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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11179
Non-Argument Calendar
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D.C. Docket No. 1:03-cr-20678-CMA-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELL ADLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 15, 2019)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Cornell Adley, a federal prisoner serving a 387-month sentence, appeals the
district court’s order denying his petition for a writ of error coram nobis. The
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government has filed motions for summary affirmance and to stay the briefing
schedule. After careful review, we grant the government’s motion for summary
affirmance, and deny as moot the government’s motion to stay the briefing
schedule.
Summary disposition is appropriate where (1) time is of the essence, such as
“situations where important public policy issues are involved or those where rights
delayed are rights denied,” or (2) “the position of one of the parties is clearly right
as a matter of law so that there can be no substantial question as to the outcome of
the case, or where, as is more frequently the case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).1 An
appeal is frivolous if it is without arguable merit either in law or fact. See Napier
v. Preslicka,
314 F.3d 528, 531 (11th Cir. 2002).
We review a district court’s denial of a petition for writ of error coram nobis
for abuse of discretion. Alikhani v. United States,
200 F.3d 732, 734 (11th Cir.
2000). An error of law is an abuse of discretion.
Id.
The All Writs Act, 28 U.S.C. § 1651, gives federal courts authority to issue
writs of error coram nobis. United States v. Mills,
221 F.3d 1201, 1203 (11th Cir.
2000). “A writ of error coram nobis is a remedy available to vacate a conviction
1
Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all
decisions of the “old Fifth” circuit handed down prior to the close of business on September 30,
1981, are binding precedent in the Eleventh Circuit).
2
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when the petitioner has served his sentence and is no longer in custody, as is
required for post-conviction relief under § 2255.” United States v. Peter,
310 F.3d
709, 712 (11th Cir. 2002). The writ of error coram nobis is “an extraordinary
remedy of last resort available only in compelling circumstances where necessary
to achieve justice.”
Mills, 221 F.3d at 1203.
A writ of coram nobis is appropriate only when there “is and was no other
available avenue of relief.”
Alikhani, 200 F.3d at 734. And the writ is available
only when the error involves “a matter of fact of the most fundamental character
which has not been put in issue or passed upon and which renders the proceeding
itself irregular and invalid.”
Id. (quotation marks omitted). Furthermore, district
courts may consider coram nobis petitions only when the petitioner presents sound
reasons for failing to seek relief earlier.
Mills, 221 F.3d at 1204.
Adley argues that coram nobis relief is warranted because the district court
erroneously imposed a sentence that exceeded the statutory maximum. 2 He argues
2
A federal grand jury issued a superseding indictment charging Adley with, among other things,
intent to distribute a mixture and substance containing “a detectable amount” of cocaine under 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846 and 18 U.S.C. § 2. Adley was convicted. The jury verdict
and Presentence Investigation Report, however, indicated that the offense involved “at least 500
grams but less than 2 kilograms of cocaine,” which carries a 5-year mandatory minimum and a
40-year statutory maximum. 21 U.S.C. § 841(b)(1)(B)(ii). Adley argues that the indictment
charged him only with a “detectable amount” of cocaine, which carries a statutory imprisonment
range of up to 20 years. Because Adley was sentenced to 327 months (about 27 years), he argues
that his sentence exceeded the statutory maximum for the offense charged in the indictment.
But, as a threshold matter, we must first decide whether a writ of error coram nobis is the
appropriate vehicle for Adley’s claim. Because we conclude that Adley is not entitled to coram
nobis relief, we decline to reach his claim that the district court erroneously imposed a sentence
that exceeded the statutory maximum.
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that no other relief is available, sound reasons exist for his failure to seek relief
earlier, and the results of the error persist because he would be eligible for
immediate release under a correct sentence. He asserts that relief is not available
under 28 U.S.C. § 2255 because his claim does not meet the requirements of
§ 2255(h) for second or successive motions. 3
Adley’s appeal is frivolous, and there is no substantial question about the
outcome of the case. See
Davis, 406 F.2d at 1162. First, because Adley remains in
custody, coram nobis relief is generally unavailable to him. See
Peter, 310 F.3d at
712. Adley relies on a non-binding, unpublished opinion for the proposition that
coram nobis relief may be available to individuals who are still in custody if
§ 2255 does not provide an avenue for relief. See Ramdeo v. United States, 760 F.
App’x 900, 903 n.2 (11th Cir. 2019). In Ramdeo, the petitioner sought to
challenge his restitution order through a writ of audita querela, which the district
court construed as a writ of error coram nobis and denied.
Id. at 902. On appeal,
Ramdeo argued that the district court erred in construing his petition as seeking
3
A prisoner in custody may move for the sentencing court to vacate, set aside, or correct the
sentence, “claiming the right to be released upon the ground . . . that the sentence was in excess
of the maximum authorized by law.” 28 U.S.C. § 2255(a). When a prisoner has previously filed
a § 2255 motion to vacate, he must apply for and receive permission from the court of appeals
before filing a second or successive § 2255 motion.
Id. §§ 2244(b), 2255(h). In the context of
28 U.S.C. § 2241, we have held that the bar on second or successive § 2255 motions in § 2255(h)
does not render § 2255 inadequate as a remedy if the claim would have been cognizable in the
prisoner’s original § 2255 motion. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851
F.3d 1076, 1086–87, 1092 (11th Cir. 2017) (en banc).
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coram nobis relief.
Id. We noted that his challenge was “better cast” as a petition
for writ of error coram nobis, but even assuming that Ramdeo was correct, we
concluded that he was not entitled to audita querela relief.
Id. at 903. In a
footnote, we noted that we declined to address two issues, including whether
coram nobis relief was available under the particular facts of the case.
Id. at 903
n.2. We stated:
The facts of Mr. Ramdeo’s petition seem to expose an
exception to the general rule that someone “in custody”
cannot obtain coram nobis relief because Mr. Ramdeo is
serving his criminal sentence, but § 2255 does not provide
an avenue for relief. See Blaik v. United States,
161 F.3d
1341, 1343 (11th Cir. 1998) (holding that § 2255 cannot
be used by a federal prisoner who challenges only the
restitution portion of his sentence). We leave these issues
for another day.
Id.
Adley’s argument relies on an unresolved issue contemplated in a footnote
that coram nobis relief could be available to individuals who remain in custody if
no other relief is available. See
id. Coram nobis is only available, however, when
there “is and was no other available avenue of relief.”
Alikhani, 200 F.3d at 734
(emphasis added). Even if the exception contemplated in Ramdeo was recognized,
the case is distinguishable: Ramdeo’s restitution claim would not have been
cognizable in a § 2255 motion. See Ramdeo, 760 F. App’x at 901, 903 n.2.
In contrast to Ramdeo, Adley’s claim that his sentence exceeded the
statutory maximum is cognizable in a 28 U.S.C. § 2255 motion to vacate.
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Therefore, he cannot argue that the district court abused its discretion by
concluding that, even if there is an exception to the out-of-custody requirement for
coram nobis relief for claims that cannot be raised under § 2255, that exception
does not apply to Adley. See
Preslicka, 314 F.3d at 531. That the bar on second
or successive motions in § 2255(h) might preclude Adley from raising his claim at
this point does not mean that no other form of relief is or was available. See
McCarthan, 851 F.3d at 1086–87, 1092; see also
Alikhani, 200 F.3d at 734.
Because Adley’s appeal is frivolous and there is no substantial question as to
the outcome of the case, the government’s motion for summary affirmance is
granted, and its motion to stay the briefing schedule is denied as moot.
GRANTED IN PART, DENIED IN PART.
AFFIRMED.
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