U.S. v. Peter, No. 01-16982.

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtPer Curiam
Citation310 F.3d 709
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael J. PETER, Defendant-Appellant.
Docket NumberNo. 01-16982.
Decision Date28 October 2002
310 F.3d 709
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael J. PETER, Defendant-Appellant.
No. 01-16982.
United States Court of Appeals, Eleventh Circuit.
October 28, 2002.

Page 710

Howard M. Srebnick, Black, Srebnick & Kornspan, P.A., Miami, FL, for Defendant-Appellant.

Dawn Bowen, Anne R. Schultz, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and FITZPATRICK*, District Judge.

PER CURIAM:


Michael J. Peter ("Peter") appeals the denial of his petition for a writ of error coram nobis. Peter has already served a sentence imposed in 1996 on his plea of guilty to a charge of racketeering conspiracy based on predicate acts of mail fraud. He argues on appeal that he is entitled to coram nobis relief because the Supreme Court's decision in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), established that the conduct with which he was charged is not proscribed by the statute he was convicted of violating.

Page 711

BACKGROUND

After several rounds of litigation over two separate indictments returned against him in 1994 and 1995, Peter pled guilty on May 31, 1996, to a superseding information that charged him with a single count of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). A plea agreement filed by the parties explicitly stated that the only predicate crime supporting the RICO conspiracy was mail fraud under 18 U.S.C. § 1341, based on Peter's admission to including misrepresentations in license applications he mailed to the Florida Division of Alcoholic Beverages and Tobacco. Pursuant to the parties' agreement regarding an appropriate sentence, the district court imposed a $25,000 fine and sentenced Peter to 24 months' incarceration, followed by two years of supervised release. Having pled guilty, Peter did not directly appeal his sentence or conviction, nor did he file a post-conviction motion seeking relief pursuant to 28 U.S.C. § 2255. He served his sentence of imprisonment and was released on May 6, 1998. His period of supervised release ended on May 5, 2000.

On November 7, 2000, the Supreme Court decided Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000). Roughly a year later, Peter filed a challenge to his RICO conviction by way of a petition for writ of error coram nobis, arguing that the Supreme Court's decision in Cleveland had established that the acts forming the basis for his guilty plea did not constitute the predicate crime of mail fraud. The government never responded to the petition. On November 27, 2002, without a hearing, the district court entered a summary order denying relief. Peter filed a timely notice of appeal from that order.

DISCUSSION

A district court's denial of coram nobis relief is reviewed for abuse of discretion, keeping in mind that "an error of law is an abuse of discretion per se." Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.2000).

In Cleveland, the Supreme Court held that the offense of mail fraud, as defined by 18 U.S.C. § 1341, requires that the object of the fraud "be property in the hands of the victim. State and municipal licenses in general ... do not rank as `property,' for purposes of § 1341, in the hands of the official licensor." 531 U.S. at 15, 121 S.Ct. 365. The misrepresentations alleged in the superseding information to which Peter pled guilty were made solely for the purpose of obtaining alcoholic beverage licenses from the State of Florida. Thus, the facts to which Peter pled guilty did not constitute a crime under Cleveland. Decisions of the Supreme Court construing substantive federal criminal statutes must be given retroactive effect. Bousley v. United States, 523 U.S. 614, 620-21, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

Peter argues that because his conduct was never a crime under § 1341, he is entitled to a writ of error coram nobis to invalidate the judgment. The government does not dispute Peter's reading of Cleveland. Rather, the government argues that Peter procedurally defaulted the present claim when he abandoned pretrial challenges, pled guilty, and declined to appeal. In the government's view, Peter's coram nobis petition must now be dismissed because Peter has not made any showing that qualifies him to proceed under an exception to the doctrine of procedural default. We conclude that the error demonstrated by Peter is of a kind that warrants relief despite his decision not to contest the government's charge at the time of his plea.

Page 712

A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255. As the Supreme Court explained in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), coram nobis relief is available after sentence has been served because "the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected." Id. at 512-13, 74 S.Ct. 247. Routine grant of coram nobis relief, however, would undermine the finality of criminal convictions, a finality achieved in most federal cases either at the time a conviction is affirmed on appeal or at the expiration of the period during which an appeal remains available. Due regard for the finality of criminal convictions counsels special restraint in the review of collateral attacks on convictions entered pursuant to guilty pleas. Failure to appeal such convictions waives challenges based on many types of error in the proceedings which culminated in entry of the plea. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (failure to appeal defaults claim that plea was not knowing and voluntary as result of district court's failure to inform defendant of nature of offense); United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (refusing to entertain collateral attack based on "technical violation" in plea proceeding conducted pursuant to Federal Rule of Criminal Procedure 11). In giving force to this procedural bar, the Supreme Court has "strictly limited the circumstances under which a guilty plea may be attacked on collateral review." Bousley, 523 U.S. at 621, 118 S.Ct. 1604.

At the same time, the law recognizes that there must be a vehicle to correct errors "of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid." Morgan, 346 U.S. at 509 n. 15, 74 S.Ct. 247 (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914)); see also United States v. Mills, 221 F.3d 1201, 1204 (11th Cir.2000). In essence, the writ of error coram nobis acts as an assurance that deserved relief will not be denied as a result of the technical limitations of other post-conviction remedies. See Romualdo P. Esclavea, Availability, Under 28 U.S.C.A. § 1651, Of Writ of Error Coram Nobis to Vacate Federal Conviction Where Sentence Has Been Served, 38 A.L.R. Fed 617, § 2(a) (1978). In order to determine whether Peter is entitled to relief, therefore, we must determine whether the error comprised by a district court's acceptance of his plea was of such a "fundamental character" as to have "rendered the proceeding itself irregular and invalid." Morgan, 346 U.S. at 509 n. 15, 74 S.Ct. 247.

One type of claim that has historically been recognized as fundamental, and for which collateral relief has accordingly been available, is that of "jurisdictional" error. See, e.g., United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) ("Habeas corpus has long been available to attack convictions and sentences entered by a court without jurisdiction."); Keel v. United...

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  • United States v. Parker, Case Nos. 2:13–CR–15–MR–DLH
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 1, 2014
    ...a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715–16 (11th Cir.2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereaf......
  • United States v. Parker, Case Nos. 2:13–CR–15–MR–DLH, 2:13–CR–16–MR–DLH.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 1, 2014
    ...a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715–16 (11th Cir.2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereaf......
  • United States v. Izurieta, No. 11–13585.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 22, 2013
    ...that the failure to allege a crime in violation of the laws of the United States is a jurisdictional defect. United States v. Peter, 310 F.3d 709, 713–14 (11th Cir.2002); see United States v. McIntosh, 704 F.3d 894, 901–03 (11th Cir.2013) (differentiating between jurisdictional and technica......
  • United States v. Tobin, Nos. 09–13944
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 2012
    ...1161 (11th Cir.2009) (en banc). A district court abuses its discretion, however, if it commits an error of law. United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002). We review de novo questions of law. See Murrell, 368 F.3d at 1285. We review for abuse of discretion a district court's ......
  • Request a trial to view additional results
205 cases
  • United States v. Parker, Case Nos. 2:13–CR–15–MR–DLH
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 1, 2014
    ...a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715–16 (11th Cir.2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereaf......
  • United States v. Parker, Case Nos. 2:13–CR–15–MR–DLH, 2:13–CR–16–MR–DLH.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 1, 2014
    ...a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715–16 (11th Cir.2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereaf......
  • United States v. Izurieta, No. 11–13585.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 22, 2013
    ...that the failure to allege a crime in violation of the laws of the United States is a jurisdictional defect. United States v. Peter, 310 F.3d 709, 713–14 (11th Cir.2002); see United States v. McIntosh, 704 F.3d 894, 901–03 (11th Cir.2013) (differentiating between jurisdictional and technica......
  • United States v. Tobin, Nos. 09–13944
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 2012
    ...1161 (11th Cir.2009) (en banc). A district court abuses its discretion, however, if it commits an error of law. United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002). We review de novo questions of law. See Murrell, 368 F.3d at 1285. We review for abuse of discretion a district court's ......
  • Request a trial to view additional results

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