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Mathison v. United States

United States District Court, D. South Dakota, Southern Division

September 27, 2016

EUGENE H. MATHISON, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OPINION AND ORDER

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.

         Eugene H. Mathison moves for a Writ of Error Coram Nobis in United States v. Mathison, CR 96-40122 and United States v. Mathison, CR 96-40048. In both petitions, Mr. Mathison requests that the Court issue the common law writ of coram nobis to vacate his convictions and sentences which he argues were obtained in violation of his Fourth Amendment right to be free from unreasonable search and seizure and his Sixth Amendment right to effective assistance of counsel. In response to both petitions, the Government has filed motions to dismiss and Mr. Mathison has filed a response to each motion. The Court has consolidated both petitions and for the following reasons both petitions will be denied.

         PROCEDURAL BACKGROUND

         In February of 1997, Mr. Mathison was convicted of thirteen counts of tax evasion and was sentenced to 21 months imprisonment, followed by three years of supervised release, and $51, 019.85 in restitution. CR 96-40122. In June of 1997, Mr. Mathison was convicted of sixty-one counts of mail fraud, wire fraud, money laundering, conspiracy, and engaging in monetary transactions in property derived from specified unlawful activity. CR 96-40048. Mr. Mathison was sentenced to a total term of 246 months, followed by three years of supervised release, and $1, 319, 714.20 in restitution. Mr. Mathison appealed both criminal convictions. In July of 1998, the Eighth Circuit affirmed Mr. Mathison's conviction and sentence in CR 96-40122, the tax case, stating, in part:

Mathison raises numerous issues relating to a search warrant affidavit. However, he did not file a motion to suppress or object to evidence based on an illegal search. Moreover, he challenged the search warrant in another criminal case resulting in convictions that are presently on appeal before us. We thus decline to consider the search warrant issues Mathison raises here, except to the limited extent we summarily reject his argument that the affidavit was improper for lack of any allegations that he tried to interfere with the assessment of the amount of tax due.
Last, we note Mathison's claims of ineffective assistance of counsel are more properly raised in proceedings under 28 U.S.C. § 2255.

United States v. Mathison, 162 F.3d 1165 (8th Cir. 1998) (citation omitted). In September of 1998, Mr. Mathison's conviction and sentence in CR 96-40048, the fraud case, were affirmed by the Eighth Circuit. United States v. Mathison, 157 F.3d 541 (8th Cir. 1998), reh'g and suggestion for reh 'g en banc denied (Oct. 15, 1998).

         Mr. Mathison then sought post-conviction relief. In November of 1999, Mr. Mathison, in regard to CR 96-40122, filed his first motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. CIV 99-4208, Doc 1. In his petition, Mr. Mathison argued that his retained counsel was incompetent and that he received ineffective assistance of counsel during trial. Upon recommendation by Magistrate Judge Marshall Young, United States District Judge Battey denied Mr. Mathison's petition. Doc. 83. In April of 2000, Mr. Mathison, in regard to CR 96-40048, Mathison filed a similar motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. CIV 00-4055, Doc. 5. Judge Battey, again upon recommendation of Magistrate Judge Young, denied the petition on the basis that it was barred by the one-year statute of limitations, and denied a certificate of appealability. Doc. 40. The Eighth Circuit also denied an application for a certificate of appealability and dismissed Mr. Mathison's appeal from the denial of his § 2255 motion. Doc. 45.

         In June and July of 2001, Mr. Mathison filed his second set of 28 U.S.C. § 2255 motions. CIV 01-4143; CIV 01-4153. In both petitions, Mr. Mathison argued that new evidence had been discovered during July 2000, which could not have been discovered earlier. CIV 01-4143, Doc. 1; CIV 01-4153, Doc. 1. In CIV 01-4143, this Court denied the motion and denied a certificate of appealability. Doc. 16 at 9. In CIV 01-4153, Judge Battey adopted the findings and recommendations of Magistrate Judge Young and dismissed the motion without prejudice. Doc. 7 at 2. In so holding, Judge Battey found that "Mathison raised the same issue twice in successive petitions." Doc. 7 at 1. Mr. Mathison submitted an application for a certificate of appealability to the Eighth Circuit and the Eighth Circuit construed this request as a motion for authorization to file a successive § 2255 motion. The Eighth Circuit then concluded that Mr. Mathison's failure to comply with the certification requirements for a successive § 2255 motion required a remand with directions to dismiss the § 2255 motion for lack of jurisdiction. This Court then entered an order vacating its judgment denying relief and dismissed the case for lack of jurisdiction. CIV 01-4143, Doc. 28.

         In May of 2003, Mr. Mathison filed a third motion under 28 U.S.C. § 2255 attacking his convictions and sentences in both CR 96-40122 and CR 96-40048. CIV 03-4139, Doc. 1. In his petition, Mr. Mathison argued that the "numerically third § 2255 is based [on] new evidence that proves Petitioner's claim from May 26, 1995, that Magistrate Frank Gibbs was acting in anger when he issued the warrant to search and seize Petitioner's office and property." Doc. 1 at 5. This Court dismissed his motion without prejudice based on Mr. Mathison's failure to seek and receive an order from the Eighth Circuit authorizing this Court to consider a successive § 2255 motion. Doc. 4. The Eighth Circuit then denied Mr. Mathison's application for a certificate of appealability in the § 2255 action. Doc. 13.

         In August of 2005, Mr. Mathison filed a motion under FED. R. Crim. P. 60(b)(6) for relief from the Order denying his first § 2255 motion. CIV 00-4055, Doc. 53. This motion was denied. Doc. 57. In July of 2006, the Eighth Circuit denied Mr. Mathison's petition for rehearing by panel on the matter as being untimely. Doc. 67. In January of 2008, in the District of Colorado, Mr. Mathison filed an application for a writ of habeas corpus pursuant to 29 U.S.C. § 2241. In this application, he challenged the validity of his 1997 convictions and sentences in the District of South Dakota. The application was denied and the action was dismissed because Mr. Mathison failed to demonstrate that the remedy available to him pursuant to 28 U.S.C. § 2255 was inadequate or ineffective. Mathison v. Wiley, 2008 WL 465294 (D.Colo., Feb. 15, 2008) (not reported in F.Supp. 2d), aff'd, 281 Fed.Appx. 845 (10th Cir., June 17, 2008). In April of 2010, in the action in which his first § 2255 motion had been denied, Mr. Mathison filed a motion under Fed. R. Crim. P. 60(b)(4) for relief from a Judgment or Order due to it being void. Doc. 68. This motion was denied. Doc. 69. On July 2, 2010, Mr. Mathison filed amotion for reconsideration of that denial. Doc. 71. Judge Battey denied the motion. Doc. 76.

         In May of 2009, Mr. Mathison filed a Petition for Writ of Audita Querela pursuant to 28 U.S.C. § 1651. CR 96-40048, Doc 551. In denying Mr. Mathison's petition, this Court found that "[t]he writ of audita querela cannot be invoked simply to enable a defendant to file what is in effect a § 2255 motion without complying with the rules governing such motions, or to file a second § 2255 without the requisite permission of the Court of Appeals." Doc. 562 at 5.

         In January of 2014, Mr. Mathison was released on bail from his sentence and thereinafter began his supervised release. In January of 2015, Mr. Mathison was discharged from supervised release pursuant to a request for early termination granted by this Court. CR 96-40122, Doc. 138. In October of 2015, ...


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