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Baranski v. United States

United States Court of Appeals, Eighth Circuit

January 23, 2018

Keith Byron Baranski Petitioner-Appellant
United States of America Respondent-Appellee

          Submitted: September 20, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.

          LOKEN, Circuit Judge.

         In 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[1] 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).

         Baranski 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.

         I. The Writ of Error Coram Nobis in Federal Court.

         The 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.

         "[T]he 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 equivalent" remedies).

         The 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.

         Res 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).

         In the 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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