                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

                       v.                            Criminal Action No. 72-67 (BAH)

 JOHN MILTON AUSBY,                                  Chief Judge Beryl A. Howell

                       Defendant.


                                 MEMORANDUM OPINION

       The defendant, John Milton Ausby, seeks an indicative ruling pursuant to Federal Rule of

Civil Procedure 62.1, that the defendant’s renewed coram nobis petition would be granted in

light of changed circumstances, namely the defendant’s release from prison, while the

defendant’s appeal of this Court’s ruling denying his original coram nobis petition remains

pending. See Def.’s Mot. for Relief from Judgment Under Civil Rule 60(b) and, in the

Alternative, Renewed Petition for Writ of Coram Nobis Vacating Conviction for Rape While

Armed, and Request for Indicative Ruling Pursuant to Civil Rule 62.1 (“Def.’s Mot.”), ECF No.

131. The government does not oppose the defendant’s motion for an indicative ruling that would

grant his renewed coram nobis petition. See Gov’t’s Resp. to Def.’s Mot. (“Gov’t’s Resp.”),

ECF No. 132. For the reasons stated below, the defendant’s motion is granted.

I.     BACKGROUND

       On July 3, 2019, this Court vacated the defendant’s felony murder conviction in

accordance with the D.C. Circuit’s ruling in United States v. Ausby, 916 F.3d 1089 (D.C. Cir.

2019). See Order (July 3, 2019), ECF No. 43. The defendant’s rape conviction was not vacated,

however, because jurisdiction was lacking to do so under either 28 U.S.C. § 2255 or a writ of

coram nobis, since “the defendant had already served his sentence on that conviction and had

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failed to allege redressable, ongoing harm stemming from the rape conviction sufficient to meet

the requirements of Article III standing.” United States v. Ausby, No. CR 72-67 (BAH, 2019

WL 7037605, at *2 (D.D.C. Dec. 20, 2019); see also United States v. Ausby, No CR 72-67

(BAH), 2019 WL 4737196, at *3–6 (D.D.C. Sept. 27, 2019) (denying defendant’s Motion to

Reconsider Denial of Vacatur of Rape Conviction, ECF No. 59). The defendant appealed this

ruling, see Notice of Appeal, ECF No. 108, which appeal is pending but currently stayed, see

Order (Jan. 23, 2020), United States v. Ausby, No. 19-3092, ECF No. 130.

II.    ANALYSIS

       As the parties agree, this Court currently lacks jurisdiction to rule on the defendant’s

renewed coram nobis petition because the defendant’s appeal is pending before the D.C. Circuit.

Def.’s Mot. at 5–6. Federal Rule of Civil Procedure 62.1, however, provides authority in this

circumstance for a district court to issue an indicative ruling to “state that it would grant the

motion if the court of appeals remands for that purpose or that the motion raises a substantial

issue.” Fed. R. Civ. P. 62.1(a)(3).

       “[T]he authority to grant a writ of coram nobis is conferred by the All Writs Act, which

permits ‘courts established by Act of Congress’ to issue ‘all writs necessary or appropriate in aid

of their respective jurisdictions.’” United States v. Denedo, 556 U.S. 904, 911 (2009) (quoting

28 U.S.C. § 1651(a)). The writ of coram nobis is “an extraordinary tool to correct a legal or

factual error,” id. at 912–13, and “provides a way to collaterally attack a criminal conviction for

a person . . . who is no longer in custody and therefore cannot seek habeas relief under 28 U.S.C.

§ 2255 or § 2241,” United States v. Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015) (internal

quotation marks omitted) (quoting Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)); see

also United States v. Morgan, 346 U.S. 502, 511 (1954).



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       Though “the precise contours of coram nobis have not been well defined,” Denedo, 556

U.S. at 910 (internal citation omitted), a four-factor test is generally applied “to determine

whether coram nobis relief is warranted: (1) a more usual remedy is not available; (2) valid

reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the

conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the

error is of the most fundamental character,” United States v. Verrusio, No. 09-cr-64 (BAH), 2017

WL 1437055, at *8 (D.D.C. Apr. 21, 2017), aff’d, 758 F. App’x at 2 (collecting cases) (internal

quotation marks omitted).

       The defendant’s initial invocation of coram nobis to vacate his rape conviction was

rejected based on the third prong of this test because the defendant had failed to allege

redressable, ongoing harm sufficient to meet the requirements of Article III standing. See United

States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232, at *6, *8 (D.D.C. July 3, 2019);

Ausby, 2019 WL 4737196, at *3–6. On reconsideration, the defendant alleged that, despite the

fact that his thirty-year sentence on his rape conviction had already expired, he would suffer an

actual collateral consequence sufficient to establish standing since, under the District of

Columbia’s Sex Offender Registration Act (“DC SORA”), he would likely be required to register

as a convicted sex offender and comply with the statute’s reporting requirements. See Ausby,

2019 WL 4737196, at *5. This allegation was insufficient, since at that point the defendant

remained incarcerated awaiting retrial on a felony murder charge and was therefore not obliged

to register as a sex offender. Id.; see also D.C. Code § 22-4002(c) (“The Agency may suspend

the requirement to register [under DC SORA] or any other requirement under this chapter during

any period of time in which a sex offender is detained, incarcerated, confined, civilly committed

or hospitalized in a secure facility.”). As the Court explained, “[w]ere the defendant to be



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released, and were he then required to register as a sex offender, he might then have a concrete

claim, as the government conceded … At this stage, however, the alleged harm is speculative,

and the Court’s original determination—that the defendant lacks standing to challenge his rape

conviction through a writ of coram nobis—remains correct.” Ausby, 2019 WL 4737196, at *5.

         These circumstances have changed as a result of the government’s motion, on January 9,

2020, to dismiss the pending felony murder charge against the defendant, Gov’t’s Mot. to

Dismiss, ECF No. 128, and his subsequent release from custody on January 10, 2020, see Def.’s

Mot. at 5. Having been released from custody, the defendant is now subject to registration and

reporting requirements under DC SORA, codified at D.C. Code § 22-4001 et seq. Under DC

SORA, the defendant’s rape conviction qualifies as a “lifetime registration offense.” See id. §

22-4001(6)(A). The law applies retroactively to offenses committed “at any time” in the past,

see id. § 22-4001(9)(B), and imposes multiple duties on offenders, including quarterly

verification and other reporting requirements, see id. §§ 22-4008(a)(1), 22-4014; In re W.M., 851

A.2d 431, 436–39 (D.C. 2004).1 The government does “not dispute that these requirements

amount to a cognizable injury in fact or that vacating [the defendant’s] rape conviction would

redress the injury.” Gov’t’s Resp. at 1.

         Thus, the defendant now has standing to seek a writ of coram nobis vacating his rape

conviction. Since a lack of standing was the basis for denying the defendant’s previous coram

nobis petition, and the government does not contest the three other prongs for grant of this writ,



1
         In Smith v. Doe, 538 U.S. 1009 (2003), the Supreme Court upheld Alaska’s sex registration statute against
an as applied ex post facto challenge, finding that sex registration was regulatory not punitive. Since then, and in the
absence of any contrary authority from the Supreme Court, most federal courts have similarly upheld the retroactive
application of state sex registration statutes. See Shaw v. Patton, 823 F.3d 556 (10th Cir. 2016); United States v.
Parks, 698 F.3d 1 (1st Cir. 2012); United States v. W.B.H., 664 F.3d 848 (11th Cir. 2011). Additionally, the District
of Columbia Court of Appeals has held that retroactive application of DC SORA does not violate the ex post facto
clause. See In re W.M., 851 A.2d at 446 (applying the Supreme Court’s rationale in Smith v. Doe to conclude that
DC SORA is not punitive).

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see Gov’t’s Resp., this Court indicates, pursuant to Federal Rule of Civil Procedure 62.1, that the

defendant’s renewed petition for coram nobis would be granted.

III.   CONCLUSION

       For the foregoing reasons, the defendant’s motion, pursuant to Federal Rule of Civil

Procedure 62.1, for an indicative ruling that the defendant’s renewed coram nobis petition would

be granted if the Court of Appeals remanded for that purpose, is granted.

       An appropriate Order accompanies this Memorandum Opinion.

       Date: February 19, 2020

                                                     __________________________
                                                     BERYL A. HOWELL
                                                     Chief Judge




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