UN`ITED STATES DISTRICT COURT
FOR 'i`HE DlSTRlCT OF COLUMBIA

 

 

 

UNITED STATES OF AMER]CA,
V- Criminal No. 06~cr-14l (CKK)
ROBERT JENKINS,
Defendant.
MEMORANDUM ()PINI_ON

 

(June11,2018)

Pending before this Court is Defendant’s Writ ofError Corcrm Nobis and Motion to Vacate
Conviction, ECF No. 47, which was recharacterized by this Court as a Motion to Vacate, Set
Aside or Correct the Sentence Pursuant to 28 U.S.C, Section 2255. See February 20, 2018
Memorandum Opinion and ()rder, ECF No. 56, at 77 (noting the recharacterization of the motion
and stating that c‘[i]n the event that Defendant Robert Jenkins does not elect to withdraw or amend
his Motion . . ., this Court will issue a ruling on the l\/Iotion as it currently stands.”) Further pending
before this Court is Defendant’s Pro Se Motion to Withdraw and Replace in Part ECF No_ [47]
with Res Nova, ECF No. 62. For the reasons set forth herein, both motions shall be DENIED.

On March 14, 2001 Def`endant Robert lenl<ins was sentenced to one year and one day of
inoarceration, followed by three years of supervised release, 100 hours of community serviee, and
a 3100 special assessment for court costs after pleading guilty to one count of unlawful possession
of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a
term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Following completion of his term

of imprisonment, Det`endant’s supervised release was terminated unsuccessfully on March 29,

20111. See J'udgment for Revocation of Supervised Release, ECF No. 46. Defendant is currently
incarcerated at the Low Security Correctional Institution in Butner, Noith Carolina.

On November 16, 2016, pro se Defendant Robert Jenkins (“Defendant”), acting pro .s'e,
filed a Writ of Error Cr)l‘cim NOI)I'S and Motion to Vacate Conviction (“Motion”), for which leave
to file was granted by this Court. See Def. ’s Mot., ECF No. 47_ Defendant’s Motion sought reiief
in the form of a writ of error coram nobis and audita querela as well as the vacating of his
conviction ]d. Defendant claimed that his 2007 sentence had been imposed unjustly because lie
was allegedly convinced to enter a guilty plea on the 18 U.S.C. § 922(g)(1) charge despite not
having been a felon at the time he possessed the firearm Defendant argued that his only prior
conviction was a Maryland possession of cocaine charge, which was designated as a misdemeanor
in Maryland even though it was punishable by up to four years imprisonment2 I`d. ()n lanuary
i7, 20l7, the Government filed its Opposition to the Defendant’s Motion, and Defendant replied
thereto on March 8, 2017. See Govt.’s Opp’n, ECF No_ 525 Defs Reply, ECF No. 55_

Atter a careful review of the record in this case, the Court issued a l\/lemorandum Opinion
and Order which recharacterized Defendant’s Motion as a Motion to Vacate, Set Aside, or Correct
the Sentence under 28 U.S.C. § 2255. The rationale contained in that Memorandum Opinion and
Order, ECF No. 56, is incorporated by reference herein and summarized as follows The Court

determined that a write of error comm nobis was not a remedy which was available to the

 

l Defendant’s supervised release began on April 7, 2008 and was scheduled to end on April 11,
2011. Report and Recornrnendation, ECF No. 42. ln 2010, Defendant committed two violations
of the terms of his supervised release Id. His supervised release was subsequently revoked and
terminated unsuccessfully on March 29J 2011. See J`udgment for Revocation of Supervised
Release, ECF No. 46.

3 Prior to the Defendant’s plea hearing, this Court determined that the Defendant’s underlying
conviction for misdemeanor possession of cocaine in the State of l\/I.aryland qualified as a
predicate offense because the maximum term of imprisonment for the offense was up to four
years See Def’ s Sentencing Memorandum, ECF No. 22.

2

Defendant because he was and continues to _be in federal custody. Nor was a writ of audita cc)r'ela
applicable to the facts at issue because “Defendant’s argument [was] not that new considerations
have arisen since his conviction that warrant vacating his sentence, but rather that his conviction
was unjust When rendered.” See Mem Op., ECF No. 56, at 4-5. Because Defendant did not meet
the requirements for either coram uobis or audita querela relief, the Court determined that his
claims may be addressed pursuant to a motion to vacate, set aside, or correct his sentence under
28 U.S. C. § 2255.

In its Memoranduni Opinion and Order, the Court notified Defendant that it intended to
treat his Motion as a motion pursuant to Section 2255, and warned Defendant that any subsequent
motion pursuant to that section would be a “second or successive” motion, subject to the
restrictions set forth in Section 225 S(h). The Court explained further that the statute of limitations
for Section 2255 motions requires filing within one year of the date the judgment becomes final_
See 28 U.S.C. § 2255(0 The Court permitted Defendant “to withdraw his present motion or,
alternatively, to amend it so that it contains all of the claims cognizable under 28 U.S.C. § 2255
Defendant may have.” Mem. Op. & Order, ECF No. 56, at 6.

On June 5, 2018, this Court approved the filing of “Defendant’s Pro Se Motion to
Withdraw and Replace in Part ECF No. [47] with Res Nova.” See Def.’s Mot. to Withdraw and
Replace, ECF No_ 62. Defendant’s instant Motion to Withdraw and Replace does not add any
claims cognizable under Section 2255 but instead reiterates his argument urging the Court to
consider a writ of error comm nobis FurthermoreJ while Defendant “withdraw[s] in part” his
argument based on a writ of audita querela, he also continues to argue that audita querela applies

Defendant ignores that this Court has already determined that neither of these theories is applicable

to his request that his sentence be vacated, set aside or corrected, and accordingly his Motion to
Withdraw and Replace shall be DENIED.

This Court’s Memorandum Opinion and Order explained that 28 U.S.C. Section 2255
provides the proper post-conviction mechanism to address the Defendant’s claim that the predicate
offense supporting his subsequent 18 U.S.C. Section 922(g)(l) guilty plea was insufficient to
support his convictionl See Moss v. UnitedStates, 323 F.3d 445, 454 (6th Cir. 2003) (Section 2255
may be invoked to address an error of fact or law so fiindamental as to render the entire proceeding
invalid.) As previously noted, Section 2255 imposes a l-year limitation period for filing such
claimsl See 28 U.S.C. § 2255 (t). In the instant case, Defendant pled guilty on October 27, 2006,
and he was sentenced on March 14, 2007. He did not appeal his conviction or sentence and waited
until November 16, 2016, to file the motion challenging the sentence Accordingly, Defendant’s
motion for relief is untimely and his Writ of Error Coram Nobis and Motion to Vacate Conviction

shall be DENIED. A separate Order accompanies this Memorandum Opinion.

l
d l
cadc aaa aaa
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT IUDGE

