internal brackets, and
quotation marks).
Thus, the evidence was insufficient to convict
Nowden of bank fraud.
The facts recited by Nowden in his motion
establish that "his guilty plea was not voluntary or
intelligently entered and must be set aside."
Id. at 6, , 11.
Had Shaw properly investigated and conducted proper legal
research, he would not have advised Nowden to plead guilty, but
would, instead, have proceeded to trial.
As a third ground for relief, Nowden contends that the
government failed to disclose to the defense "the Bank Records;
Checks involved; and the deposit slips, showing that [Nowden] did
not have anything to do with Bank Fraud."
Id. at 3, , 1.
The combination of Shaw's unprofessional conduct and the
nondisclosure by the government of the bank records established,
according to Nowden, his right to coram nobis relief.
1
The "Doc.
"references are to the numbers assigned to the referenced items on the docket in
the underlying criminal case No. 4:96-CR-085-A. The court was able to print out the docket in that case
in Chambers, but had to retrieve from the archives all items shown on the docket other than the motion
under consideration, which appears on the docket as document 277 (and which also appears as document
1 on the docket in Case No. 4:18-CV-392-A). The transcripts ofNowden's rearraignment and sentencing
hearings had not been prepared because Nowden did not appeal from his sentence or conviction, but the
court has caused them to be prepared and they appear on the criminal case docket as documents 278 and
279, respectively.
4
II.
Circumstances When a Writ of Error Coram Nobis Is Appropriate
"Coram Nobis is a writ of ancient common law origin."
Puente v. United States, 676 F.2d 141, 145 n.2
(5th Cir. 1982)
It has been abolished in federal civil practice by Rule 60(b) of
the Federal Rules of Civil Procedure, but is still available in
criminal matters under the All Writs Statute, 28 U.S.C.
§
1651 (a) .
Id.
"Coram nobis will lie to correct only errors of
the most fundamental character, that is, such as rendered the
proceeding itself invalid."
Id.
The writ of error coram nobis was approved by the Supreme
Court for use by federal courts in criminal cases in United
In Morgan, the Court
States v. Morgan, 346 U.S. 502 (1954).
rejected the contention that 28 U.S.C.
§
2255 supplanted the writ
of error coram nobis remedy, stating that "[w]e do not think that
the enactment of
§
2255 is a bar to [such a] motion," id. at 511,
and holding that "the District Court has power to grant such a
motion," id.
The Court added that "[i]t is presumed that the
[underlying criminal] proceedings were correct and the burden
rests on the accused to show otherwise."
5
Id. at 512.
An interpretation by the Fifth Circuit of the Morgan
holdings is found in United States v. Dyer, where the Court
explained:
In Morgan, the Court emphasized that the writ of
coram nobis could not be used as a substitute for
appeal and should only be employed to correct errors of
the most fundamental character. The Court further
admonished that continuation of litigation after final
judgment and exhaustion or waiver of any statutory
right of review should be allowed through this
extraordinary remedy only under circumstances
compelling such action to achieve justice. The writ
will issue only when no other remedy is available and
when sound reasons exist for failure to seek
appropriate earlier relief.
In addition, a petitioner
bears the considerable burden of overcoming the
presumption that previous judicial proceedings were
correct.
136 F.3d 417, 422 (5th Cir. 1998) (emphasis added, citations,
internal quotation marks, and brackets omitted).
The Fifth Circuit explained in Jimenez v. Trominski that a
writ of coram nobis "will issue only to correct errors resulting
in a complete miscarriage of justice."
91 F.3d 767, 768 (5th
Cir. 1996).
In United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir.
1989), the Fifth Circuit noted that "[a]n error of the most
fundamental character must have occurred and no other remedy may
be available."
(emphasis added).
appropriate only where .
Even then,
"[c]oram nobis is
. the challenged error is of
sufficient magnitude to justify the extraordinary relief."
6
Id.
Promptness in seeking coram nobis relief once the pertinent facts
are available to the movant is an important factor in determining
whether the extraordinary remedy should be considered.
See Dyer,
136 F.3d at 427 ("[i]t has long been recognized that a petitioner
seeking coram nobis must exercise 'reasonable diligence' in
seeking prompt relief.")
In Dyer, the Fifth Circuit affirmed the
denial of a petition for writ of coram nobis for the reason,
among others, that the petitioner "did not act with reasonable
diligence in seeking relief."
Id. at 43 O.
III.
Pertinent History of Nowden's 1996 Bank Fraud Conviction
by this Court, and Related Proceedings
A.
The Indictment and Pre-Plea-of-Guilty Activities
On July 9, 1996, Nowden was named in a 15-count indictment
charging him in Count 1 with conspiracy to commit bank fraud and
bank theft, in violation of 18 U.S.C.
8 with bank fraud,
§
371, in Counts 2 through
in violation of 18 U.S.C.
§§
1344 and 2, and
in Counts 9 through 15 with bank theft, in violation of 18 U.S.C.
§§
2113(b) and 2.
The United States Magistrate Judge determined
that Nowden qualified for a court-appointed attorney, and on July
16, 1996, appointed the Federal Public Defender for this district
to represent him.
pending trial.
Nowden was released on conditions of release
He appeared before the undersigned on July 26,
7
1996, when he pleaded not guilty to all counts of the indictment;
and, his trial was set for August 26, 1996.
On August 16, 1996, Shaw filed an entry of appearance as
retained counsel for Nowden, and Peter Fleury ("Fleury"), the
Assistant Federal Public Defender who had appeared as appointed
attorney for Nowden, filed a motion to withdraw because of having
been notified that Shaw had been retained by Nowden.
On
August 21, 1996, Nowden, Fleury, and Shaw filed a "Statement
Regarding Substitution of Counsel," making known Nowden's
understanding that his trial date was August 26, 1996, and that
the court would not move the trial date to a later date to allow
Shaw more time to prepare, and announcing that his wish,
nonetheless, was "to be represented by Jim Shaw and for the court
to dismiss Peter Fleury, and the Federal Public Defender's
Office,
from the case." Doc. 120.
The court did not at that time
grant Fleury's motion to withdraw; and, Fleury continued to
represent Nowden along with Shaw.
Another document was filed on behalf of Nowden on August 21,
1996, this one titled "Motion for Continuance," which was signed
by both Fleury and Shaw as counsel for Nowden.
Doc. 129.
The
ground of the motion was that Nowden was charged in two separate
indictments with various allegations of bank theft and bank
fraud, one pending before the undersigned as Case No. 4:96-CR8
085-A and the other pending before United States District Judge
Terry Means (Case No. 4:96-CR-084-Y), who also holds court in
Fort Worth.
Nowden alleged that he was scheduled to enter a plea
of guilty on August 26, 1996, in the case pending before Judge
Means,' and that the government planned to file a motion to
dismiss the indictment in Case No. 4:96-CR-085-A immediately
thereafter.
The motion contained the recitation that the case
before the undersigned was set for trial on August 26, 1996; and,
the request of the motion was that "this cause be continued to
allow the entry of the plea and the filing of the motion for
dismissal."
Id. at 1-2.
An order denying the motion was signed
August 22, 1996.
B.
The Plea Hearing in Case NO. 4:96-CR-085-A
On August 23, 1996, Nowden, accompanied by Fleury and Shaw,
appeared before the undersigned for entry of a plea of guilty to
Count 4, one of the bank fraud counts, of the July 9, 1996
indictment.
The plea was entered pursuant to a plea agreement
2
The docket in Case No. 4:96-CR-084-Y indicates that there were a large number of defendants
in that case. It apparently was a case virtually identical to the one pending on the docket of the
undersigned, but involving a different series of the same kinds of transactions. The docket shows that
there was a I 5-count indictment, the first Count of which was a charge of conspiracy to commit bank
fraud and bank theft, Counts 2 through 8 of which charged bank fraud, and Counts 9 through 15 charged
bank theft. Case No. 4:96-CR-084-Y, Doc. I. The docket on that case indicates that Nowden did not
enter a plea of guilty to any of the counts in that case. He initially was represented by Fleury of the
Federal Public Defender's Office, but Fleury was replaced by Shaw as Nowden's attorney in August
1996. Id., Docs. 98, 99, & 102. The Case No. 4:96-CR-084-Y indictment against Nowden was dismissed
on January24, 1997. Id., Doc. 196.
9
Nowden, Fleury, Shaw, and counsel for the government agreed to
and signed on August 23, 1996.
Those same persons agreed to and
signed a factual resume on August 23, 1996. 3
The plea agreement included agreement by the government to
dismiss all counts of the indictment other than Count 4, to which
Nowden pleaded guilty, and to dismiss as to Nowden the indictment
in the case pending before Judge Means as Case No. 4:96-CR-084-Y.
Doc. 143 at 3, , s.
The factual resume disclosed that by his plea of guilty
Nowden was subjecting himself to a term of imprisonment of 30
years, plus payment of a $1,000,000 fine, plus service of a term
of supervised release of 5 years.
It listed the elements of the
offense as follows:
ELEMENTS OF THE OFFENSE:
COUNT FOUR:
In order to establish the guilt of the
defendant for the offense of bank fraud, a violation of
Title 18, United States Code, Section 1344, the
government must prove each of the following elements
beyond a reasonable doubt:
That on or about the dates alleged in the Indictment,
First: The defendant knowingly executed,
the executing, or attempted to execute,
artifice to defrauded [sic] a financial
listed in the Indictment of money under
3
or assisted in
a scheme or
institution
the care and
After the plea hearing started, the court granted the motion that had been filed August 16, 1996,
asking that Fleury be withdrawn as Nowden 's attorney. Until then, Nowden had been represented either
by Flemy or, once Shaw entered his appearance, by both Fleury and Shaw.
10
custody of a financial institution by means of false or
fraudulent pretenses, representation, or promises; and
Second:
The financial institutions were insured by the
Federal Deposit Insurance Corporation[.]
Doc. 144 at 1.
The stipulated facts in the factual resume were slightly
more than eight pages in length.
The first thirty-nine numbered
paragraphs on pages 2-5 appear to be a repeat of the overt acts
alleged in the indictment in case no. 4:96-CR-085-A, and the
conduct alleged in paragraphs 40-57 at pages 5-9 appears to be a
repeat of the overt acts alleged in Nowden's case before Judge
Means (Case No. 4:96-CR-084-Y).
At the commencement of the plea hearing, the oath was
administered to Nowden, and he said he understood that he was
under oath and that if he answered any of the court's questions
falsely, his answers could later be used against him in a
prosecution for perjury or making a false statement.
Rather than to cause the stipulated facts in the factual
resume to be read aloud into the record, the court stated on the
record a summary of the stipulated facts, following which Nowden
admitted that he engaged, and participated, in the scheme the
court described.
The following exchange occurred:
THE COURT:
Okay. Normally I have the factual
stipulated facts section of the Factual Resume read at
this point in time. In this case it's about -- the
11
stipulated facts section appears to be about a 7-page
item. What it appears to do is list transactions that
Mr. Nowden and others engaged in between December 1994
and continuing through March of 1995.
Now, apparently what it•s describing is a plan
that Mr. Nowden and others devised and implemented to
obtain personal checks that were worthless, and they
were drawn on closed bank accounts, and then those
checks would be forged by completing the checks and
forging the necessary signatures.
The fraudulent checks would be deposited into
existing bank accounts of federally insured financial
institutions, and then the account holders, the ones
who opened those accounts, would withdraw the
fraudulent -- the acquired credit and cash from their
accounts before the financial institutions could
determine that the deposited checks were fraudulent and
worthless, and then each of the participants would keep
a portion of the money he or she had derived from a
particular transaction of that kind that defrauded the
bank.
Do you admit that you engaged in such a scheme and
participated in such a scheme as I've just described?
DEFENDANT NOWDEN: Yes,
Your Honor.
THE COURT:
You've read this
you've told me you read this
Factual Resume thoroughly?
DEFENDANT NOWDEN: Yes,
Your Honor.
THE COURT: And do you admit that everything headed
under the heading "Stipulated Facts" is true?
DEFENDANT NOWDEN: Yes,
Your Honor.
THE COURT: In other words, that sets forth the
true facts in here?
12
DEFENDANT NOWDEN: Yes,
Your Honor.
THE COURT: Are those facts under the heading
"Stipulated Facts" consistent with your understanding
of the true facts, Mr. Shaw?
MR.
SHAW: Yes,
they are, Your Honor.
Doc. 278 at 26-27, 28.
The elements of the offense were read aloud by the court
into the record.
Nowden testified that he understood that if he
were to persist in his plea of not guilty he could not be
convicted of the offense charged against him by Count 4 of the
indictment unless the government were to prove to a jury beyond a
reasonable doubt each of the things listed in the elements of the
offense; and, he admitted that all of those elements existed in
this case.
Id. at 18-19.
With respect to the legal representation he had received
from Fleury and Shaw, Nowden gave the following sworn testimony:
THE COURT: Okay.
You have your attorney, Mr. Shaw,
with you now, and then before today you were
represented by Mr. Fleury.
Have you been fully
satisfied with the representation you received from
those two attorneys?
DEFENDANT NOWDEN: Yes,
Your Honor.
THE COURT: Do you have any complaint or
dissatisfaction at all with the representation either
one of those attorneys has provided to you?
DEFENDANT NOWDEN: No,
Your Honor.
Id. at 19.
13
Other sworn testimony Nowden gave at his plea hearing
included the following:
(1) he understood that generally a
defendant who is accused of a crime cannot plead guilty unless he
is actually guilty of that crime, id. at 9, 10, and that if he
were to plead guilty, his plea must not be induced or prompted by
any promises, mental pressure, threats, force, coercion, or
pressure of any kind, and that he should plead guilty only
because he is guilty, and for no other reason, id. at 10;
(2) he
understood that when he receives a copy of his presentence
report, he should study it carefully, and should call to his
attorney's attention, so that objections could be made, anything
in the presentence report that he considers to be inaccurate, id.
at 13;
(3) other than his plea agreement with the government, no
one has "made any promise or assurance to [him] of any kind in an
effort to induce [him] to enter a plea of guilty in this case,"
id. at 25; and (4) no one has "mentally, physically, or in any
other way attempted in any way to force
[him]
to plead guilty in
this case," id.
The plea hearing concluded with the following findings and
rulings by the court:
The Court finds in the case of United States of
America versus Charles C. Nowden that the defendant,
Charles C. Nowden, is fully competent and capable of
entering an informed plea, and that his plea of guilty
to Count 4 of the indictment is a knowing and voluntary
14
plea supported by an independent basis in fact
containing each of the essential elements of the
offense charged by Count 4 of the indictment.
His plea of guilty is, therefore, accepted, and he
is now adjudged guilty of the offense charged by Count
4 of the indictment.
Id. at 29.
C.
The Presentence Report and Related Matters
The presentence report pertaining to Nowden was completed on
October 11, 1996, when the original was presented to the court
and copies were provided to counsel and Nowden.
Under the
heading "Offense Conduct," the following description was given of
Nowden's criminal conduct:
5.
Investigative information revealed that beginning
in December 1994 and continuing through March
1995, Charles Nowden, recruited others to
participate in a scheme to obtain personal checks
that were worthless and/or drawn on closed bank
accounts.
The checks would be completed and the
necessary signatures forged.
The fraudulent
checks would then be deposited into existing bank
accounts or cashed at federally insured financial
institutions.
The participants would split the
money obtained from the financial institutions
before the financial institution could determine
that the checks were fraudulent and worthless.
6.
Charles Nowden was the leader and organizer of
the scheme.
Nowden recruited friends and
associates to participate with him.
In some
cases, Nowden's friends and associates in turn
recruited others to participate in the scheme.
Nowden would provide a co-conspirator account
holder with a signed check to deposit into their
bank account.
The check provided by Nowden would
be written against a closed account.
In some
15
cases, the checks were written against a closed
account previously belonging to Nowden.
In other
cases, the checks were written against a closed
account belonging to another willing participant
in the scheme. After the account had been
credited with the fraudulent deposit, Nowden and
the co-conspirator would withdraw all or part of
the fraudulently deposited funds.
Nowden would
split the funds with the co-conspirator. Agents
have been unable to verify how each withdrawal was
distributed among the participants.
7.
Following the withdrawal, Nowden told the account
holders that the bank would close the account.
Nowden would request that the account holders
provide him with several blank checks from their
account.
These blank checks would be used by
subsequent co-conspirators to make fraudulent
deposits. As each account was used and then
subsequently closed, Nowden perpetuated the
scheme by circulating the checks from closed
accounts.
8.
Specifically in relation to Count 4, Nowden
recruited Vincent D. Sanford to participate in the
scheme to cash fraudulent checks. On or about
March 27, 1995, Nowden caused two fraudulent
checks totally [sic] $9,860.87 to be deposited
into Sanford's bank accounts at NationsBank. On
or about March 28, 1995, Sanford withdrew some of
the funds from one of his accounts.
On the
following day, he withdrew additional funds from
another account. Nowden and Sanford each took a
share of the funds withdrawn from the accounts.
Presentence Report prepared Oct. 11, 1996 in Case No. 4:96-CR085-A at 1-2, ,, 5-8. 4
Nowden filed objections to the
4
Jn order to gain access to the prcsentence report, objections to the presentence report, and the
addendum, the undersigned was required to retrieve from the probation office its sentencing file
pe1iainirig to Nowden. When those documents were prepared, copies were not included as items on the
case docket. Consequently, the court cannot provide docket entry numbers when quoting from those
ite1ns.
16
presentence report, but none of the objections complained of any
of the descriptions in the presentence report of his criminal
conduct, except for an objection to the statement in paragraph 6
that Nowden was the leader and organizer of the scheme.
Received by Ct. Nov. 4, 1996 at 1-2.
Objs.
The probation officer's
response to the organizer-leader objection was as follows:
RESPONSE:
Pursuant to USSG § 3Bl.l(a), the defendant
qualifies as an organizer or leader of criminal
activity that involved five or more participants or was
otherwise extensive.
In this case, 34 participants
were involved in depositing fraudulent checks at six
financial institutions. The scheme operated from at
least December 1994 through March 1995. The defendant
planned and organized the offense, recruited others to
participate in the scheme, and received a share of all
illegal funds obtained.
He instructed others in how to
obtain illegal funds and directed all actions taken.
As a result of the defendant's decision making
authority, the scope of the scheme was significant in
its effect on six different financial institutions.
The institutions lost a total of $126,472.
Based on
the defendant's role as an organizer or leader of a
criminal activity that involved five or more
participants, the four levels under USSG § 3Bl.l(a) are
appropriately added.
Addendum to Presentence Report Received by Ct. Nov. 22, 1996 at
2,
D.
§
III.
The Sentencing Hearing
Nowden's sentencing was conducted on December 13, 1996.
He
was sentenced to a term of imprisonment of 27 months, a 5-year
term of supervised release, and an obligation to pay restitution
in the total amount of $126,472.
All the counts of the
17
indictment other than Count 4 were dismissed on the government's
motion.
The court developed at the sentencing hearing that Nowden
and Shaw received in a timely manner the presentence report and
the addendum to it, and that both of them "read those items and
then discussed them with each other."
Doc. 279 at 3-4.
Nowden
said nothing at the sentencing hearing that could be taken as a
suggestion on his part that he was not guilty of the offense to
which he had pleaded guilty or that anything occurred to cause
his plea of guilty not to be purely voluntary.
When invited to
"make any statement or presentation [he] would like to make on
the matter of mitigation or sentencing more generally," all he
had to say was the following:
THE DEFENDANT: Yes, sir. I would like to apologize
to the Court. I would like to apologize to Mr. McMurrey
and the state for what happened and to the victims for
what happened, and I'm sorry that it happened.
Id. at 6. 5
Near the end of the sentencing hearing, Nowden was advised
of his right to appeal to the Fifth Circuit if he was
dissatisfied, that he had the right to appeal in forma pauperis
if he qualified, and that the clerk would file a notice of appeal
'The "Mr. McMurrey" to which Nowden referred is the Assistant United States Attorney who
prosecuted both of the bank fraud cases against Nowden, the one over which the undersigned presided
and the other over which Judge Means presided.
18
for him forthwith if he were to specifically request it.
Nowden
and Shaw both signed at the sentencing hearing a Notice of Right
to Appeal Sentence Imposed After Plea of Guilty.
After Shaw
assured the court that it had been signed by Shaw and Nowden,
once they both were satisfied that Nowden understood it, the
document was filed.
The judgment of conviction and sentence was
entered December 24, 1996.
Nowden did not appeal from his
conviction or sentence.
E.
The Government's Rule 35(b) Motion and the Court's Order
Granting It
On April 23, 1997, the government filed a motion for
reduction of Nowden's sentence pursuant to the authority of Rule
35(b) of the Federal Rules of Criminal Procedure, reciting that
subsequent to Nowden's sentencing on December 13, 1996, he "has
cooperated with the government and provided detailed information
and testimony regarding his illegal banking activities in the
Northern District of Texas."
Doc. 187 at 2.
The motion
contained the following more-detailed description of Nowden's
cooperation with the government:
NOWDEN provided extensive and detailed information
regarding his bank fraud dealings with defendants and
others.
In particular, NOWDEN was debriefed and was
prepared to testify in the trials of U.S. v. Mark
Washington, 4:96 CR-084-Y and U.S. v. Anthony Jackson,
4:96 CR 124-A. Washington changed his plea to guilty
when the case was called for trial. NOWDEN's presence
at trial and anticipated testimony influenced
19
Washington's decision to change his plea.
Jackson was
convicted by jury before this Court. NOWDEN was sworn
as a witness in Jackson's trial, but not called by the
government to testify. NOWDEN's testimony, although
important to the prosecution, would have been
cumulative in light of the other codefendant's
testimony already introduced at trial.
In addition,
NOWDEN substantially assisted the government with his
cooperation and testimony during the sentencing hearing
in U.S. v. Michael D. Maxwell, 4:96 CR-124-A. NOWDEN
was able to establish that Maxwell was a part of the
bank fraud scheme and actively recruited others to
participate. That Maxwell even executed the scheme
without NOWDEN's immediate supervision. While this
information may appear to be trivial, it was extremely
valuable to the government because Maxwell was denying
any involvement and participation in the scheme.
NOWDEN was able to demonstrate and establish for the
Court the full extent of Maxwell's involvement.
Id. at 2-3.
Nowden did not file anything taking issue with any of the
allegations made by the government in its Rule 35(b) motion.
On
May 29, 1997, the court issued a final judgment granting the
government's Rule 35(b) motion by reducing Nowden's sentence of
imprisonment from 27 months to 20 months.
F.
Nowden's Many Post-Judgment Motions and His Revocation
Proceedings
1.
His First Motion Under
§
2255
On December 22, 1997, Nowden filed a motion under 28 U.S.C.
§
2255 to vacate, set aside, or correct sentence by a person in
federal custody.
He asserted four grounds for relief, each of
which complained of the amount of restitution the court ordered
20
him to pay.
No complaint was made of any of the things of which
Nowden now complains in support of his motion for writ of error
coram nobis.
He alleged that he was denied effective assistance
of counsel, but only in respect to the failure of his counsel to
present to the court objections regarding the amount of the
restitution he was ordered to pay.
order signed March 9, 1998, Nowden's
2.
By memorandum opinion and
§
2255 motion was denied.
His Revocation Proceeding and Related Events
On February 8, 2000, the government filed its motion to
revoke Nowden's supervised release, which was amended on
February 14, 2000.
Kleinschmidt
An attorney by the name of Gerhard
("Kleinschmidt") was appointed to represent Nowden
in the revocation proceeding.
On February 18, 2000, after a
hearing on the motion, the court issued a judgment granting the
government's motion to revoke, and sentencing Nowden to serve a
term of imprisonment of 3 years as punishment for his violations
of his conditions of supervised release.
Nothing in the record suggests that Nowden, through his
court-appointed attorney, took the position in opposition to the
government's motion to revoke that the motion should have been
denied because the December 1996 sentence imposing the term of
supervised release was not lawfully imposed or entered.
On
February 24, 2000, Nowden, through Kleinschmidt, filed a notice
21
of appeal from the judgment of revocation and sentence.
Kleinschmidt filed a motion to withdraw from representation of
Nowden on May 1, 2000, alleging that he had been notified that an
attorney by the name of Gary Udashen ("Udashen") had been
retained to represent Nowden on appeal.
Doc. 220.
The motion to
withdraw was granted by order signed May 3, 2000.
On November 15,
2000, Nowden filed a document titled "Motion
to Transfer or Consolidate," asking that the already resolved
motion to revoke his term of supervised release be transferred to
the judge handling the criminal case growing out of one of the
grounds of that motion, and that the revocation proceedings and
that criminal case be consolidated.
Doc. 228.
After having
received the government's response in opposition, the court
denied the motion to transfer or consolidate on November 27,
2000.
On November 3, 2000,
the Fifth Circuit issued its opinion
and judgment affirming this court's ruling on the motion to
revoke supervised release.
On April 18, 2001, Nowden filed a pro se notice of appeal,
complaining of the punishment he received when his supervised
release was revoked in February 2000.
Circuit dismissed the appeal.
22
On June 7, 2001, the Fifth
On October 10, 2001, Nowden, acting pro se, filed a document
titled "Motion for Modification of Supervised Release," by which
he sought a preliminary hearing, a new revocation hearing, and a
lowering of his sentence for violation of his supervised release
from 36 months to 24 months, to run concurrently with sentences
in other cases.
under 28 U.S.C.
The motion was treated as a motion for relief
§
2255.
All of the complaints of the document
were related to the proceedings bearing on the February 2000
revocation of Nowden's term of supervised release.
No complaint
was made in the document of any of the issues Nowden raised in
his motion for writ of error coram nobis.
The government
responded to Nowden's motion on November 9, 2001; and, the motion
was denied by an order signed November 13, 2001.
Nowden appealed
from that denial, which was denied by an order issued by the
Fifth Circuit on June 28, 2002.
3.
His Rule 35 Motion
On December 27, 2000, Nowden filed a document titled
"Defendant's Motion for Rule 35 Allowance," informing the court
that he had rendered significant aid to an FBI agent by turning
over to the FBI approximately $18,000,000 worth of computer
software, and requesting the court to reduce his sentence to
"time served" in consideration for his cooperation.
The court denied that motion on December 27, 2000.
23
Doc. 233.
4.
His Rule 36 Motion
On December 20, 2001, Nowden, acting pro se, filed a
document titled "Motion to Correct Clerical Mistakes,•
purportedly pursuant to the authority of Rule 36 of the Federal
Rules of Civil Procedure.
He complained of events that led to
his criminal conviction and sentence in Case No. 4:96-CR-085-A in
December 1996.
However, he made no complaint in that motion
raising any of the grounds, or mentioning any of the things, upon
which he relies in his motion for writ of error coram nobis.
His
main complaint in the December 20, 2001 document had to do with
his restitution obligation.
motion under 28 U.S.C.
§
The court treated the motion as a
2255.
The motion was denied by an order
and judgment signed December 21, 2001.
On June 28, 2002, the
Fifth Circuit dismissed Nowden's appeal from this court's denial
of that motion.
5.
His Rule 33 Motion
on July 31, 2002, Nowden, acting pro se, filed a document
titled "Petitioner's Petition for a New Trial Under Federal Rule
of Civil Procedure 33," again complaining of the proceedings that
led to the February 2000 order revoking Nowden's term of
supervised release.
Doc. 263.
The government responded to that
motion on August 9, 2002, and it was denied by an order signed
August 12, 2002.
On August 22, 2002, Nowden, acting prose,
24
filed a motion requesting reconsideration, which was denied by an
order signed August 23, 2002.
Nowden, acting prose, gave a
notice of appeal from that order on August 29, 2002, which was
dismissed by the Fifth Circuit as frivolous by an order issued
January 14, 2003.
* * * * *
In none of the filings made by and on behalf of Nowden in
his underlying criminal case, starting after the date on which he
entered his plea of guilty to Count 4 of the indictment in that
case, was there any mention of any of the factors that Nowden
uses as grounds of his currently pending motion for writ of error
coram nobis.
The first time any of the complaints Nowden makes
in that motion were ever called to the court's attention was when
the motion was filed on May 23, 2018.
IV.
Analysis
The record of Nowden's criminal case establishes beyond
doubt that the factual predicates of the grounds of Nowden's
motion under consideration are made from beginning to end out of
whole cloth.
At every step of the way, starting with the Motion
for Continuance that was filed August 21, 1996, supra at 8-9,
everything Nowden did, or failed to do, before he filed the
motion under consideration, constituted explicit and implied
25
admissions by Nowden of his guilt of the offense of conviction.
His claim now that he was innocent of that offense is pure
fiction.
The same can be said for Nowden's contention that he was
improperly led by Shaw to enter a plea of guilty.
The record
shows that Fleury, as well as Shaw, represented him through his
plea of guilty hearing, that he had planned to plead guilty to a
comparable offense or offenses pending before Judge Means, and
that his decision to plead guilty in Case No. 4:96-CR-085-A
apparently resulted from this court's denial of his motion for
continuance, supra at 8-9.
The sworn testimony given by Nowden
at his plea hearing leaves no question but that the plea was
knowing, voluntary, and intelligent.
There is nothing in the
record of Nowden's criminal case that remotely suggests
otherwise.
Nowden has failed to present the court with anything that
would cause the court to conclude that any aspect of any of the
grounds of his motion has the slightest merit.
"Solemn
declarations in open court carry a strong presumption of verity."
Blackledge v. Allison, 431 U.S. 63, 74
(1977).
For a defendant
who seeks post-judgment relief on the basis of alleged facts
inconsistent with representations he made in open court when
entering his plea of guilty to prevail, he must satisfy strict
26
standards of pleading and proof.
United States v. Cervantes, 132
F.3d 1106, 1110 (5th Cir. 1998).
Nowden has not done so.
No rational fact finder would find from the record of
Nowden's criminal case that his guilty plea was not knowing and
voluntary and made with sufficient awareness of the relevant
circumstances and likely consequences.
Nowden has failed to
allege or provide any independent evidence in support of any of
his contentions that are at variance with the statements he made,
or the answers he gave, while under oath at the rearraignment
hearing.
Moreover, Nowden has alleged no facts to suggest that he
exercised reasonable diligence in seeking the relief he requests
by the motion under consideration; and, the court is satisfied
from the record of his criminal case that there are no facts that
would support a contention of reasonable diligence.
The record
shows that he had multiple opportunities over the more than
twenty-year span since his 1996 conviction to complain of the
grounds of his motion pertaining to the conduct of Shaw.
He knew
of the existence of that conduct when it occurred in 1996 (if one
were to imagine that he accurately described it in his motion),
and should have complained of it at several steps along the way.
He could have complained in his first
§
2255, and he had the same
opportunity in virtually every filing that was made in his
27
criminal case after he filed that motion in December 1997.
Rather than to complain, he has repeatedly engaged in conduct
that confirms that his recent allegations against Shaw are
unfounded.
As to the ground that asserts that had Nowden gone to trial,
the evidence would be insufficient to convict Nowden of bank
fraud, there is no reason to think that Nowden would not have
known of that fact, if it were true, when he pleaded guilty, or
shortly after that.
The nature of his complaints against Shaw,
if true, would establish that Nowden, by virtue of his assertion
of innocence, knew when he pleaded guilty that the evidence was
insufficient to convict him of bank fraud.
Not only should that
ground have been asserted many years ago if it had merit, the
record establishes that it does not have merit.
The record
establishes that Nowden's offense conduct satisfied all elements
of the bank fraud offense to which he pleaded guilty, and that
his plea of guilty is factually supported.
If Nowden intends in his motion to allege, alternatively,
that, even if he was guilty of the offense to which he pleaded
guilty, the government lacked the evidence it would need to
convince a jury of his guilt, such a contention would not satisfy
the coram nobis requirements.
If that were the situation, it
would not be an error of "the most fundamental character, that
28
is, such as rendered the proceeding itself invalid."
F.2d at 145 n.2.
Puente,
646
The fact that Nowden pleaded guilty to an
offense of which he actually was guilty would prevent him from
making any collateral complaint that, if he had gone to trial,
the government would not have had the evidence to prove his
guilt.
Under those circumstances, there certainly would be no
error "resulting in a complete miscarriage of justice"
authorizing issuance of a writ of coram nobis.
at 768.
Put another way,
Jimenez, 91 F.3d
"the challenged error [would not be] of
sufficient magnitude to justify [that] extraordinary relief."
Marcello, 876 F.2d at 1154.
The same reasoning applies to Nowden's third ground for
relief pertaining to the alleged failure of the government to
disclose to the defense certain records.
Furthermore, Nowden
fails to make known to the court what records he is talking about
or how those records could have made a difference to Nowden when
he entered his plea of guilty.
The conclusory allegations made
by Nowden relative to the records he claims the government failed
to disclose do not give rise to any plausible theory for relief
for Nowden.
In addition, Nowden's motion does not contain any
allegations from which the court could find that Nowden used
reasonable diligence in seeking prompt relief from the alleged
failure of the government to disclose certain records.
29
Not only
does he not identify the records to which he refers, he does not
allege any facts from which the court could find the point in
time when he concluded that the government withheld pertinent
records.
Absent that information, there would be no way for the
court even to begin to evaluate when Nowden should have made an
appropriate complaint about the government's nondisclosure of
records.
The court is satisfied, and finds and concludes, that
Nowden's motion is frivolous.
Furthermore, bearing in mind that
the court is authorized to consider the record in Nowden's
criminal case in determining whether his motion states a claim
upon which relief may be granted, the court finds and concludes
that Nowden's motion fails to state any such claim.
v.
Order
Therefore,
The court ORDERS that Nowden's motion for writ of error
coram nobis be, and is hereby, denied as frivolous and as failing
to state a claim upon which relief may be
SIGNED June 22, 2018.
J
30
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