U.S. v. Swindall, No. 95-9556

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before BLACK, Circuit Judge, RONEY and HILL; PER CURIAM
• Citation: 107 F.3d 831
• Parties: 10 Fla. L. Weekly Fed. C 758 UNITED STATES of America, Plaintiff-Appellee, v. Patrick L. SWINDALL, Defendant-Appellant.
• Docket Number: No. 95-9556
• Decision Date: 14 March 1997

Page 831

107 F.3d 831 10 Fla. L. Weekly Fed. C 758 UNITED STATES of America, Plaintiff-Appellee,
v.
Patrick L. SWINDALL, Defendant-Appellant. No. 95-9556. United States Court of Appeals,
Eleventh Circuit. March 14, 1997.

Page 832

Patrick L. Swindall, Stone Mountain, GA, pro se.

William P. Gaffney, Asst. U.S. Atty., Atlanta, GA, Kathleen A. Felton, U.S. Dept. of Justice, Criminal Division, Appellate Sec., Washington, DC, for plaintiff-appellee.

Page 833

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, Circuit Judge, RONEY and HILL, Senior Circuit Judges.

PER CURIAM:

Appellant Patrick L. Swindall appeals the district court's denial of his pro se petition collaterally challenging his convictions on six counts of perjury. We affirm.

I. BACKGROUND

A more comprehensive statement of the facts is set forth in this Court's opinion in United States v. Swindall, 971 F.2d 1531, 1534-39 (11th Cir.1992). Over seven years ago in June 1989, a jury convicted Appellant on nine counts of making false material declarations before a grand jury, in violation of 18 U.S.C. § 1623. The indictment charged that Appellant had discussed money-laundering transactions with an undercover agent and an intermediary and then falsely testified to a grand jury to conceal the extent of his involvement in these discussions. He was sentenced to concurrent terms of twelve months' imprisonment on each count and fined $30,000. Appellant appealed his conviction and subsequently filed two motions in the district court asserting that the prosecution's suppression of favorable evidence entitled him to either dismissal of the indictment or a new trial. ¹ On August 31, 1992, we affirmed his convictions on six of nine counts, but reversed convictions on three counts on Speech or Debate Clause grounds. United States v. Swindall, 971 F.2d 1531 (11th Cir.1992). In the same appeal, we also affirmed the district court's denial of Appellant's motions for dismissal or new trial. The Supreme Court denied certiorari on January 10, 1994. Swindall v. United States, 510 U.S. 1040, 114 S.Ct. 683, 126 L.Ed.2d 650 (1994).

On January 13, 1994, Appellant filed a motion under 28 U.S.C. § 2255, asserting, as he had done previously, that the prosecution's suppression of favorable evidence entitled him to either dismissal of the remaining six counts of conviction or a new trial. ² The district court denied the motion, and we affirmed. United States v. Swindall, 38 F.3d 574 (11th Cir.1994). Appellant completed service of his sentence in early 1995.

On September 6, 1995, Appellant filed a petition pursuant to 28 U.S.C. § 1651(a) seeking a writ of error coram nobis, arguing that his convictions should be vacated because of the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Gaudin decision invalidated the longstanding rule that the issue of materiality in false statement prosecutions is a question of law for the court, holding that it is a violation of the Fifth and Sixth Amendments not to submit that question to the jury. Id. at ----, 115 S.Ct. at 2314. Appellant's trial concluded well before the Gaudin opinion was issued on June 19, 1995. At trial, the judge followed the rule then in effect in the Eleventh Circuit and decided the issue of materiality without submitting that question to the jury. Appellant did not object to the court's determination of materiality either at trial or on direct appeal. ³ The district court denied Appellant's § 1651(a) petition for a writ of error coram nobis, holding that his claim was barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as well as procedurally defaulted because of his failure to object at trial or raise the issue on appeal. The instant appeal followed.

II. STANDARD OF REVIEW

A Teague issue is purely one of law, and this Court reviews the district court's decision of it de novo. Spaziano v. Singletary, 36 F.3d 1028, 1041 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995). The district court's application of the cause and prejudice standard to procedural default issues is reviewed de novo. Macklin v. Singletary, 24 F.3d 1307,

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1312-13 (11th Cir.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995). The standard of review applicable to abuse of the writ issues is de novo as well. Id. at 1313.

III. DISCUSSION

A. Writ of Error Coram Nobis

Federal courts have authority to issue a writ of error coram nobis under the All Writs Act, now codified as 28 U.S.C. § 1651(a). The writ of error coram nobis is a limited remedy of last resort: "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954); see Lowery v. United States, 956 F.2d 227, 228-29 (11th Cir.1992); Moody v. United States, 874 F.2d 1575, 1576-77 (11th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990); Rener v. United States, 475 F.2d 125, 127 (5th Cir.1973) (writ should be allowed only to "remedy manifest injustice").

In this case, Appellant attempts to do what the Supreme Court in Morgan instructed should be allowed in only the most compelling circumstances. Appellant seeks to continue litigating the legality of his conviction after his conviction has become final and he has exhausted his statutory right of review under 28 U.S.C. § 2255. The Supreme Court addressed the same concerns in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), where it held that a case decided after a petitioner's conviction and sentence became final generally may not be the basis for vacating that conviction. See also Stringer v. Black, 503 U.S. 222, 227, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992); Spaziano, 36 F.3d at 1042. The Supreme Court explained that the application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our legal justice system. Teague, 489 U.S. at 309, 109 S.Ct. at 1074. In Teague, the Supreme Court accommodated the competing demands of respecting good faith interpretations of existing law and assuring that individuals are not punished in a manner inconsistent with the Constitution by creating two narrow situations where new rules will be applied retroactively. Id. at 305-10; 109 S.Ct. at 1073-75. Consistent with these principles, we hold that if Teague bars a petitioner's claim relying on a case decided after his conviction and sentence became final, then he has not suffered such compelling injustice that would deserve relief pursuant to a writ of error coram nobis. In other words, if Appellant's claim is Teague-barred, then it is clearly outside the extremely limited scope of a writ of error coram nobis.

B...