Keith Byron Baranski v. United States of America

St. Louis, MO - Criminal defense lawyer represented Defendant charged with conspiracy to import machine guns.

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 wastainted 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”

The Honorable Charles A. Shaw, United States District Judge for the Eastern 1

District of Missouri.

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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 criminallaw 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.

Resjudicata 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

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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 resjudicata.” 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

isin 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 orsuccessive § 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

collateralreview by the Supreme Court, that was previously unavailable.

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§ 2255(h). Section 2255(h)(1) "alters the common law miscarriage of justice

exception . . . by changing the standard from 'more likely than not' to 'clear and

convincing evidence.'” United States v. Williams, 790 F.3d 1059, 1076 (10th Cir.

2015). Given that habeas, § 2255, and criminal coram nobis relief are substantively

indistinguishable, a critical issue on this appeal, not addressed by the district court,

is whether AEDPA's restrictions on successive § 2255 motions affect the availability

of coram nobis relief to a petitioner whose claim would be barred had he petitioned

for relief while still in federal custody.

The first question is procedural: whether a coram nobis petitioner whose

motion for § 2255 relief was denied while he was in custody must obtain

authorization from a three-judge panel of the court of appeals in accordance with

§ 2244(b)(3)(B). Given the legislative history of these remedies -- in particular, the

Reviser's Note explaining that § 2255 is a "procedure in the nature of the ancient writ

of error coram nobis” -- we believe that Congress, had it focused on this question,

would have required coram nobis petitioners in this situation to obtain court of

appeals authorization. But the restriction is in § 2244(b), which is plainly limited to

"a second or successive habeas corpus application,” and the cross-reference in

§ 2255(h) is similarly limited to a "second or successive [§ 2255] motion.” As

Congress did not impose this restriction on coram nobis petitioners seeking

successive post-conviction relief, we may not read it into the statutes.

The second question is substantive: whether AEDPA's restrictions on the grant

of successive relief set forth in § 2255(h)(1) and (2) limit the grant of coram nobis

relief to a petitioner whose motion for § 2255 relief was denied while he was still in

custody. We conclude the answer to this question must be yes. Congress and the

Supreme Court have reacted to "the increasing burden on federal courts caused by

successive and abusive petitions” by enacting and amending 28 U.S.C. § 2244(b) and

by refining and strengthening the Court's equitable abuse-of-the-writ jurisprudence.

See McCleskey, 499 U.S. at 481-89. These efforts have been complementary, at least

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for the most part. The Supreme Court has ruled that, even when the terms of AEDPA

do not govern a particular case, "a court of appeals must exercise its discretion in a

manner consistent with the objects of the statute. In a habeas case, moreover, the

court must be guided by the general principles underlying our habeas corpus

jurisprudence.” Calderon v. Thompson, 523 U.S. 538, 554 (1998). When a

proceduralRule 60(b) motion "isin substance a successive habeas petition [it] should

be treated accordingly.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Likewise,

we have stated that "[t]he writ of coram nobis may not be used to circumvent the clear

congressional directive embodied in the 'second orsuccessive' provisions of § 2255.”

United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000).

It is widely accepted that custody is the only substantive difference between

coram nobis and habeas petitions. See Chaidez v. United States, 133 S. Ct. 1103,

1106 n.1 (2013). Coram nobis relief is not available to a federal prisoner while in

custody, even if a successive § 2255 motion would be barred by AEDPA's restrictive

standards. See United States v. Brown, 178 F. App'x 299 (4th Cir. 2006); United

States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000). Given that coram nobis is

an extraordinary remedy available at the far end of a post-conviction continuum only

for the "most fundamental” errors, Morgan, 346 U.S. at 512, it would make no sense

to rule that a petitioner no longer in custody may obtain coram nobisrelief with a less

rigorous substantive showing than that required by AEDPA's limitations for

successive habeas corpus and § 2255 relief. Therefore, we conclude that Baranski's

coram nobis petition is subject to the restrictions on second or successive § 2255

motions set forth in § 2255(h)(1) and (2).

II.

Turning to the facts of this case, the trial testimony of cooperating conspirators

James Carmi and Jeff Knipp, corroborated by other government witnesses and

extensive documentary evidence, established that Baranski obtained machine guns

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in Eastern Europe and placed them in a bonded customs warehouse; Carmi used

bribes to obtain fictitious letters from Knipp, chief of police of Farber, Missouri, and

other law enforcement officials requesting demonstrations or indicating a desire to

purchase the weapons; and Baranski used those letters to fraudulently remove

machine guns from the customs warehouse and sell them to Carmi. See 26 U.S.C.

§§ 5844(1), 5861(l).

Baranski alleged that his conviction and sentence should be vacated because

the government violated the constitutional principles of Brady v. Maryland, 373 U.S.

83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by (i) failing to disclose

that it offered Carmi a Rule 35 sentence reduction in return for his testimony at

Baranski's trial, and letting Carmi falsely testify that he had not asked for and

expected no further reduction; (ii) failing to turn over medical records regarding

Carmi's mental problems and memory loss following a May 2000 motorcycle

accident -- records that could have been used for impeachment purposes; (iii) failing

to disclose Carmi's PSR and allowing Carmi to testify falsely about his sentence

exposure; and (iv) vindictively prosecuting Baranski for filing a Bivens action

challenging the seizure of his firearms.

After a two-day evidentiary hearing, the district court rejected all claims on the

merits and dismissed the coram nobis petition. First, the court found that Carmi was

not promised a Rule 35 sentence reduction in exchange for testifying against

Baranski. Moreover, "[t]he jury that found Mr. Baranski guilty heard Carmi testify

his sentence was cut in half for agreeing to cooperate against Mr. Baranski,” so he

"failed to show the likelihood of a different result great enough to undermine

confidence in the outcome of the trial.” Second, the court found that Carmi testified

"extensively and truthfully” regarding his injury and memory lossissues. None ofthe

documents relating to mental condition and memory loss "would have opened a new

line of impeachment or provided a different avenue of impeachment.” There was no

Brady violation because the records not produced were "similar to and largely

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cumulative of the information that was available to Mr. Baranski's defense team

before trial.”

Third, the court found that the government did not mislead the defense

regarding Carmi's incarceration exposure. Baranski has not shown "a reasonable

probability that had the PSR's incorrect sentencing range [for Carmi] been disclosed,

the result of the proceeding would have been different, such that confidence in the

outcome of the trial is undermined.” Finally, the court found that the allegation of

vindictive prosecution was factually without merit.

The district court's lengthy Memorandum and Order noted that defense

counsel's cross examination at trial included "Carmi's mental health and memory

loss, the charges Carmi pleaded guilty to, his sentencing exposure, promises the

Government made to Carmi . . . and the benefits he received, and the possibility of

Carmi receiving a motion pursuant to Rule 35.” The court further noted "there was

corroborated evidence and testimony, including Mr. Baranski's own personal

communicationsto Carmi, concerning the criminalscheme charged in the case.” The

court concluded "that Mr. Baranski has failed to meet his burden to establish that he

is entitled to the extraordinary relief of coram nobis.”

On appeal, in addition to challenging all the district court's essential findings,

Baranski argues he is entitled to coram nobis relief because, if the government had

made the required disclosures and not elicited false testimony, "there is a reasonable

probability that . . . the result of the proceeding would have been different,” the

standard for determining whether a Brady/Giglio violation is material. Smith v. Cain,

132 S. Ct. 627, 630 (2012). As we have explained, that is not the proper standard for

obtaining substantively successive post-conviction coram nobis relief. Rather,

Baranski must present "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

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offense.” 28 U.S.C. § 2255(h)(1). He has no new evidence relating to the elements 2

of the offense that would support a claim of actual innocence, only allegedly new

information that no doubt would have expanded defense counsel's cross examination

and attempted impeachment of cooperating conspirator Carmi on subjects that were

extensively explored at trial. Applying the proper § 2255(h) substantive standard, the

district court did not abuse its discretion in concluding that no "fundamental” error

warranted issuing an extraordinary writ of error coram nobis.

The Order of the district court dated March 31, 2016 is affirmed.