U.S. v. Ferguson

• Decision Date: 15 October 2009
• Docket Number: No. 1:08cr166-1.,1:08cr166-1.
• Citation: 667 F.Supp.2d 567
• Parties: UNITED STATES of America v. Irvin Jamar FERGUSON.
• Court: U.S. District Court — Middle District of North Carolina

667 F.Supp.2d 567

UNITED STATES of America v. Irvin Jamar FERGUSON.

No. 1:08cr166-1.

United States District Court, M.D. North Carolina.

October 15, 2009.

Robert A.J. Lang, Winston-Salem, NC, for United States of America.

John A. Dusenbury, Jr., Office of Federal Public Defender, Greensboro, NC, for Irvin Jamar Ferguson.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is the Petition for Writ of Error Coram Nobis of Defendant/Petitioner Irvin Jamar Ferguson ("Ferguson") (Doc. 28), seeking to vacate his conviction for possession of a firearm and ammunition by a felon under 18 U.S.C. § 922(g) based on the jury's guilty verdict entered September 25, 2008. Ferguson is awaiting sentencing and argues that the recent holding in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), issued subsequent to his conviction, renders the search of the vehicle in which he was riding as a passenger illegal and requires that the firearm and rounds of ammunition seized from the rear floorboard as a result be suppressed. The Government opposes the petition on multiple grounds, including arguments that such a writ would be premature, Ferguson lacks standing, and Gant does not apply to this case. (Doc. 29 at 4.) Ferguson has filed a reply. (Doc. 30.) An evidentiary hearing was held on August 27, 2009. For the reasons set forth herein, the petition is denied.

I. Background

Ferguson was indicted on March 27, 2008, for possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). (Doc. 1.) This case was tried to a jury September 22-25, 2008. The evidence demonstrated the following:

On January 30, 2008, Officer M.C. Knight of the Winston-Salem Police Department ("WSPD") stopped a Ford Explorer sport utility vehicle ("SUV") he observed travel at a high rate of speed and subsequently run a stop sign. A female, Jaime Evans, was driving, and Ferguson was a passenger in the front seat. Officer Knight determined that Evans' driver's license had been revoked and cited her for driving with a revoked license and for running a stop sign.

Neither Evans nor Ferguson owned the vehicle; however, Evans had the permission of the owner, Candice Reeves, who was "a friend," to use it that evening.¹ After determining that Ferguson also lacked a valid driver's license, Officer Knight advised both Evans and Ferguson that neither could drive the vehicle from the scene. As Ferguson stepped out of the vehicle, another officer who had arrived, Officer Hege, observed a bullet in plain view on the passenger seat where Ferguson had just been sitting. Officer Hege placed Ferguson in handcuffs but told him he was not under arrest. Officer Hege conducted a protective frisk of Ferguson but did not locate any weapons. Ferguson was directed to sit on a wall nearby while Officer Hege "frisked" the vehicle passenger area. The officer located a Bryco Arms .38 caliber semiautomatic pistol in the glove box and more rounds of ammunition in the back passenger area. Ferguson initially gave a false name but, after the WSPD determined his identity, was arrested on an unrelated outstanding warrant.

Ferguson never moved to suppress the firearm or ammunition.

II. Analysis

A. Coram Nobis

Ferguson argues that no federal statute or Federal Rule of Criminal Procedure provides an adequate method to challenge a constitutional violation prior to the imposition of a sentence, thereby making a writ of coram nobis appropriate in light of the Supreme Court's decision in Arizona v. Gant. (Doc. 28 at 8-9.) The Government contends that (1) Ferguson waived his right to contest the search by failing to move to suppress the evidence as required by Federal Rule of Criminal Procedure 12(b)(3)(c), and (2) the petition is premature because a remedy exists pursuant to 28 U.S.C. § 2255 once the court sentences Ferguson. (Doc. 29 at 1.) Ferguson responds that he could not have moved to suppress under law applicable at the time of trial² and that requiring him to await relief through 28 U.S.C. § 2255 would involve unnecessary delay.

The U.S. Supreme Court has "limit[ed] the availability of the writ [of coram nobis] to `extraordinary' cases presenting circumstances compelling its use `to achieve justice.'" United States v. Denedo, ___ U.S. ___, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009) (citing United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). The Court has observed that "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) (brackets in original) (citing United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)).

The court's authority to vacate a conviction through a writ of coram nobis derives from the All Writs Act, 28 U.S.C. § 1651. "[T]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle, 517 U.S. at 429, 116 S.Ct. 1460. Ultimately, issuance of a writ of coram nobis lies within the discretion of the court. See Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir.2008); Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.2000); United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000).

Courts have found the writ inappropriate when relief through habeas corpus may be sought. E.g., Denedo, 129 S.Ct. at 2221 ("Another limit . . . is that an extraordinary remedy may not issue when alternative remedies, such as habeas corpus, are available."); United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001) (noting coram nobis is only available when a section 2255 motion is unavailable, "generally, when the petitioner has served his sentence completely and thus is no longer `in custody' as required for § 2255 relief"); United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997) ("If [the defendant] was `in custody' within the meaning of § 2255 when he filed his appeal, then the statutory remedies of that provision were available to him, and coram nobis relief was unavailable as a matter of law."); see also United States v. Barrett, 178 F.3d 34, 54-55 (1st Cir.1999) (finding coram nobis inappropriate because section 2255 was applicable, even though it barred second petition); United States v. Bush, 888 F.2d 1145, 1147 (7th Cir.1989) ("Contemporary coram nobis matters only after custody expires. . . ."); Madigan v. Wells, 224 F.2d 577, 578 n. 2 (9th Cir.1955) (same).³

A federal remedy under 28 U.S.C. § 2255 is available to contest a conviction once a prisoner is in custody "under sentence of a [federal] court." 28 U.S.C. § 2255(a). Ferguson's petition was filed a little over two weeks before his sentencing and was heard on the day he was scheduled to be sentenced. Thus, Ferguson was on the cusp of being eligible to file his appeal and a section 2255 motion.

These facts distinguish this case from the vast majority of coram nobis cases. Neither party has cited any authority granting or denying a writ of coram nobis for a defendant in custody between conviction and sentencing. Nor has the court located any Supreme Court or reported Fourth Circuit precedent directly on point.⁴

Here, Ferguson is in federal custody pending his imminent sentencing and is not without a remedy, as he has the ability to file a direct appeal and seek relief under section 2255, once sentenced. He argues strongly that the delay in pursuing these remedies is unwarranted given the strength of the alleged error. In addressing the merits of his claim, however, it is apparent that Ferguson fails to make a compelling case for relief under coram nobis because he has not demonstrated that he is entitled to relief under Arizona v. Gant, as noted below.

B. Defendant's Expectation of Privacy

The Government argues that Ferguson lacks standing to contest the vehicle search because, as a passenger, he did not have a reasonable expectation of privacy in the area searched.⁵ (Doc. 29 at 3.) Based on Ferguson's request and as a matter of judicial efficiency, the court gave Ferguson an opportunity to establish an expectation of privacy in the vehicle to entitle him to challenge the constitutionality of the search and seizure.

"Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (internal quotation marks and citation omitted); United States v. Gray, 491 F.3d 138, 144 (4th Cir.2007). To challenge a search under the Fourth Amendment, the defendant must have a "legitimate expectation of privacy" in the area searched. Rakas, 439 U.S. at 143, 99 S.Ct. 421. A "legitimate" expectation of privacy requires not only a subjective expectation of privacy in the searched premises, but also an objective expectation "that society is prepared to recognize as reasonable." Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (internal quotation marks and citation omitted). The burden of proof rests with the defendant. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Gray, 491 F.3d at 144; cf. United States v. Vega, 221 F.3d 789, 795 (5th Cir.2000) (defendant must prove by a preponderance of the evidence); United States v. Cantley, 130 F.3d 1371 (10th Cir. 1997) (same).

"[D]efendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). "Legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest," but such possession may be a factor in...