United States District Court, District of New Jersey
DAVID J. WYNN, Petitioner,
UNITED STATES, Respondent.
KEVIN MCNULTY, United States District Judge
Petitioner, David Wynn, is a former federal prisoner who has filed a pleading that is styled as a second petition for writ of error coram nobis. For the following reasons, the petition will be summarily dismissed.
Mr. Wynn pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. (See Crim. No. 08-763, Dkt. No. 84.) This was a fully-stipulated Guidelines plea agreement with an offense level of 17, corresponding to a range of 24-30 months' imprisonment. On October 17, 2011, Judge Dennis M. Cavanaugh, now retired, granted a significant downward variance and sentenced Mr. Wynn to a sentence of imprisonment of one year and one day, to be followed by a three year term of supervised release. Wynn was released from prison on October 5, 2012, and began serving his supervised release term at that time. See www.bop.gov/inmateloc (last visited on October 23, 2014) (showing date Mr. Wynn was released from federal incarceration).
On October 17, 2012, the Court received Mr. Wynn's original petition for a writ of error coram nobis. This matter, too, was assigned to Judge Cavanaugh. The petition asserted multiple grounds, including: (1) ineffective assistance of counsel; (2) selective prosecution; (3) perjured testimony; (4) Brady violations; (5) prosecutorial misconduct; (6) biased witnesses; and (7) insufficiency of the evidence. (See Dkt. No. 1 at p. 1-3.)
On October 27, 2012, Judge Cavanaugh provided Mr. Wynn with notice pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). (See Dkt. No. 2.) That Miller notice presented Mr. Wynn with three options: (1) have the pleading ruled upon as filed; (2) have the pleading recharacterized as a 28 U.S.C. § 2255 motion; or (3) withdraw the pleading and file an all-inclusive § 2255 motion, subject to the one-year statute of limitations applicable to § 2255 motions. (See id.) The notice further instructed Mr. Wynn that his petition would be ruled upon as filed if he did not respond to the Miller notice within 45 days. (See id.) Mr. Wynn did not respond to the Miller notice.
Judge Cavanaugh then ordered the respondent to answer the original coram nobis petition as filed. (See Dkt. No. 3.) On May 23, 2013, Respondent filed a motion to dismiss the original coram nobis petition. (See Dkt. No. 6.)
On August 8, 2013, Judge Cavanaugh granted the motion to dismiss. (See Dkt. No. 14.) His order of dismissal focused on ineffective assistance of counsel. That focus probably reflected the centrality of the ineffective assistance issue, because, if established, it would furnish grounds for having failed to raise the issues earlier, and might justify setting aside the waiver of issues inherent in a guilty plea. (See Dkt. No. 14 (citing Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985) (ineffective assistance in connection with a guilty plea); Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance generally)). Judge Cavanaugh granted the motion to dismiss, finding that the coram nobis petition did not set forth facts sufficient to make out a claim of ineffective assistance.
Over seven months later, on March 27, 2014, the Court received a letter from Mr. Wynn. (See Dkt. No. 15.) Mr. Wynn stated in that letter that he was never notified by the Court or the Clerk that Judge Cavanaugh had granted respondent's motion to dismiss. Mr. Wynn stated that he only became aware of Judge Cavanaugh's decision on March 8, 2014, and that he wanted to pursue his case further. At that time, Judge Cavanaugh had already retired. On June 5, 2014, Chief Judge Simandle reassigned this case to me. (See Dkt. No. 16.)
On June 16, 2014, I filed an opinion in which I construed Mr. Wynn's March 27, 2014 letter as a motion under Federal Rule of Appellate Procedure 4(a)(6) to reopen the period for filing an appeal. [See Dkt. No. 17.) For various reasons, I granted the motion. (See Dkt. Nos. 17 8b 18.) Mr. Wynn was given thirty days from June 16, 2014, to file his notice of appeal. (See Dkt. No. 18.)
Mr. Wynn did not file a notice of appeal. Instead, he filed a second petition for writ of error coram nobis, received by the Court on July 16, 2014. (See Dkt. No. 19.) Mr. Wynn listed his criminal case docket number, Crim. No. 08-763, on this second petition for writ of error coram nobis. The Clerk, however, docketed this second coram nobis petition under the docket number of the civil action that Judge Cavanaugh had previously dismissed. This second coram nobis petition is virtually identical to the original coram nobis petition that was dismissed by Judge Cavanaugh on August 8, 2013.
A. The Second Coram Nobis Petition is not a ...