Smith v. United States of America

Filing 22

ORDER FINDING 20 the Petitioner's OBJECTIONS are without merit. The Court FINDS that the Petitioner is procedurally barred from asserting a coram nobis petition. The Court ADOPTS 19 the PROPOSED FINDINGS AND RECOMMENDATION of Magistrate Judg e R. Clarke VanDervort; DENIES Petitioner's Request for Issuance of a Writ of Error Coram Nobis (Document No. 1) and DENIES Petitioner's pending Motions for Summary Judgment (Document Nos. 5, 17 and 18). Signed by Chief Judge Joseph R. Goodwin on 7/23/2009. (cc: Magistrate Judge R. Clarke VanDervort; certified cc: Petitioner, Pro Se and counsel of record) (arb) Modified on 7/23/2009 to correct typographical error (mjp).

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BLUEFIELD DIVISION RODNEY EUGENE SMITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ORDER Pending before the court are the following motions by the petitioner, Rodney Eugene Smith: (1) Void Judgment Requested Pursuant to the Writ of Error Coram Nobis [Docket 1]; Notice to the Court of Reasons Why Smith is Entitled to the Issuance of the Writ of Coram Nobis [Docket 4]; Summary Judgment Request Pursuant to Federal Rules of Civil Procedure 56 [Docket 5]; Addendum to Void Judgment Requested Pursuant to the Writ of Coram Nobis [Docket 16]; Summary Judgement Requested Pursuant to Federal Rules of Civil Procedure 56 [Docket 17]; and Second Request for Summary Judgment Requested Pursuant to Federal Rules of Civil Procedure 56 [Docket 18]. This action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation for disposition ("PF&R"), pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and recommended that the court deny the petitioner's motions because his claims are not cognizable. The petitioner timely filed written objections to the Magistrate Judge's PF&R, in which he objected to the PF&R and reiterated his arguments on the merits. I therefore will review the PF&R CIVIL ACTION NO. 1:08-cv-01288

de novo. See Lipscombe v. United States, No. 2:09CV102, 2009 WL 1249285, at *1 (E.D. Va. April 29, 2009). Having reviewed the petitioner's objections de novo, the court FINDS that they are without merit. As the Magistrate Judge concluded, the court FINDS that the petitioner is procedurally barred from asserting a coram nobis petition because he is on supervised release and therefore technically in custody. See United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). As such, he could have brought a § 2255 motion. See id.; see also United States v. Mills, 221 F.3d 1201, 1204 (11th 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."). Moreover, I will not consider the petition on its merits because the petitioner may not renew his previously unsuccessful challenge to the district court's jurisdiction through a coram nobis petition. See Durrani v. United States, 294 F. Supp. 2d 204, 209-10 (D. Conn. 2003). Accordingly, the court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge, and DENIES the petitioner's pending motions. The court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party.

ENTER:

July 23, 2009

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