United States v. Butina ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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Plaintiff, )
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v. ) Civil Action No. 18-cr-218 (TSC)
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MARIIA BUTINA, a/k/a, )
MARIA BUTINA )
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Defendant. )
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ORDER
Defendant Mariia Butina pleaded guilty to one count of Conspiracy to Act as an Agent of
a Foreign Government in violation of 18 U.S.C. §§ 371 and 951 on May 1, 2019, for which she
was sentenced to 18 months imprisonment. Judgment, ECF No. 123. Upon motion by the
United States, and with Butina’s consent, the court also ordered Butina, a Russian citizen,
removed to Russia upon release. Order of Judicial Removal, ECF No. 119. After completing
her sentence, Butina was removed on October 25, 2019. See Press Release, U.S. Immigration
and Customs Enforcement, ICE removes foreign agent Mariia Butina following conspiracy
conviction (Oct. 25, 2019) (available at https://www.ice.gov/news/releases/ice-removes-foreign-
agent-mariia-butina-following-conspiracy-conviction). On September 8, 2020, Butina filed a
Motion pro se under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, a Motion for Writ of Error Coram Nobis, and a Motion for Audita Querela. As
part of this motion, she seeks to vacate her conviction, sentence, and removal order. Def’s. Mot.
at,13, ECF No. 129.
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28 U.S.C. § 2255 allows “[a] prisoner in custody under sentence of a court . . . [to] move
the court which imposed the sentence to vacate, set aside, or correct the sentence.”. While the
definition of in custody is “liberally construed,” it is a jurisdictional requirement that does not
extend “to the situation where a habeas petitions suffers no present restraint from a conviction.”
Maleng v. Cook, 490 U.S. 488, 492 (1989). The custodial requirement is mandatory – if a
petitioner is not in custody, a federal court lacks the jurisdiction to grant a writ of habeas corpus.
See John Doe v. U.S. Parole Comm’n, 60 Fed. App’x 530, 533 (D.C. Cir. 2015); see also Preiser
v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he traditional function of the writ [of habeas corpus]
is to secure release from illegal custody.”). For this reason, the D.C. Circuit has “categorically
denie[d]” that habeas jurisdiction exists to aliens living freely abroad, especially post-removal.
See El-Hadad v. U.S., 377 F. Supp. 2d 42, 48-49 (D.D.C. 2005) (citing Saavedra Bruno v.
Albright, 197 F.3d 1153, 1161-62 (D.C. Cir. 1999)). Butina has completed her sentence and is
living freely in her home country of Russia. She is therefore jurisdictionally barred from seeking
habeas relief.
Butina also seeks writs of coram nobis and audita querela to vacate her conviction,
sentence, and removal order. See Def.’s Mot. at 2,13, ECF No. 129. These writs afford limited
opportunity for post-conviction relief to defendants claiming fundamentally flawed convictions.
The precise contours of the writs are “shrouded in ancient lore and mystery.” See U.S. v.
Beggerly, 524 U.S. 38, 43 (1998) (internal citations and quotations omitted). Nevertheless, two
principles are clear: (1) neither writ can be used to challenge a removal order, and (2) an attempt
to seek coram nobis or audita querela review must be clearly pleaded, or at least provide the
court enough information to cut through the fog.
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The court cannot consider Butina’s coram nobis and audita querela petitions as they
pertain to her removal. Butina consented to and joined the Government’s motion for removal,
fatally undermining her claim that the court erred in issuing the order. See Joint Mot. at 1-4, ECF
No. 92-4. Moreover, a federal court’s power to exercise equitable writs comes from the All
Writs Act, 28 U.S.C. § 1651. This power is not unlimited; courts are explicitly forbidden from
using the Act to review removal orders for aliens removed for criminal conduct. See 8 U.S.C. §
1252(a)(2)(C); see also U.S. Const. art. III, § 1 (federal courts are courts of limited jurisdiction).
The court thus cannot consider Butina’s coram nobis or audita querela petitions as they pertain
to her removal.
Butina’s petitions are also not proper vehicles to vacate her conviction or sentence.
Courts disfavor movants who tack on insufficiently pled coram nobis and audita querela claims
to habeas petitions. See Brian Means, Postconviction Remedies, §§ 5.10 Error coram nobis, 5.11
Audita querela. Such motions are typically barred from review. See U.S. v. Clark, 977 F.3d
1283, 1289 (D.C. Cir. 2020). Although pro se motions are held to “less stringent standards than
formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam),
Butina’s coram nobis and audita querela claims consist of 2 handwritten notations in the
margins of what is docketed as a “Motion to Vacate under 28 U.S.C. 2255.” See Def.’s Mot. at
2, 13. The court can neither make Butina’s arguments for her nor identify a sufficient coram
nobis or audia querela claim in Butina’s pleadings.
For these reasons, Defendant’s Motion to Vacate is DENIED.
Date: December 16, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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