Joseph C. Sun v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 28, 2005
No. 04-16642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-03552-CV-TWT-1

JOSEPH C. SUN,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 28, 2005)

Before ANDERSON, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Joseph Sun, a former federal prisoner proceeding pro se,
appeals the district court’s denial of his motion for a default judgment and its grant

of a motion to dismiss in his civil action against the United States in which he

seeks to set aside his criminal conviction. For the following reasons, we affirm.

I.

In 1987, Sun was convicted of two counts of mail fraud and one count of

forgery of a court order, and was sentenced to 15 years imprisonment. While

incarcerated, Sun brought several challenges to his conviction, including filing an

appeal to this court, a motion for a new trial, and several motions to vacate his

conviction pursuant 28 U.S.C. § 2255. His motions were denied and his conviction

was upheld.

In 2001, Sun completed his sentence. Subsequently, on November 10, 2003,

he filed the instant civil rights action against the United States, alleging that his

conviction was unconstitutional. In his complaint, Sun alleged, inter alia, that:

(1) he was wrongfully detained prior to trial, which prevented him from adequately

preparing his defense; (2) he was denied the right to testify at trial; (3) the

government engaged in various discovery violations; (4) the government presented

perjured testimony from witnesses with a personal animus towards Sun; (5) he was

retaliated against because he had a history of filing pro se lawsuits and was disliked

by judges; and (6) he was innocent of the offenses. After filing his complaint, Sun

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moved for a default judgment on the grounds that the United States had failed to

answer. The United States filed a response in opposition to Sun’s motion for a

default judgment, contending that service of process was defective and, therefore,

it was not required to answer. In addition, the United States moved to dismiss the

complaint for failure to state a claim. The district court denied Sun’s motion for a

default judgment and granted the government’s motion to dismiss. This appeal

followed.

II.

Sun argues that the district court erred in concluding that he improperly

served the United States as required under Rule 4 of the Federal Rules of Civil

Procedure. Accordingly, Sun contends he was entitled to a default judgment.

We review the district court’s denial of motion for a default judgment for

abuse of discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d

1309, 1316 (11th Cir. 2002). Default judgments should only be entered in

exceptional circumstances. Id. at 1316-17.

A civil lawsuit commences when the plaintiff files a complaint.

Fed.R.Civ.P. 3. The time by which a defendant must respond to the complaint

begins to run once the defendant is served with the complaint. Murphy Bros., Inc.

v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). The United States

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must answer a complaint within 60 days of the complaint being served.

Fed.R.Civ.P. 12(a)(3)(A). In order to effect service upon the United States, a

plaintiff must deliver a copy of the summons and complaint to the United States

Attorney for the district in which the action is brought, or must send copies of each

by registered or certified mail, addressed to the civil process clerk at the office of

the United States Attorney and send a copy of the summons and complaint to the

Attorney General of the United States by registered or certified mail. Fed.R.Civ.P.

4(i)(1).

Here, Sun correctly served the Attorney General, but failed to effect proper

service upon the United States Attorney. In particular, he concedes that he had his

summons and complaint sent through the regular mail to the United States

Attorney. Because he did not mail his complaint and summons to the United

States Attorney by certified or registered mail, service was not effected in

accordance with Rule 4 of the Federal Rules of Civil Procedure. Thus, the United

States was not required to respond to the complaint, and the district court properly

denied Sun’s motion for a default judgment.1

Sun also argues that the district court erred in granting the United States’

1
Even if Sun had properly served the United States, a default judgment in this case
would not be warranted because Sun has failed to establish “a claim or right to relief by evidence
satisfactory to the court.” See Fed. R. Civ. P. 55(e); Mason v. Lister, 562 F.2d 343, 345 (5th Cir.
1977).

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motion to dismiss.2 Specifically, he argues that he was entitled to relief under

a writ of error coram nobis.3

We review a district court’s denial of coram nobis relief for abuse of

discretion. United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002). A

petitioner seeking relief under a writ of error coram nobis carries a heavy burden.

See id. at 712. It is an extraordinary remedy that is available only to remedy errors

“of the most fundamental character.” United States v. Morgan, 346 U.S. 502, 511-

12 (1954). Additionally, we 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);

see also Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (same).

Like the district court, we conclude that Sun’s claim for coram nobis relief

fails. First, Sun’s claim is procedurally barred because he raised essentially the

same issues he advances here in his previous § 2255 motions to vacate his

conviction and in his direct appeal of his criminal conviction. See Moody v.

2
On appeal, Sun argues only that he seeks relief under a writ of error coram nobis and,
therefore, has abandoned the other issues he raised below. See Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004).
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The writ of error coram nobis is a remedy available to vacate a conviction when the
petitioner has served his sentence and is no longer in custody because “the results of the
conviction may persist....” Peter, 310 F.3d at 712 (citations omitted). Sun has completed his
sentence and therefore coram nobis is a proper avenue of relief.

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United States, 874 F.2d 1575, 1577 (11th Cir. 1989). Because Sun’s current

claims were known to him and were litigated by him while he was incarcerated,

coram nobis relief is not a proper remedy.4 Id.

For the foregoing reasons, we AFFIRM.

AFFIRMED.

4
Even if Sun’s claims were not procedurally barred, coram nobis relief would be
inappropriate because Sun fails to allege any error of a fundamental character that would warrant
relief. See Moody, 874 F.2d at 1577 (noting that prejudicial errors and newly discovered
evidence do not fall into the category of fundamental errors).

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