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United States v. Joan M. Noske ( 2000 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2167
___________
United States of America,                 *
*
Appellee,             * Appeal from the United States
* District Court for the District
v.                                  * of Minnesota.
*
Joan M. Noske,                            *      [PUBLISHED]
*
Appellant.            *
___________
Submitted: December 13, 2000
Filed: December 19, 2000
___________
Before McMILLIAN, FAGG, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Joan M. Noske and her brother were convicted of tax evasion in a joint
proceeding. Noske appealed her 78-month sentence, and we affirmed. See United
States v. Noske,
    117 F.3d 1053
     (8th Cir. 1997). After her pro se
    28 U.S.C. § 2255
    petition failed, Noske's brother obtained habeas relief resulting in a reduction of his
sentence to 78 months, the same sentence that Noske received. Because § 2255
precludes Noske from filing a second petition under that statute attacking her sentence,
Noske seeks reconsideration of her sentence again through a writ of error coram nobis
under the All Writs Act, see
    28 U.S.C. § 1651
    . She argues the sentencing court
indicated at sentencing that Noske was less culpable than her brother, and her sentence
should be reduced to effectuate the court's original intent. The district court denied
Noske's petition. Citing United States v. Kindle,
    88 F.3d 535
     (8th Cir. 1996) (per
curiam), the district court held "a writ of coram nobis is not available to an individual
who is currently in federal custody." On appeal, Noske contends "coram nobis relief
can be available to a person in federal custody where that person has an otherwise
recognized constitutional claim that she cannot present through no dereliction of her
own." We conclude coram nobis relief is unavailable to Noske.
First, Noske is in federal custody, and our case law clearly precludes coram
nobis relief to a federal prisoner. See
    id. at 536
    ; Zabel v. United States Attorney,
    829 F.2d 15
    , 17 (8th Cir. 1987). Second, "[t]he All Writs Act is a residual source of
authority to issue writs that are not otherwise covered by statute. Where a statute
specifically addresses the particular issue at hand, it is that authority, and not the All
Writs Act, that is controlling." Carlisle v. United States,
    517 U.S. 416
    , 429 (1996).
Here, the appropriate means for Noske to challenge her sentence is § 2255. The statute
is "controlling," even though she cannot obtain the relief she seeks because the statute
prevents her from filing a second § 2255 petition. See United States v. Barrett,
    178 F.3d 34
    , 55 (1st Cir. 1999), cert. denied,
    120 S. Ct. 1208
     (2000). "The writ of coram
nobis may not be used to circumvent the clear congressional directive embodied in the
'second or successive' provisions of § 2255.'" Id. Third, even if § 2255 were not
controlling, Noske does not appear to meet the requirements for issuance of coram
nobis relief. Specifically, we do not believe she has shown an error "of the most
fundamental character" occurred. See United States v. Morgan,
    346 U.S. 502
    , 512
(1954).
We thus affirm the district court's denial of Noske's application for a writ of error
coram nobis.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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