                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2000

United States v. Baptiste
Precedential or Non-Precedential:

Docket 99-1353




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Recommended Citation
"United States v. Baptiste" (2000). 2000 Decisions. Paper 162.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/162


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Filed June 8, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-1353

UNITED STATES OF AMERICA,
       Appellant,

v.

STANLEY BAPTISTE

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 91-cr-00132-1)
Chief District Judge: Honorable James T. Giles

Submitted Pursuant to Third Circuit LAR 27.4 and
I.O.P. 10.6 Motions Panel

April 20, 2000

Before: Becker, Chief Judge, McKee and Barry,
Circuit Judges

(Filed June 8, 2000)

OPINION OF THE COURT

PER CURIAM

Appellant Stanley Baptiste was convicted of conspiracy to
distribute cocaine base in violation of 21 U.S.C.S 846 and
possession with intent to distribute cocaine base in
violation of 21 U.S.C. S 841(a)(1) following a jury trial in
1991. In January, 1992 he was sentenced to a term of
imprisonment of 240 months, and we thereafter affirmed
the judgment of conviction and sentence.

On April 28, 1997, Baptiste filed a motion to vacate, set
aside, or correct his sentence, pursuant to 28 U.S.C.
S 2255. He claimed that the evidence of his alleged
leadership role in the drug conspiracy was insufficient to
warrant a four-point enhancement under U.S.S.G.
S 3B1.1(a), and that counsel was ineffective for not
objecting to the enhancement. By order entered September
10, 1997, the District Court denied relief. Baptiste did not
appeal.

In January 1999 Baptiste filed a motion for permission to
file a second or successive motion under 28 U.S.C.S 2255.
He again wished to challenge the application of U.S.S.G.
S 3B1.1(a), and, in addition, he sought to challenge the
"enhancement" he received under U.S.S.G. S 2D1.1(c) on the
basis of Amendment 487. That Amendment became
effective on November 1, 1993. We denied that motion on
February 23, 1999.

On March 12, 1999, Baptiste filed a motion for relief from
judgment under Federal Rule of Civil Procedure 60(b) in the
District Court in which he again sought to litigate the
applicability of Amendment 487. Baptiste argued that he
should not have been subjected to the enhancement for
crack cocaine, because the government failed to prove by a
preponderance of the evidence that the cocaine base
involved in his crimes actually was crack cocaine. He also
again argued that he had not played a leadership role in
the offense, that counsel had been ineffective at sentencing,
and that the amount of drugs attributed to him was not
reasonably foreseeable. The District Court denied the Rule
60(b) motion in part because it viewed the motion as an
impermissible attempt to file a successive section 2255
motion without prior authorization from this Court.

In April 1999 Baptiste filed the instant petition for writ of
error coram nobis in yet another attempt to have his
guidelines claims (the Amendment 487 claim, the challenge
to his leadership role, and the claim that the amount of
drugs attributed to him was not reasonably foreseeable)
and ineffective assistance of counsel at sentencing claim

                               2
heard. The District Court denied the motion, and this
appeal followed.

We will summarily affirm the order denying the coram
nobis petition.1 Although a writ of error coram nobis is
available in federal courts in criminal matters, see 28
U.S.C. S 1651(a), coram nobis has traditionally been used
to attack convictions with continuing consequences when
the petitioner is no longer "in custody" for purposes of 28
U.S.C. S 2255. See, e.g., United States v. Stoneman, 870
F.2d 102, 105-06 (3d Cir. 1989). It is an extraordinary
remedy and a court's jurisdiction to grant relief is of limited
scope. There is no basis here for coram nobis relief,
because Baptiste is still in custody.

Baptiste argues that second collateral challenges to a
conviction and sentence, like his, are now barred under the
Antiterrorism and Effective Death Penalty Act, see 28
U.S.C. SS 2255 and 2244 ("AEDPA"), and therefore coram
nobis relief should be available. However, the procedural
barriers erected by AEDPA are not sufficient to enable a
petitioner to resort to coram nobis merely because he/she
is unable to meet AEDPA's gatekeeping requirements. 2 The
safety valve provided under 28 U.S.C. S 2255 is narrow. We
explained in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997),
that it is a complete miscarriage of justice when the AEDPA
prohibition against successive section 2255 motions makes
this collateral remedy unavailable altogether to someone
with no earlier opportunity to bring his/ her claim. Id. at 251.
That is not Baptiste's situation. He had an earlier
_________________________________________________________________

1. Neither the statute making the writ of error coram nobis available in
federal courts in criminal matters, see 28 U.S.C. S 1651(a), nor any
Federal Rule of Appellate Procedure requires a certificate of
appealability
before an appeal may be taken, nor does such a requirement appear in
the case law.

2. Under AEDPA, the second or successive motion must be certified by
a court of appeals to contain a prima facie showing of newly discovered
evidence that would be sufficient to establish that no reasonable
factfinder would have found the movant guilty of the offense or a new
rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable, see 28 U.S.C.
S 2255. This is not an easy standard to satisfy.

                               3
opportunity to raise all of his claims (including the
Amendment 487 claim) in his 1997 section 2255 motion.

We will therefore affirm the order of the District Court
denying the petition for writ of error coram nobis pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6,3 because no
substantial question is presented by this appeal.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

________________________________________________________________

3. LAR 27.4 and IOP 10.6 provides that we may summarily affirm an
order or motion of a party, or sua sponte when "no substantial question"
is presented by the appeal.
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