United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
LACK OF JURISDICTION
Michael J. Seng UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner proceeding pro se with a petition for
writ of error coram nobis or, in the alternative, audita
is currently in federal custody at the United States
Penitentiary, Atwater pursuant to the June 15, 1995 judgment
of the U.S. District Court for the Eastern District of North
Carolina, convicting Petitioner on the following counts: (1)
conspiracy to possess with intent to distribute cocaine base
(21 U.S.C. § 846); (2) continuing criminal enterprise
(21 U.S.C. § 848); (3) use of a firearm during a drug
trafficking crime and aiding and abetting (18 U.S.C. §
924(c)(1) and (2)); and (8-23) sixteen counts of possession
with intent to distribute cocaine and aiding and abetting (21
U.S.C. § 841(a)(1) and (2)). Fells v.
Matevousian, No. 1:15-cv-00552-SKO HC, 2016 WL 6875418,
at *1 (E.D. Cal. Nov. 22, 2016). On May 7, 1996, the Court
sentenced Petitioner to concurrent life terms for the
convictions on counts 1 and 2; a consecutive term of 60
months for the conviction on count 3; and a 480-month term on
counts 8-23, to be served concurrently with the sentence on
counts 1 and 2. Id
March 24, 2000, the U.S. Court of Appeals for the Fourth
Circuit vacated Petitioner's conspiracy conviction and
sentence, but otherwise affirmed the judgement. United
States v. Peterson, 210 F.3d 363, 2000 WL 305137 (4th
Cir. Mar. 24, 2000). The United States Supreme Court denied
review. Fells v. United States, 530 U.S. 1219, 120
S.Ct. 2227, 147 L.Ed.2d 258 (2000).
2000 and early 2001, Petitioner made various attempts to
pursue a petition or motion pursuant to either 28 U.S.C.
§ 2241 or § 2255 in the Eastern District of Texas
(where he then was housed) and the Eastern District of North
Carolina. See Fells v. Matevousian, No.
1:15-cv-00552-SKO HC, 2016 WL 6875418, at *1. Eventually, in
March or April of 2001, Petitioner filed a motion under 28
U.S.C. § 2255 in the U.S. District Court for the Eastern
District of North Carolina. The motion was denied, and his
appeal therefrom was dismissed. Id; Petition (ECF
No. 1 at 2); see also United States v. Fells, 32
F.App'x 102, 2002 WL 548825 (4th Cir. 2002).
April 10, 2015, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. See
Fells v. United States of America, No. 1:15-cv-00552-SKO
(E.D. Cal.). The petition raised essentially the same grounds
for relief raised herein: that the United States Supreme
Court's holdings in Watson v. United States, 552
U.S. 74 (2007), and Rosemond v. United States, 134
S.Ct. 1240 (2014), invalidated Petitioner's conviction on
count 3 (violation of 18 U.S.C. § 924(c)(1) and (2)).
(See ECF Nos. 1, 24, in No. 1:15-cv-00552-SKO.) The
petition ultimately was dismissed for lack of jurisdiction
under § 2241. (Id.)
August 13, 2015, Petitioner filed a motion to modify his
sentence pursuant to 18 U.S.C. § 3582(c). On August 30,
2016, the motion was granted and his life sentence was
reduced to 327 months. See Petition (ECF No. 1 at
2); see also United States v. Fells, No. 16-7202,
2016 WL 7416199, at *1 (4th Cir. Dec. 22, 2016) (affirming
grant of sentence reduction and finding no abuse of
discretion in decision not to grant larger reduction).
November 29, 2016, Petitioner filed in the Fourth Circuit an
application for a second or successive § 2255 motion.
Therein, Petitioner raised a claim of actual innocence and
argued that his appellate counsel was ineffective for failing
to argue insufficient evidence under Bailey v. United
States, 516 U.S. 137 (1995). The application was denied.
In re Shane Fells, No. 16-3145 (4th Cir. Dec. 15,
filed the instant petition on April 21, 2017. (ECF No. 1.) He
seeks to vacate his convictions and sentence for violations
of 18 U.S.C. §§ 924(c)(1) and (2). He claims that
he is innocent of the charges, that his convictions resulted
from instructional error under Rosemond and
Bailey, and that there is insufficient evidence to
support the convictions.
common law writ of coram nobis is available in criminal cases
under the All Writs Act. 28 U.S.C. § 1651(a);
Matus-Leva v. United States, 287 F.3d 758, 760 (9th
Cir. 2002). The All Writs Act provides that “all courts
... may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a).
However, the All Writs Act is not itself a source of
jurisdiction. Chavez v. Superior Court of
California, 194 F.Supp.2d 1037, 1039 (C.D. Cal. 2002)
(citing Lights of Am., Inc. v. U.S. Dist. Court for Cent.
Dist. of Cal., 130 F.3d 1369, 1370 (9th Cir. 1997) (per
curiam)). A writ of coram nobis can only issue “in aid
of the jurisdiction of the court . . . in which the
conviction was had.” See Madigan v. Wells, 224
F.2d 577, 578 n.2 (9th Cir. 1955).
warrant coram nobis relief, a petitioner must establish that
(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 a fundamental character. Matus-Leva,
287 F.3d at 760 (citing Hirabayashi v. United
States, 828 F.2d 591, 604 (9th Cir. 1987)).
“Because these requirements are conjunctive, failure to
meet any one of them is fatal.” Id.
Petitioner's conviction was rendered in the Eastern
District of North Carolina. Thus, this Court, as merely the
custodial court, does not ...