United States District Court, D. South Carolina, Florence Division
C. WESTON HOUCK, UNITED STATES DISTRICT JUDGE.
On February 19, 2016, the petitioner, Antonio Germaine Johnson (the "petitioner"), proceeding pro se, filed a petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). (Pet. Coram Nobis, ECF No. 62). For the reasons set forth below, the Court denies the petitioner's motion.
I. Relevant Procedural History
On December 21, 2001, the petitioner pleaded guilty to money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(ii), 31 U.S.C. § 5313(a), and 31 U.S.C. § 5324(a)(1). United States v. Johnson, Case No. 4:01-cr-1003-CWH-1 ("Johnson I") (Plea, ECF No. 28). On July 1, 2002, the Court sentenced the petitioner to five months in prison, to be followed by two years of supervised release. (Id, Sentencing Mins. 2, ECF No. 36). On July 19, 2002, the Court entered judgment against the petitioner. (Id., J. 1, ECF No. 37).
On May 29, 2002, during the pendency of Johnson I, the petitioner was indicted for conspiracy to distribute, and to possess with intent to distribute, fifty grams or more of cocaine base, commonly known as crack cocaine, and five kilograms or more of cocaine, all in violation of 21 U.S.C. §§ 841(a)(1) and 846. United States v. Johnson. Case No. 4:02-cr-0579-CWH-1 ("Johnson II") (Indictment, ECF 1). On September 24, 2002, the petitioner pleaded guilty to those charges. (Id., ECF No. 32). The petitioner absconded, and on May 15, 2003, the Court sentenced the petitioner in absentia to a term of 360 months of imprisonment, to be followed by five years of supervised release. (Id., Sentencing Mins. 1-2, ECF No. 55). Judgment was entered on May 20, 2003. (Id., J. 2-3, ECF No. 58). The petitioner did not file an appeal in Johnson I or in Johnson II.
On March 1, 2006, the petitioner filed a pro se petition pursuant to 28 U.S.C. § 2255 which attacked his guilty pleas and sentences in Johnson I and Johnson II. Johnson v. United States, Case No. 4:06-cv-0606-CWH (ECF No. 1). On August 22, 2006, the Court issued an order dismissing the Section 2255 petition as being barred by the one year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act. Id., 2006 WL 2443336, at * 1 (D.S.C. Aug. 22, 2006). The Fourth Circuit Court of Appeals dismissed the petitioner's appeal and denied his motion for a certificate of appealability. United States v. Johnson, 223 F.App'x 213, 214 (4th Cir. 2007) (per curiam).
On March 9, 2007, the petitioner filed a Motion to Compel the Government to Comply with the Plea Agreement entered into in December 2001 in which the petitioner pleaded guilty to money laundering. (Johnson I, Mot. to Compel, ECF No. 55). On April 23, 2007, the Court denied the petitioner's motion. (Id.,, Order, ECF No. 57). Thereafter, on September 24, 2007, the petitioner filed a motion pursuant to 28 U.S.C. § 2241, which attacked his sentence in Johnson II and alleged ineffective assistance of counsel, prosecutorial misconduct, and abuse of judicial discretion. Johnson v. Pettiford, Case No. 0:07-cv-3236-CWH (ECF No. 1). On December 12, 2008, the Court dismissed the petitioner's Section 2241 motion without prejudice and without issuance and service of process upon the respondent on the grounds that the Section 2241 petition was duplicative of the Section 2255 petition which already had been dismissed by the Court. Id. (Order 3, 5, ECF No. 20). The Fourth Circuit Court of Appeals affirmed the Court's decision to dismiss the Section 2241 petition. Id., 348 F.App'x 839, 839 (4th Cir. 2009) (per curiam).
On August 18, 2010 the petitioner filed a pro se motion for a writ of audita querela, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), in Johnson II. Id. (Mot. Audita Quer., ECF No. 136). The Court dismissed the motion on July 23, 2012, on the grounds that the motion for the writ of audita querela constituted an impermissible successive collateral attack against his sentence. Id (Order 5, ECF No. 176).
On February 19, 2016, the petitioner filed a motion in Johnson I for a writ of error coram nobis, styled as a Motion to Enforce Special Performance under Plea Agreement or to Vacate Guilty Plea under All Writs Act. Id. (Pet. Coram Nobis 1, ECF No. 62). The government timely responded and moved to dismiss the petition on March 15, 2016, Id. (Resp. 7, ECF No. 66), but failed to serve the petitioner with a copy of the response at that time. On April 7, 2016, the petitioner filed a Motion for Entry of Default pursuant to Fed.R.Civ.P. 55(d), arguing that the government had failed to timely respond to his motion. Id. (Mot. Default 2, ECF No. 68). The government served the petitioner with a copy of its response on that same day. Id. (Certificate of Service 1, ECF No. 67). Thus, the petitioner's motion for a writ of error coram nobis and his Motion for Entry of Default are pending before the Court.
II. Standard of Review
The Court is required to construe pro se complaints and petitions liberally, and these filings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). However, the requirement of liberal construction does not mean that the Court may ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in the federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) ("The 'special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.").
III. The All Writs Act
The All Writs Act, 28 U.S.C. § 1651(a), is a "residual source of authority to issue writs that are not otherwise covered by statute." Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Id, The writ of error coram nobis, a "remedy of last resort, " is granted only where an error exists "of the most fundamental character" and no other remedy is available. United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012) (citation omitted). The error in question must be of the character that "renders the entire proceeding irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186 (1979) (citation omitted). In fact, the United States Supreme Court has stated that "it is difficult to conceive of a situation in a federal criminal custody case today where [a writ of coram nobis] would be necessary or appropriate." United States v. Smith, 331 U.S. 469, 477 n.4 (1947).
The "extraordinary" remedy of a writ of error coram nobis under Section 1651(a) may not be used to raise claims that were or could have been raised through a motion to vacate a federal sentence under Sections 2255 or 2241. Crosby v. United States, Nos. 4:95-cr-00619-CWH-1, 4:96-cv-00788-CWH, 2013 WL 2566138, at *2 (D.S.C. June 11, 2013) (citing Akinsade. 686 F.3d at 252); see also Sun v. United States, 342 F.Supp.2d 1120, 1127 (N.D.Ga. 2004) (citations omitted) (the writ may not be used to relitigate claims that have "already been put in issue and determined."). The mere fact that a movant has been denied relief under a previous Section 2255 motion does not "open the door for use of the writ of error coram nobis under § 1651." Crosby, 2013 WL 2566138, at *2 (citation omitted). A collateral attack on a sentence by way of "[a] writ of error coram nobis is only appropriate when claims could not have been raised by direct appeal, or the grounds to attack the conviction became known after a completed sentence when § 2255 relief is unavailable." Sun, 342 F.Supp.2d at 1126 (citations omitted). Even ...