Submitted: September 20, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
November 2002, a jury convicted Keith Baranski, a federally
licensed firearms dealer, of conspiracy to import machine
guns from Eastern Europe by submitting forms with false
entries to the Bureau of Alcohol, Tobacco and Firearms (ATF).
The district court imposed a sentence of sixty months in
prison and three years of supervised release. Baranski
appealed; we affirmed. United States v. Baranski, 75
Fed.Appx. 566 (8th Cir. 2003). The district court
subsequently denied his post conviction motion to vacate, set
aside, or correct the sentence under 28 U.S.C. § 2255;
we again affirmed. Baranski v. United States, 2006
WL 472451 (E.D. Mo. Feb. 27, 2006), aff'd, 515
F.3d 857 (8th Cir. 2008).
completed serving his prison sentence and three years of
supervised release in August 2009. In 2011, he filed a
Petition for Writ of Error Coram Nobis, asserting violations
of his constitutional rights at trial. As later amended, the
Petition asserted that new evidence establishes the
government failed to disclose that it promised cooperating
conspirator James Carmi a further sentence reduction for his
testimony at trial; misled the court and the defense about
Carmi's incarceration exposure; and deliberately withheld
medical records tending to show that Carmi's trial
testimony was tainted by amnesia and memory loss. After a
two-day evidentiary hearing, the district court dismissed the
Petition in a thorough 72-page Memorandum and Order. Baranski
appeals. We affirm.
The Writ of Error Coram Nobis in Federal Court.
writ of error coram nobis is an ancient common law
remedy that modern federal courts are authorized to issue
under the All Writs Act, 28 U.S.C. § 1651(a). See
United States v. Morgan, 346 U.S. 502, 506 (1954). As
applied in criminal cases, coram nobis "is a
step in the criminal case and not, like habeas corpus . . .
the beginning of a separate civil proceeding. . . . This
motion is of the same general character as one under 28
U.S.C. § 2255." Id. at 505 n.4. First
enacted in 1948, § 2255 is a comprehensive statutory
remedy intended "to meet practical difficulties" of
federal habeas corpus jurisdiction. United States v.
Hayman, 342 U.S. 205, 219 (1952). The Reviser's Note
to § 2255 explained that the statute "restates,
clarifies and simplifies the procedure in the nature of the
ancient writ of error coram nobis. It provides an expeditious
remedy for correcting erroneous sentences without resort to
habeas corpus." Id. at 218.
All Writs Act is a residual source of authority . . . . Where
a statute specifically addresses the particular issue at
hand, it is that authority, and not the All Writs Act, that
is controlling." Carlisle v. United States, 517
U.S. 416, 429 (1996) (quotation omitted); see United
States v. Denedo, 556 U.S. 904, 911 (2009). Section
2255, like habeas corpus, is limited to persons "in
custody." Thus, "coram nobis relief is available
when the defendant is no longer in custody for the applicable
conviction, while custody is a prerequisite for habeas
relief." United States v. Camacho-Bordes, 94
F.3d 1168, 1172 n.6 (8th Cir. 1996); see United States v.
Little, 608 F.2d 296, 299 (8th Cir. 1979) (coram
nobis and § 2255 are "substantially
Supreme Court held in Morgan that the enactment of
§ 2255 created no bar to granting a writ of error
coram nobis to a person who was convicted of a
federal crime but is no longer in custody. 346 U.S. at 511.
However, the Court explained, this "extraordinary
remedy" should be allowed "only under circumstances
compelling such action to achieve justice." Id.
Coram nobis relief has been called the criminal-law
equivalent of the Hail Mary pass in American football.
United States v. George, 676 F.3d 249, 251 (1st Cir.
2012). There is good reason for this reluctance. "The
further a case progresses through the remedial steps
available to a criminal defendant, the stiffer the
requirements for vacating a final judgment. . . . The writ of
error coram nobis lies at the far end of this
continuum." Id. at 258.
judicata does not apply to successive petitions for federal
habeas or § 2255 relief. See Sanders v. United
States, 373 U.S. 1, 14 (1963). However, limitations on
the filing of successive habeas petitions in 28 U.S.C. §
2244(b), a federal habeas statute, establish a
"qualified application of the doctrine of res
judicata." McCleskey v. Zant, 499 U.S. 467, 486
(1991), quoting S. Rep. No. 1797, at 2 (1966), 1966
U.S.C.C.A.N. at 3664. The Court in McCleskey defined
an abuse-of-the-writ inquiry that a petitioner must satisfy
to warrant relief on a successive post-conviction habeas or
§ 2255 petition. Id. at 489-96. Under
Morgan, a petitioner who was denied § 2255
relief while serving his sentence and is no longer in federal
custody may seek what is in substance successive
post-conviction relief by filing a petition for a writ of
error coram nobis. 346 U.S. at 505-06, 505 n.4.
Unless he is required to make at least the same showing as a
prisoner who seeks successive § 2255 relief,
"federal prisoners might deliberately wait until after
their sentences expire to challenge their convictions."
United States v. Correa-De Jesus, 708 F.2d 1283,
1286 (7th Cir. 1983).
Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), Congress imposed stricter limitations on the filing
of second and successive § 2255 motions than the
abuse-of-the-writ principles applicable under former §
2244(b) and McCleskey. First, a second or successive
§ 2255 motion must now be authorized "by a
three-judge panel of the court of appeals." 28 U.S.C.
§ 2244(b)(3)(B). This rule may not be evaded "by
simply filing a successive § 2255 motion in the district
court." Boykin v. United States, 242 F.3d 373
(Table), No. 99-3369 at *1 (8th Cir. 2000). Second, a court
of appeals panel may not certify a second or successive
§ 2255 motion unless it contains:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was