                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3699
                        ___________________________

                              Keith Byron Baranski

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                            United States of America

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                         Submitted: September 20, 2017
                            Filed: January 23, 2018
                                ____________

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       In November 2002, a jury convicted Keith Baranski, a federally licensed
firearms dealer, of conspiracy to import machine guns from Eastern Europe by
submitting forms with false entries to the Bureau of Alcohol, Tobacco and Firearms
(ATF). The district court1 imposed a sentence of sixty months in prison and three
years of supervised release. Baranski appealed; we affirmed. United States v.
Baranski, 75 F. App’x 566 (8th Cir. 2003). The district court subsequently denied his
post conviction motion to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255; we again affirmed. Baranski v. United States, 2006 WL 472451 (E.D. Mo.
Feb. 27, 2006), aff’d, 515 F.3d 857 (8th Cir. 2008).

        Baranski completed serving his prison sentence and three years of supervised
release in August 2009. In 2011, he filed a Petition for Writ of Error Coram Nobis,
asserting violations of his constitutional rights at trial. As later amended, the Petition
asserted that new evidence establishes the government failed to disclose that it
promised cooperating conspirator James Carmi a further sentence reduction for his
testimony at trial; misled the court and the defense about Carmi’s incarceration
exposure; and deliberately withheld medical records tending to show that Carmi’s
trial testimony was tainted by amnesia and memory loss. After a two-day evidentiary
hearing, the district court dismissed the Petition in a thorough 72-page Memorandum
and Order. Baranski appeals. We affirm.

              I. The Writ of Error Coram Nobis in Federal Court.

      The writ of error coram nobis is an ancient common law remedy that modern
federal courts are authorized to issue under the All Writs Act, 28 U.S.C. § 1651(a).
See United States v. Morgan, 346 U.S. 502, 506 (1954). As applied in criminal cases,
coram nobis “is a step in the criminal case and not, like habeas corpus . . . the
beginning of a separate civil proceeding. . . . This motion is of the same general
character as one under 28 U.S.C. § 2255.” Id. at 505 n.4. First enacted in 1948,
§ 2255 is a comprehensive statutory remedy intended “to meet practical difficulties”


      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.

                                           -2-
of federal habeas corpus jurisdiction. United States v. Hayman, 342 U.S. 205, 219
(1952). The Reviser’s Note to § 2255 explained that the statute “restates, clarifies
and simplifies the procedure in the nature of the ancient writ of error coram nobis.
It provides an expeditious remedy for correcting erroneous sentences without resort
to habeas corpus.” Id. at 218.

       “[T]he All Writs Act is a residual source of authority . . . . Where a statute
specifically addresses the particular issue at hand, it is that authority, and not the All
Writs Act, that is controlling.” Carlisle v. United States, 517 U.S. 416, 429 (1996)
(quotation omitted); see United States v. Denedo, 556 U.S. 904, 911 (2009). Section
2255, like habeas corpus, is limited to persons “in custody.” Thus, “coram nobis
relief is available when the defendant is no longer in custody for the applicable
conviction, while custody is a prerequisite for habeas relief.” United States v.
Camacho-Bordes, 94 F.3d 1168, 1172 n.6 (8th Cir. 1996); see United States v. Little,
608 F.2d 296, 299 (8th Cir. 1979) (coram nobis and § 2255 are “substantially
equivalent” remedies).

        The Supreme Court held in Morgan that the enactment of § 2255 created no bar
to granting a writ of error coram nobis to a person who was convicted of a federal
crime but is no longer in custody. 346 U.S. at 511. However, the Court explained,
this “extraordinary remedy” should be allowed “only under circumstances compelling
such action to achieve justice.” Id. Coram nobis relief has been called the criminal-
law equivalent of the Hail Mary pass in American football. United States v. George,
676 F.3d 249, 251 (1st Cir. 2012). There is good reason for this reluctance. “The
further a case progresses through the remedial steps available to a criminal defendant,
the stiffer the requirements for vacating a final judgment. . . . The writ of error coram
nobis lies at the far end of this continuum.” Id. at 258.

        Res judicata does not apply to successive petitions for federal habeas or § 2255
relief. See Sanders v. United States, 373 U.S. 1, 14 (1963). However, limitations on

                                           -3-
the filing of successive habeas petitions in 28 U.S.C. § 2244(b), a federal habeas
statute, establish a “qualified application of the doctrine of res judicata.” McCleskey
v. Zant, 499 U.S. 467, 486 (1991), quoting S. Rep. No. 1797, at 2 (1966), 1966
U.S.C.C.A.N. at 3664. The Court in McCleskey defined an abuse-of-the-writ inquiry
that a petitioner must satisfy to warrant relief on a successive post-conviction habeas
or § 2255 petition. Id. at 489-96. Under Morgan, a petitioner who was denied § 2255
relief while serving his sentence and is no longer in federal custody may seek what
is in substance successive post-conviction relief by filing a petition for a writ of error
coram nobis. 346 U.S. at 505-06, 505 n.4. Unless he is required to make at least the
same showing as a prisoner who seeks successive § 2255 relief, “federal prisoners
might deliberately wait until after their sentences expire to challenge their
convictions.” United States v. Correa-De Jesus, 708 F.2d 1283, 1286 (7th Cir. 1983).

       In the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),
Congress imposed stricter limitations on the filing of second and successive § 2255
motions than the abuse-of-the-writ principles applicable under former § 2244(b) and
McCleskey. First, a second or successive § 2255 motion must now be authorized “by
a three-judge panel of the court of appeals.” 28 U.S.C. § 2244(b)(3)(B). This rule
may not be evaded “by simply filing a successive § 2255 motion in the district court.”
Boykin v. United States, 242 F.3d 373 (Table), No. 99-3369 at *1 (8th Cir. 2000).
Second, a court of appeals panel may not certify a second or successive § 2255
motion unless it contains:

             (1) newly discovered evidence that, if proven and viewed in light
      of the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that no reasonable factfinder would have found the
      movant guilty of the offense; or

             (2) a new rule of constitutional law, made retroactive to cases on
      collateral review by the Supreme Court, that was previously unavailable.



                                           -4-
§ 2255(h). Section 2255(h)(1) “alters the common law miscarriage of justice
exception . . . by changing the standard from ‘more likely than not’ to ‘clear and
convincing evidence.’” United States v. Williams, 790 F.3d 1059, 1076 (10th Cir.
2015). Given that habeas, § 2255, and criminal coram nobis relief are substantively
indistinguishable, a critical issue on this appeal, not addressed by the district court,
is whether AEDPA’s restrictions on successive § 2255 motions affect the availability
of coram nobis relief to a petitioner whose claim would be barred had he petitioned
for relief while still in federal custody.

       The first question is procedural: whether a coram nobis petitioner whose
motion for § 2255 relief was denied while he was in custody must obtain
authorization from a three-judge panel of the court of appeals in accordance with
§ 2244(b)(3)(B). Given the legislative history of these remedies -- in particular, the
Reviser’s Note explaining that § 2255 is a “procedure in the nature of the ancient writ
of error coram nobis” -- we believe that Congress, had it focused on this question,
would have required coram nobis petitioners in this situation to obtain court of
appeals authorization. But the restriction is in § 2244(b), which is plainly limited to
“a second or successive habeas corpus application,” and the cross-reference in
§ 2255(h) is similarly limited to a “second or successive [§ 2255] motion.” As
Congress did not impose this restriction on coram nobis petitioners seeking
successive post-conviction relief, we may not read it into the statutes.

        The second question is substantive: whether AEDPA’s restrictions on the grant
of successive relief set forth in § 2255(h)(1) and (2) limit the grant of coram nobis
relief to a petitioner whose motion for § 2255 relief was denied while he was still in
custody. We conclude the answer to this question must be yes. Congress and the
Supreme Court have reacted to “the increasing burden on federal courts caused by
successive and abusive petitions” by enacting and amending 28 U.S.C. § 2244(b) and
by refining and strengthening the Court’s equitable abuse-of-the-writ jurisprudence.
See McCleskey, 499 U.S. at 481-89. These efforts have been complementary, at least

                                          -5-
for the most part. The Supreme Court has ruled that, even when the terms of AEDPA
do not govern a particular case, “a court of appeals must exercise its discretion in a
manner consistent with the objects of the statute. In a habeas case, moreover, the
court must be guided by the general principles underlying our habeas corpus
jurisprudence.”      Calderon v. Thompson, 523 U.S. 538, 554 (1998). When a
procedural Rule 60(b) motion “is in substance a successive habeas petition [it] should
be treated accordingly.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Likewise,
we have stated that “[t]he writ of coram nobis may not be used to circumvent the clear
congressional directive embodied in the ‘second or successive’ provisions of § 2255.”
United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000).

       It is widely accepted that custody is the only substantive difference between
coram nobis and habeas petitions. See Chaidez v. United States, 133 S. Ct. 1103,
1106 n.1 (2013). Coram nobis relief is not available to a federal prisoner while in
custody, even if a successive § 2255 motion would be barred by AEDPA’s restrictive
standards. See United States v. Brown, 178 F. App’x 299 (4th Cir. 2006); United
States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000). Given that coram nobis is
an extraordinary remedy available at the far end of a post-conviction continuum only
for the “most fundamental” errors, Morgan, 346 U.S. at 512, it would make no sense
to rule that a petitioner no longer in custody may obtain coram nobis relief with a less
rigorous substantive showing than that required by AEDPA’s limitations for
successive habeas corpus and § 2255 relief. Therefore, we conclude that Baranski’s
coram nobis petition is subject to the restrictions on second or successive § 2255
motions set forth in § 2255(h)(1) and (2).

                                          II.

      Turning to the facts of this case, the trial testimony of cooperating conspirators
James Carmi and Jeff Knipp, corroborated by other government witnesses and
extensive documentary evidence, established that Baranski obtained machine guns

                                          -6-
in Eastern Europe and placed them in a bonded customs warehouse; Carmi used
bribes to obtain fictitious letters from Knipp, chief of police of Farber, Missouri, and
other law enforcement officials requesting demonstrations or indicating a desire to
purchase the weapons; and Baranski used those letters to fraudulently remove
machine guns from the customs warehouse and sell them to Carmi. See 26 U.S.C.
§§ 5844(1), 5861(l).

       Baranski alleged that his conviction and sentence should be vacated because
the government violated the constitutional principles of Brady v. Maryland, 373 U.S.
83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by (i) failing to disclose
that it offered Carmi a Rule 35 sentence reduction in return for his testimony at
Baranski’s trial, and letting Carmi falsely testify that he had not asked for and
expected no further reduction; (ii) failing to turn over medical records regarding
Carmi’s mental problems and memory loss following a May 2000 motorcycle
accident -- records that could have been used for impeachment purposes; (iii) failing
to disclose Carmi’s PSR and allowing Carmi to testify falsely about his sentence
exposure; and (iv) vindictively prosecuting Baranski for filing a Bivens action
challenging the seizure of his firearms.

       After a two-day evidentiary hearing, the district court rejected all claims on the
merits and dismissed the coram nobis petition. First, the court found that Carmi was
not promised a Rule 35 sentence reduction in exchange for testifying against
Baranski. Moreover, “[t]he jury that found Mr. Baranski guilty heard Carmi testify
his sentence was cut in half for agreeing to cooperate against Mr. Baranski,” so he
“failed to show the likelihood of a different result great enough to undermine
confidence in the outcome of the trial.” Second, the court found that Carmi testified
“extensively and truthfully” regarding his injury and memory loss issues. None of the
documents relating to mental condition and memory loss “would have opened a new
line of impeachment or provided a different avenue of impeachment.” There was no
Brady violation because the records not produced were “similar to and largely

                                          -7-
cumulative of the information that was available to Mr. Baranski’s defense team
before trial.”

       Third, the court found that the government did not mislead the defense
regarding Carmi’s incarceration exposure. Baranski has not shown “a reasonable
probability that had the PSR’s incorrect sentencing range [for Carmi] been disclosed,
the result of the proceeding would have been different, such that confidence in the
outcome of the trial is undermined.” Finally, the court found that the allegation of
vindictive prosecution was factually without merit.

       The district court’s lengthy Memorandum and Order noted that defense
counsel’s cross examination at trial included “Carmi’s mental health and memory
loss, the charges Carmi pleaded guilty to, his sentencing exposure, promises the
Government made to Carmi . . . and the benefits he received, and the possibility of
Carmi receiving a motion pursuant to Rule 35.” The court further noted “there was
corroborated evidence and testimony, including Mr. Baranski’s own personal
communications to Carmi, concerning the criminal scheme charged in the case.” The
court concluded “that Mr. Baranski has failed to meet his burden to establish that he
is entitled to the extraordinary relief of coram nobis.”

       On appeal, in addition to challenging all the district court’s essential findings,
Baranski argues he is entitled to coram nobis relief because, if the government had
made the required disclosures and not elicited false testimony, “there is a reasonable
probability that . . . the result of the proceeding would have been different,” the
standard for determining whether a Brady/Giglio violation is material. Smith v. Cain,
132 S. Ct. 627, 630 (2012). As we have explained, that is not the proper standard for
obtaining substantively successive post-conviction coram nobis relief. Rather,
Baranski must present “newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the

                                          -8-
offense.” 28 U.S.C. § 2255(h)(1).2 He has no new evidence relating to the elements
of the offense that would support a claim of actual innocence, only allegedly new
information that no doubt would have expanded defense counsel’s cross examination
and attempted impeachment of cooperating conspirator Carmi on subjects that were
extensively explored at trial. Applying the proper § 2255(h) substantive standard, the
district court did not abuse its discretion in concluding that no “fundamental” error
warranted issuing an extraordinary writ of error coram nobis.

      The Order of the district court dated March 31, 2016 is affirmed.
                      ______________________________




      2
      Baranski is not relying on a new, retroactive rule of constitutional law, so
§ 2255(h)(2) is not at issue.

                                         -9-
