UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FIE..ED

JUN 3 ll 2009

)
UNITED STATES OF AMERICA ) NANCY MAYER WH!TT!NGTON,CLERK
) U.S. D|STR|CT COURT
v. ) Cr. No. 88-0046 (TFH)
)
MICHAEL K. WILLIAMS, )
)
Defendant. )
)
MEMORANDUM OPINION

Pending before the Court is Michael K. Williams’ pro se Motion to Vacate Pursuant to 28
U.S.C. § 2254 Post-Conviction Relief filed on January 27, 2007. The government filed its
opposition on December ll, 2008. In accordance with its duty to construe a pro se pleading
liberally, see Estelle v. Gamble, 429 U.S. 97, l06 (1976), the Court will analyze Williams’
pleading as both a motion pursuant to 28 U.S.C. § 2255 and a petition for a writ of error coram
n0bis. Finding that Williams cannot prevail under either theory, the Court will deny relief.
BACKGROUND
On February ll, 1988, Williams pled guilty to charges in three separate cases: one count

of conspiracy to possess with intent to distribute cocaine in Cr. No. 87-0446, one count of
distribution of more than 500 grams of cocaine in Cr. No. 88-0045, and one count of possession
with intent to distribute over 500 grams of cocaine in Cr. No. 88-0046. On November 4, 1998,
Williams was sentenced to two years’ imprisonment in Cr. No. 87-0446, five years’
imprisonment in Cr. No. 88-OO45, and five years’ imprisonment in Cr. No. 88-0046. These

sentences were to run consecutively for a total of twelve years, followed by an addditional four

years of supervised release. Williams has completed serving these sentences.

The genesis for Williams’ pending motion filed many years later is a subsequent criminal
conviction for which he received a heavier penalty because of his prior convictions in Cr. Nos.
87-0446, 88-0045, and 88-0046. Williams’ pro se motion, filed in all three cases, argues that
these convictions should be vacated because at the time of his plea the trial judge did not
adequately explain the consequences of the plea agreement: "During pre-trial hearing and
sentencing, at no time did the honorable judge advise or explain the nature of the charges or the
consequences of the plea." Def.’s Mot. at 2. The Court surinises that Williams’ claim is that he
did not understand that his 1988 convictions could be used in the future to enhance a sentence,
which subsequently happened in 2007. See Gov’t Opp’n Br., Ex. F at 3-4. Williams reports that
"In the year of 2006, the defendants [sic] federal sentence is being enhanced because of the
un-constitutional invalid conviction that was accepted by this honorable court on November 4,
1998." Def.’s Mot. at 2. The govemment clarifies that, in 2007, Williams received a ten-year
sentence in a case from the Northem District of Ohio. Gov’t Opp’n Br., Ex. F at 3-4.

The govemment filed its response to Williams’ motion in all three cases, as the Court
does with this Memorandum Opinion.

DISCUSSION

The crux of Williams’ grievance is that his sentence was imposed in violation of the Due
Process Clause of the Fiiih Amendment because he was uninformed of the future consequences
of his guilty plea. This allegation gives rise to two possible bases for relief: (l) a motion to
vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, and (2) a petition for a

writ of error coram nobis. As explained below, both of these claims lack merit.

I. Analysis under 28 U.S.C. § 2255
Section 2255 allows a defendant to "move the court which imposed [his] sentence to
vacate, set aside or correct the sentence" on the grounds that "the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. A court may
grant relief "if the challenged sentence resulted from ‘a fundamental defect which inherently
results in a complete miscarriage of justice,’ or ‘an omission inconsistent with the rudimentary
demands of fair procedure."’ United States v. Pollard, 959 F.2d l0l l, 1020 (D.C. Cir. 1992)
(intemal citations omitted). Section 2255 encompasses Williams’ contention that his guilty plea
and resulting sentence were in violation of the Fiiih Amendment. Williams’ claim is
procedurally barred, however, on at least two grounds: (l) he was not "in custody" within the
meaning of § 2255 when he filed it, and (2) he did not comply with the statute of limitations.l
A. Cust0dial Requirement
Federal courts have jurisdiction to hear a motion for post-conviction relief under § 2255

by a defendant who is "in custody under sentence of court" at the time he files a motion attacking
that sentence or the underlying conviction. 28 U.S.C. § 2255. Upon completion of that sentence,
the defendant no longer remains "in custody" within the meaning of § 2255, even if he is later
incarcerated for another offense. More to the point in Williams’ situation, a defendant who has

completed his sentence does not remain "in custody" for purposes of post-conviction relief

' The Court does not address what the govemment offers as a third ground for procedural
default: that Williams failed to raise this claim on direct appeal.

3

"merely because of the possibility that the prior conviction will be used to enhance the sentences
imposed for any subsequent crimes of which he is convicted." Maleng v. Co0k, 490 U.S. 488,
492 (1989) (per curiam).

According to the Federal Bureau of Prisons’ calculation, Williams’ f`ull-tenn sentence
date-when the term of incarcertaion would expire-for Crim. Nos. 87-00446, 88-0045, and
88-0046 was October 4, 1999. See Gov’t Opp’n Br., Ex. H at 5. He did not file this motion until
January 29, 2007. For the jurisdictional purposes of § 2255, Williams clearly was not "in
custody" when he filed his motion. Therefore, he is not an eligible § 2255 petitioner, and the
Court cannot address the merits of his claim.

B. Statute of Limitations

Prior to enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), "a prisoner could challenge his conviction or sentence as a violation of the
Constitution of the United States by filing a motion under 28 U.S.C. § 2255 at almost any time."
United States v. Cicero, 214 F.3d l99, 200 (D.C. Cir. 2000). With § l05 of AEDPA, however,
Congress adopted a one-year statute of limitations on the filing of § 2255 motions, running from
the latest of four possible dates:

(l) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if the

movant was prevented from making a motion by such govemmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Suprerne Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.

28 U.S.C. § 2255. The first date is the one that applies to Williams, who asserts no basis for the
exceptions listed in paragraphs (2) through (4).

In the context of habeas review, a conviction becomes final when the availability of
appeal is exhausted. See Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("When the process of
direct review_which, if a federal question is involved, includes the right to petition [the
Supreme] Court for a writ of certiorari--comes to an end, a presumption of finality and legality
attaches to the conviction and sentence."). Williams did not timely appeal his convictions in
Crim. Nos. 87-00446, 88-0045, and 88-0046. Accordingly, those convictions became final in
November 1988 upon the expiry of his time to appeal, which occurred ten days after the filing of
his Judginent and Commitment Order on November 4, 1988. See FED. R. APP. P. 4(b)(l)(A)(i)
& 4(b)(6) (allowing ten days from entry of judgrnent to file a notice of appeal).

For a defendant like Williams whose conviction became final before the enactment of
AEDPA, the D.C. Circuit has held that the § 2255 petition must be filed within a one-year grace
period from the enactment’s effective date of April 24, l996. See United States v. Saro, 252
F.3d 449, 451 (D.C. Cir. 2001) (citing Cicero, 214 F.3d at 202). Williams therefore had until
April 24, 1997 to file for § 2255 relief. He did not file a motion until January 29, 2007, almost
ten years after the grace period expired. Accordingly, his motion is time-barred under § 2255.

On the dual grounds that Williams filed his motion when he was no longer "in custody"
and after the statute of limitations had run, the Court finds that Williams is procedurally barred
from § 2255 relief. Under the § 2255 theory, the Court does not reach the merits of Williams’

claim.

II. Analysis under Writ of Err0r Coram Nobis

The Supreme Court recently described the writ of error coram nobis as "an extraordinary
tool to correct a legal or factual error." United States v. Denedo, __ S. Ct. _, 2009 WL 1576568
at *6 (June 8, 2009). Federal courts have the authority to grant a writ of error coram nobis under
the All Writs Act, 28 U.S.C. § 1651. Ia'. at *5. Relief "should be allowed through this
extraordinary remedy only under circumstances compelling such action to achieve justice."
United States v. Morgan, 346 U.S. 502, 511 (1954). The petitioner bears the burden of
overcoming a presumption that the challenged judicial proceedings were correct. 1d. at 512. In
line with the Supreme Court’s observation that "[i]n American jurisprudence the precise
contours of coram nobis have not been well defined," Denedo, 2009 WL 1576568 at *5 (intemal
quotation omitted), the D.C. Circuit’s precedent in this area is thin. The leading case appears to
be a district court case, United States v. Hansen, 906 F. Supp. 688 (D.D.C. 1995) (Green, J.).

In Hansen, Judge Joyce Hens Green described the writ of error coram nobis as "an
equitable tool for federal courts to ‘fill the interstices of the federal post-conviction remedial
framework."’ Hansen, 906 F. Supp at 692 (quoting United States v. Ayala, 894 F.2d 425, 428
(D.C. Cir. l990)). This writ allows a court to use "discretionary power to set aside an underlying
conviction and sentence which, for a valid reason, should never have been entered." Hansen,
906 F. Supp. at 692. As distinct from habeas corpus under 28 U.S.C. § 2255, a petitioner for the
writ of error coram nobis does not have to be "in custody," but can "collaterally attack a federal
conviction . . . even though the petitioner is no longer serving a sentence pursuant to that
conviction." Id. (citations omitted).

In the absence of D.C. Circuit authority on the proper standard for analyzing a petition for

a writ of error coram nobis, Judge Green looked to the practice of the Third, Fourth, Ninth, and

Tenth Circuits and applied the following test:

[R]elief is appropriate where (l) 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.

Id. at 692-93 (intemal quotation and citations omitted).

Following the Hansen test, this Court need examine only the fourth factor-error of the
most fundamental character-to resolve Williams’ case. A showing of fundamental error is
undoubtedly required to win coram nobis relief. See United States v. Aa'donizio, 442 U.S. 178,
186 (1979) (holding that "c0ram nobis jun`sdiction" exists only "in those cases where the errors
were of the most fundamental character, that is, such as rendered the proceeding itself irregular
and invalid." (intemal quotation omitted)).

Williams cannot win coram nobis relief because his allegation-that when pleading
guilty he did not understand that his convictions could be used to enhance the sentence for a
future conviction-does not rise to the level of fundamental error. lt is well-settled that neither
the Constitution nor the Federal Rules of Criminal Procedure require the district court or counsel
to advise the defendant that his guilty plea carries the collateral consequence of a future
sentencing enhancement. See, e.g, McCarthy v. United States, 320 F.3d 1230, 1234 (l lth Cir.

2003); United States v. Salerno, 66 F.3d 544, 551 (2d Cir. 1995); King v. Dutton, 17 F.3d 151,

153 (6th Cir. 1994); Lewis v. United States, 902 F.2d 576, 577 (7tli Cir. 1990); United States v.

Bmwnlze, 915 F.2d 527, 528 (9ch Cir. 1990); varied s¢aies v. W@@ds, 870 F.2d 285, 288 (sth Cir.

1989) (per curiam). In short, even assuming arguendo the truth of Williams’ allegation, what he

alleges happened is not a violation of his rights. Having failed even to allege a fundamental
error, Williams is not entitled to coram nobis relief.z
CONCLUSION

The Court finds no basis for post-conviction relief. Construed under 28 U.S.C. § 2255,
Williams’ motion is procedurally barred. Analyzed as a petition for a writ of error coram nobis,
the motion fails because no fundamental error is alleged. Accordingly, the Court will deny the
motion.

A corresponding order accompanies this Memorandum Opinion.

June ii 2009  z ',  

Thomas F. H an
United States Dis `ct dge

2 The Court does not address the government’s additional argument that Williams is not
entitled to coram nobis relief because he failed to pursue this claim diligently. See Gov’t Opp’n
Br. at 4 n.1.

