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Fells v. United States

United States District Court, E.D. California

May 30, 2017

QASIM SHANE FELLS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR LACK OF JURISDICTION

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a federal prisoner proceeding pro se with a petition for writ of error coram nobis or, in the alternative, audita querela.

         I. Procedural History

         Petitioner 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

         On 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).

         In late 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).

         On 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.)

         On 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).

         On 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, 2016).

         Petitioner 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.

         II. Coram Nobis

         The 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).

         To 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.

         Here, Petitioner's conviction was rendered in the Eastern District of North Carolina. Thus, this Court, as merely the custodial court, does not ...


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