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United States of America v. Jemal Simmons

December 1, 2010

UNITED STATES OF AMERICA,
v.
JEMAL SIMMONS,
DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

Jemal Simmons ("the defendant"), appearing pro se, moves for a writ of error coram nobis and/or audita querela to vacate his conviction and sentence. He also seeks early termination of his eight-year term of mandatory supervised release, pursuant to 18 U.S.C. § 3583(e)(1). I.

On January 5, 1996, in the United States District Court for the District of Maine, the defendant pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute five grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 846, and to one count of the substantive charge of distributing and possessing the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). (Govt.'s Mem. of Law in Opp'n to Respt's Mots. ("Govt. Mem.") Ex. C.) On April 2, 1996, the defendant was sentenced, under the then applicable Sentencing Guidelines, to 135 months of imprisonment and eight years of mandatory supervised release on both counts to be served concurrently. (Govt. Mem. Ex. E.)

The defendant appealed the district court's sentencing determination to the Court of Appeals for the First Circuit, arguing that the district court should have given fuller consideration to the defendant's alleged cooperation with the government and challenging the constitutionality of the Sentencing Guidelines' disparate treatment of crimes involving crack cocaine as compared to crimes involving powder cocaine. The Court of Appeals summarily affirmed the defendant's sentence. United States v. Jemal Simmons, 92 F.3d 1169 (1st Cir. 1996) (table).

On August 18, 1997, the defendant filed a petition to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. (Govt. Mem. Ex. G.) The defendant claimed that his trial counsel failed to hold the government to its burden of proof at sentencing by not requiring the government to prove that the type of cocaine distributed by the defendant was in fact crack. (Govt. Mem. Ex. G.) On November 10, 1997, Magistrate Judge David M. Cohen, of the United States District Court for the District of Maine, recommended that the defendant's motion be denied without an evidentiary hearing. (Govt. Mem. Ex. H.) On December 2, 1997, Judge D. Brock Hornby, of the United States District Court for the District of Maine, adopted the Magistrate Judge's recommended decision and denied the defendant's motion. (Govt. Mem. Ex. I.)

The defendant was released from the Federal Bureau of Prisons on July 22, 2005, and began serving his eight-year term of mandatory supervised release. On or about October 4, 2005, this matter was transferred to this Court from the District of Maine. On or about October 14, 2008, the defendant filed a motion before this Court for early termination of his term of mandatory supervised release, pursuant to 18 U.S.C. § 3583(e)(1). On or about January 28, 2009, the defendant further moved to vacate his conviction through a writ of error coram nobis or audita querela, pursuant to the All Writs Act, 28 U.S.C. § 1651.

In his motion for a writ of error coram nobis and/or audita querela, the defendant seeks to withdraw his guilty plea and vacate his conviction and sentence. The defendant contends that the government failed to file an information of previous conviction prior to his plea allocution, and consequently, the district court was deprived of jurisdiction, under 21 U.S.C. § 851(a)(1), to impose an enhanced sentence. (Def.'s Mot. to Vacate, 1-2.) The defendant also argues that the district court failed to provide the defendant with notice of its intent to sentence the defendant outside the Guideline Sentencing range. (Id.)

II.

A.

The All Writs Act provides that "[t]he Supreme Court and all courts established by Act of Congress 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, as the Supreme Court has instructed, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. 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) (quoting Pa. Bureau of Corr. v. United Sates Marshals Servs., 447 U.S. 34, 43 (1985)).

The writs of error coram nobis and audita querela are "ancient" common law writs, Triestman v. United States, 124 F.3d 361, 380 n.24 (2d Cir. 1997), which "remain available in very limited circumstances with respect to criminal convictions." United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). "[B]oth writs are only available where a prisoner has a legal challenge to his conviction that is not redressable pursuant to a statutory post-conviction remedy," such as 28 U.S.C. § 2255.

United States v. LaPorta, 20 F. Supp. 2d 530, 533 (W.D.N.Y. 1998).

The writ of audita querela "is probably available where there is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy." United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam) (quoting La Plante, 57 F.3d at 253); see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) (per curiam) (The writ "survive[s] only to the extent that [it] fill[s] 'gaps' in the current system of post-conviction relief.").

In his motion for a writ of audita querela and/or coram nobis, the defendant seeks to vacate his conviction and sentence. He contends that the district court was precluded from increasing the defendant's sentence on the basis of his prior convictions because the government failed to serve a copy of the information of previous convictions on the defendant and that the sentencing court improperly sentenced the defendant to a term outside the ...


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