United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on the United States' Motion to Dismiss petitioner Keith Byron Baranski's ("petitioner" or "Mr. Baranski") Second Amended Verified Petition for Writ of Error Coram Nobis. Mr. Baranski opposes the motion to dismiss and it is fully briefed. In addition, petitioner filed a motion for leave to file a third amended petition for writ of error coram nobis. For the following reasons, the government's Motion to Dismiss will be granted in part and denied in part, and Mr. Baranski's motion for leave to file a third amended petition for writ of error coram nobis will be granted as set forth in this Memorandum and Order.
Mr. Baranski was convicted of one count of conspiracy to import machine guns illegally by submitting false entries in forms submitted to the Bureau of Alcohol, Tobacco & Firearms (ATF), in violation of 18 U.S.C. § 371. The government sought and obtained criminal forfeiture of the weapons. Mr. Baranski was sentenced to a term of sixty months' imprisonment followed by three years supervised release. Mr. Baranski appealed his conviction and sentence and the Eighth Circuit affirmed. United States v. Baranski , 75 F.Appx. 566 (8th Cir. 2003) (unpublished per curiam). Mr. Baranski filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 that this Court denied. Baranski v. United States, 2006 WL 472451 (E.D. Mo. Feb. 27, 2006). Mr. Baranski appealed, and the Eighth Circuit affirmed. Baranski v. United States , 515 F.3d 857 (8th Cir. 2008). Mr. Baranski's term of supervised release was terminated on August 17, 2009. Mr. Baranski filed a pro se Petition for Writ of Error Coram Nobis on January 18, 2011, and an amended petition through counsel on March 14, 2011 that asserted three counts. Mr. Baranski filed a second Amended Petition for Writ of Error Coram Nobis ("Petition") on May 21, 2014 that asserts ten counts (Doc. 140).
The government moves to dismiss the Petition. The government's motion to dismiss does not indicate the procedural authority on which it is based. The government states in its Reply memorandum that a portion of its motion is filed pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, and the remainder is based on the abuse of the writ doctrine.
II. Motion to Dismiss for Failure to State a Claim
A. Legal Standard
On a motion to dismiss, the Court accepts as true the factual allegations contained in the petition and grants the petitioner the benefit of all reasonable inferences that can be drawn from those allegations. See Lustgraaf v. Behrens , 619 F.3d 867, 872-73 (8th Cir. 2010). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged." Id.
The government moves to dismiss the Petition on the basis that Mr. Baranski has failed to allege "present adverse consequences" from his conviction, citing Stewart v. United States , 446 F.2d 42, 43-44 (8th Cir. 1971) and McFadden v. United States , 439 F.2d 285, 287 (8th Cir. 1971). The government states that although the Eighth Circuit has not stated what type of consequences must be shown to obtain coram nobis relief, other circuits require a showing of something more than simply a criminal conviction.
Mr. Baranski responds that the government has been on notice of the adverse consequences of his conviction since the day this matter was filed, as prior versions of the petition specifically alleged continuing adverse consequences of the conviction, including the inability to vote in federal elections, to be seated on a jury, to own or possess a firearm or ammunition for hunting purposes, to be an executor of an estate, to obtain employment comparable to that held at the time of his conviction (an importer), and the potential of receiving an enhanced sentence if an additional felony conviction is rendered. See Petition at 9-10 (Doc. 1); Amended Pet. at 15, ¶ 52 (Doc. 9). Petitioner concedes that the current Petition omits allegations of continuing adverse consequences, and seeks leave of Court to file a third amended Petition for Writ of Error Coram Nobis to re-allege the continuing adverse consequences.
The Court concludes that Mr. Baranski's prior petitions adequately alleged adverse consequences from his conviction, particularly that as a convicted felon, he can no longer hold his prior employment as an importer of firearms. The current Petition, however, fails to allege adverse consequences and is therefore deficient in this respect. Under these circumstances, Mr. Baranski will be granted leave to amend his petition to reallege the adverse consequences of his conviction. Because the Court concludes that portions of the Petition are not an abuse of the writ, infra, it will grant the government's motion to dismiss for failure to state a claim and also grant Mr. Baranski leave to file a third amended petition, in accordance with this Memorandum and Order, to reallege the adverse consequences of his conviction.
III. Motion to Dismiss for Abuse of the Writ
The government also moves to dismiss the Petition on the basis that it is an abuse of the writ. The government asserts that all but one of the issues raised in the Petition could and should have been raised either in Mr. Baranski's direct appeal or his motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, and not in another collateral attack of his conviction filed more than ten years after it occurred. The government also asserts that one of the issues in the Petition was actually raised and rejected in Mr. Baranski's § 2255 proceeding and as a result cannot be raised again.
A. Legal Standard
The abuse of the writ doctrine "in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding." McCleskey v. Zant , 499 U.S. 467, 490 (1991). The abuse of the writ doctrine also applies to coram nobis cases. United States v. Camacho-Bordes , 94 F.3d 1168, 1172-73 (8th Cir. 1996).
"[T]he abuse-of-the-writ doctrine... concentrate[s] on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time." McCleskey , 499 U.S. at 490. The Supreme Court held that the "cause" and "prejudice" standard used to determine whether to excuse state procedural defaults is the standard for determining whether there has been an abuse of the writ through inexcusable neglect. See id. at 490-96. Where a petitioner files a second or successive petition, "the government bears the burden of pleading abuse of the writ" and does so "if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ." Id. at 494. If this initial burden is met, it then shifts to the petitioner to disprove abuse. Id . To disprove abuse of the writ, the petitioner must show "cause for failing to raise [the new claim] and prejudice therefrom." Id.
"[C]ause... requires a showing of some external impediment preventing counsel from constructing or raising the claim.'" Id. at 497 (quoting Murray v. Carrier , 477 U.S. 478, 492 (1986)). The fact that a petitioner did not possess or could not reasonably have obtained certain evidence fails to establish cause if other known or discoverable evidence could have supported the claim in any event. Id . The abuse of the writ doctrine "examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." Id. at 498. "The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition." McCleskey , 499 U.S. at 498. "If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim." Id. at 497-98.
To establish prejudice, "The habeas petitioner must show not merely that the errors at... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Carrier , 477 U.S. at 494 (quoting United States v. Frady , 456 U.S. 152, 170 (1982)). Petitioner must show "there is a reasonable probability' that the result of his trial would have been different" if the government's promise to Carmi of a Rule 35 sentence reduction in return for his testimony had been disclosed to the defense. See Strickler v. Greene , 527 U.S. 263, 289 (1999). Thus, the Court must consider whether the impeachment information "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. at 290 (quoting Kyles v. Whitley , 514 U.S. 419, 435 (1995)).
If a petitioner cannot show cause, his failure to raise the claim earlier may still be excused if he can show that a "fundamental miscarriage of justice" would result from a failure to entertain the claim. McCleskey , 499 U.S. at 494-95.
B. Petitioner's Writ History
The government states that petitioner asserted the following claims on the direct appeal of his conviction:
(1) a challenge to the denial of his motion to suppress the results of a search warrant (372 machine guns) for lack of particularity.
(2) a challenge to sufficiency of evidence to support conviction for conspiracy to illegally import machine guns.
(3) prosecutorial misconduct based on numerous instances of allegedly improper cross-examination and closing argument.
(4) a challenge to the criminal forfeiture of weapons and accessories. The government states that petitioner asserted the following claims in his § 2255 motion to vacate:
(1) a challenge to the denial of his motion to suppress the results of a search warrant (372 machine guns) based on Supreme Court's subsequent decision in Groh v. Ramirez , 540 U.S. 551 (2004), which held that the Fourth Amendment requires particularity in the warrant, not the supporting documents, and that the Leon good faith exception does not apply.
(2) forfeiture of the 372 machine guns must be set aside because the exclusionary rule applies to forfeiture proceedings also.
(3) ATF Special Agent Johnson testified that he had never seen a law enforcement agency use a.50 caliber weapon even though the government's own filings belie this, and falsely testified that the Geneva Convention prohibited.50 caliber ammunition use against personnel; so the government knew or should have known that Agent Johnson presented false evidence and had a duty under Napue v. Illinois , 360 U.S. 264 (1959), to correct it.
The government has met its initial burden as it has described petitioner's prior writ history, identified all but one of petitioner's claims as being new, and alleged that petitioner's coram nobis petition constitutes abuse of the writ. The Court applies the principles articulated in McCleskey to determine whether petitioner can meet his burden to show cause and prejudice or ...