UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 72-67 (BAH)

JOHN MILTON AUSBY, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM OPINION

In 1972, the defendant, John Milton Ausby, was sentenced, following his conviction by a

jury for “Felony Murder” and “Rape while Armed,” to concurrent sentences of life in prison and

10 to 30 years’ incarceration, respectively. See Judgment & Commitment Order (Nov. 22,

1972); United States v. Ausby,

(D.C. Cir. 2019). Forty-seven years later, in

2019, while the defendant remained incarcerated only on the “Felony Murder” conviction, the

D.C. Circuit considered the defendant’s Motion to Vacate Conviction under

,

ECF No. 2, and found that the defendant “demonstrated a ‘reasonable likelihood’” that a

“forensic expert’s admittedly false” trial testimony about hair matching “could . . . have affected

the judgment of the jury,” Ausby,

(internal quotation marks and citation

omitted), and therefore “presented a valid claim under Napue [v. Illinois,

(1959)]

that he was convicted in violation of the Fifth and Sixth Amendments,” id. at 1095.

Consequently, the D.C. Circuit concluded that “the district court should have granted [the

defendant’s] § 2255 motion to vacate his conviction.” Id.

On remand, the parties were directed to “file a joint proposed order ‘to vacate [the

defendant’s] conviction,’ . . . consistent with the D.C. Circuit’s mandate,” Min. Order (June 7,

2019) (quoting Ausby,

), and the government was directed to “file an operative

1 version of the Indictment containing only the charges that the government intends to retry,”

The parties then jointly proposed vacatur of the defendant’s “November 22, 1972, judgment of

conviction on counts of felony murder and rape while armed related to Deborah Noel,” Jt. Filing:

Proposed Order Vacating the Conviction, ECF No. 34, and the government submitted a version

of the indictment proposing to re-try both convictions, see Gov’t’s Notice of Filing of Indictment

(Retyped), ECF No. 36. Acknowledging that the defendant’s sentence for rape has expired, the

parties urge the Court to “vacate the defendant’s felony murder conviction under § 2255, while

vacating the rape while armed conviction by issuing a writ of coram nobis.” Jt. Submission

Regarding Def.’s Conviction for Rape (“Parties’ Jt. Submission”) ¶ 3, ECF No. 40; see also

Def.’s Petition for Writ of Coram Nobis Vacating Conviction for Rape while Armed (“Def.’s

Pet.”) at 1, ECF No. 41.

For the reasons discussed below, jurisdiction is lacking to vacate the Rape while Armed

conviction under either avenue of relief provided by

or a writ of coram nobis.

I. BACKGROUND

The full factual and procedural background for this case has been set out in prior

decisions, see Ausby, 916 F.3d at 1090–93; United States v. Ausby, No. CR 72-67 (BAH),

, at *1–2 (D.D.C. June 11, 2019); United States v. Ausby,

, 9–24

(D.D.C. 2017), rev’d and remanded,

, and consequently only a brief review of

the facts necessary for resolution of the instant dispute is provided. The defendant was originally

tried and convicted by a jury in 1972, on one count of Felony Murder and one count of Rape

while Armed, for the rape and murder of Ms. Deborah Noel. Ausby,

. He was

then sentenced to life in prison on the Felony Murder conviction and received a concurrent

sentence of 10 to 30 years for his Rape while Armed conviction. Id.; Ausby,

,

2 at *1. The defendant was also convicted at a separate trial, in 1973, of murdering two other

women, Mses. Sharon Tapp and Sherry Frahm, but he remains incarcerated solely for the Felony

Murder conviction as to Ms. Noel. Ausby,

, at *1.

With respect to the defendant’s convictions for the rape and murder of Ms. Noel, the

evidence submitted at the defendant’s trial included testimony from a forensic expert that hairs

found at the murder scene were “microscopically identical” to the defendant’s hair. Ausby,

. In 2015, however, the government notified the defendant that this expert testimony

was “false or misleading,” and “waived any statute of limitations and procedural-default

defenses in the event [the defendant] sought relief under

.”

. Thus,

in 2016, the defendant filed a Motion to Vacate Conviction under

, arguing that

“the government’s knowing presentation of false and misleading expert hair examination

testimony” violated the Due Process Clause of the Fifth Amendment and Napue. See

This Court denied the defendant’s § 2255 motion, concluding that the “overwhelming

evidence against him” left no “reasonable likelihood” that without the false hair evidence, the

outcome would have been different. Ausby,

(internal quotation marks and

citation omitted). The D.C. Circuit, however, reversed, finding that the forensic expert’s false

hair-matching testimony “could . . . have affected the judgment of the jury.” Ausby,

(alteration in original) (internal quotation marks omitted) (quoting Napue,

).

In coming to that conclusion, the D.C. Circuit explained that under § 2255, “[a] federal

prisoner may move to have his sentence vacated . . . if ‘the sentence was imposed in violation of

the Constitution or laws of the United States,’” id. at 1092 (quoting § 2255(a)), and noted that the

defendant had “fully served his rape sentence, leaving his life sentence for murder,” id. at 1091.

Then, upon finding a Napue violation, the D.C. Circuit ruled that this Court “should have granted

3 [the defendant’s] § 2255 motion to vacate his conviction,” id. at 1095, and “remanded for

proceedings consistent with [its] opinion” to afford appropriate relief, id. The defendant did not,

and has not, challenged his separate convictions in 1973 for the murders of Mses. Sharon Tapp

and Sherry Frahm, sentences he has fully served. Ausby,

, at *7.

On remand, the government has sought to proceed with a new trial related to Ms. Noel’s

murder. See Min. Entry (Apr. 12, 2019) (setting trial date for October 7, 2019). As noted, in

response to the Court’s order, the parties proposed vacatur of both of the defendant’s

convictions, notwithstanding the D.C. Circuit’s observation that only the Felony Murder

sentence remained. See Jt. Filing: Proposed Order Vacating the Conviction, Att. 1 (“Jt. Proposed

Order”) at 3, ECF No. 34-1.

Upon consideration of this Joint Proposed Order, the Court sua sponte questioned

whether jurisdiction lies to vacate the defendant’s Rape while Armed conviction under § 2255,

since both the Verdict Form and the Judgment & Commitment Order reflect two convictions, on

two distinct charges, for Rape while Armed and for Felony Murder, and since the defendant had

fully served his Rape while Armed sentence when he filed his § 2255 motion. See Min. Order

(June 17, 2019). As a result, the parties were directed to file another joint submission explaining

why this Court has jurisdiction to vacate the defendant’s Rape while Armed conviction. Id.

In response, the parties agreed that the Rape while Armed conviction should be vacated,

but conceded that whether jurisdiction lies to afford that relief under § 2255 is “not without

complexity.” See Parties’ Jt. Submission ¶ 2. Despite this complexity, the defendant barely

addressed the jurisdictional issue, submitting a single footnote to argue that § 2255 confers

jurisdiction to vacate the Rape while Armed conviction. See Def.’s Pet. at 5 n.2. The

government offered no assistance, submitting no briefing on the issue.

4 In the alternative, the parties jointly proposed vacating the Rape while Armed conviction

through a writ of coram nobis if relief under § 2255 is unavailable. See Parties’ Jt. Submission ¶

3. To this end, the defendant filed an unopposed Petition for a Writ of Coram Nobis. See

generally Def.’s Pet. Since the defendant’s request for vacatur of his Rape while Armed

conviction, through either § 2255 or a writ of coram nobis, is unopposed by the government, the

defendant’s request for relief is now ripe for resolution.

II. DISCUSSION

The defendant seeks vacatur of his Felony Murder and Rape while Armed convictions,

and a new trial on both counts, pursuant to

. See Jt. Proposed Order at 3. In the

alternative, if § 2255 does not provide an avenue for vacatur of the defendant’s fully served Rape

while Armed sentence and underlying conviction, the defendant seeks that relief through a writ

of coram nobis under

. Def.’s Pet. at 1. For the reasons stated below, this

Court lacks subject matter jurisdiction to afford either form of relief as to the Rape While Armed

conviction.

A.

The defendant seeks vacatur of his Felony Murder and his Rape while Armed

convictions, and a new trial on both counts, see Jt. Proposed Order at 3, following the D.C.

Circuit’s remand for proceedings “consistent with [its] opinion,” Ausby,

. The

Felony Murder conviction most certainly may be vacated under § 2255 since the defendant was

“in custody” under the life sentence for that conviction at the time of his § 2255 motion. See id.

at 1091. Jurisdiction is lacking under § 2255, however, to vacate the defendant’s Rape while

Armed conviction because (1) the defendant was not “in custody” on the sentence for that

conviction when he filed his § 2255 motion, having fully served his Rape while Armed sentence

by that time; (2) relief available under § 2255 is circumscribed by the sentence under which the

5 defendant was “in custody” when he filed his § 2255 motion; and (3) the “sentencing package”

doctrine does not extend so broadly to authorize vacating the defendant’s expired, concurrent

Rape while Armed sentence. Each of these reasons is discussed in more detail below.

First, the defendant had fully served his Rape while Armed sentence by the time he filed

his § 2255 motion. See Def.’s Pet. at 1 (“Mr. Ausby has completed his sentence for the rape

count . . . .”); Ausby,

(“Ausby has fully served his rape sentence, leaving his life

sentence for murder.”). This fact poses a roadblock to the defendant’s requested relief under §

2255—vacatur of his Rape while Armed conviction and a new trial on that count—because

federal courts may grant § 2255 relief only when the defendant is “in custody under sentence of a

court” at the time the motion collaterally attacking that sentence or underlying conviction is

filed.

(a); Maleng v. Cook,

, 490–91 (1989) (explaining that for §§

2241 and 2254, “[w]e have interpreted the statutory language as requiring that the habeas

petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is

filed”); United States v. Verrusio,

, 3 (D.C. Cir. 2019) (applying Maleng to §

2255). This “in custody” requirement “lie[s] at the heart of habeas corpus.” Aamer v. Obama,

(D.C. Cir. 2014); see also Verrusio, 758 F. App’x at 3 (affirming denial of

§ 2255 motion because the petitioner failed “to establish that he remains a ‘prisoner in custody

under sentence of’ a federal court” (quoting § 2255)); Doe v. U.S. Parole Comm’n,

(D.C. Cir. 2015) (“[W]hether a claim sounds in habeas is closely linked to whether the

plaintiff is ‘in custody,’ as federal courts generally are without jurisdiction to grant a writ of

habeas corpus on behalf of a person who is not.” (footnote omitted)); Idema v. Rice, No. 05-cv-

2064 (EGS),

, at *2 (D.D.C. July 12, 2007) (“The ‘essence of modern habeas

6 corpus is to safeguard the individual against unlawful custody.’” (emphasis in original) (quoting

Chatman-Bey v. Thornburgh,

(D.C. Cir. 1988))).

The defendant protests that when he filed his § 2255 motion, the government “agreed to

waive statute of limitations and procedural defenses to a claim under . . . § 2255,” Def.’s Pet. at

2, and that the government to date “has not questioned the Court’s ability to provide broad relief

under” § 2255 “if [the defendant’s] motion was granted,” id. at 5. Whatever the government

may have agreed to is immaterial on this subject matter jurisdiction issue. The “federal habeas

statute gives the United States district courts jurisdiction to entertain petitions for habeas relief”

only for persons “in custody.” Maleng,

; see also Verrusio, 758 F. App’x at 3.

“It is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the

issue sua sponte.” NetworkIP, LLC v. FCC,

(D.C. Cir. 2008) (internal

quotation marks and citation omitted).

Second, when the Court expressed doubt about whether jurisdiction lies to vacate the

defendant’s Rape while Armed conviction, see Min. Order (June 17, 2019), the parties

acknowledged the issue’s “complexity,” see Def.’s Pet. at 3 n.1 (noting the government’s

agreement), and only the defendant barely addressed the issue, claiming in a single footnote that

§ 2255 confers broad authority to grant relief on a sentence for which a petitioner was “not in

custody” in reliance on Carafas v. LaVallee,

(1968), see Def.’s Pet. at 5 n.2. The

defendant is incorrect that relief under § 2255 is divorced from the statute’s “in custody”

requirement.

To start, Carafas cannot stand for the proposition that the defendant may obtain relief on

a sentence for which he was “not in custody.” That case concerned a habeas petition filed “while

[the petitioner] was actually incarcerated under the sentence he sought to attack,” and therefore

7 the “in custody” requirement was satisfied by the challenged sentence, notwithstanding that the

petitioner left custody during the pendency of his habeas petition. Maleng,

(describing Carafas’s holding). Thus, contrary to the defendant’s position, Carafas holds that

habeas relief extends to the sentence for which a defendant was “in custody” at the time of his §

2255 motion, a circumstance not present for the defendant’s fully served Rape while Armed

sentence at issue here. See id.; Verrusio, 758 F. App’x at 3 (“The Supreme Court considers the

status of a habeas petitioner’s custody only ‘at the time his [§ 2241] petition is filed,’ . . . and we

do the same when resolving a § 2255 motion.” (alteration in original) (quoting Maleng, 490 U.S.

at 490–91)).

Furthermore, the defendant’s position that habeas relief may be extended irrespective of

the “in custody” requirement is plainly wrong. The Supreme Court has explained that even

though federal habeas was “liberally construed” in Carafas, habeas may not “extend[] to the

situation where a habeas petitioner suffers no present restraint from a conviction” that has “fully

expired,” as is the case for the defendant’s fully served Rape while Armed sentence. Maleng,

; see also Verrusio, 758 F. App’x at 3 (affirming denial of habeas petition,

explaining, “[t]he District Court first found that [the petitioner] failed to demonstrate ‘custody’

under § 2255. We agree.”). To stretch habeas to that circumstance would “mean that a petitioner

whose sentence has completely expired could nonetheless challenge the conviction for which it

was imposed at any time on federal habeas,” inappropriately “read[ing] the ‘in custody’

requirement out of the statute” and “contrary to the clear implication of” Carafas. Maleng,

.

To be sure, the Supreme Court recognized in Garlotte v. Fordice,

(1995), a

case not raised by either party here, that a habeas petitioner could seek relief on an expired

8 sentence when he was serving a sentence consecutive to that expired sentence. Nonetheless,

Garlotte further confirms that habeas relief is circumscribed by the sentence for which the

defendant was “in custody” at the time of his § 2255 motion. See

. Critically,

Garlotte reasoned that a successful challenge on the expired sentence would result in relief

“shorten[ing] [the petitioner’s] term of incarceration,”

, and as a result, his “consecutive

sentences,” including the expired sentence, were to be viewed in “the aggregate, not as discrete

segments,”

Hence, there, the habeas petitioner could challenge his expired sentence because

he “remain[ed] ‘in custody’ under all of his sentences until all [we]re served.”

. The

Supreme Court, however, again reinforced that habeas relief would not extend “to the situation

where a habeas petitioner suffers no present restraint from a conviction.”

at 45 (quoting

Maleng,

).

Here, in stark contrast to the expired consecutive sentence in Garlotte, the defendant’s

fully served, concurrent Rape while Armed sentence posed no restraint on the defendant that

rendered him “in custody” when he filed his § 2255 motion, and thus relief may not be afforded

on that sentence under § 2255. Indeed, vacatur of the defendant’s fully served, concurrent Rape

while Armed sentence is not available under § 2255 because “[e]ven if successful, invalidation

of an expired concurrent sentence will have no effect on the ultimate length of incarceration.”

Bowling v. White,

, 1015 n.5 (6th Cir. 2017), cert. denied,

(2018) (explaining Garlotte does not apply to an “expired concurrent sentence”); see also Mays

v. Dinwiddie,

(10th Cir. 2009) (reasoning that Garlotte “is not wide enough

to cover a now-expired sentence that was imposed concurrently with sentences that a habeas

petitioner continues to serve”); Sweet v. McNeil,

(11th Cir. 2009)

(“Garlotte’s holding is applicable only to consecutive sentences, not to concurrent ones.”);

9 Hurdle v. Sheehan, No. 13-cv-6837 (RJS),

, at *3 (S.D.N.Y. Sept. 12, 2016)

(collecting cases for the proposition that “[w]here . . . a prisoner serving a series of concurrent

sentences challenges a shorter sentence that has already expired, the prisoner is no longer ‘in

custody’ on the shorter sentence, even if he remains in custody under a longer sentence, since ‘a

successful habeas action resulting in a vacated concurrent sentence would have no effect on [the

prisoner’s] release date from his other conviction and sentence.’” (emphasis in original) (quoting

Sweet,

)).

Third, the defendant turns to “sentencing package” cases, contending that relief under §

2255 need not be “limited to the counts challenged in the original [habeas] petition.” Def.’s Pet.

at 5 n.2. In the defendant’s view, because the Rape while Armed and Felony Murder convictions

were part of the same “judgment,” and he was “in custody” on the Felony Murder conviction

when he filed his § 2255 motion, § 2255(b) confers authority to afford relief on “any count” that

was part of that “judgment” or “sentencing package.” See id. The defendant’s argument

misconstrues case law relevant to the “sentencing package” doctrine.

As a threshold matter, the “sentencing package” doctrine may not be applied to the

defendant’s fully served, concurrent sentence for Rape while Armed sentence. The “sentencing

package” doctrine treats consecutive sentences on distinct counts as an aggregate “sentence”

under which the defendant is “in custody,” and as discussed infra, expired concurrent sentences

may not be treated as such under § 2255. See United States v. Hillary,

(4th

Cir. 1997) (explaining that the “sentencing package” doctrine is rooted in the Supreme Court’s

holding that “for jurisdictional purposes, consecutive sentences must be viewed in the aggregate”

(citing Garlotte,

)); United States v. Morris,

(D.C. Cir. 1997)

10 (treating interdependent, consecutive sentences as an aggregate, single “sentence” under which

the defendant was in custody).

Furthermore, the “sentencing package” doctrine typically comes into play in the habeas

context when a petitioner asks the Court to “resentence” him or “correct” the challenged

sentence “as may appear appropriate,” two of the remedies available under § 2255(b). See, e.g.,

Morris,

. In this case, the defendant does not request a resentencing or correction

of the Felony Murder sentence, for which he was “in custody” when he filed his § 2255 motion,

but rather seeks a “new trial,” a completely different remedy available under § 2255(b). See

(b) (“[T]he court shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear

appropriate.”). Thus, the “sentencing package” doctrine is wholly inapplicable here.

Next, even if the “sentencing package” doctrine could be grafted onto the defendant’s

request for relief in the form of a “new trial” for his Felony Murder conviction, the defendant

stretches this theory beyond its limits by arguing that the “sentencing package” doctrine then

authorizes relief on “any count in the sentencing package even though the defendant had

challenged only one of his convictions.” Def.’s Pet. at 5 n.2. As the D.C. Circuit has explained,

“in some instances, sentences on multiple counts may comprise a ‘sentencing package,’ so that

attacking the sentence on some counts via § 2255 reopens the sentence on the other counts as

well.” United States v. Townsend,

(D.C. Cir. 1999). Yet, despite the

“singularity of the judgments under which” a defendant is imprisoned, Morris,

,

“not every judgment involving multiple convictions presents a sentencing package in which

vacating the sentence on one count unravels the remaining sentences,” United States v. Palmer,

(D.C. Cir. 2017), cert. denied,

(2017).

11 The critical inquiry for the applicability of the “sentencing package” doctrine “rests on

the interdependence of the different segments of the sentence, such that removal of the sentence

on one count draws into question the correctness of the initial aggregate minus the severed

element.” United States v. Smith,

(D.C. Cir. 2006). Put another way, the

“sentencing package” doctrine applies when vacatur of a challenged conviction requires

revisiting other counts to “resentence” the defendant, or to “correct” a sentence, since the

punishment for the challenged sentence is not reflected solely in “the punishment for [that] single

count,” Morris,

. Thus, when the determinations of multiple sentences are “in no

way interdependent,” the sentences may not be reviewed as an aggregate, and the “sentencing

package doctrine . . . affords no apparent basis for any resentencing on the other counts” not

challenged. Smith,

. For instance, when “several concurrent life terms” for a

group of convictions were imposed, and then, “once the package was complete,” a further

“consecutive 30–year term” for a separate conviction was imposed, the D.C. Circuit ruled that

the group of life sentences and the 30–year term “were in no way interdependent” and in

consequence, the “sentencing package” doctrine did not apply.

Here, the record does not establish that the presiding judge’s determination of the 10 to

30 year concurrent Rape while Armed sentence was interdependent on the defendant’s life

sentence for Felony Murder. See generally Sentencing Tr. (Nov. 22, 1972). Rather, the

presiding judge imposed a life sentence for Felony Murder, and once that was complete, further

imposed a concurrent 10 to 30 year term for the Rape while Armed conviction. See id. at 7 (“On

the first count in which you were found guilty, felony murder, the Court will sentence you for a

period of life imprisonment. On the second count, carnal knowledge while armed, the Court will

sentence you for a period of ten to thirty years.”). These two sentences were thus “in no way

12 interdependent.” Smith,

. Rote application of the sentencing package doctrine,

assuming it could apply here, therefore, does not permit reaching the defendant’s Rape while

Armed conviction based on his successful challenge to the Felony Murder conviction

appropriately before the Court.

Last, the broader principle underlying the “sentencing package” doctrine—that affording

relief on a challenged count requires revisiting other counts due to their interdependence—does

not justify relief on the defendant’s Rape while Armed conviction. Vacating the Felony Murder

conviction and holding a new trial on that count does not require revisiting and vacating the Rape

while Armed conviction. Accordingly, the “sentencing package doctrine” does not confer

jurisdiction to vacate the defendant’s Rape while Armed sentence. The defendant’s request for

vacatur of his Rape while Armed sentence under § 2255 is therefore denied. 1

B. Writ of Coram Nobis

In the alternative to his request for relief through § 2255, the defendant requests a writ of

coram nobis to vacate his Rape while Armed conviction. See generally Def.’s Pet. The

defendant’s petition for a writ of coram nobis is also denied for lack of jurisdiction, since the

defendant has (1) failed to identify an injury in fact; and (2) even if the defendant had identified

an injury in fact, he has failed to explain how a writ of coram nobis would remedy any alleged

harm. After a discussion of the legal framework for writs of coram nobis, each of these reasons

is discussed in turn.

1 The defendant further claims that United States v. Silvers,

(4th Cir. 1996), may be construed to support the proposition that § 2255 authorizes relief on his fully served Rape while Armed Sentence here. See Def.’s Pet. at 5 n.2. This argument does not merit substantial discussion because the defendant overlooks that the Fourth Circuit has, to the contrary, explained that Silvers is “consistent with reading the in-custody ‘sentence’ at the beginning of § 2255 as congruent with the ‘sentence’ to which the district court’s remedial power extends.” Hillary,

. “Inasmuch as the petitioner in Silvers was no longer ‘in custody’ under his discharged consecutive sentences, the court had no § 2255 jurisdiction to disturb them . . . .” Id.

13 “[T]he authority to grant a writ of coram nobis is conferred by the All Writs Act, which

permits ‘courts established by Act of Congress’ to issue ‘all writs necessary or appropriate in aid

of their respective jurisdictions.’” United States v. Denedo,

(2009) (quoting

(a)). The writ of coram nobis is “an extraordinary tool to correct a legal or

factual error,”

at 912–13, and “provides a way to collaterally attack a criminal conviction for

a person . . . who is no longer in custody and therefore cannot seek habeas relief under

or § 2241,” United States v. Newman,

(D.C. Cir. 2015) (internal

quotation marks omitted) (quoting Chaidez v. United States,

, 345 n.1 (2013)).

“[J]udgment finality,” however, “is not to be lightly cast aside,” and “courts must be cautious so

that the extraordinary remedy of coram nobis issues only in extreme cases.” Denedo,

.

“In American jurisprudence the precise contours of coram nobis have not been ‘well

defined,’”

at 910 (quoting Bronson v. Schulten,

(1881)), and “the D.C.

Circuit’s precedent in this area is thin,” United States v. Williams,

(D.D.C. 2009). Nonetheless, “[a]s the text of the All Writs Act recognizes, a court’s power to

issue any form of relief—extraordinary or otherwise—is contingent on that court’s subject-

matter jurisdiction over the case or controversy.” Denedo,

; see also Verrusio,

758 F. App’x at 3–4 (affirming district court’s dismissal of coram nobis petition for “lack of

Article III standing”). Thus, despite the parties’ consensus that a writ of coram nobis should

issue here, see Def.’s Pet. at 1, the case or controversy requirement of Article III imposes on the

Court an “independent obligation to be sure of [its] jurisdiction,’” since “Article III standing is

jurisdictional,” Am. Rivers v. FERC,

(D.C. Cir. 2018) (internal quotation marks

and citation omitted).

14 “[C]ourts have articulated several factors that may bear on the propriety of granting” a

writ of coram nobis, Newman,

, but traditionally consider whether “adverse

consequences exist from the conviction sufficient to satisfy the case or controversy requirement

of Article III,” United States v. Verrusio, No. 09-cr-64 (BAH),

, at *8 (D.D.C.

Apr. 21, 2017), aff’d, 758 F. App’x at 2 (collecting cases, including United States v. Faison,

(D.D.C. 2013), and United States v. Riedl,

(9th Cir.

2007)); see also Verrusio, 758 F. App’x at 4 (“declin[ing] to disturb” district court’s dismissal of

“coram nobis petition for lack of Article III standing”); Newman,

(taking note

of the factors considered for coram nobis petitions in Faison and Riedl, which cases included the

Article III standing requirement). Furthermore, even if the defendant shows an “actual or

threatened injury” in the form of “adverse consequences,” Article III further requires a defendant

to show “that the injury is likely to be redressed” by issuance of a writ of coram nobis. Rossini

v. United States, No. 08-692 (JMF),

, at *4 (D.D.C. Oct. 14, 2014); see also

Lujan v. Defs. of Wildlife,

, 560–62 (1992) (explaining that “the irreducible

constitutional minimum of standing” includes “injury in fact,” “causation,” and “redressability”);

Verrusio, 758 F. App’x at 4 (affirming denial of writ of coram nobis for lack of redressability).

Here, the defendant has neither established that he suffers an injury in fact, nor that any

such injury would be redressed by issuance of the writ. First, for injury in fact, the defendant

does not dispute that “adverse consequences [must] exist from the conviction sufficient to satisfy

the case or controversy requirement of Article III.” See Def.’s Pet. at 4; see also Verrusio,

, at *8 (collecting cases). The defendant, however, contends, in a mere two

sentences, that he remains injured by his Rape while Armed conviction because even though he

has “fully served” his sentence on this conviction, Def.’s Pet. at 4 (quoting Ausby,

1091), “he continues to face collateral consequences,”

This bare assertion of “collateral

consequences” falls far short of establishing Article III standing, for which a party’s claims must

“spring from an ‘injury in fact’—an invasion of a legally protected interest that is ‘concrete and

particularized,’ ‘actual or imminent.’” Navegar, Inc. v. United States,

(D.C.

Cir. 1997) (quoting Lujan, 504 U.S. at 560–61). The defendant’s alleged injury here is neither

concrete nor particularized. Rather, the defendant’s passing and conclusory reference to

“collateral consequences” is entirely ambiguous, and he fails to elaborate.

Second, even if the defendant had established an injury in fact, which he has not, the

defendant has not shown how that injury would be redressed by issuance of a writ of coram

nobis. To meet the requirements of Article III, a defendant must show that his “injury is likely to

be redressed by a favorable action.” Rossini,

, at *4; see also Lujan, 504 U.S.

at 560–62 (explaining that “the irreducible constitutional minimum of standing” includes

“redressability”). Accordingly, the defendant bears the burden of establishing that a writ of

coram nobis would “eliminate the claimed collateral consequence and bring about the relief

sought.” United States v. George,

, 256 n.3 (1st Cir. 2012); see also Fleming v.

United States,

(2d Cir. 1998) (stating that a coram nobis petitioner must show

that he “continues to suffer legal consequences from his conviction that may be remedied by

granting of the writ” (quoting Foont v. United States,

(2d Cir. 1996))).

In this case, the defendant intimates, solely through a citation to Carafas, with no

explanation of that case’s significance, that the “collateral consequences” he faces from his Rape

while Armed conviction are unidentified civil disabilities. See Def.’s Pet at 4. Although the

defendant fails to explain this point, Carafas noted certain civil “disabilities” that a petitioner

suffered “[i]n consequence of his conviction,” citing for example that the petitioner could not

16 “engage in certain businesses, . . . serve as an official of a labor union for a specified period of

time; . . . vote in any election held in New York State . . . [or] serve as a juror.” Carafas,

.

To the extent the defendant meant to argue, solely by his unexplained citation to Carafas,

that his injuries are certain civil disabilities attendant to his Rape while Armed conviction,

vacatur of this conviction would not provide any redress, because the defendant remains a

convicted felon for the murders of Mses. Sharon Tapp and Sherry Frahm, convictions the

defendant has never challenged. See Verrusio, 758 F. App’x at 3–4 (declining to disturb district

court’s dismissal of coram nobis petition for lack of Article III standing, where district court

concluded vacatur of challenged convictions would not redress collateral consequences of

challenged convictions since another conviction would remain untouched). Accordingly, the

defendant’s petition for a writ of coram nobis is dismissed for lack of jurisdiction.

III. CONCLUSION

For the foregoing reasons, the defendant’s Felony Murder conviction shall be vacated.

Jurisdiction is lacking, however, to vacate the defendant’s Rape while Armed conviction,

through either

or a writ of coram nobis. Accordingly, the defendant’s Petition

for Writ of Coram Nobis Vacating Conviction for Rape while Armed is DENIED.

An appropriate order accompanies this Memorandum Opinion.

Date: July 3, 2019

__________________________ BERYL A. HOWELL Chief Judge

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