United States v. Orasama Andrews

Case: 13-12528 Date Filed: 05/09/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12528
Non-Argument Calendar
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D.C. Docket No. 5:01-cr-00056-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORASAMA ANDREWS,
a.k.a. Rell,
Defendant -Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 9, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Orasama Andrews appeals pro se the denial of his petition for a writ of error
coram nobis under the All Writs Act. 28 U.S.C. § 1651. We affirm.
In 2003, Andrews pleaded guilty to distributing between two and five grams
of cocaine base. See 21 U.S.C. § 841(a)(1). His written plea agreement advised
him of his rights to a trial by jury; to be represented by counsel throughout his trial
proceedings; to confront and cross-examine witnesses against him; and to not
incriminate himself. During his change of plea hearing, Andrews verified that he
understood and waived those constitutional rights. The district court accepted
Andrews’s plea of guilty and sentenced him to 37 months of imprisonment,
followed by 3 years of supervised release.
After Andrews began his term of supervised release, he was arrested for
distributing cocaine base. See id. Andrews was convicted of the offense and
sentenced to imprisonment for life. Later, the district court revoked Andrews’s
supervised release and imposed a sentence of 24 months of imprisonment to run
consecutively to his sentence of life imprisonment. Three months later, the district
court filed an amended judgment that corrected a misstatement in its earlier order.
Andrews filed a petition for a writ of error coram nobis that sought relief
from his 2003 conviction. Andrews argued that the district court lacked subject
matter jurisdiction to adjudicate him guilty of the drug offense because cocaine
hydrochloride and cocaine base were unscheduled substances; the statutory
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authority for his sentence, id. § 841(b)(1)(A)(iii), was void for vagueness; and his
plea colloquy was inadequate because he was not advised of his rights to confront
his accuser and to not incriminate himself. He also argued that he had recently
discovered facts supporting his claims and that his trial counsel had been
ineffective by abandoning him immediately after his sentencing hearing. Andrews
filed three amendments to his petition that repeated his claims for relief.
The district court denied Andrews’s petition and dismissed his amendments
as moot. The district court ruled that Andrews could have raised his claims for
relief in an earlier proceeding; he failed to prove that any of his claims involved a
fundamental matter of fact that rendered the proceedings irregular and invalid; and
he failed to present sound reasons for failing to pursue relief earlier. The district
court also ruled that Andrews’s “vague and unsubstantiated allegations” failed to
excuse his delay in pursuing relief.
We review the denial of a petition for a writ of error coram nobis for abuse
of discretion. Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000). The
writ is available only when “there is and was no other available avenue of relief”
and “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.” Id. We may affirm a judgment on any ground that appears
in the record. See Spaziano v. Singletary, 36 F.3d 1028, 1041 (11th Cir. 1994).
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The district court did not abuse its discretion. “Coram nobis relief is
unavailable to a person . . . who is still in custody.” United States v. Garcia, 181
F.3d 1274, 1275 (11th Cir. 1999). Although the district court did not address
Andrews’s custodial status, a review of the record reveals that he is still in custody
“under the aggregate of the consecutive sentences imposed on [him]” and is
ineligible for coram nobis relief. See Peyton v. Rowe, 391 U.S. 54, 64–65, 88 S.
Ct. 1549, 1555 (1968). Furthermore, the writ of error coram nobis is unavailable
to Andrews because he could have raised his claims for relief on direct appeal, see
Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (“A ground of error is
usually ‘available’ on direct appeal when its merits can be reviewed without
further factual development.”), or in a motion to vacate his conviction, see 28
U.S.C. § 2255. And Andrews provides no plausible explanation for his delay in
pursuing his claims. Andrews argues that the district court should have treated his
petition as a motion to vacate his conviction, see id., but Andrews acknowledges
that motion would have been untimely. Andrews also argues that the district court
lacked jurisdiction to enter the amended judgment, but we decline to consider an
argument that Andrews failed to raise in the district court. See Johnson v. United
States, 340 F.3d 1219, 1228 n.8 (11th Cir. 2003).
We AFFIRM the denial of Andrews’s petition.
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