United States v. James Cole ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1518
__________
UNITED STATES OF AMERICA
v.
JAMES COLE,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. Action No. 2-89-cr-00322-001)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 2023
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed: November 13, 2023)
___________
OPINION *
___________
PER CURIAM
James Cole is a federal inmate proceeding pro se. In 1989, he was convicted of
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
ten months’ imprisonment, followed by three years’ supervised release. While he was on
supervised release, he was charged with, inter alia, engaging in a continuing criminal
enterprise (CCE) in violation of 21 U.S.C. § 848. He was convicted of that crime in 1993
and sentenced to life in prison. Meanwhile, the probation office had filed a petition to
revoke Cole’s supervised release in the § 922(g) case. In 1995, the District Court found
that he had violated the terms of his supervised release, revoked his supervised release,
and sentenced him to eighteen months’ imprisonment. The court ordered the eighteen
months to run concurrently with Cole’s life sentence in the CCE case. 1
More than two decades later, in February 2022, Cole filed a petition for a writ of
error coram nobis seeking to vacate his § 922(g) conviction on the ground that the
Government had not established that he knew he was a felon when he possessed the gun,
as now required by Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). The District
Court denied the petition, concluding that Cole was ineligible for coram nobis relief
because he was still “in custody” for the disputed § 922(g)(1) conviction. Cole appeals,
arguing that he cannot be deemed “in custody” for a concurrent sentence that he
completed years ago. Notably, the Government agrees. 2
We will vacate the District Court’s order and remand the matter for further
constitute binding precedent.
1
The District Court did not impose an additional period of supervised release.
2
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s legal
conclusions de novo and its factual findings for clear error. Ragbir v. United States, 950
2
proceedings. Coram nobis is available “to attack [federal] convictions with continuing
consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C.
§ 2255.” United States v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (per curiam) (quoting
United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000) (per curiam)). Although a
prisoner is deemed to still be in custody for the first in a series of consecutive sentences
he is still serving, see Garlotte v. Fordice, 515 U.S. 39, 41 (1995), a prisoner who is
serving the longer of two concurrent sentences, but who has completed the shorter
sentence, is not “in custody” under the shorter sentence, see Mays v. Dinwiddie, 580 F.3d
1136, 1137 (10th Cir. 2009); see generally Maleng v. Cook, 490 U.S. 488, 492–93 (1989)
(per curiam) (explaining that a petitioner is not “in custody” for a prior sentence merely
because it was used to enhance current sentence); Orie v. Sec’y Pa. Dep’t of Corr., 940
F.3d 845, 850 (3d Cir. 2019) (explaining that “[w]e gauge custody for each offense
independently”).
In this case, Cole is serving a life sentence for the 1993 CCE conviction. The
§ 922(g)(1)-related sentence ran concurrently with the life sentence and is fully
discharged. Therefore, the District Court erred in concluding that “because Mr. Cole is
serving a consecutive sentence, he is still deemed to be in custody on the completed
sentence.” Dist. Ct. Order 2, n.1, ECF No. 69 (quotation marks and alterations omitted).
F.3d 54, 60 (3d Cir. 2020).
3
Accordingly, we will vacate the District Court’s order and remand for further
proceedings. We express no opinion as to whether Cole can satisfy the remaining
requirements for coram nobis relief. 3 See generally Ragbir, 950 F.3d at 62.
3
Appellant’s motion to withdraw his motion for appointment of counsel is granted and
the motion for appointment of counsel is deemed withdrawn. As a result, his motion to
proceed in forma pauperis is denied as unnecessary. Appellant’s “motion to correct any
procedural typing error and to file a Rule 28(j) motion” is granted, and we have
considered the argument in that filing. His “motion for panel adjudication” is denied.
4