Dallas Ford v. United States , 569 F. App'x 887 ( 2014 )

Case: 13-12747 Date Filed: 06/24/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12747
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-61666-RSR
DALLAS FORD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 24, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
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Dallas Ford, proceeding pro se, appeals the district judge’s denial of his
petition for a writ of error coram nobis. 1 We affirm.
BACKGROUND
In September 2007, Ford was recorded in a series of intercepted telephone
calls with a suspected drug distributor. In the calls, they discussed a plan in which
Ford would purchase one-and-one-half ounces of powder cocaine from a third
party, then sell the cocaine to the distributor.
Ford pled guilty to conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846. He was released on bond
pending sentencing but fled after violating the conditions of his release. Because
Ford was a fugitive, the district judge sentenced him in absentia. Ford was
sentenced to 20 years of imprisonment and 3 years of supervised release. We
dismissed Ford’s direct appeal for failure to prosecute.
In January 2012, Ford filed a 28 U.S.C. § 2255 petition. He argued his
conviction and sentence were void, because of various defects in his indictment,
the government’s breach of a plea agreement, and ineffective assistance of counsel.
1
We construe pro se pleadings liberally and hold them to a less stringent standard than
those drafted by attorneys. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
2
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The district judge dismissed Ford’s § 2255 petition as untimely; he did not appeal. 2
Ford then filed this coram nobis petition.
In his petition, Ford argues his defense counsel was ineffective by failing to
inform the district judge of a plea agreement providing for a sentence of three-to-
five years. Ford further argues the district judge never had jurisdiction in his
criminal case, because of the government’s failure to present publicly his
indictment in open court with all grand jurors present.
DISCUSSION
We review a district judge’s denial of a writ of error coram nobis for abuse
of discretion. United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002) (per
curiam). A petitioner may obtain coram nobis relief only where (1) there is and
was no other avenue of relief available, and (2) the alleged error involves a
fundamental matter of fact not previously put in issue or passed upon and renders
the proceeding itself “irregular and invalid.” Alikhani v. United States, 200 F.3d
732, 734-35 (11th Cir. 2000) (per curiam) (citation and internal quotation marks
omitted); see United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000)
(“[C]ourts may consider coram nobis petitions only where no other remedy is
available and the petitioner presents sound reasons for failing to seek relief
earlier.”).
2
Ford’s motion was untimely primarily because he fled and chose not to pursue lawful
challenges to his conviction, while he was a fugitive.
3
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Ford’s claim of a deficient indictment could have been raised earlier in
pretrial motions or on direct appeal. Therefore, it is not cognizable in a coram
nobis petition. See Alikhani, 200 F.3d at 734 (recognizing a petitioner’s claims of
defects in the indictment, including failure of the indictment to state a crime, are
not cognizable in a coram nobis petition, because they could have been raised
earlier in a pretrial motion (citing Moody v. United States, 874 F.2d 1575, 1576
(11th Cir. 1989))). His ineffective-assistance claims were raised in his § 2255
motion, the dismissal of which he could have challenged in an appeal to this court.
Ford has failed to show there was no other avenue of relief available for his claims.
Because his claims could have been pursued in his original proceedings or in a
timely § 2255 petition, the extraordinary remedy of coram nobis is not appropriate.
Accordingly, the district judge did not abuse her discretion in denying his petition.3
AFFIRMED.
3
To the extent Ford claims the district judge should have construed his coram nobis
petition as a § 2255 petition, that claim also fails. Ford’s first § 2255 petition was untimely.
Because he did not petition this court for authorization to file a second § 2255 petition, see 28
U.S.C. §§ 2255(h), 2244(b)(3)(A), if the district judge had construed his coram nobis petition as
a § 2255 petition, she would have lacked jurisdiction, because it would have been an
impermissible second or successive petition. See Farris v. United States, 333 F.3d 1211, 1216
(11th Cir. 2003) (per curiam) (noting, without authorization from this court, a district judge lacks
jurisdiction to consider a second or successive § 2255 petition).
4