United States District Court, D. South Dakota, Southern Division
EUGENE H. MATHISON, Petitioner,
UNITED STATES OF AMERICA Respondent.
MEMORANDUM OPINION AND ORDER
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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.
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.
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
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, ...