Baranski v. United States

Decision Date23 January 2018
Docket NumberNo. 16-3699,16-3699
Citation880 F.3d 951
Parties Keith Byron BARANSKI, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee
CourtU.S. Court of Appeals — Eighth Circuit

Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax, VA, Saeid Shafizadeh, Louisville, KY, for PetitionerAppellant.

Matthew T. Drake, Steven Alan Muchnick, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO, for RespondentAppellee.

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

In November 2002, a jury convicted Keith Baranski, a federally licensed firearms dealer, of conspiracy to import machine guns from Eastern Europe by submitting forms with false entries to the Bureau of Alcohol, Tobacco and Firearms (ATF). The district court1 imposed a sentence of sixty months in prison and three years of supervised release. Baranski appealed; we affirmed. United States v. Baranski, 75 Fed.Appx. 566 (8th Cir. 2003). The district court subsequently denied his post conviction motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 ; we again affirmed.

Baranski v. United States, 2006 WL 472451 (E.D. Mo. Feb. 27, 2006), aff'd, 515 F.3d 857 (8th Cir. 2008).

Baranski completed serving his prison sentence and three years of supervised release in August 2009. In 2011, he filed a Petition for Writ of Error Coram Nobis, asserting violations of his constitutional rights at trial. As later amended, the Petition asserted that new evidence establishes the government failed to disclose that it promised cooperating conspirator James Carmi a further sentence reduction for his testimony at trial; misled the court and the defense about Carmi's incarceration exposure; and deliberately withheld medical records tending to show that Carmi's trial testimony was tainted by amnesia and memory loss

. After a two-day evidentiary hearing, the district court dismissed the Petition in a thorough 72–page Memorandum and Order. Baranski appeals. We affirm.

I. The Writ of Error Coram Nobis in Federal Court.

The writ of error coram nobis is an ancient common law remedy that modern federal courts are authorized to issue under the All Writs Act, 28 U.S.C. § 1651(a). See United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 98 L.Ed. 248 (1954). As applied in criminal cases, coram nobis "is a step in the criminal case and not, like habeas corpus ... the beginning of a separate civil proceeding. ... This motion is of the same general character as one under 28 U.S.C. § 2255." Id. at 505 n.4, 74 S.Ct. 247. First enacted in 1948, § 2255 is a comprehensive statutory remedy intended "to meet practical difficulties" of federal habeas corpus jurisdiction. United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The Reviser's Note to § 2255 explained that the statute "restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus." Id. at 218, 72 S.Ct. 263.

"[T]he All Writs Act is a residual source of authority .... Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (quotation omitted); see United States v. Denedo, 556 U.S. 904, 911, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009). Section 2255, like habeas corpus, is limited to persons "in custody." Thus, "coram nobis relief is available when the defendant is no longer in custody for the applicable conviction, while custody is a prerequisite for habeas relief." United States v. Camacho–Bordes, 94 F.3d 1168, 1172 n.6 (8th Cir. 1996) ; see United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (coram nobis and § 2255 are "substantially equivalent" remedies).

The Supreme Court held in Morgan that the enactment of § 2255 created no bar to granting a writ of error coram nobis to a person who was convicted of a federal crime but is no longer in custody. 346 U.S. at 511, 74 S.Ct. 247. However, the Court explained, this "extraordinary remedy" should be allowed "only under circumstances compelling such action to achieve justice." Id. Coram nobis relief has been called the criminal-law equivalent of the Hail Mary pass in American football. United States v. George, 676 F.3d 249, 251 (1st Cir. 2012). There is good reason for this reluctance. "The further a case progresses through the remedial steps available to a criminal defendant, the stiffer the requirements for vacating a final judgment. ... The writ of error coram nobis lies at the far end of this continuum." Id. at 258.

Res judicata does not apply to successive petitions for federal habeas or § 2255 relief. See Sanders v. United States, 373 U.S. 1, 14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). However, limitations on the filing of successive habeas petitions in 28 U.S.C. § 2244(b), a federal habeas statute, establish a "qualified application of the doctrine of res judicata." McCleskey v. Zant, 499 U.S. 467, 486, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), quoting S. Rep. No. 1797, at 2 (1966), 1966 U.S.C.C.A.N. at 3664. The Court in McCleskey defined an abuse-of-the-writ inquiry that a petitioner must satisfy to warrant relief on a successive post-conviction habeas or § 2255 petition. Id. at 489–96, 111 S.Ct. 1454. Under Morgan, a petitioner who was denied § 2255 relief while serving his sentence and is no longer in federal custody may seek what is in substance successive post-conviction relief by filing a petition for a writ of error coram nobis . 346 U.S. at 505–06, 505 n.4, 74 S.Ct. 247. Unless he is required to make at least the same showing as a prisoner who seeks successive § 2255 relief, "federal prisoners might deliberately wait until after their sentences expire to challenge their convictions." United States v. Correa–De Jesus, 708 F.2d 1283, 1286 (7th Cir. 1983).

In the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress imposed stricter limitations on the filing of second and successive § 2255 motions than the abuse-of-the-writ principles applicable under former § 2244(b) and McCleskey. First, a second or successive § 2255 motion must now be authorized "by a three-judge panel of the court of appeals." 28 U.S.C. § 2244(b)(3)(B). This rule may not be evaded "by simply filing a successive § 2255 motion in the district court." Boykin v. United States, 242 F.3d 373 (Table), No. 99-3369, 2000 WL 1610732 at *1 (8th Cir. 2000). Second, a court of appeals panel may not certify a second or successive § 2255 motion unless it contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

§ 2255(h). Section 2255(h)(1)"alters the common law miscarriage of justice exception ... by changing the standard from ‘more likely than not’ to ‘clear and convincing evidence.’ " United States v. Williams, 790 F.3d 1059, 1076 (10th Cir. 2015). Given that habeas, § 2255, and criminal coram nobis relief are substantively indistinguishable, a critical issue on this appeal, not addressed by the district court, is whether AEDPA's restrictions on successive § 2255 motions affect the availability of coram nobis relief to a petitioner whose claim would be barred had he petitioned for relief while still in federal custody.

The first question is procedural: whether a coram nobis petitioner whose motion for § 2255 relief was denied while he was in custody must obtain authorization from a three-judge panel of the court of appeals in accordance with § 2244(b)(3)(B). Given the legislative history of these remedies—in particular, the Reviser's Note explaining that § 2255 is a "procedure in the nature of the ancient writ of error coram nobis"we believe that Congress, had it focused on this question, would have required coram nobis petitioners in this situation to obtain court of appeals authorization. But the restriction is in § 2244(b), which is plainly limited to "a second or successive habeas corpus application," and the cross-reference in § 2255(h) is similarly limited to a "second or successive [ § 2255 ] motion." As Congress did not impose this restriction on coram nobis petitioners seeking successive post-conviction relief, we may not read it into the statutes.

The second question is substantive: whether AEDPA's restrictions on the grant of successive relief set forth in § 2255(h)(1) and (2) limit the grant of coram nobis relief to a petitioner whose motion for § 2255 relief was denied while he was still in custody. We conclude the answer to this question must be yes. Congress and the Supreme Court have reacted to "the increasing burden on federal courts caused by successive and abusive petitions" by enacting and amending 28 U.S.C. § 2244(b) and by refining and strengthening the Court's equitable abuse-of-the-writ jurisprudence. See McCleskey, 499 U.S. at 481–89, 111 S.Ct. 1454. These efforts have been complementary, at least for the most part. The Supreme Court has ruled that, even when the terms of AEDPA do not govern a particular case, "a court of appeals must exercise its discretion in a manner consistent with the objects of the statute. In a habeas case, moreover, the court must be guided by the general principles underlying our habeas corpus jurisprudence." Calderon v. Thompson, 523 U.S. 538, 554, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). When a procedural Rule 60(b) motion "is in substance a successive habeas petition [it] should be treated accordingly." Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 ...

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