Trenkler v. U.S.

• Decision Date: 01 August 2008
• Docket Number: No. 07-1679.,No. 07-1678.,07-1678.,07-1679.
• Parties: Alfred W. TRENKLER, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant. Alfred W. Trenkler, Petitioner, Appellant, v. United States of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

536 F.3d 85

Alfred W. TRENKLER, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.

Alfred W. Trenkler, Petitioner, Appellant, v. United States of America, Respondent, Appellee.

No. 07-1678.

No. 07-1679.

United States Court of Appeals, First Circuit.

Heard June 4, 2008.

Decided August 1, 2008.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, were on brief, for the United States.

Joan M. Griffin and Corey A. Salsberg, by appointment of the court, with whom McDermott, Will & Emery LLP was on brief, for Alfred W. Trenkler.

Before HOWARD and SELYA, Circuit Judges, and STAFFORD,^* District Judge.

SELYA, Circuit Judge.

These cross-appeals require us to explore poorly understood terrain: the modern configuration and use of the ancient writ of error coram nobis. This archeological dig entails a determination of when and under what circumstances that writ may be used by a criminal defendant as a vehicle for securing post-conviction relief.

The context is as follows. The petitioner, Alfred W. Trenkler, is a prison inmate, currently serving a federal sentence. He confronted the district court with a claim that more than ten years earlier it had illegally sentenced him to life imprisonment. Persuaded by this claim, the district court granted a writ of error coram nobis, vacated the original sentence, and proceeded to resentence the petitioner to a term of years. The government protests this deployment of the writ, contending that the district court lacked jurisdiction to issue it. The petitioner cross-appeals maintaining that even the substituted sentence exceeded the maximum available under the statutes of conviction.

After first grappling with a series of threshold challenges to our appellate jurisdiction, we conclude that the district court had no authority to issue a writ of error coram nobis. Consequently, we reverse the order granting the writ and direct the district court to reinstate the original sentence.¹

I. BACKGROUND

We rehearse here only those facts that are needed to place these cross-appeals into perspective. We urge the reader who hungers for more exegetic detail to consult our earlier opinions describing the various way stations that dot the trail of the petitioner's case. See, e.g., Trenkler v. United States (Trenkler III), 268 F.3d 16 (1st Cir.2001) (affirming denial of relief under 28 U.S.C. § 2255); United States v. Trenkler (Trenkler II), No. 97-1239, 1998 WL 10265 (1st Cir. Jan.6, 1998) (affirming denial of Rule 33 motion); United States v. Trenkler (Trenkler I), 61 F.3d 45 (1st Cir.1995) (affirming conviction and sentence on direct review); see also Trenkler v. Pugh (Trenkler IV), 83 Fed.Appx. 468 (3d Cir.2003) (upholding denial of relief under 28 U.S.C. § 2241).

On November 29, 1993, a jury convicted the petitioner of conspiracy, 18 U.S.C. § 371, and the illegal receipt and use of explosives, id. §§ 844(d), 844(i). The charges arose out of the petitioner's role in a bombing that caused the death of one Boston police officer and the maiming of another. See Trenkler I, 61 F.3d at 47-48. The district court sentenced the petitioner to 60 months' imprisonment on the conspiracy count and life imprisonment on each of the two "explosives" counts. All of the sentences were to run concurrently.

On the date that the indictment was handed up, both sections 844(d) and 844(i) provided in pertinent part that

if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, [the defendant] shall [also] be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.

Section 34 provided in turn that when any of the proscribed acts "resulted in the death of any person," the death penalty or life imprisonment would be available as a punishment "if the jury shall in its discretion so direct." Notwithstanding this language, no special jury finding was either requested or obtained in the petitioner's case. Indeed, the anomaly went unremarked.

Following the imposition of sentence, the petitioner appealed. His appeal challenged a number of evidentiary rulings. See Trenkler I, 61 F.3d at 51-62. We rejected all but one of these challenges, found that the successful challenge embodied a harmless error, and affirmed the judgment below. Id.

The next ten years witnessed a kaleidoscopic array of post-conviction proceedings. On December 22, 1995, the petitioner moved for a new trial or in the alternative an evidentiary hearing on the ground of newly discovered evidence. Agreeing that the proffered evidence was not newly discovered, we affirmed the district court's denial of the motion. Trenkler II, 1998 WL 10265, at *4. The district court and this court subsequently rejected as time-barred an application, brought under 28 U.S.C. § 2255, that alleged ineffective assistance of counsel. See Trenkler III, 268 F.3d at 27. The petitioner's other efforts met a similar fate. See, e.g., Trenkler IV, 83 Fed. Appx. at 472.

On August 24, 2004, the petitioner sought a writ of mandamus in this court, claiming for the first time that 18 U.S.C. §§ 844(d) and 844(i) required specific jury authorization as a condition precedent to the imposition of a life sentence. We summarily rejected his foray, noting that it amounted to a second or successive section 2255 petition and, as such, ran afoul of the gatekeeping provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214.

Undeterred by this setback, the petitioner wrote to the original trial judge, making essentially the same argument. The district court appointed counsel and, on November 6, 2006, appointed counsel moved for the issuance of a writ of error coram nobis or in the alternative a writ of audita querela.² Although the petitioner used the docket number of the original criminal case, the district court treated the filing as constituting a new civil action and assigned a new docket number to it. The court reasoned that coram nobis, like its habeas corpus counterpart, is civil in nature.

The court ordered the government to respond by January 5, 2007. That date came and went without any word from the government. Acting sua sponte, the court extended the time for filing an opposition to February 2, 2007. It simultaneously warned that, should no opposition be filed within the extended period, it would decide the matter without the government's participation. That deadline, too, expired without any action by the government.

On February 20, 2007, the district court granted a writ of error coram nobis. Trenkler v. United States (Trenkler V), No. 06-12072, 2007 WL 551620, at *1 (D.Mass. Feb.20, 2007). The court asserted jurisdiction under the All Writs Act, 28 U.S.C. § 1651, and expressed the view that the writ was available in criminal proceedings to correct fundamental errors, as long as other remedies were unavailable. Trenkler V, 2007 WL 551620, at *3. It then explained why it thought that the petitioner's claim warranted such extraordinary relief.

To begin, the court concluded that the express language of the statutes of conviction required a jury directive as a condition precedent to the imposition of a life sentence. Id. at *1. It noted that the petitioner's life sentence had been imposed in the absence of such a directive and was, therefore, illegal. Id. This bevue warranted coram nobis relief because it was "fundamental to the validity of the judgment," id. at *4, and coram nobis represented the only procedural mechanism that remained available to correct the sentence, id. at *2. In reaching this conclusion, the court conceded that the time had expired for filing a section 2255 petition, see 28 U.S.C. § 2255(f), but suggested that the petitioner could not be faulted for failing to seek relief earlier since all concerned — the court, the government, and the petitioner's previous counsel — had been caught flat-footed by this sentencing limitation. See Trenkler V, 2007 WL 551620, at *5.

When all was said and done, the court vacated the petitioner's two concurrent life sentences and set the criminal case down for resentencing on April 4, 2007. The day after the court's order issued, the government moved for leave to file an opposition to the coram nobis petition, blaming its failure to respond in a timely manner on "institutional inadvertence." The district court granted the government's request. The government not only filed an opposition but also moved for reconsideration of the coram nobis order. See Fed.R.Civ.P. 59(e). In subsequent filings, it asserted among other things that the district court lacked jurisdiction to issue the writ because the petitioner's request was merely a camouflaged section 2255 petition and, as such, was subject to AEDPA's limitations on second and successive habeas petitions. It also claimed that coram nobis relief was inappropriate because the petitioner was still in custody, because he had failed to establish a fundamental error in the criminal proceedings, and because he had failed to prove any good cause for not raising the alleged sentencing error at an earlier time.

On April 4, 2007, the district court, ruling from the bench, dismissed the government's objections and reaffirmed the appropriateness of coram nobis relief. When the district court proceeded to the criminal case, the petitioner argued that the doctrine of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), limited the length of an incarcerative sentence on the affected counts to ten years. The court rejected that argument and imposed concurrent sentences of 37 years' immurement on the two affected counts (crediting the petitioner with time served to that point).

On April 9,...