                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                            FILED
                                                                       U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                            AUGUST 8, 2000
                                        No. 99-14934
                                                                          THOMAS K. KAHN
                                                                               CLERK

                           D. C. Docket No. 88-03100-CR-RV


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellant,

       versus

OCIE MILLS, CAREY MILLS,

                                                            Defendants - Appellees.



                      Appeal from the United States District Court
                          for the Northern District of Florida

                                      (August 8, 2000)

Before CARNES, MARCUS, and FARRIS*, Circuit Judges.

FARRIS, Circuit Judge:


__________________
*Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
      We decide whether the defendants-appellees, Ocie Mills and Carey Mills, may

seek extraordinary relief by way of a writ of coram nobis based on their allegation that

jurors in their criminal trial considered extrinsic evidence. We reverse and remand for

entry of judgment for the government.

      The material facts are undisputed. In 1989, following a jury trial, the Millses,

father and son, were convicted of discharging pollutants and unlawfully excavating

a canal in the waters of the United States, in violation of the Clean Water Act, 33

U.S.C. § 1251 et seq., and the Rivers and Harbors Act, 33 U.S.C. § 403 et seq.,

respectively. The unlawful conduct in question was the Millses’ (1) placement of red

clay landfill on lots they had purchased knowing that the United States Army Corps

of Engineers, having designated a portion of the land a wetland, required a permit for

any further development, and (2) enlargement of an existing drainage ditch. See Mills

v. United States, 36 F.3d 1052, 1054 (11th Cir. 1994) (per curiam).

      Both were sentenced to twenty-one months’ imprisonment, one year of

supervised release, and a fine of $5,000. The convictions were summarily affirmed

on direct appeal. See United States v. Mills, 904 F.2d 713 (11th Cir. 1990).




                                           2
      In 1990, Ocie Mills filed a Bivens1 action challenging his arrest and

prosecution. The district court dismissed the complaint. The Eleventh Circuit

affirmed the dismissal.

      In 1991, the district court denied the Millses’ motion to vacate their sentences

under 28 U.S.C. § 2255. See United States v. Mills, 817 F. Supp. 1546 (N.D. Fla.

1993). That decision, too, was affirmed on appeal. See Mills, 36 F.3d 1052, 1057

(11th Cir. 1994). The United States Supreme Court denied certiorari. See United

States v. Mills, 514 U.S. 1112 (1995).

      As of November 21, 1991, the Millses had completed their terms of

imprisonment and supervised release.

      On April 11, 1996, the Millses filed a petition for writ of error coram nobis.

The basis for the petition was an attached affidavit from Quentin Wise, one of the

jurors in the Millses’ 1989 criminal trial. Wise contacted Ocie Mills after seeing Mills

air his grievances against the government in a television program. Wise’s affidavit

stated that the foreman of the jury, Thomas J. Smith, had given the jury unfavorable

information about the Millses that had not been introduced into evidence at trial.

According to the affidavit, the source of Smith’s extrinsic information was Smith’s



      1
            Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
                                           3
son, who allegedly had worked for the “State of Florida Water Management” and was

familiar with the Millses and their previous misconduct and problems with the

government. Wise’s affidavit also stated that Wise felt intimidated by jury foreman

Smith.

      The district court declined to adopt the report and recommendation and instead

concluded that the Millses had stated a cognizable basis for relief. It remanded the

matter to the magistrate judge for an evidentiary hearing on the substance of the

Millses’ allegations of jury misconduct. The district court denied the government’s

motion for reconsideration, but granted its motion under 28 U.S.C. § 1292(b) to

certify this matter for interlocutory appeal. By order dated December 3, 1999, we

granted the government permission to appeal under § 1292(b).

                        THE PARTIES’ CONTENTIONS

      A.     The Government’s Position

      Relying primarily on United States Supreme Court authority, the government

contends that the basis for the Millses’ coram nobis petition – newly discovered

evidence that the jury considered extrinsic evidence and therefore was not impartial–is

unavailable to remedy alleged “prejudicial misconduct in the course of the trial, the

misbehavior or partiality of jurors, and newly discovered evidence.” See United

States v. Mayer, 235 U.S. 55, 69 (1914); United States v. Morgan, 346 U.S. 502, 512


                                          4
(1954). The government points out that the writ of coram nobis is available only to

remedy errors “of the most fundamental character,” see Mayer, 235 U.S. at 69, and

argues that expanding the availability of coram nobis relief by permitting the Millses

to proceed would undermine the finality of criminal convictions and the sanctity of

jury deliberations.

       B.     The Millses’ Position

       The Millses contend that the government has misread Mayer, which, in their

view, does not foreclose pursuit of coram nobis relief on the basis they have asserted.

In the Millses’ view, coram nobis relief is available where, as here, it is necessary to

achieve justice when no other remedy is available and sound reasons exist for failure

to seek earlier relief.

                                   DISCUSSION

       The issue is purely a question of law, which we review de novo. See United

States v. Duarte-Acero, 208 F.3d 1282, 1284 (11th Cir. 2000).

       Federal courts have authority to issue a writ of error coram nobis under the All

Writs Act, 28 U.S.C. § 1651(a). The writ of error coram nobis is an extraordinary

remedy of last resort available only in compelling circumstances where necessary to

achieve justice. See United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 1997).

A court’s jurisdiction over coram nobis petitions is limited to the review of errors “of


                                           5
the most fundamental character.” Mayer, 235 U.S. at 69.2 Such errors do not include

“prejudicial misconduct in the course of the trial, the misbehavior or partiality of

jurors, and newly discovered evidence.” Id. In addition, courts may consider coram

nobis petitions only where no other remedy is available and the petitioner presents

sound reasons for failing to seek relief earlier. See Morgan, 346 U.S. at 512.3

      The Millses have challenged the applicability of the holding in Mayer to this

case. The defendant in Mayer, Albert Freeman, was convicted in federal district court

of misuse of the mails. See Mayer, 235 U.S. at 56. He appealed his conviction. See

id. Ten months later, after the expiration of the term of court during which Freeman’s

judgment of conviction was entered, Freeman filed a motion in district court to set

aside his conviction or for a new trial.4 One of the grounds for the motion was

Freeman’s allegation that, during voir dire, one juror concealed a bias against


      2
             The writ of coram nobis has been abolished in civil cases. See Fed. R.
Civ. P. 60(b).
      3
              When Mayer was decided, district courts held formal terms of operation
lasting for a specified period. See 28 U.S.C.A. § 138 (West 1993)(in particular
Historical and Statutory Notes, 1948 Acts). A district court could entertain a motion
for new trial only if it was filed during the same term of court in which the judgment
was entered. See Mayer, 235 U.S. at 67-69; Fed. R. Civ. P. 77 advisory committee’s
note.
      4
             The government recognizes that no other remedy is available to the
Millses and that they have presented sound reasons for failing to seek relief earlier.


                                          6
Freeman. See id. at 57. Despite, (1) the expiration of the term of court during which

Freeman was convicted, and (2) Freeman’s pending appeal of his conviction, the

government purported to consent to the district court’s jurisdiction over the new trial

motion. District Court Judge Mayer granted the motion. The government obtained

an order from the court of appeals directing Judge Mayer to show cause why a writ

of prohibition should not issue forbidding the granting of a new trial.

       The Supreme Court held that the district court was without jurisdiction to

entertain Freeman’s new trial motion for two independent reasons: (1) the term during

which Freeman’s conviction issued had expired, and the facts did not warrant

recognizing any exceptions to this jurisdictional bar, see id. at 67-69, and (2) once

Freeman appealed his conviction in the court of appeals, the district court was

deprived of jurisdiction over his case despite the government’s purported consent, see

id. at 71.

       The Court explained that where errors of the most fundamental character

existed, a district court might have “correctional jurisdiction” like that available at

common law under coram nobis. Id. at 69. The Court, however, explicitly refused to

decide whether the writ of coram nobis remained an available remedy in the federal

courts, and further stated that, even if it was, such relief would be unavailable to

Freeman. See id. at 69. The Court ultimately held that the proper remedy “[i]n cases


                                          7
of prejudicial misconduct in the course of trial, the misbehavior or partiality of jurors,

and newly discovered evidence” is “by a motion for a new trial.” Id.

       Subsequent controlling opinions have confirmed the applicability in federal

courts of the writ of coram nobis and, moreover, have treated Mayer as the source of

the applicable rule governing the circumstances under which coram nobis relief is

available. Specifically, the Court in United States v. Morgan, 346 U.S. 502, 512-13

(1954), citing Mayer, held that criminal defendants could pursue coram nobis relief

to remedy errors “of the most fundamental character.” Morgan, 346 U.S. at 512

(citation omitted).5

       Post-Morgan decisions by the Supreme Court, the Fifth Circuit, and the

Eleventh Circuit have treated Mayer as the source of the controlling rule on the

availability of coram nobis relief. See Carlisle v. United States, 517 U.S. 416, 428-29

(1996) (citing Mayer for the applicable standard governing coram nobis petitions, and

stating that it is difficult to conceive of a situation in a federal criminal case today in

which coram nobis relief would be necessary or appropriate); United States v.

Addonizio, 442 U.S. 178, 186 (1979) (citing Mayer for the proposition that coram

nobis relief is limited to errors of the most fundamental character); Lowery v. United


       5
             The circumstances in Morgan warranting the defendant’s pursuit of
coram nobis relief were his allegations that, without his competent waiver, the district
court had failed to appoint him counsel. See id. at 504.
                                            8
States, 956 F.2d 227, 230 (11th Cir. 1992) (per curiam) (treating Mayer standard as

controlling); Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989) (treating

Mayer standard as controlling, and affirming denial of coram nobis petition based on

allegations of newly discovered evidence); Granville v. United States, 613 F.2d 125,

126 n.1 (5th Cir. 1980) (per curiam) (treating Mayer standard as controlling); United

States v. Carter, 437 F.2d 444, 445 (5th Cir. 1971) (same).

      We understand why the district court might consider juror misconduct to be an

error of the most fundamental character. Were we writing on a clean slate, we might

agree because, as a theoretical proposition, this argument is not without

persuasiveness. After all, the Sixth Amendment expressly guarantees the right to trial

by an impartial jury, and the United States Supreme Court has characterized this right

as one of the few most fundamental interests guaranteed by the Constitution. See

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991).

      Nevertheless, the argument that allegations of jury impartiality should be

cognizable on coram nobis as error of the most fundamental character may be

compelling, but it is not the law. See Mayer, 235 U.S. at 69.

      [The Supreme Court has told us] more than once . . . that, “[i]f a
      precedent of this Court has direct application in a case, yet appears to rest
      on reasons rejected in some other line of decisions, the Court of Appeals
      should follow the case which directly controls, leaving to this Court, the
      prerogative of overruling its own decisions.” Rodriguez de Quijas v.
      Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917,

                                           9
          1921-22, 104 L.Ed.2d 526 (1989); accord, e.g., Agostini v. Felton, 521
          U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) (We do not
          acknowledge and we do not hold that other courts should conclude our
          more recent cases have, by implication, overruled an earlier precedent.”).
          We have followed that admonition. See Brisentine v. Stone & Webster
          Engineering Corp., 117 F.3d 519, 525 (11th Cir. 1997)(“It may be that
          the Supreme Court has cut Alexander [v. Garner-Denver Co., 415 U.S.
          36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)] back so far that it will not
          survive. Perhaps, but we are not convinced we are authorized to sing the
          dirge of Alexander. We will leave that to the Supreme Court, which has
          admonished courts of appeals . . . ‘[to leave it] the prerogative of
          overruling its own decisions.’”)(quoting Rodriguez de Quijas, 490 U.S.
          at 484, 109 S.Ct. at 1921-22); Engineering Contractors Ass’n v.
          Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir. 1997).

Jefferson County v. Acker, 210 F.3d 1317, 1319 (11th Cir. 2000).

          Relying on Mayer, we have held that allegations of newly discovered evidence

are not cognizable in a petition for coram nobis. See Moody, 874 F.2d at 1577

(holding that coram nobis is improper vehicle for claims of newly discovered

evidence, and observing that coram nobis petitions are similar to motions for new

trial).

          We therefore reject the Millses’ argument that the government’s reading of

Mayer is incorrect. In the Millses’ view, Mayer simply decided that Freeman could

not seek relief in district court because he had another remedy available to him, i.e.,

pursuit of the appeal of his conviction.

          The Millses, however, are mistaken. The Court’s two grounds for concluding

that the district court lacked jurisdiction in Mayer were independent, each alone

                                             10
sufficient to dispose of the case. The Supreme Court’s holding in Mayer that

Freeman’s appeal of his conviction deprived the district court of jurisdiction did not

affect its separate holding that Freeman had failed to allege error of a fundamental

character such as would have warranted pursuit of coram nobis relief at common law.



      We reverse and remand for entry of judgment for the government.

      REVERSED and REMANDED.




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