United States District Court, S.D. West Virginia, Beckley Division
ORDER TRANSFERRING CASE
J. Aboulhosn, United States Magistrate Judge.
March 30, 2017, Petitioner, acting pro se and
incarcerated at FCI Beckley, filed his Petition for
Audita Querela pursuant to the All Writs Act, 28
U.S.C. § 1651. (Document No. 1.)
relief is available to persons under very limited
circumstances through Writs of Error Coram Nobis and
Writs of Audita Querela issued under 28 U.S.C.
§ 1651, the All Writs Act. The United States Supreme
Court explained in Pennsylvania Bureau of Corrections v.
United States Marshals Service, 474 U.S. 34, 43, 106
S.Ct. 355, 361, 88 L.Ed.2d 189 (1985), as follows:
The 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
may be held in coram nobis to consider errors
“of the most fundamental character.” United
States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253,
98 L.Ed. 248 (1954). Writs of Error Coram Nobis,
however, provide “essentially a remedy of last resort
for petitioners who are no longer in custody pursuant to a
criminal conviction.” Fleming v. United
States, 146 F.3d 66, 89 - 90 (2nd Cir. 1998);
see also United States v. Sessoms, 488 Fed.Appx. 737
(4th Cir. 2012)(citing Carlisle v. United
States, 517 U.S. 416, 428 - 429, 116 S.Ct. 1460, 1468,
134 L.Ed.2d 613 (1996))(a writ of error coram nobis
is limited to those petitioners who are no longer in custody
pursuant to their convictions); United States v.
Mandanici, 205 F.3d 519, 524 (2ndCir. 2000).
“[C]ourts may consider coram nobis petitions
only where no other remedy is available and the petitioner
presents sound reasons for failing to seek relief
earlier.” United States v. Mills, 221 F.3d
1201, 1204 (11th Cir. 2000), cert.
denied, 531 U.S. 1144, 121 S.Ct. 1079, 148 L.Ed.2d 956
(2001). Writs of Audita Querela are available when
there is a legal objection to a conviction which has arisen
after sentencing for which there is no other remedy.
United States v. Hairston, 2009 WL 891929, * 2
(N.D.W.Va. March 30, 2009)(quoting United States v.
LaPlante, 57 F.3d 252, 253 (2nd Cir. 1995)).
Writs of audita querela, however, may be issued
“only to the extent that they ‘fill the gaps'
in the current system of federal post-conviction
relief.” Hairston, 2009 WL 891929 at 2(quoting
Doe v. INS, 120 F.3d 200, 203 (9th Cir.
1997)). The proper jurisdiction for filing a Petition for
Writ of Audita Querela or Petition for Writ of
Coram Nobis is the district of conviction. See
Corrigan v. United States, 2014 WL 5460607 (N.D.W.Va.
Oct. 27, 2014)(finding that the Court lacked subjected matter
jurisdiction over petitioner's writ of error coram
nobis because petitioner challenged a conviction and
sentence entered in another court); Harris v. United
States, 2012 WL 3637250 (E.D. N.C. Aug. 22,
2012)(transferring petition filed under the All Writs Act, 28
U.S.C. § 1651, to the district of conviction); Short
v. Schultz, 2008 WL 305594 (N.D.N.J. Jan. 28,
2008)(transferring petition filed under the All Writs Act to
the district of conviction); Whitley v. North
Carolina, 2012 WL 8123581 (E.D. N.C. Aug. 16, 2012),
aff'd, 488 Fed.Appx. 755 (4th Cir.
2012)(citing Thomas v. Cunningham, 335 F.2d 67, 69
(4th Cir. 1964)(“[t]he Fourth Circuit has
held that a writ of error coram nobis must be
brought to the same court that convicted and sentenced the
defendant”); Neal v. Francis, 2008 WL 2704520
(N.D.W.Va. July 3, 2008)(transferring petition for writ of
coram nobis to the district of conviction). In his
Petition, Petitioner indicates that he was convicted in the
Middle District of Tennessee. (Document No. 1.) Therefore,
this Court does not have jurisdiction as Petitioner was not
convicted or sentenced in the Southern District of West
Virginia. Accordingly, the Court finds that the transfer of
this matter is in the interest of justice and therefore
warranted. See 28 U.S.C. § 1631.
to 28 U.S.C. § 1631, it is hereby ORDERED that this
matter be TRANSFERRED to the Middle District of Tennessee,
Nashville Division, 801 Broadway, Room 800, Nashville, TN
37203. The Clerk is directed to REMOVE this matter from the
Petitioner is advised that the Southern District of West
Virginia is the correct District to file an Application for
Writ of Habeas Corpus by a Person in Federal Custody
under 28 U.S.C. § 2241 as Petitioner is currently
incarcerated at FCI Beckley. The Clerk is therefore DIRECTED
to mail to Petitioner a blank Application for Writ of
Habeas Corpus by a Person in Federal Custody under
28 U.S.C. § 2241 and a Form Application to Proceed
in Forma Pauperis and Authorization to Release
Institutional Account Information and to Pay Filing Fee. To
the extent Petitioner wishes to seek relief pursuant to
Section 2241, Petitioner should complete and return these
forms to this Court.
Clerk is directed to mail a copy of this Memorandum Opinion
and Order to Petitioner, who is acting pro se, and
transmit a copy to the Clerk of the Court for the United