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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10209
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00025-LC-EMT-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARD FRANKLIN DEAN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 20, 2018)
Before WILSON, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Ward Dean, proceeding pro se, appeals the district court’s denial of his
petition for writ of error coram nobis, pursuant to 28 U.S.C. § 1651(a). Dean seeks
to vacate his consecutive terms of supervised release. No reversible error has been
shown; we affirm.
In 2005, Dean was convicted of six counts of tax evasion, in violation of 26
U.S.C. § 7201, and one count of obstruction of justice, in violation of 26 U.S.C. §
7212(A). Dean was sentenced to a total sentence of 84 months’ imprisonment.
The district court also sentenced Dean to a total of two three-year terms of
supervised release, to run consecutively to one another. 1 Dean raised no objection
to the consecutive terms of supervised release at his sentencing hearing.
On direct appeal, this Court affirmed Dean’s convictions and sentences.
United States v. Dean,
487 F.3d 840 (11th Cir. 2007). In 2009, Dean filed a 28
U.S.C. § 2255 motion to vacate; the district court denied the motion, and this Court
denied Dean a certificate of appealability. Dean raised no challenge to his
consecutive terms of supervised release either on direct appeal or in his section
2255 motion.
1
Dean was sentenced to (1) three-year concurrent terms of supervised released on counts one
through three; (2) three-year concurrent terms of supervised release on counts four through six,
to run consecutively to the supervised release on counts one through three; and (3) a one-year
term of supervised release on count seven to run concurrently with the supervised release on
counts one through six.
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In June 2015, Dean filed a motion for early termination of his supervised
release, arguing that his consecutive terms of supervised release were unlawful
under 18 U.S.C. § 3624(e). The district court denied the motion.
In October 2017, Dean filed the instant pro se petition for a writ of error
coram nobis, pursuant to 28 U.S.C. § 1651. In his petition, Dean said he had
completed his term of incarceration on 19 June 2012 and his first three-year term
of supervised release on 19 June 2015. Dean had also served over two-thirds of his
second term of supervised release. Briefly stated, Dean argued that his consecutive
terms of supervised release were unlawful and sought to have the remainder of his
term of supervised release vacated.
The government opposed Dean’s petition. In response to a court inquiry, the
government conceded that generally multiple terms of supervised release must run
concurrently. The government argued, however, that coram nobis relief was still
unavailable because (1) Dean could have challenged his terms of supervised
release on direct appeal or in his section 2255 motion and (2) permitting Dean to
vacate his supervised release without a full resentencing would violate the
sentencing package doctrine. The district court, adopting and incorporating the
government’s response into its order, denied Dean’s petition.
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We review a district court’s denial of a petition for a writ of error coram
nobis for an abuse of discretion. Alikhani v. United States,
200 F.3d 732, 734
(11th Cir. 2000).
“The writ of error coram nobis is a limited remedy of last resort.” Lowery v.
United States,
956 F.2d 227, 228 (11th Cir. 1992). A writ of coram nobis may
issue “only when there is and was no available avenue of relief” and “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.”
Alikhani, 200 F.3d at 734. Because of the availability of habeas
review, we have recognized that it is “difficult to conceive of a situation in a
federal criminal case today where coram nobis relief would be necessary or
appropriate.”
Lowery, 956 F.2d at 229 (alteration omitted) (citing United States v.
Smith,
331 U.S. 469, 476 n.4 (1947)).
As an initial matter, that Dean was still serving his term of supervised
release when he filed his coram nobis petition in the district court is undisputed.
Dean was, thus, “in custody” within the meaning of 28 U.S.C. § 2255; and coram
nobis relief was unavailable to him as a matter of law. See United States v. Brown,
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117 F.3d 471, 475 (11th Cir. 1997) (construing a petitioner’s coram nobis petition
as a section 2255 motion).2
Moreover, “courts may consider coram nobis petitions only where no other
remedy is available and the petitioner presents sound reasons for failing to seek
relief earlier.” United States v. Mills,
221 F.3d 1201, 1204 (11th Cir. 2000). Here,
Dean could have challenged earlier his consecutive terms of supervised release
either on direct appeal or in his section 2255 proceedings. Dean also could have
sought leave from this Court to file a second or successive section 2255 motion.
Because Dean had available alternative avenues for challenging his terms of
supervised release, coram nobis relief is unwarranted. See id.;
Alikhani, 200 F.3d
at 734 (concluding that petitioner’s arguments were “facially not cognizable on
coram nobis review because [petitioner] could have, but failed to, pursue them”
through other avenues of relief; the district court thus abused no discretion in
rejecting petitioner’s arguments).
Dean has also provided no “sound reason” for waiting over ten years to
challenge his sentence. Dean contends only that he was unaware until after he was
2
We have instructed courts to treat pleadings styled incorrectly as coram nobis petitions as
section 2255 motions.
Brown, 117 F.3d at 475. When a petitioner -- as in this case -- has
already filed a section 2255 motion, however, a court may not construe a coram nobis petition as
a section 2255 motion unless the petitioner has first been granted leave to file a second or
successive section 2255 motion. See United States v. Garcia,
181 F.3d 1274, 1275 (11th Cir.
1999) (affirming the denial of coram nobis relief and declining to construe the coram nobis
petition as a motion for relief under section 2255 when the petitioner had already filed a section
2255 motion and had failed to seek or to obtain leave to file a successive section 2255 motion).
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on supervised release that multiple terms of supervised release must run
concurrently. But mere ignorance of the law is insufficient to excuse Dean’s delay
in seeking relief. Cf. Johnson v. United States,
544 U.S. 295, 311 (2005) (“we
have never accepted pro se representation or procedural ignorance as an excuse for
prolonged inattention when a statute’s clear policy calls for promptness . . . .”).
The district court abused no discretion in denying Dean’s petition for writ of
error coram nobis.
AFFIRMED.
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