Murray v. United States

• Decision Date: 04 January 2013
• Docket Number: 12–1350.,Nos. 12–1051,s. 12–1051
• Parties: Michael Francis MURRAY, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

704 F.3d 23

Michael Francis MURRAY, Petitioner, Appellant,

v.UNITED STATES, Respondent, Appellee.

Nos. 12–1051, 12–1350.

United States Court of Appeals, First Circuit.

Jan. 4, 2013.

Rosemary Curran Scapicchio, with whom Dennis M. Toomey was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN^* and STAHL, Circuit Judges.

LYNCH, Chief Judge.

This appeal is from the district court's denial of a petition filed by a federal prisoner,Michael Murray, for the extraordinary writ of coram nobis. Murray v. United States, 821 F.Supp.2d 458 (D.Mass.2011). We affirm the denial of the writ.

I.

This story starts a long time ago.

In 1983, Murray and six other defendants were charged with conspiracy to possess and possession with intent to distribute over a thousand pounds of marijuana; in 1984, Murray was convicted on one count of conspiracy. ¹United States v. Moscatiello, 771 F.2d 589, 591–92 (1st Cir.1985), vacated by Murray v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986) (mem.). Agents from the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) had seized the drugs from two vehicles, a garage in Dorchester, and a warehouse in South Boston. Id. at 591. The seizures followed a nearly year-long investigation in which the agents had gathered information from multiple informants and conducted extensive surveillance of various members of the suspected conspiracy. See Murray, 821 F.Supp.2d at 462–63.

The investigation bore fruit on April 5 and 6, 1983, when the agents observed a suspicious pattern of activity involving a number of the suspects driving to various locations in Boston and switching vehicles amongst each other. Id. at 463–64. It was during this surveillance that one agent, Cleary, asserted he had accidentally happened upon the South Boston warehouse and had seen one of the vehicles under surveillance parked outside. Id. at 464. On the afternoon of April 6, 1983, the agents observed Murray and another suspect get into a white van and a green camper, respectively, which then drove into the South Boston warehouse. Id. A short time later, Murray drove the white van out of the warehouse, stopped in a nearby parking lot, and handed off the van and its keys to another driver. Id. When the agents pulled that driver over shortly thereafter, they found sixty bales of marijuana in the van. Id. at 464–65. The other suspect followed the same procedure with the green camper, and the agents also stopped that vehicle and found bales of marijuana inside. Id.

After finding the marijuana in both vehicles, the agents returned to the warehouse. They entered without a warrant and observed additional bales of marijuana in plain view. Id. at 465. The agents then secured the warehouse, kept it under surveillance, and applied for a warrant to search it, without mentioning in the warrant affidavit that they had already conducted a warrantless entry. Id. at 465–66.

Murray and the other defendants filed motions to suppress the marijuana seized during the vehicle and warehouse searches. See Moscatiello, 771 F.2d at 595. Murray, in particular, sought suppression of the drugs from the warehouse based on the agents' warrantless search. Id. at 600–01. The trial judge, after a ten-day evidentiary hearing at which three FBI agents and one DEA agent testified, denied the motions. See id. at 591. As relevant here, the court determined that the warrant affidavit for the search of the warehouse was supported by probable cause regardless of the information from the warrantless entry, because the affidavit had rested on direct observation by law enforcement, evidence of the marijuana seized from the vehicles, and information provided by three confidential informants (CIs). See id. at 596–97, 600.

Murray proceeded to trial following the denial of his suppression motion, and in 1984 a jury convicted him of one count of conspiracy to possess marijuana. Id. at 591–92. He was sentenced to four years' imprisonment. After various appeals from his conviction which resulted in remands,² Murray reached an agreement with the government ³ wherein he abandoned his suppression challenge and the government recommended that his sentence be reduced to eighteen months' imprisonment, which at that point amounted to time served. Murray, 821 F.Supp.2d at 462.

Over two decades later, in 2007, Murray filed this petition for a writ of error coram nobis, attacking the denial of the suppression motion in the 1984 case based on newly available evidence that one of the CIs relied upon in the warrant application was James “Whitey” Bulger and that FBI agents had originally learned of the warehouse filled with marijuana from Bulger, not from the circumstances that Agent Cleary claimed. Murray's theory was that, if the FBI had disclosed Bulger's name and the fact that he was both cooperating with and benefitting from the FBI, such information would have materially affected the outcome of the suppression hearing and also would have discredited all of the agents' testimony at trial, which in turn would have materially affected whether he would have been originally convicted or his decision to stop pursuing his appeal and accept imprisonment. He argues that the agents who testified at the suppression hearing were lying at that hearing in order to protect from disclosure the FBI's illicit relationship with Bulger.⁴

The 1984 conviction matters even though Murray has long since been released from imprisonment for that crime. It matters because that conviction operated to increase the sentence Murray received as a result of his next criminal conviction for marijuana distribution, which arose out of trafficking activities in 1989 and 1991. See United States v. Catano, 65 F.3d 219, 221–23 (1st Cir.1995). At his sentencing proceeding for that later conviction, in 1994, Murray's criminal history score was calculated as six points, which included three points for the 1984 conviction. The combination of his criminal history score and his offense level produced a guidelines range of 292 to 365 months, with a mandatory minimum of 20 years.⁵ The district court sentenced Murray to thirty years' imprisonment. Murray, 821 F.Supp.2d at 461.

Murray has now served more than eighteen years of that sentence. Through this application for a writ of coram nobis, he hopes to secure his immediate release.

II.

A. Nature and Availability of the Writ

Coram nobis is an ancient writ that was originally intended to allow courts to correct technical errors in their past judgments. Its present, limited use in the American legal system is to correct “fundamental errors of fact or law.” United States v. George, 676 F.3d 249, 253 (1st Cir.2012). The Federal Rules of Civil Procedure abolished the use of the writ in civil cases, seeFed.R.Civ.P. 60(e), but it has survived for use in criminal cases. The Supreme Court has held that, under the All Writs Act, 28 U.S.C. § 1651, federal courts are authorized to issue writs of error coram nobis to correct criminal judgments, and that the enactment of 28 U.S.C. § 2255 did not eliminate the availability of coram nobis relief. See United States v. Morgan, 346 U.S. 502, 503–04, 506–13, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (holding petitioner entitled to bring action seeking writ of coram nobis to show constitutional error in prior federal conviction, which caused him to receive longer sentence as a second offender in later state criminal case).

However, coram nobis is an extraordinary remedy, which is available “only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. 247. It is meant to correct errors “of the most fundamental character; that is, such as render[ ] the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914). As an extraordinary remedy, coram nobis may not issue when other remedies, including habeas corpus, are available. United States v. Denedo, 556 U.S. 904, 911, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009). The Supreme Court has noted that, given other statutes and rules of criminal procedure, “it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis ] would be necessary or appropriate.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (alteration in original) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)) (internal quotation marks omitted). This court has described coram nobis as the “remedy of last resort.” George, 676 F.3d at 253.

This case does not involve the more common situation of a petitioner seeking coram nobis relief on an argument that, pursuant to a Supreme Court decision that post-dates his conviction, the conduct for which he was convicted is no longer criminal. See, e.g., id. at 252;United States v. Sawyer, 239 F.3d 31, 34 (1st Cir.2001); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir.1973). Nor is there any claim that Murray is actually innocent of the 1984 marijuana conspiracy charge. Still, this is not the first time that this circuit has dealt with a coram nobis petition claiming that the government failed to meet its disclosure obligations. See United States v. Barrett, 178 F.3d 34, 40, 54 (1st Cir.1999) (claiming that government failed to disclose evidence under the Jencks Act).

B. Standards for Decision

A district court's order granting or denying a writ of error coram nobis is an appealable civil judgment. See Trenkler v. United States, 536 F.3d 85, 92–95 (1st Cir.2008). In reviewing a district court's decision on a coram nobis petition, this court reviews the legal conclusions de novo and the findings of fact for clear error. George, 676 F.3d at 256. Where the district court declines to conduct an evidentiary hearing and denies the...