United States District Court, D. New Jersey
ALAN D. GARRETT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. Garret, Petitioner pro se
HONORABLE JEROME B. SIMANDLE, DISTRICT JUDGE
Alan D. Garrett ("Garrett" or
"Petitioner") pled guilty to a one-count Indictment
on October 4, 2011, for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). On January
26, 2012, the Honorable Jerome B. Simandle sentenced him to
seventy-seven (77) months imprisonment, to be followed by
three (3) years of supervised release. Shortly after he
completed his initial term of imprisonment, Garrett violated
the terms of his supervised release and was sentenced for
that violation on December 12, 2016. After filing several
unsuccessful motions to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, Garrett now seeks to
file a petition for writ of error coram nobis. [Docket Entry
1.] For the reasons explained below, the Court will deny and
dismiss the petition.
FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND
October 4, 2011, Garrett pled guilty to a single count
Indictment for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). [United States v.
Garrett, Crim. No. 11-242 (D.N.J.) at Docket Items 25
& 27..] Judge Simandle sentenced Garrett at the bottom of
the advisory guidelines range to seventy-seven (77) months
imprisonment, to be followed by three (3) years of supervised
release, and entered the final Judgment of conviction on
January 26, 2012 ("the January 26, 2012 Judgment").
[Id. at Docket Items 28 & 29.] Mr. Michael N.
Huff, Esq. subsequently filed a notice of appeal on behalf of
Garrett, United States v. Garrett, App. No. 12-1338
(3d Cir.), which the Third Circuit denied, United States
v. Garrett, 507 Fed.Appx. 139 (3d Cir. 2012) .
January 2, 2013, Garrett timely filed a habeas petition with
respect to the January 26, 2012 Judgment, under 28 U.S.C.
§ 2255, arguing that his 2012 sentence was invalid
because, inter 'alia, the Court lacked
jurisdiction, he was actually innocent, his counsel was
ineffective, essential elements of the offense were missing,
unlawfully obtained evidence was used, there were speedy
trial act violations, and he was entitled to a downward
departure. [United States v. Garrett, Civ. No. 13-27
(D.N.J.) at Docket Item 1.] Judge Simandle denied this §
2255 petition because Garrett had waived his right to
petition for § 2255 and, in any event, none of his
arguments had merit. Garrett v. United States, 2014
WL 1334213 (D.N.J. Apr. 2, 2014).
9, 2016, Garrett began serving the first term of his
supervised release. [Garrett, Crim. No. 11-242
(D.N.J.) at Docket Item 40.] A little more than one month
later, Garrett was charged in state court with aggravated
assault, possession of a weapon for unlawful purposes, and
possession of a weapon by a convicted felon. [Id. ]
Subsequently, those charges were dropped in exchange for
Garrett pleading guilty to hindering apprehension.
[Id.] His federal probation officer petitioned for a
violation of his supervised release because Garrett had
"commit[ted] another federal, state, or local
crime" while under supervision. [Id. ]
Garrett's probation officer subsequently amended the
petition, alleging a second violation for possessing a
firearm. [Id. at Docket Item 53.] Judge Simandle
sentenced Garrett to a term of imprisonment of 12 months and
1 day, to be followed by a term of 23 months of supervised
release, and entered Judgment against Garrett for violating
his supervised release on December 12, 2016 ("the
December 12., 2016 Judgment") [Id. at Docket
8, 2017, Garrett filed a Motion in the U.S. District Court
for the District of New Jersey pursuant to 28 U.S.C. §
2255. [Garrett, Civ. No. 17-3254 (D.N.J.) at Docket Item 1.]
This § 2255 petition challenged his conviction and
confinement for violation of supervised release imposed on
December 12, 2016 (i.e., the December 12, 2016
Judgment), arguing that the Court failed to grant a downward
departure for time served from June 23, 2016 to November 16,
2016 under U.S.S.G. § 5K2.23. [Id. at 3-4.]
Garrett also objected to the condition imposed upon his
future supervised release requiring drug and alcohol testing.
[Id. at 4.] The Court denied this Motion on May 6,
2019. [Id. at Docket Item 51.]
days later the Court received the instant petition for writ
of error coram nobis. [Id. at Docket Item 52.] Judge
Simandle directed that it be filed separately for
consideration. [Id. at Docket Item 53.]
availability of a writ of error coram nobis is extremely
limited due to judicial disfavor for voiding final criminal
judgments. The power to grant such a writ is conferred on the
federal courts by the All Writs Act, 28 U.S.C. §
1651(a). The use of coram nobis is limited to
"'extraordinary' cases presenting circumstances
compelling its use 'to achieve justice.'"
United States v. Denedo, 556 U.S. 904, 911 (2009)
(quoting United States v. Morgan, 346 U.S. 502, 511
a writ of error coram nobis is available in federal courts in
criminal matters, see 28 U.S.C. § 1651(a),
coram nobis has traditionally been used to attack convictions
with continuing consequences when the petitioner is no longer
in custody' for purposes of 28 U.S.C. § 2255."
United States v. Baptiste, 223 F.3d 188, 189 (3d
Cir. 2000). Petitioner was still in the custody of the Bureau
of Prisons when he filed this petition with a release date of
May 22, 2019. See Inmate Locator, available
at, https://www.bop.gov/inmateloc/ (last visited ...