By Dale Chappell
Tavera v. United States, 2021 U.S. Dist. LEXIS 113121 (EDNY June 16, 2021)
The writ of coram nobis has been called an “ancient remedy” by some, and the courts have called it an “extraordinary remedy” that’s rarely used anymore. But this case proves that coram nobis can also be a battering ram to break down obstacles to habeas relief created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Over 20 years ago, Alex Tavera was convicted in the Eastern District of New York (EDNY) for using a firearm in furtherance of a conspiracy to commit Hobbs Act robbery, under 18 U.S.C. sec. 924(c). He served his time but years later was convicted in the Southern Dist. of FL (SDFL) for being a felon in possession of a firearm, under 18 U.S.C. sec. 922(g). The court counted his prior sec. 924(c) conviction as a “violent felony,” along with two other qualifying convictions, under the Armed Career Criminal Act (ACCA) and sentenced him to almost 20 years in prison. Without the ACCA penalty, Tavera faced a max of 10 years in federal prison.
Fast-forward to 2015, when the Supreme Court invalidated the “residual clause” of the ACCA, in Johnson v. United States, 576 U.S. 591 (2015). This opened the door for those sentenced under the ACCA based on a prior sec. 924(c) conviction in most courts, since sec. 924(c) fell under the residual clause. But the U.S. Court of Appeals for the Eleventh Circuit required Tavera to prove he was sentenced under the residual clause all those years ago, something he couldn’t do. Most courts didn’t require such a harsh, and often impossible, standard to meet for relief. But the 11th did and Tavera’s attempts at undoing his ACCA sentence were tossed by the court in the SDFL.
Then along came United States v. Davis, 139 S. Ct. 2319 (2019), where the Supreme Court invalidated the same residual clause of sec. 924(c). This meant that Tavera’s conspiracy to commit Hobbs Act robbery, which was the predicate for his old sec. 924(c) conviction in the EDNY, was invalid because such an offense fell under the residual clause of sec. 924(c). Because Davis applied retroactively to Tavera’s EDNY case, he was able to use coram nobis to attack that old conviction.
In the U.S. Court of Appeals for the Second Circuit, where the EDNY lies, coram nobis may be used if three criteria are met: (1) relief is needed to achieve justice, (2) sound reasons exist for not challenging the conviction earlier, and (3) the person would suffer legal consequences from his conviction that may be remedied by granting the writ. Coram nobis is also not available if another form of remedy is available, such as 28 U.S.C. sec. 2255 or the “savings clause” under 28 U.S.C. sec. 2241. See United State v. Morgan, 346 U.S. 502 (1954) (discussing the role of coram nobis in the wake of the new section 2255 remedy).
The EDNY found Tavera met these criteria and vacated his sec. 924(c) conviction that he’d already served. While this may seem useless because he’s still serving the 20-year ACCA sentence imposed by the SDFL, that’s where an earlier Johnson case comes into play, Johnson v. United States, 544 U.S. 296 (2005). In that case, the Supreme Court held that if a prior conviction that was used to enhance a current federal sentence is vacated, it opens the door to attack the current sentence under sec. 2255.
In other words, Tavera can rely on the vacatur of that prior sec. 924(c) conviction to file another round of challenges to his ACCA sentence. Nobody ever said habeas relief in federal court was straight-forward!
Dale Chappell is the author of several criminal law books, including Habeas Corpus for Federal Prisoners: An Insider’s Guide.