Nance v. United States of America

Filing 2

OPINION. Signed by Judge James P. Jones on 07/25/2014. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JIMMY L. NANCE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
UNITED STATES OF AMERICA,

v.
JIMMY L. NANCE,
Defendant.

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Case No. 7:14CV00353

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Case No. 7:92CR00135

OPINION
Jimmy L. Nance, Pro Se Petitioner.
The petitioner, a federal inmate proceeding pro se, has filed a pleading that
he styles as “DEFENDANT’S PETITION AND MOTION FOR A WRIT OF
CORAM NOBIS AND/OR AUDITA QUERELA, AND REQUEST FOR
APPOINTMENT OF COUNSEL AND FURTHER BRIEFING.” (Pet. 1.)

The

Court docketed the pleading as a Petition for a Writ of Coram Nobis under The All

Writs Act, 28 U.S.C. § 1651(a). After review of the petition and the Court’s
records, however, I find the petitioner is not entitled to the relief requested under
§ 1651, and that his submission is appropriately construed and summarily
dismissed as an unauthorized second or successive Motion to Vacate, Set Aside or
Correct Sentence, pursuant to 28 U.S.C. § 2255. 1
Petitioner Jimmy L. Nance was convicted by a jury of first-degree murder of
a United States Postal Service employee engaged in the performance of her official
duties. See 18 U.S.C. §§ 1111, 1114. Nance is currently serving his life sentence
in the custody of the Bureau of Prisons. His appeals were unsuccessful. United
States v. Nance, 67 F.3d 298 (4th Cir. 1995), cert. denied, 516 U.S. 1136 (1996).
Nance filed his current petition on July 15, 2014, alleging that he is entitled
to a writ of coram nobis or audita querela, such that the court must vacate his
sentence and reopen his case for resentencing. When Nance was sentenced in
October of 1993, 18 U.S.C. § 1111(b) provided, in part, “Whoever is guilty of
murder in the first degree, shall suffer death unless the jury qualifies its verdict by
adding thereto ‘without capital punishment,’ in which event he shall be sentenced
to imprisonment for life.” After amendments enacted in 1994, the statute read (and
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The court is not bound by the § 1651 label that Nance, as a pro se petitioner,
attaches to his pleading and may liberally construe and address his submission according
to the nature of the relief sought. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)
(finding that habeas petitioner’s filing seeking relief under change in substantive law
subsequent to first habeas proceeding is properly construed and dismissed as successive
habeas).
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now reads): “Whoever is guilty of murder in the first degree shall be punished by
death or by imprisonment for life.” 18 U.S.C. § 1111(b). In his petition, Nance
argues that because the Court, not the jury, determined that he should be sentenced
to life in prison, his sentence violated his statutory and constitutional rights and
must be vacated.
A petition under § 1651, such as one seeking a writ of coram nobis or audita
querela, is not available to a defendant in federal custody to raise claims that were
or could have been raised through other remedies, such as a motion for new trial or
a motion seeking collateral relief under § 2255. See, e.g., United States v. Johnson,
237 F.3d 751, 755 (6th Cir. 2001) (coram nobis); United States v. Valdez-Pacheco,
237 F.3d 1077, 1080 (9th Cir. 2001) (writ of audita querela).

Moreover, the writ

of coram nobis was “traditionally available only to bring before the court factual
errors ‘material to the validity and regularity of the legal proceeding itself,’ such as
the defendant’s being under age or having died before the verdict.” Carlisle v.
United States, 517 U.S. 416, 429 (1996) (citation omitted). The writ of audita
querela is “available in criminal cases [if at all] where there is a legal, as contrasted
with an equitable, objection to a conviction that has arisen subsequent to the
conviction and [was] not redressable pursuant to another postconviction remedy.”
7 Am. Jur. 2d Audita Querela § 1 (2014).

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Nance is clearly not entitled to either of the writs he seeks. He previously
filed a § 2255 motion challenging the same criminal judgment and sentence that he
challenges in this petition. Nance v. United States, No. 7:96CV00334 (W.D. Va.
1996), appeal dismissed, 107 F.3d 868 (4th Cir. 1997). The amendment to 18
U.S.C. § 1111(b), on which he bases his current claims, took effect in September
of 1994, well before he filed his § 2255 motion in 1996. Because Nance had an
available remedy under § 2255 to challenge the validity of his sentence and he
remains in federal custody, he cannot pursue his current claims in a petition for any
writ under § 1651. Johnson, 237 F.3d at 755; Valdez-Pacheco, 237 F.3d at 1080.
Moreover, his current challenge is not based on any fundamental factual error as
required to warrant coram nobis relief, nor does it raise a newly minted legal
objection to his conviction, as was the purpose of audita querela.
Because Nance may not proceed with his claims through any extraordinary
writ under § 1651(a), I construe his claims as a § 2255 motion. This court may
consider a second or successive § 2255 motion only upon specific certification
from the United States Court of Appeals for the Fourth Circuit that the claims in
the motion meet certain criteria. See § 2255(h). Nance has already taken his bite
at the § 2255 apple and offers no indication that he has obtained certification from
the court of appeals to file a second or successive § 2255 motion. Therefore, I
must dismiss his current motion as successive.
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A separate Final Order will be entered herewith.
DATED: July 25, 2014
/s/ James P. Jones
United States District Judge

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