United States v. Walter Himmelreich
Opinion
OPINION
Pro se appellant Walter Himmelreieh is a federal prisoner. Following his 2006 guilty plea to a count of producing child pornography in violation of 18 U.S.C. § 2251(b), we affirmed his conviction and sentence. See United States v. Himmelreich, 265 Fed.Appx. 100 (3d Cir. 2008). A collateral attack was unsuccessful. See United States v. Himmelreich, C.A. No. 10-4720 (order denying certificate of ap-pealability entered July 21, 2011).
In March 2012, Himmelreieh wrote to the District Court to request disclosure of a variety of documents, including: grand jury transcripts, FBI case notes, and the presiding District Judge’s case file notes. Himmelreieh explained that he was preparing a “writ of error coram nobis/vobis,” which was to be based on “newly discovered impeachment evidence” that the “lead investigator in this case[ ] ha[d] a history of tampering with evidence.” The District Court denied the motion and denied Him-melreich’s request for reconsideration. He timely appealed.
We have jurisdiction under 28 U.S.C. § 1291 and review for an abuse of discretion. C f. United States v. Miramontez, 995 F.2d 56, 59 (5th Cir. 1993). We detect none. Himmelreieh has failed to show the presence of an ongoing proceeding or a particularized need for the materials, especially those that are unreleased or otherwise privileged. See Fed.R.Crim.P. 6(e)(2)(E); Miramontez, 995 F.2d at 59. His reconsideration motion provided no basis for disturbing the District Court’s judgment. 1 See Long v. Atl. City Police Dep’t, 670 F.3d 436, 446 (3d Cir. 2012). To the extent that he wishes to prepare a writ of error coram nobis, he is cautioned that such a writ cannot be used to attack his conviction while he is still “in custody.” See Mendoza v. United States, No. 11-3958, 690 F.3d 157, 159-60, 2012 U.S.App. LEXIS 13225, at *4-5 (3d Cir. N.J. June 28, 2012). He may not pursue coram nobis *40 when other remedies, such as § 2255, remain available. United States v. Denedo, 556 U.S. 904, 911, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009). As we explained in our order denying a certificate of appeala-bility, he must obtain our permission if he wishes to file a second or successive collateral attack on his conviction or sentence; an inability to meet that standard does not render § 2255 relief “unavailable” for the purposes of coram nobis. United States v. Rhines, 640 F.3d 69, 72 (3d Cir. 2011) (per curiam). 2
There being no substantial question presented by this appeal, we will summarily affirm the order of the District Court. Id.; see also L.A.R. 27.4; IOP 10.6.
. The Seventh Circuit has cautioned that these post-trial requests can implicate the jurisdiction of the District Court, as they may be impermissible second or successive collateral attacks. See United States v. Scott, 414 F.3d 815, 816-17 (7th Cir. 2005). Because Him-melreich reveals that he intends to submit his petition in the future — he “is preparing” a coram nobis application that he "will” file— we will not find that the District Court lacked jurisdiction on this ground. See id.
. Himmelreich’s submissions contain the faint air of sovereign-citizen argumentation. See Mot. for Copies 1-2, ECF No. 173 (referring to the District Court as an "Article I Court”; referencing the "Incorporated United States of America”). To continue down that path would be unrewarding. See United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011).
Reference
- Full Case Name
- UNITED STATES of America v. Walter HIMMELREICH, Appellant
- Cited By
- 9 cases
- Status
- Unpublished