United States v. Trenkler ( 2008 )


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  •             United States Court of Appeals
    For the First Circuit
    No. 07-1678
    ALFRED W. TRENKLER,
    Petitioner, Appellee,
    v.
    UNITED STATES OF AMERICA,
    Respondent, Appellant.
    No. 07-1679
    ALFRED W. TRENKLER,
    Petitioner, Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent, Appellee.
    __________
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Rya W. Zobel, U.S. District Judge]
    Before
    Howard and Selya, Circuit Judges,
    and Stafford,* District Judge.
    *
    Of the Northern District of Florida, sitting by designation.
    Randall E. Kromm, Assistant United States Attorney, with whom
    Michael J. Sullivan, United States Attorney, and Dina Michael
    Chaitowitz, Assistant United States Attorney, were on brief, for
    the United States.
    Joan M. Griffin and Corey A. Salsberg, by appointment of the
    court, with whom McDermott, Will & Emery LLP was on brief, for
    Alfred W. Trenkler.
    August 1, 2008
    SELYA, Circuit Judge.      These cross-appeals require us to
    explore poorly understood terrain: the modern configuration and use
    of the ancient writ of error coram nobis.              This archeological dig
    entails a determination of when and under what circumstances that
    writ may be used by a criminal defendant as a vehicle for securing
    post-conviction relief.
    The context is as follows.             The petitioner, Alfred W.
    Trenkler, is a prison inmate, currently serving a federal sentence.
    He confronted the district court with a claim that more than ten
    years earlier it had illegally sentenced him to life imprisonment.
    Persuaded by this claim, the district court granted a writ of error
    coram nobis, vacated the original sentence, and proceeded to
    resentence the petitioner to a term of years.                    The government
    protests this deployment of the writ, contending that the district
    court lacked jurisdiction to issue it.                 The petitioner cross-
    appeals, maintaining that even the substituted sentence exceeded
    the   maximum   available    under    the    statutes      of     conviction.
    After   first    grappling      with    a    series    of   threshold
    challenges to our appellate jurisdiction, we conclude that the
    district court had no authority to issue a writ of error coram
    nobis.    Consequently, we reverse the order granting the writ and
    direct the district court to reinstate the original sentence.1
    1
    The parties have also cross-appealed from the amended
    judgment in the resentencing phase of the criminal case.     The
    result that we reach renders those appeals (Nos. 07-1676 and 07-
    -3-
    I. BACKGROUND
    We rehearse here only those facts that are needed to
    place these cross-appeals into perspective. We urge the reader who
    hungers for more exegetic detail to consult our earlier opinions
    describing the various way stations that dot the trail of the
    petitioner's case.   See, e.g., Trenkler v. United States (Trenkler
    III), 
    268 F.3d 16
     (1st Cir. 2001) (affirming denial of relief under
    
    28 U.S.C. § 2255
    ); United States v. Trenkler (Trenkler II), No. 97-
    1239, 
    1998 WL 10265
     (1st Cir. Jan. 6, 1998) (affirming denial of
    Rule 33 motion); United States v. Trenkler (Trenkler I), 
    61 F.3d 45
    (1st Cir. 1995) (affirming conviction and sentence on direct
    review); see also Trenkler v. Pugh (Trenkler IV), 
    83 Fed. Appx. 468
    (3d Cir. 2003) (upholding denial of relief under 
    28 U.S.C. § 2241
    ).
    On November 29, 1993, a jury convicted the petitioner of
    conspiracy, 
    18 U.S.C. § 371
    , and the illegal receipt and use of
    explosives, 
    id.
     §§ 844(d), 844(i).     The charges arose out of the
    petitioner's role in a bombing that caused the death of one Boston
    police officer and the maiming of another.   See Trenkler I, 
    61 F.3d at 47-48
    .     The district court sentenced the petitioner to 60
    months' imprisonment on the conspiracy count and life imprisonment
    on each of the two "explosives" counts.   All of the sentences were
    to run concurrently.
    1677) superfluous. Each of them will, therefore, be disposed of
    summarily by separate order entered contemporaneously with the
    filing of this opinion.
    -4-
    On the date that the indictment was handed up, both
    sections 844(d) and 844(i) provided in pertinent part that
    if death results to any person, including any
    public safety officer performing duties as a
    direct   or   proximate  result   of   conduct
    prohibited by this subsection, [the defendant]
    shall [also] be subject to imprisonment for
    any term of years, or to the death penalty or
    to life imprisonment as provided in section 34
    of this title.
    Section 34 provided in turn that when any of the proscribed acts
    "resulted in the death of any person," the death penalty or life
    imprisonment would be available as a punishment "if the jury shall
    in its discretion so direct."     Notwithstanding this language, no
    special jury finding was either requested or obtained in the
    petitioner's case.    Indeed, the anomaly went unremarked.
    Following the imposition of sentence, the petitioner
    appealed.    His appeal challenged a number of evidentiary rulings.
    See Trenkler I, 
    61 F.3d at 51-62
    .   We rejected all but one of these
    challenges, found that the successful challenge embodied a harmless
    error, and affirmed the judgment below.    
    Id.
    The next ten years witnessed a kaleidoscopic array of
    post-conviction proceedings.    On December 22, 1995, the petitioner
    moved for a new trial or in the alternative an evidentiary hearing
    on the ground of newly discovered evidence.       Agreeing that the
    proffered evidence was not newly discovered, we affirmed the
    district court's denial of the motion. Trenkler II, 
    1998 WL 10265
    ,
    at *4.   The district court and this court subsequently rejected as
    -5-
    time-barred an application, brought under 
    28 U.S.C. § 2255
    , that
    alleged ineffective assistance of counsel.       See Trenkler III, 
    268 F.3d at 27
    .   The petitioner's other efforts met a similar fate.
    See, e.g., Trenkler IV, 83 Fed. Appx. at 472.
    On August 24, 2004, the petitioner sought a writ of
    mandamus in this court, claiming for the first time that 
    18 U.S.C. §§ 844
    (d) and 844(i) required specific jury authorization as a
    condition precedent to the imposition of a life sentence.              We
    summarily rejected his foray, noting that it amounted to a second
    or successive section 2255 petition and, as such, ran afoul of the
    gatekeeping provisions of the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 
    110 Stat. 1214
    .
    Undeterred by this setback, the petitioner wrote to the
    original trial judge, making essentially the same argument.           The
    district   court   appointed   counsel   and,   on   November   6,   2006,
    appointed counsel moved for the issuance of a writ of error coram
    nobis or in the alternative a writ of audita querela.2          Although
    2
    A writ of error coram nobis is a common-law writ through
    which a rendering court, subject to certain conditions, may correct
    its own judgment on the basis of some patent error affecting the
    validity or regularity of that judgment.       The writ of audita
    querela, introduced during the reign of Edward III, is sometimes
    available to reopen a judgment when an important matter concerning
    a defendant's case has arisen since the entry of the judgment. It
    is said that coram nobis is distinguished from audita querela in
    that the former attacks the judgment itself whereas the latter is
    directed against the enforcement of the judgment. See 7A C.J.S.
    Audita Querela § 2, at 901 (1980). For present purposes, there is
    no material difference between the two ancient writs. Thus, we
    refer herein only to the writ of error coram nobis.
    -6-
    the petitioner used the docket number of the original criminal
    case, the district court treated the filing as constituting a new
    civil action and assigned a new docket number to it.                The court
    reasoned that coram nobis, like its habeas corpus counterpart, is
    civil in nature.
    The court ordered the government to respond by January 5,
    2007.    That    date   came   and   went    without   any   word   from   the
    government.     Acting sua sponte, the court extended the time for
    filing an opposition to February 2, 2007. It simultaneously warned
    that, should no opposition be filed within the extended period, it
    would decide the matter without the government's participation.
    That deadline, too, expired without any action by the government.
    On February 20, 2007, the district court granted a writ
    of error coram nobis.     Trenkler v. United States (Trenkler V), No.
    06-12072, 
    2007 WL 551620
    , at *1 (D. Mass. Feb. 20, 2007).                  The
    court asserted jurisdiction under the All Writs Act, 
    28 U.S.C. § 1651
    , and expressed the view that the writ was available in
    criminal proceedings to correct fundamental errors, as long as
    other remedies were unavailable.           Trenkler V, 
    2007 WL 551620
    , at
    *3.   It then explained why it thought that the petitioner's claim
    warranted such extraordinary relief.
    To begin, the court concluded that the express language
    of the statutes of conviction required a jury directive as a
    condition precedent to the imposition of a life sentence.              
    Id.
     at
    -7-
    *1.   It noted that the petitioner's life sentence had been imposed
    in the absence of such a directive and was, therefore, illegal.
    
    Id.
        This bevue warranted coram nobis relief because it was
    "fundamental to the validity of the judgment," 
    id. at *4
    , and
    coram nobis represented the only procedural mechanism that remained
    available to correct the sentence, 
    id. at *2
    .               In reaching this
    conclusion, the court conceded that the time had expired for filing
    a section 2255 petition, see 
    28 U.S.C. § 2255
    (f), but suggested
    that the petitioner could not be faulted for failing to seek relief
    earlier since all concerned — the court, the government, and the
    petitioner's previous counsel — had been caught flat-footed by this
    sentencing limitation.        See Trenkler V, 
    2007 WL 551620
    , at *5.
    When   all   was    said   and   done,   the   court    vacated   the
    petitioner's two concurrent life sentences and set the criminal
    case down for resentencing on April 4, 2007.              The day after the
    court's order issued, the government moved for leave to file an
    opposition to the coram nobis petition, blaming its failure to
    respond in a timely manner on "institutional inadvertence."                  The
    district court granted the government's request.              The government
    not only filed an opposition but also moved for reconsideration of
    the coram nobis order.        See Fed. R. Civ. P. 59(e).          In subsequent
    filings, it asserted among other things that the district court
    lacked jurisdiction to issue the writ because the petitioner's
    request was merely a camouflaged section 2255 petition and, as
    -8-
    such, was subject to AEDPA's limitations on second and successive
    habeas petitions.   It also claimed that coram nobis relief was
    inappropriate because the petitioner was still in custody, because
    he had failed to establish a fundamental error in the criminal
    proceedings, and because he had failed to prove any good cause for
    not raising the alleged sentencing error at an earlier time.
    On April 4, 2007, the district court, ruling from the
    bench, dismissed the government's objections and reaffirmed the
    appropriateness of coram nobis relief.    When the district court
    proceeded to the criminal case, the petitioner argued that the
    doctrine of Apprendi v. New Jersey, 
    530 U.S. 466
    , 490 (2000),
    limited the length of an incarcerative sentence on the affected
    counts to ten years. The court rejected that argument and imposed
    concurrent sentences of 37 years' immurement on the two affected
    counts (crediting the petitioner with time served to that point).
    On April 9, 2007, the court entered an amended judgment
    in the criminal case, memorializing the new sentence.   Three days
    later, the court entered a final judgment in the separate coram
    nobis proceeding, memorializing the grant of the writ and the
    annulment of the original sentence.   On April 17, the government
    appealed from the final judgment in the coram nobis proceeding and,
    the next day, appealed from the amended final judgment in the
    criminal case. On April 26, the petitioner filed notices of appeal
    -9-
    in both the civil and criminal cases.3 Although these appeals were
    consolidated for briefing and argument in this court, we need look
    no further than the cross-appeals in the coram nobis proceeding.
    See supra note 1.
    II.   ANALYSIS
    The focal point of our analysis is the government's
    assertion that the district court lacked authority to issue a writ
    of error coram nobis.    There is, however, a logically antecedent
    issue: the petitioner's suggestion that we have no jurisdiction to
    review the order granting coram nobis relief.        We start there.
    A.   Appellate Jurisdiction.
    The judgment in the coram nobis proceeding, on its face,
    seems final and appealable.       It leaves nothing to be done but the
    execution of the judgment itself.         Catlin v. United States, 
    324 U.S. 229
    , 233 (1945); United States v. Metro. Dist. Comm'n, 
    847 F. 2d 12
    , 14 (1st Cir. 1988).      The petitioner demurs.    In this regard,
    his most loudly bruited claim is that a grant of coram nobis
    constitutes an unreviewable act of judicial discretion.
    The petitioner's sole support for this proposition is
    fragmentary   language   from    an   obscure   Supreme   Court   opinion,
    3
    Citing concerns about treating the writ of error coram nobis
    as an independent civil action, the petitioner moved in the
    district court for the coram nobis order to be entered in the
    criminal case, rather than entered separately. Although expressing
    some sympathy for the petitioner's position, the district court
    ruled that, due to the government's earlier notice of appeal, it
    lacked jurisdiction to reenter the order.
    -10-
    Pickett's Heirs v. Legerwood, 32 U.S. (7 Pet.) 144, 148 (1833).
    That case, which dates back to the early nineteenth century,
    involved a trial court's issuance of what amounted to a writ of
    error coram nobis4 in an action for trespass and ejectment.     The
    Justices concluded that this interlocutory order could not be
    reviewed by the Supreme Court.   
    Id. at 148-49
     (explaining that the
    remedy was "not one of those remedies over which" the Court was
    given "supervising power . . . by law").
    Ordinarily, an inferior federal court is bound by the
    holdings of the Supreme Court.   McCoy v. Mass. Inst. of Tech., 
    950 F.2d 13
    , 19 (1st Cir. 1991).     Here, however, it is doubtful that
    Pickett's Heirs has any precedential force beyond its specific
    facts.    The Court there explicitly admonished that it was not
    "called upon to decide" whether the case before it "was a case
    proper for the application of [the coram nobis] remedy."    32 U.S.
    at 147.    That very question lies at the heart of the instant
    matter, as the government contends that, in the circumstances of
    this case, AEDPA's gatekeeping provisions foreclose any resort to
    coram nobis.    We therefore do not regard Pickett's Heirs as
    contradicting the general proposition that coram nobis orders are
    appealable.
    4
    While the Court referred to the technically distinct writ of
    error coram vobis, see Pickett's Heirs, 32 U.S. at 146, the
    distinction between coram nobis and coram vobis is "virtually
    meaningless" in the American courts, United States v. Sawyer, 
    239 F.3d 31
    , 37 n.4 (1st Cir. 2001).
    -11-
    This    conclusion     is    reinforced       by   modern    appellate
    practice.       A canvass of the decisional law reveals that, in the
    more recent cases, coram nobis orders routinely have been reviewed
    by federal appellate courts.         See, e.g., United States v. Sawyer,
    
    239 F.3d 31
    , 36 (1st Cir. 2001); United States v. Keane, 
    852 F.2d 199
    , 200 (7th Cir. 1988).          The Supreme Court itself has asserted
    appellate jurisdiction in a case like this one, that is, a case
    questioning the trial court's power to issue a writ of error coram
    nobis.    See United States v. Morgan, 
    346 U.S. 502
    , 513 (1954). And,
    finally, the Federal Rules of Appellate Procedure contemplate that
    coram nobis orders may be appealed as a matter of course.                 See Fed.
    R. App. P. 4(a)(1)(C) ("An appeal from an order granting or denying
    an application for a writ of error coram nobis is an appeal in a
    civil case for purposes of Rule 4(a).").              That rule has the force
    of law.    See Local Union No. 38 v. Custom Air Sys., 
    333 F.3d 345
    ,
    348 (2d Cir. 2003).
    History furnishes a simple means for reconciling whatever
    conflict    a    jaundiced   eye   might       perceive   between   the    curious
    language in Pickett's Heirs and modern appellate practice. Coram
    nobis, in its present incarnation, bears little resemblance to the
    writ as it existed in the early nineteenth century.                     We briefly
    trace its evolution.
    The writ of error coram nobis originated in sixteenth-
    century England as an instrument used by trial courts to correct
    -12-
    their own fact-based errors.   See Carlisle v. United States, 
    517 U.S. 416
    , 428-29 (1996); United States v. Mayer, 
    235 U.S. 55
    , 68
    (1914); see also 7 LaFave et al., Criminal Procedure § 28.1(c), at
    143 (3d ed. 2007).    For the most part, its use was confined to
    civil cases.   See, e.g., 7 LaFave et al., supra § 28.1(c), at 143;
    Lester B. Orfield, The Writ of Error Coram Nobis in Civil Practice,
    
    20 Va. L. Rev. 423
    , 427 (1934).    But, in time the tectonic plates
    shifted and the utility of the writ expanded.     It eventually grew
    beyond the correction of mistakes of fact and became flexible
    enough to reach fundamental legal errors.    See Morgan, 
    346 U.S. at 507-08
    ; Mayer, 
    235 U.S. at 68
    ; see also 3 Wright, King & Klein,
    Federal Practice & Procedure § 592, at 687 (3d ed. 2004).
    As the writ of error coram nobis morphed to encompass
    more than exclusively "factual" mistakes, it also began to gain a
    foothold in the criminal docket.   See Sawyer, 
    239 F.3d at 37
    .   This
    transmogrification occurred in a leisurely fashion; the writ was
    not readily deployed in state criminal cases until well after the
    Supreme Court decided Pickett's Heirs.      See Abraham L. Freedman,
    The Writ of Error Coram Nobis, 3 Temp. L.Q. 365, 373 (1929)
    (placing in the late nineteenth century "the first criminal case of
    consequence in which the writ was successfully employed").       The
    writ's migration to criminal cases in the federal courts was even
    slower; as late as 1914, the Supreme Court pointedly left open the
    question of the writ's availability in criminal cases.    See Mayer,
    -13-
    
    235 U.S. at 69
    .      Not until 1954 was the legitimacy of the writ's
    use in criminal cases confirmed by the Court.            See Morgan, 
    346 U.S. at 512
    .
    We now have come full circle: in the modern federal
    system, use of the writ of error coram nobis is confined to
    criminal cases.      See 
    id.
     at 505 n.4; see also Fed. R. Civ. P. 60(e)
    (abolishing    the    writ    in   civil      cases).     To    complete     this
    transformation, in criminal cases the writ has been seen more and
    more as a means to challenge law-based errors.            See, e.g., Sawyer,
    
    239 F.3d at 37-38
    ; United States v. Tucor Int'l, Inc., 
    189 F.3d 834
    , 836 n.1 (9th Cir. 1999); United States v. Rankin, 
    1 F. Supp. 2d 445
    , 453 (E.D. Pa. 1998).
    Viewed against this historical backdrop, whatever the
    Pickett's   Heirs     Court    meant    when    it   stated    that   it   lacked
    "supervising power" over a grant of coram nobis relief, that
    statement is now an anachronism.               Nearly two hundred years of
    doctrinal development have sapped it of any contemporary vitality.
    The petitioner has a fallback position.             He asseverates
    that even if the grant or denial of a writ of error coram nobis is
    deemed reviewable, the government lacks statutory authority to
    appeal such an order.        This asseveration has a certain superficial
    allure. After all, the government can mount an appeal in a criminal
    case only in accordance with some express statutory authorization.
    United States v. Sanges, 
    144 U.S. 310
    , 312 (1892); United States v.
    -14-
    Watson, 
    386 F.3d 304
    , 307 (1st Cir. 2004); United States v. Horn,
    
    29 F.3d 754
    , 768 (1st Cir. 1994); see 15B Wright, Miller & Cooper,
    Federal Practice & Procedure § 3919.1, at 598 (2d ed. 1991).
    Close   perscrutation    discloses   that   the   petitioner's
    asseveration rests on a flimsy foundation: the dubious proposition
    that a writ of error coram nobis is part of the warp and woof of a
    criminal proceeding, subject to this traditional limitation on
    government appeals.    To support that proposition, he cherry-picks
    a snippet in which the Morgan Court characterized the writ of error
    coram nobis as a "step in the criminal case and not, like habeas
    corpus where relief is sought in a separate case and record, the
    beginning of a separate civil proceeding."       
    346 U.S. at
    505 n.4.
    In our view, Morgan's footnote 4 cannot bear the heavy weight that
    the petitioner piles upon it.
    As an initial matter, the import of the footnote is
    tenebrous; the very next line of the footnote asserts that coram
    nobis "is of the same general character as [proceedings] under 
    28 U.S.C. § 2255
    ."       
    Id.
       Section 2255 proceedings, like classic
    petitions for habeas corpus, are generally treated as civil in
    nature. See Heflin v. United States, 
    358 U.S. 415
    , 418 n.7 (1959);
    Rogers v. United States, 
    180 F.3d 349
    , 352 n.3 (1st Cir. 1999).
    In all events, the reach of Morgan's footnote 4 is more
    circumscribed than the petitioner suggests.           As Judge Friendly
    observed when facing a similarly ambitious construction of the
    -15-
    Morgan footnote, the quoted language does not purport to dictate
    that coram nobis petitions must be treated as strictly criminal for
    purposes of appeal or otherwise.         United States v. Keogh, 
    391 F.2d 138
    , 140 (2d Cir. 1968).        Rather, the Morgan Court was confronted
    with, and resolved, a much narrower problem: whether the writ could
    be deployed to correct errors in criminal cases notwithstanding the
    promulgation of Federal Rule of Civil Procedure 60(b) (which
    abolished coram nobis in "suits of a civil nature").               See Morgan,
    
    346 U.S. at
    505 n.4.   Judge Friendly found no reason to think that,
    in affirmatively answering this narrow question, the Morgan Court
    intended to determine that coram nobis orders should be treated as
    criminal for all purposes.        Keogh, 
    391 F.2d at 140
    .
    Like Judge Friendly, we decline to read the quoted
    snippet as extending beyond the question that the Morgan Court was
    endeavoring to answer.          In taking this commonsense approach to
    Morgan's   footnote   4,   we    join   several   other   courts    that   have
    followed Judge Friendly's lead. See, e.g., United States v. Craig,
    
    907 F.2d 653
    , 656-57 (7th Cir. 1990); United States v. Cooper, 
    876 F.2d 1192
    , 1194 (5th Cir. 1989); United States v. Balistrieri, 
    606 F.2d 216
    , 220-21 (7th Cir. 1979); see also Fed. R. App. P.
    4(a)(1)(C) & advisory committee notes.
    Of course, this leaves an unanswered question: Should
    coram nobis be treated as civil or criminal for purposes of appeal?
    The answer to that question cannot be gleaned by grasping at
    -16-
    convenient labels.   While the modern writ of error coram nobis is
    used in criminal cases, its character necessarily reflects the
    vestiges of its origins in civil litigation.      Accordingly, many
    courts have treated coram nobis as civil for a variety of purposes,
    such as the availability of discovery, see, e.g., Balistrieri, 
    606 F.2d at 221
    , and the temporal limits for filing notices of appeal,
    see, e.g., Keogh, 
    391 F.2d at 140
    .    Given the lessons of history,
    we are convinced that coram nobis proceedings are best seen as
    hybrids — quasi-civil and quasi-criminal.    See Craig, 
    907 F.2d at 656
    ; Mercado v. United States, 
    183 F.2d 486
    , 487 (1st Cir. 1950).
    On this view, the denomination of the nature of a given petition
    calls for a functional analysis rather than for doctrinal rigidity.
    We see no reason here to apply the more restrictive rules
    governing criminal appeals to the government's appeal in a coram
    nobis proceeding (even though that proceeding is ancillary to a
    criminal case).   The traditional restrictions on the government's
    right to appeal stem primarily from double jeopardy concerns.   See
    Kepner v. United States, 
    195 U.S. 100
    , 133 (1904).    Such concerns
    are far less weighty when dealing with collateral challenges to
    criminal convictions.   See 15B Wright, Miller & Cooper, 
    supra
     §
    3919.9, at 732 ("There is less need to restrict government appeal
    opportunities in proceedings that come . . . after the formal
    prosecution."). Consequently, we hold that coram nobis proceedings
    are appealable as civil matters.      Thus the government, like any
    -17-
    other party, may appeal the grant or denial of the writ as a final
    order under 
    28 U.S.C. § 1291
    .      See 15B Wright, Miller & Cooper,
    
    supra
     § 3919.9, at 740 (positing by analogy to habeas corpus that
    the government "should be allowed to appeal final disposition of
    coram nobis proceedings"); see also Fed. R. App. P. 4(a)(1)(C).
    The petitioner has one last arrow in his jurisdictional
    quiver. He contends that even if we find appellate jurisdiction in
    theory, the government's appeal here is time-barred.        Once again,
    this   contention    derives   from     the   Morgan   Court's   cryptic
    characterization of coram nobis as a "step in the criminal case."
    
    346 U.S. at
    505 n.4.      On that premise, the petitioner concludes
    that the government was subject to the 30-day filing deadline
    applicable to government appeals in criminal cases, Fed. R. App. P.
    4(b)(1)(B); that the 30-day period ran from February 20, 2007 (when
    the district court announced its decision to grant the writ); and
    that, therefore, the government's notice of appeal, filed in mid-
    April, was late.
    This plaint is as insubstantial as a house built upon the
    shifting sands.     The short answer to it is that the Federal Rules
    of Appellate Procedure explicitly provide that "[a]n appeal from an
    order granting or denying an application for a writ of error coram
    nobis is an appeal in a civil case" and, thus, is subject to a 60-
    day filing period.     Fed. R. App. P. 4(a)(1)(C); see also Fed. R.
    App. P. 4(a)(1)(B). This language was added to the Appellate Rules
    -18-
    in 2002 to resolve a conflict in the courts of appeals regarding
    the time limits that applied to appeals from coram nobis orders.
    See Fed. R. App. P. 4 advisory committee notes.          The amended rule
    controls here.   Accordingly, the government's notice of appeal was
    timely even if, as the petitioner contends, the appeal period ran
    from February 20, 2007.5
    B.    AEDPA Preclusion.
    Having confirmed the existence of appellate jurisdiction,
    we turn to the substance of the government's appeal.         Distilled to
    its essence, the argument here is that the petition was a wolf in
    sheep's clothing: an unapproved second or successive section 2255
    petition masquerading as a petition for a writ of error coram
    nobis.    Relatedly, the government insists that coram nobis is
    unavailable to a prisoner in federal custody.        If these arguments
    are   well-founded,   the    district   court   lacked   jurisdiction   to
    entertain the petition.
    The petitioner's initial rejoinder is in the nature of a
    preemptive strike.    He says that because the government failed to
    5
    Although we need not probe the point, the appeal period does
    not appear to have run from the February 20 order but, rather, from
    the later entry of final judgment in the coram nobis proceeding.
    See Fed. R. Civ. P. 58(c)(1); see also Cunningham v. Hamilton
    County, 
    527 U.S. 198
    , 203 (1999) ("[W]e have repeatedly interpreted
    [28 U.S.C.] § 1291 to mean that an appeal ordinarily will not lie
    until after final judgment has been entered."); Mullane v.
    Chambers, 
    333 F.3d 322
    , 337 (1st Cir. 2003) (observing that until
    a "separate judgment has been 'entered' under [Federal Rule of
    Civil Procedure] 58, the time for filing a notice of appeal has not
    yet begun to run").
    -19-
    respond to his petition in a timeous fashion, it has waived or
    forfeited these arguments.     This strike misfires for two reasons.
    First, each of the government's arguments goes to the
    district court's subject-matter jurisdiction.        This is important
    because parties cannot confer subject-matter jurisdiction on a
    district court by sloth or acquiescence.         See United States v.
    Cotton, 
    535 U.S. 625
    , 630 (2002); Espinal-Dominguez v. Puerto Rico,
    
    352 F.3d 490
    , 495 (1st Cir. 2003); Horn, 
    29 F.3d at 767-68
    .
    Second, these arguments were raised, albeit belatedly, in
    the district court.    That court chose not to treat them as waived
    but,   rather,   seemingly   rejected   the   government's   motion   for
    reconsideration on the merits (thus effectively rejecting the
    preclusion argument contained therein).       The court made no comment
    about the timeliness vel non of the government's proffer.       Where a
    trial court chooses to overlook the belated nature of a filing and
    adjudicate the tardy claim or defense on the merits, that claim or
    defense may be deemed preserved for purposes of appellate review.
    See Negrón-Almeda v. Santiago, 
    528 F.3d 15
    , 26 (1st Cir. 2008).
    This brings us to the post-AEDPA framework for collateral
    review.   The writ of habeas corpus historically has served as the
    principal vehicle for testing the legality of executive detentions.
    Attempting to address "practical problems that had arisen in the
    administration of the federal courts' habeas corpus jurisdiction,"
    United States v. Hayman, 
    342 U.S. 205
    , 210 (1952), Congress enacted
    -20-
    
    28 U.S.C. § 2255
     as a substitute for the traditional habeas remedy
    with respect to federal prisoners.                See Act of June 25, 1948, 
    62 Stat. 967
    .        This "virtual habeas" statute supplies a remedy that
    bears a strong family resemblance to the traditional writ of habeas
    corpus.         The statute was intended to provide a federal prisoner
    with       an   exclusive   means   of    challenging    the    validity    of   his
    conviction or sentence, save only in those few instances in which
    the statutory remedy proved "inadequate or ineffective to test the
    legality of his detention."           
    28 U.S.C. § 2255
    (e).         In this context,
    "inadequate or ineffective" requires an ex ante appraisal.                    Taylor
    v. Gilkey, 
    314 F.3d 832
    , 835-36 (7th Cir. 2002) (collecting cases).
    In 1996, Congress enacted AEDPA.             That statute imposed
    significant new constraints on proceedings under section 2255.6
    Some       of   these   constraints   were       temporal;   for   example,   AEDPA
    established a one-year statute of limitations for filing a section
    2255 petition.          
    28 U.S.C. § 2255
    (f).         Some of these constraints
    were numerical; for example, AEDPA required a federal prisoner who
    sought to prosecute a second or successive section 2255 petition to
    obtain pre-clearance, in the form of a certificate, from the court
    of appeals.        
    Id.
     § 2255(h).        By the terms of the statute, such a
    certificate will be made available only if the prisoner can show
    6
    AEDPA also imposed substantially similar constraints on
    federal habeas petitions involving state prisoners. See e.g., 
    28 U.S.C. § 2244
    (b) (restricting second or successive petitions for
    section 2254 petitions); § 2244(d) (establishing 1-year statute of
    limitations for section 2254 motions).
    -21-
    that the proposed second or successive petition is based either on
    newly discovered evidence or a new rule of constitutional law. Id.
    We have interpreted this provision as "stripping the district court
    of jurisdiction over a second or successive habeas petition unless
    and until the court of appeals has decreed that it may go forward."
    Pratt v. United States, 
    129 F.3d 54
    , 57 (1st Cir. 1997).
    Although     section       2255,      as   amended,   provides      a
    comprehensive remedial scheme for post-conviction relief, that
    scheme perpetuates the savings clause contained in section 2255(e).
    Moreover, the Supreme Court has made it pellucid that section 2255
    does not preempt the entire array of common-law writs authorized
    under the All Writs Act, 
    28 U.S.C. § 1651
    .            See Morgan, 
    346 U.S. at 510-11
    .    Still, each attempted use of an extraordinary writ in
    connection with post-conviction relief must be judged on its own
    merits.    The strictures of section 2255 cannot be sidestepped by
    the simple expedient of resorting to some more exotic writ.                   Put
    bluntly,   the   All   Writs    Act   is   not    a   jujube.    At   most,    it
    constitutes "a residual source of authority to issue writs that are
    not otherwise covered by statute."            Pa. Bureau of Corr. v. U.S.
    Marshals Serv., 
    474 U.S. 34
    , 43 (1985).
    We think it follows that when a statute — like section
    2255 — specifically addresses a particular class of claims or
    issues, it is that statute, not the All Writs Act, that takes
    precedence.      See 
    id.
           The armamentarium of common-law writs,
    -22-
    including the writ of error coram nobis, is thus available only to
    fill whatever interstices exist in the post-conviction remedial
    scheme made available to federal prisoners by way of section 2255.
    See United States v. Ayala, 
    894 F.2d 425
    , 428 (D.C. Cir. 1990).
    This gap-filling approach makes it essential for courts
    to plot, and then to patrol, the boundaries between section 2255
    and the universe of old common-law writs.                       Otherwise, artful
    pleaders      will   tiptoe     around    those     boundaries        and    frustrate
    Congress's     discernible      intent.         See,   e.g.,     United     States    v.
    Winestock, 
    340 F.3d 200
    , 203 (4th Cir. 2003); cf. Calderon v.
    Thompson, 
    523 U.S. 538
    , 553 (1998) (patrolling boundaries of
    section 2254).       In carrying out this sentry duty, courts must be
    guided by the precept that substance trumps form.                     See Rodwell v.
    Pepe, 
    324 F.3d 66
    , 71 (1st Cir. 2003) (predicting that whether
    AEDPA's limitations apply "will depend not on the label affixed to
    a particular motion but on its essence").                   Thus, "[a]ny motion
    filed    in   the    district    court    that    imposed       the   sentence,      and
    substantively within the scope of § 2255 ¶ 1, is a motion under §
    2255, no matter what title the prisoner plasters on the cover."
    Melton   v.    United     States,   
    359 F.3d 855
    ,   857     (7th      Cir.   2004)
    (emphasis in original).
    Following     this    approach,          courts     regularly        have
    recharacterized imaginatively captioned petitions to reflect that
    they derive their essence from section 2255 and, thus, must satisfy
    -23-
    that section's gatekeeping provisions.   See, e.g., Winestock, 
    340 F.3d at 206-208
     (recharacterizing a self-styled Rule 60(b) motion);
    United States v. Torres, 
    282 F.3d 1241
    , 1246 (10th Cir. 2002)
    (recharacterizing a self-styled writ of coram nobis); Spivey v.
    State Bd. of Pardons and Paroles, 
    279 F.3d 1301
    , 1303 (11th Cir.
    2002) (recharacterizing a self-styled § 1983 action); Jiminian v.
    Nash, 
    245 F.3d 144
    , 149 (2d Cir. 2001) (recharacterizing a self-
    styled § 2241 petition); Ayala, 
    894 F.2d at 430
     (recharacterizing
    a so-called writ of audita querela); United States v. Mosquera, 
    845 F.2d 1122
    , 1123 n.1 (1st Cir. 1988) (recharacterizing a self-styled
    Rule 35 motion).
    A close analysis of the substance of the petition in this
    case leaves no doubt but that, regardless of its label, the
    petition falls within the compass of section 2255.     On its face,
    the petition is brought on behalf of a federal prisoner still in
    custody and challenges his sentence as unauthorized under the
    statutes of conviction.   This is a classic habeas corpus scenario,
    squarely within the heartland carved out by Congress in section
    2255. See 
    28 U.S.C. § 2255
    (a) (offering a means of post-conviction
    relief to "[a] prisoner in custody under sentence of a [federal]
    court" who claims "that [his] sentence was in excess of the maximum
    authorized by law").   As such, the claim embodied in the petition
    is one cognizable in a section 2255 proceeding.      Therefore, the
    -24-
    district court should have recharacterized the petition as a
    section 2255 petition and proceeded accordingly.
    The conclusion that the petition should have been treated
    as one arising under section 2255 sounds a death knell for the
    proceeding.     The petition was filed more than ten years after the
    petitioner's conviction had become final and more than five years
    after an earlier section 2255 petition (itself deemed to be time-
    barred).   No pre-clearance had been either sought or obtained in
    this court.     Consequently, the petition was an unauthorized second
    or successive habeas petition and was foreclosed on that basis.
    See 
    28 U.S.C. § 2255
    (h); see also United States v. Barrett, 
    178 F.3d 34
    , 42-45 (1st Cir. 1999).      Given this reality, the district
    court had only two choices: either dismiss the recharacterized
    petition or transfer it to this court.       See Pratt, 
    129 F.3d at 57
    .
    Either way, the case was at an end: dismissal would have ended it,
    and transferring the recharacterized petition to this court would
    have been an exercise in futility.       After all, the petition was not
    premised on either newly discovered evidence or a new rule of
    constitutional law.     See 
    28 U.S.C. § 2255
    (h).
    The petitioner attempts to escape the vise-like grip of
    AEDPA's gatekeeping provisions by asserting that a writ of error
    coram   nobis    comprises   an   alternative,    and   constitutionally
    necessary, method for challenging an illegal sentence, at least
    when other means of collateral review have been exhausted.          But
    -25-
    where, as here, a petitioner's claim falls within the heartland of
    section 2255, this assertion lacks force. "The writ of coram nobis
    may not be used to circumvent the clear congressional directive
    embodied in the 'second or successive' provisions of § 2255."
    Barrett, 
    178 F.3d at 55
    .
    If more were needed — and we doubt that it is — the writ
    of error coram nobis, in its modern form, is ordinarily available
    only to a criminal defendant who is no longer in custody.        See
    United States v. Esogbue, 
    357 F.3d 532
    , 534 (5th Cir. 2004); Obado
    v. New Jersey, 
    328 F.3d 716
    , 718 (3d Cir. 2003); Torres, 
    282 F.3d at 1245
    ; see also 3 Wright, King & Klein, supra § 592, at 689.   The
    petitioner's exercise in legal taxonomy therefore fails: the gap-
    filling allowed by the Morgan Court does not permit an inquiring
    court "to redefine a common law writ in order to create relief not
    otherwise available in the federal postconviction remedial scheme."
    Ayala, 
    894 F.2d at 429
     (emphasis in original); accord Doe v. INS,
    
    120 F.3d 200
    , 203-04 (9th Cir. 1997).
    To be sure, we suggested in Barrett, 
    178 F.3d at 56
    , that
    there may be situations in which section 2255 does not completely
    occupy the field — but that suggestion was limited to those
    situations in which section 2255's savings clause applies; that is,
    those situations in which the remedy provided by section 2255 is
    deemed "inadequate or ineffective."     
    Id.
     (quoting 28 U.S.C. §
    -26-
    2255(e)).     This case does not come within the narrow confines of
    the savings clause.
    As indicated above, section 2255 is both adequate and
    effective to address a claim of the type and kind mounted by the
    petitioner.    Although the petitioner might now be unable to pursue
    that claim via a second or successive petition because of the
    combination     of   his    own   tardiness   and   AEDPA's   gatekeeping
    provisions, the mere inability to satisfy those requirements does
    not afford access to the savings clause.        See id. at 50.     To rule
    otherwise   would    reduce   AEDPA's   gatekeeping   provisions    to   "a
    meaningless gesture."       Id.; accord In re Davenport, 
    147 F.3d 605
    ,
    608 (7th Cir. 1998).
    The bottom line is that adequacy and effectiveness must
    be judged ex ante.         Accordingly, post-conviction relief can be
    termed "inadequate" or "ineffective" only when, in a particular
    case, the configuration of section 2255 is such "as to deny a
    convicted defendant any opportunity for judicial rectification."
    In re Davenport, 
    147 F.3d at 611
     (emphasis in original).
    The record here makes manifest that the petitioner cannot
    satisfy that demanding standard.        He had multiple opportunities to
    challenge the imposition of his life sentences as inconsistent with
    the terms of the statutes of conviction.            His alleged claim of
    -27-
    error was available to him on both direct and collateral review;7
    and those review modalities, if timely engaged, would have offered
    an adequate and effective means of rectifying the error.              That he
    neglected    to   avail   himself   of   these   opportunities   in   no   way
    detracts from their adequacy and effectiveness.
    The fact that courts have allowed recourse to the savings
    clause in rare and exceptional circumstances, such as those in
    which strict adherence to AEDPA's gatekeeping provisions would
    result in a "complete miscarriage of justice," In re Dorsainvil,
    
    119 F.3d 245
    , 251 (3d Cir. 1997), does not help the petitioner.
    Most courts have required a credible allegation of actual innocence
    to access the savings clause.        See, e.g., Reyes-Requena v. United
    States, 
    243 F.3d 893
    , 904 (5th Cir. 2001).          The petitioner's claim
    does not qualify; his petition does not posit that he is actually
    innocent of the crimes for which he was indicted, convicted, and
    sentenced.
    Equally as important, the nature of the petitioner's
    claim of error is incompatible with engagement of the savings
    clause.     He does not charge that a life sentence is beyond the
    statutory maximum for the crimes of conviction.          Rather, his claim
    7
    By the time the petitioner was indicted, the interpretation
    of the penalty provision on which he now relies had already been
    adopted by at least two federal courts of appeals in published
    opinions. See United States v. Williams, 
    775 F.2d 1295
    , 1299 (5th
    Cir. 1985); United States v. Hansen, 
    755 F.2d 629
    , 631 (8th Cir.
    1985).
    -28-
    is procedural: that the statutes of conviction required a jury
    recommendation in order to impose a life sentence, and that the
    judge, not the jury, made the recommendation in his case.       This
    claim, if true, does not suggest a miscarriage of justice.        We
    explain briefly.
    The Supreme Court has defined the term "miscarriage of
    justice" as encompassing only those "extraordinary instances when
    a constitutional violation probably has caused the conviction of
    one innocent of the crime."    McCleskey v. Zant, 
    499 U.S. 467
    , 494
    (1991).   The petitioner makes no such claim; he does not challenge
    the sufficiency of the evidence upon which the sentencing judge
    acted, nor does he suggest that it was likely that a jury would
    have reached a different result.
    Rules that allocate decisionmaking responsibility between
    judge and jury are generally thought to be procedural. See Schriro
    v. Summerlin, 
    542 U.S. 348
    , 353 (2004).    As such, misallocation of
    that responsibility is unlikely to implicate the accuracy or
    fundamental fairness of judicial proceedings. See, e.g., Sepulveda
    v. United States, 
    330 F.3d 55
    , 61 (1st Cir. 2003) (holding, in the
    Apprendi context, that decisions made by the judge instead of the
    jury are "not the sort of error that necessarily undermines the
    fairness . . . of judicial proceedings") (internal quotation marks
    omitted).    Here, the petitioner has given us no reason to suspect
    that the misallocation affected his substantial rights.
    -29-
    The final shot in the petitioner's sling is that the
    right to correct an illegal sentence is a basic right for which the
    Constitution guarantees a remedy.                      This platitude has little
    utility here.
    It     is    well-established              that     a    criminal    defendant
    possesses no general constitutional right to appellate review.
    See, e.g., McKane v. Durston, 
    153 U.S. 684
    , 687 (1894); United
    States v. Puzzanghera, 
    820 F.2d 25
    , 26-27 (1st Cir. 1987).                            By the
    same token, errors committed at trial, even those of constitutional
    dimension,   do    not       invariably           require    reversal.         See,   e.g.,
    Washington v. Recuenco, 
    548 U.S. 212
    , 218 (2006); see also Neder v.
    United   States,       
    527 U.S. 1
    ,      8    (1999)    (explaining       that   "most
    constitutional     errors       can      be       harmless")       (quoting    Arizona     v.
    Fulminante, 
    499 U.S. 279
    , 306 (1991)).
    Furthermore         —    as     we      already    have    explained       —   the
    petitioner had several opportunities for judicial review.                             If he
    failed to raise a particular claim of error at the appropriate
    time, enforcement of the usual rules of waiver and preclusion
    scarcely can be deemed a violation of his constitutional right to
    an appeal. Thus we conclude, without serious question, that to the
    extent that the Constitution affords a defendant a right to correct
    errors in judicial proceedings through either appellate review or
    collateral attack, that right has not been sullied here.
    -30-
    III.    CONCLUSION
    We appreciate the able district judge's desire to correct
    an     apparent     error    attributable      to    the    lawyers'     shared
    misperception.        We admire as well the ingenuity displayed by
    appointed counsel in attempting to rectify that mistake.                But the
    rule of law must remain paramount and, as Lord Campbell warned long
    ago, hard cases have a propensity to make bad law.                See Burnham v.
    Guardian Life Ins. Co., 
    873 F.2d 486
    , 487 (1st Cir. 1989) (quoting
    United    States    v.   Clark,   
    96 U.S. 37
    ,   49   (1877)    (Harlan,   J.,
    dissenting) (quoting Lord Campbell in East Indian Co. v. Paul, 7
    Moo. P.C.C. 111)).       That propensity must be held in check.          That is
    our obligation here.
    Implicit in the scheme created by AEDPA is the notion
    that certain claims, which might have been fruitful if timely
    asserted, may be foreclosed when a convicted defendant sleeps upon
    his rights.       See Dodd v. United States, 
    545 U.S. 353
    , 359 (2005);
    Jamison v. United States, 
    244 F.3d 44
    , 47 (1st Cir. 2001).                    That
    our criminal justice system tolerates a certain risk of error might
    be of concern to some, but finality is indispensable to the proper
    functioning of that system. Under AEDPA, there is typically "only
    one bite at the post-conviction apple."             Barrett, 
    178 F.3d at 57
    .
    The petitioner has had that bite.
    We need go no further. For the reasons elucidated above,
    the order granting the writ of error coram nobis is reversed, the
    -31-
    writ is quashed, and the case is remanded to the district court
    with directions to vacate the amended judgment in the criminal case
    and reinstate the original sentence.
    So Ordered.
    -32-