Smith v. United States of America

Filing 8

MEMORANDUM OPINION AND ORDER: The Court OVERRULES Petitioner's objections and CONFIRMS and ADOPTS the 3 Proposed Findings and Recommendations by Magistrate Judge VanDervort. Petitioner's 1 request for a Writ of Error Coram Nobis is D ENIED. Petitioner's 7 MOTION to Expedite a ruling regarding the writ is DENIED AS MOOT. The Clerk is directed to remove this case from the court's active docket. Signed by Judge David A. Faber on 1/31/2013. (cc: Petitioner, pro se and counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
RODNEY EUGENE SMITH,
Petitioner,
v.

Civil Action No: 1:12-00900

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s (1) document
entitled “Void Judgment Requested Pursuant to the Writ of Error
Coram Nobis” (petition) and (2) Motion to Expedite Ruling.1

Doc.

Nos. 1 & 7.

For the following reasons, the petition is DENIED.

Doc. No. 1.

Similarly, petitioner’s motion to expedite is

DENIED AS MOOT.

Doc. No. 7.
Factual and Procedural History

Petitioner filed the instant petition on January 17, 2012,
under Criminal Case No. 1:01-00007.
00007, Doc. No. 424.

See Criminal Case No. 1:01-

Magistrate Judge VanDervort entered an

Order construing petitioner’s filing as a civil action on March
28, 2012.

1

Criminal Case No. 1:01-00007, Doc. No. 426.

On March

The court notes that the undersigned has granted two of
petitioner’s recusal motions in the past. See Criminal Case No.
1:01-cr-00007, Doc. Nos 217, 296. However, given the posture of
this case and the reasoning herein, the undersigned sees no
reason for recusal again.

28, 2012, Magistrate Judge VanDervort entered Proposed Findings
and Recommendation (PF&R), recommending petitioner’s petition
for a Writ of Error Coram Nobis be denied and that this case be
dismissed and removed from the District Court’s docket.
No. 3.

Doc.

On April 6, 2012, petitioner filed an “Expedited Motion

to Extend Time to File Response to Proposed Findings and
Recommendation.”

Doc. No. 4.

Magistrate Judge VanDervort

granted petitioner’s motion for more time to file objections to
the PF&R.

Doc. No. 5.

the PF&R on May 1, 2012.

Petitioner timely filed objections to
Doc. No. 6.

Petitioner later filed a

Motion to Expedite Ruling regarding his petition for a Writ of
Error Coram Nobis.

Doc. No. 7.
Discussion

I. Petition for Writ of Error Coram Nobis and Motion to Expedite
the Ruling re: Same (Doc Nos. 1 & 7)
To the extent petitioner’s objections to the PF&R are
cognizable, petitioner seems to object that Magistrate Judge
VanDervort’s PF&R did not examine the substance of petitioner’s
claims and instead “gave a summary of general case files.”
No. 6, at 1.

The court disagrees.

Doc.

Nevertheless, the court now

reviews the PF&R de novo in light of petitioner’s timely filed
objections.
In the PF&R, Magistrate Judge VanDervort noted that he had
thoroughly examined both the record in petitioner’s companion

2

criminal case, United States v. Smith, Criminal Case No. 1:0100007, and the documents petitioner filed with the instant
petition.

See Doc. No. 3, at 8-9.

The court has retraced

Magistrate Judge VanDervort’s steps and arrives at a similar
conclusion, namely that no circumstance exists that “even
remotely indicat[es] a fundamental error in [p]etitioner’s
prosecution such that relief may be available in coram nobis.”
Id. at 9.

Moreover, the court finds that petitioner attempts to

use coram nobis to relitigate issues he has raised previously.
Salient authority supporting this conclusion includes Durrani v.
United States, 294 F.Supp.2d 204 (D. Conn. 2003).

In that case,

the court found that whatever the use of a Writ of Error Coram
Nobis, it cannot be used to relitigate issues raised on direct
appeal or under Section 2255 habeas relief.

See id. at 209-10.2

The record in petitioner’s companion criminal case clearly
indicates he has already litigated the issues raised in the

2

Durrani cites a string or relevant authorities: Polizzi v.
United States, 550 F.2d 1133, 1135–36 (9th Cir. 1976) (“Although
principles of res judicata do not bar a prisoner from relitigating on ... coram nobis issues raised in the original
appeal, a district court may refuse to entertain a repetitive
petition ... previously determined on the merits.”); Chin v.
United States, 622 F.2d 1090, 1092 (2d Cir. 1980) (recognizing
that, absent special circumstances, once a matter has been
decided adversely to a defendant on direct appeal it cannot be
relitigated in a coram nobis petition); Klein v. United States,
880 F.2d 250, 254 n. 1 (10th Cir.1989) (“[C]oram nobis relief is
not available to litigate issues already litigated; it is
reserved for claims which have yet to receive their first
disposition.”).
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instant petition.

For example, Judge Goodwin’s Order dated July

25, 2007, demonstrates how petitioner has attempted to file more
than a dozen successive, unauthorized Section 2255 motions, each
essentially challenging the validity of his prosecution.
No. 361, at 6-8.

Doc.

Judge Goodwin denied each of these motions.

See id. (denying eighteen motions as improper discovery
requests, unauthorized successive Section 2255 motions, or
moot).

Moreover, after petitioner was procedurally barred from

filing a coram nobis petition because he remained on supervised
release and, therefore, “in custody,” Judge Goodwin noted that
he would “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.”

Civil Case No. 1:08-01288, Doc. No. 22, at 2; see

United States v. Pregent, 190 F.3d 279, 283 (4th Cir.
1999)(stating “[a] prisoner on supervised release is considered
to be ‘in custody.’”).3
Accordingly, because petitioner essentially relitigates the
same issues from earlier collateral attacks on his conviction,
none of which indicated a fundamental error in petitioner’s

3

Coram Nobis is generally not available to federal prisoners who
are still in custody. See U.S. v. Payne, 644 F.3d 1111, 1112
(10th Cir. 2011); Godoski v. U.S., 304 F.3d 761 (7th Cir. 2002);
U.S. v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001); U.S. v.
Noske, 235 F.3d 405, 406 (8th Cir. 2000); U.S. v. Baptiste, 223
F.3d 188, 189–190 (3d Cir. 2000).
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prosecution, the court DENIES petitioner’s request for a Writ of
Error Coram Nobis.

Doc. No. 1.

Similarly, the court DENIES AS

MOOT petitioner’s motion to expedite the ruling on that request.
Doc. No. 7.
II. Pre-filing Injunctions against Vexatious Litigants
The court notes for the record that the instant petition is
one in a long series of frivolous filings related to
petitioner’s companion criminal case.

Even holding petitioner’s

filings to a less stringent standard by virtue of his pro se
status,4 many of those filings are simply non-cognizable,5 yet
petitioner continues to file substantially the same complaints.
Accordingly, petitioner has abused access to this court as it
relates to his criminal proceeding, Case No. 1:01-cr-00007.
Indeed, the All Writs Act, 28 U.S.C. § 1651(a), “grants federal
courts the authority to limit access to the courts by vexatious
and repetitive litigants like [the petitioner].”

Cromer v.

Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004).
Nevertheless, an individual’s right to access to the courts
is fundamental and may be restricted “only in limited
circumstances and in strict accordance with established
protections.”

4

Id. at 820.

Accordingly, at this time, the court

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

5

See, e.g., Doc Nos. 72, 83, 99, 284, 289, 295, 298, 312, 322,
324 among others.
5

refrains from issuing an order requiring petitioner to show
cause why the court should not enter a prefiling injunction
against him.

However, should petitioner continue to file

documents related to Criminal Case No. 1:01-cr-00007, the court
will issue such an order.

Petitioner’s criminal case and all

civil actions attendant to it have been fully litigated.

This

order serves as an initial caution to petitioner that further
filings related to his decade-old criminal proceeding may result
in the court entering a prefiling injunction against him.
Conclusion
Having reviewed Petitioner’s objections, the court
OVERRULES Petitioner’s objections and CONFIRMS and ADOPTS the
Magistrate Judge’s Proposed Findings and Recommendations.
Accordingly, petitioner’s request for a Writ of Error Coram
Nobis is DENIED.

Doc. No. 1.

Similarly, petitioner’s motion to

expedite a ruling regarding the writ is DENIED AS MOOT.
No. 7.

6

Doc.

The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and petitioner, pro se.
The Clerk is further directed to remove this case from the
court’s active docket.
IT IS SO ORDERED on this 31st day of January, 2013.
ENTER:
David A. Faber
Senior United States District Judge

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