[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF
APPEALS
No. 01-16982 ELEVENTH CIRCUIT
____________________________ OCT 28 2002
THOMAS K. KAHN
D. C. Docket No. 94-06104-CR-DTKH CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL J. PETER,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(October 28, 2002)
Before DUBINA and BARKETT, Circuit Judges, and FITZPATRICK*, District
Judge.
PER CURIAM:
Michael J. Peter (“Peter”) appeals the denial of his petition for a writ of error
*
Honorable Duross Fitzpatrick, U.S. District Judge for the Middle District of Georgia,
sitting by designation.
coram nobis. Peter has already served a sentence imposed in 1996 on his plea of
guilty to a charge of racketeering conspiracy based on predicate acts of mail fraud.
He argues on appeal that he is entitled to coram nobis relief because the Supreme
Court’s decision in Cleveland v. United States, 531 U.S. 12 (2000), established that
the conduct with which he was charged is not proscribed by the statute he was
convicted of violating.
BACKGROUND
After several rounds of litigation over two separate indictments returned
against him in 1994 and 1995, Peter pled guilty on May 31, 1996, to a superseding
information that charged him with a single count of conspiring to violate the
Racketeer Influenced and Corrupt Organizations Act (RICO). A plea agreement
filed by the parties explicitly stated that the only predicate crime supporting the
RICO conspiracy was mail fraud under 18 U.S.C. § 1341, based on Peter’s
admission to including misrepresentations in license applications he mailed to the
Florida Division of Alcoholic Beverages and Tobacco. Pursuant to the parties’
agreement regarding an appropriate sentence, the district court imposed a $25,000
fine and sentenced Peter to 24 months’ incarceration, followed by two years of
supervised release. Having pled guilty, Peter did not directly appeal his sentence
or conviction, nor did he file a post-conviction motion seeking relief pursuant to 28
-2-
U.S.C. § 2255. He served his sentence of imprisonment and was released on May
6, 1998. His period of supervised release ended on May 5, 2000.
On November 7, 2000, the Supreme Court decided Cleveland v. United
States, 531 U.S. 12 (2000). Roughly a year later, Peter filed a challenge to his
RICO conviction by way of a petition for writ of error coram nobis, arguing that
the Supreme Court’s decision in Cleveland had established that the acts forming
the basis for his guilty plea did not constitute the predicate crime of mail fraud.
The government never responded to the petition. On November 27, 2002, without
a hearing, the district court entered a summary order denying relief. Peter filed a
timely notice of appeal from that order.
DISCUSSION
A district court’s denial of coram nobis relief is reviewed for abuse of
discretion, keeping in mind that “an error of law is an abuse of discretion per se.”
Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000).
In Cleveland, the Supreme Court held that the offense of mail fraud, as
defined by 18 U.S.C. § 1341, requires that the object of the fraud “be property in
the hands of the victim. State and municipal licenses in general. . . do not rank as
‘property,’ for purposes of § 1341, in the hands of the official licensor.” 531 U.S.
at 15. The misrepresentations alleged in the superseding information to which
-3-
Peter pled guilty were made solely for the purpose of obtaining alcoholic beverage
licenses from the State of Florida. Thus, the facts to which Peter pled guilty did
not constitute a crime under Cleveland. Decisions of the Supreme Court
construing substantive federal criminal statutes must be given retroactive effect.
Bousley v. United States, 523 U.S. 614, 620-21 (1998).
Peter argues that because his conduct was never a crime under § 1341, he is
entitled to a writ of error coram nobis to invalidate the judgment. The government
does not dispute Peter’s reading of Cleveland. Rather, the government argues that
Peter procedurally defaulted the present claim when he abandoned pretrial
challenges, pled guilty, and declined to appeal. In the government’s view, Peter’s
coram nobis petition must now be dismissed because Peter has not made any
showing that qualifies him to proceed under an exception to the doctrine of
procedural default. We conclude that the error demonstrated by Peter is of a kind
that warrants relief despite his decision not to contest the government’s charge at
the time of his plea.
A 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, as is
required for post-conviction relief under 28 U.S.C. § 2255. As the Supreme Court
explained in United States v. Morgan, 346 U.S. 502 (1954), coram nobis relief is
-4-
available after sentence has been served because “the results of the conviction may
persist. Subsequent convictions may carry heavier penalties, civil rights may be
affected.” Id. at 512-13. Routine grant of coram nobis relief, however, would
undermine the finality of criminal convictions, a finality achieved in most federal
cases either at the time a conviction is affirmed on appeal or at the expiration of the
period during which an appeal remains available. Due regard for the finality of
criminal convictions counsels special restraint in the review of collateral attacks on
convictions entered pursuant to guilty pleas. Failure to appeal such convictions
waives challenges based on many types of error in the proceedings which
culminated in entry of the plea. See Bousley v. United States, 523 U.S. 614, 621
(1998) (failure to appeal defaults claim that plea was not knowing and voluntary as
result of district court’s failure to inform defendant of nature of offense); United
States v. Timmreck, 441 U.S. 780, 783-84 (1979) (refusing to entertain collateral
attack based on “technical violation” in plea proceeding conducted pursuant to
Federal Rule of Criminal Procedure 11). In giving force to this procedural bar, the
Supreme Court has “strictly limited the circumstances under which a guilty plea
may be attacked on collateral review.” Bousley, 523 U.S. at 621.
At the same time, the law recognizes that there must be a vehicle to correct
errors “of the most fundamental character; that is, such as rendered the proceeding
-5-
itself irregular and invalid.” Morgan, 346 U.S. at 509 n.15 (quoting United States
v. Mayer, 235 U.S. 55, 69 (1914)); see also United States v. Mills, 221 F.3d 1201,
1204 (11th Cir. 2000). In essence, the writ of error coram nobis acts as an
assurance that deserved relief will not be denied as a result of the technical
limitations of other post-conviction remedies. See Romualdo P. Esclavea,
Availability, Under 28 U.S.C.A. § 1651, Of Writ of Error Coram Nobis to Vacate
Federal Conviction Where Sentence Has Been Served, 38 A.L.R. Fed 617, §2(a)
(1978). In order to determine whether Peter is entitled to relief, therefore, we must
determine whether the error comprised by a district court’s acceptance of his plea
was of such a “fundamental character” as to have “rendered the proceeding itself
irregular and invalid.” Morgan, 346 U.S. at 509 n.15.
One type of claim that has historically been recognized as fundamental, and
for which collateral relief has accordingly been available, is that of “jurisdictional”
error. See, e.g., United States v. Addonizio, 442 U.S. 178, 185 (1979) (“Habeas
corpus has long been available to attack convictions and sentences entered by a
court without jurisdiction.”); Keel v. United States, 585 F.2d 110, 114 (5th Cir.
1978) (en banc) (distinguishing, in challenge to conviction resting on guilty plea,
“jurisdictional” errors from those which may not be raised via collateral attack).
Since jurisdictional error implicates a court’s power to adjudicate the matter before
it, such error can never be waived by parties to litigation. See Louisville &
-6-
Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908) (ordering case
dismissed for lack of jurisdiction despite absence of objection from either party to
trial court’s previous adjudication of merits). In other words, the doctrine of
procedural default does not apply.
The district courts of the United States have original and exclusive
jurisdiction over “all offenses against the laws of the United States.” 18 U.S.C. §
3231. Despite this broad grant of power, the decision in United States v.
Meacham, 626 F.2d 503 (5th Cir. 1980),1 establishes that a district court is without
jurisdiction to accept a guilty plea to a “non-offense.” In Meacham, the old Fifth
Circuit reversed the convictions of five defendants who had been charged with
“conspir[ing] to attempt” to import marijuana and to possess marijuana with the
intent to distribute it. Id. at 507. The court found that Congress had not intended
for the statutes on which the government relied to create “the conceptually bizarre
crime of conspiracy to attempt.” Id. at 508-09. Proceeding to address the question
of whether a defendant’s guilty plea waived his right to challenge the charges on
appeal, the court stated that:
[t]he objection that the indictment fails to charge an
offense is not waived by a guilty plea. The violation of
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), this Court adopted as
binding precedent all decisions of the Fifth Circuit rendered prior to the close of business on
October 1, 1981.
-7-
Meacham’s right to be free of prosecution for a
nonoffense would bar his conviction even if his ‘factual
guilt’ had been established validly. The entry of a guilty
plea does not act as a waiver of jurisdictional defects
such as an indictment’s failure to charge an offense.
Meacham’s guilty plea does not bar reversal of his
conviction.
Id. at 510 (citations omitted).
Since Meacham was decided, several decisions of this Court have reaffirmed
its vitality. In United States v. Tomeny, 144 F.3d 749 (11th Cir. 1998), we cited
Meacham for the proposition that “a claim that the indictment failed to charge an
offense is a jurisdictional claim not waived by the entry of a guilty plea.” Id. at
751. Tomeny further clarified that a claim is “jurisdictional” if it “can be resolved
by examining the face of the indictment or the record at the time of the plea
without requiring further proceedings.” Id. (quoting United States v. Caperell, 938
F.2d 975, 977-78 (9th Cir. 1991)). Likewise, in Bell v. United States, 22 F.3d 274
(11th Cir. 1994), we cited Meacham as support for the rule that a guilty plea does
not waive the objection that an indictment fails to charge an offense. Id. at 275 &
n.4. See also United States v. Harper, 901 F.2d 471, 472 (5th Cir. 1990)
(entertaining post-conviction challenge under 18 U.S.C. § 2255 based on
indictment’s failure to charge offense because such error “divests the sentencing
court of jurisdiction”).
-8-
The government argues that the language of Cotton v. United States, 122 S.
Ct. 1781 (2002), appears to reject the rule of Meacham. We do not agree. In
Cotton, the Supreme Court reversed the Fourth Circuit’s vacation of seven
defendants’ sentences, rejecting the view that all “indictment defects are
‘jurisdictional.’” Id. at 1785. In reaching this conclusion, the Court overruled Ex
parte Bain, 121 U.S. 1 (1887), which had found jurisdictional error in a trial court’s
amendment of an indictment returned by a grand jury. As read by the Supreme
Court in Cotton, the amendment at issue in Bain had been of little substantive
import, involving only the striking of a clause which the trial court had deemed
“superfluous.” Cotton, 122 S. Ct. at 1784. Similarly, the error held not to be
“jurisdictional” in Cotton involved only an omission from the indictment: the
failure to allege a fact requisite to the imposition of defendants’ sentences, namely,
their trade in a threshold quantity of cocaine base. Id. at 1783. Indeed, the Court
generally took pains to make this point clear. The Court stated the question
presented as whether “the omission from a federal indictment of a fact that
enhances the statutory maximum sentence justifies a court of appeals’ vacating the
enhanced sentence.” Id. at 1783 (emphasis added). Later in the opinion, it framed
the question as whether the court of appeals was correct in its “conclusion that the
omission from the indictment was a ‘jurisdictional’ defect.” Id. at 1784 (emphasis
-9-
added).
Unlike the error asserted here, there was no claim in Cotton that the
indictment consisted only of specific conduct that, as a matter of law, was outside
the sweep of the charging statute. Rather, the conviction reviewed in Cotton had
been obtained on an indictment that unquestionably described the offense of
conspiring to distribute and to possess with intent to distribute cocaine. The
indictment omission went only to the legality of the defendants’ sentences.
Furthermore, the prosecution’s evidence had been “overwhelming and essentially
uncontroverted” on the very point of fact which the indictment had erroneously
failed to allege. Id. at 1786 (internal quotation marks omitted). Hence the
Supreme Court did not address whether the insufficiency of an indictment assumes
a jurisdictional dimension when the only facts it alleges, and on which a
subsequent guilty plea is based, describe conduct that is not proscribed by the
charging statute.
This Court recognized the relevant distinction in McCoy v. United States,
266 F.3d 1245 (11th Cir. 2001). There, we evaluated a habeas claim based on the
same error reviewed in Cotton: the failure of an indictment to allege the
defendant’s trade in at least the threshold quantity of cocaine base required for
imposition of sentence under 18 U.S.C. § 841(b)(1)(A). The majority rejected a
-10-
“categorical approach that treats all indictment problems the same way.” McCoy,
266 F.3d at 1252-53. It then distinguished the “type of indictment problem”
involved in Meacham, where “the indictment is defective because it charged no
crime at all,” from indictment defects that do not give rise to jurisdictional error.
Id. at 1253-54.2
Similarly, in United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en
banc), we distinguished between the claim that a defendant had been charged under
a preempted statute and the claim that an indictment failed to allege an element of
the charged offense. Sanchez, 269 F.3d at 1275 n.48. As the Sanchez court
recognized, the former type of claim was held to be of jurisdictional dimension in
United States v. Tomeny, 144 F.3d 749 (11th Cir. 1998). By describing Tomeny
as “inapposite,” Sanchez reaffirmed the importance of the distinction between
indictment omissions and the affirmative allegation of specific conduct that is not
proscribed by the charging statute.
The Government’s reliance on Bousley v. United States, 523 U.S. 614
(1998), is likewise misplaced. In Bousley, the Supreme Court held the doctrine of
2
The McCoy Court’s discussion of different categories of indictment error followed its
citation of Alikhani v. United States, 200 F.3d 732 (11th Cir. 2000), in which we rejected the
view that “the failure of an indictment to state an offense. . . divests the district court of the
power even to enter a judgment of acquittal.” Id. at 735. As is demonstrated by McCoy’s
continued recognition of a distinct type of error in indictments that charge “no crime at all,”
Meacham remains good law after the Alikhani decision.
-11-
procedural default to apply to a prisoner’s claim that his guilty plea was not
knowing and voluntary because he had been misinformed of the nature of the
offense with which he was charged. Specifically, he contended that the
government had charged him with use of a firearm under 18 U.S.C. § 924(c)(1)
without alleging that his possession of the firearm constituted “use” for purposes of
that statute as defined by the Supreme Court in Bailey v. United States, 516 U.S.
137 (1995). The indictment under which Bousley was charged, however, did not
affirmatively allege that he had possessed a gun in the very manner deemed by
Bailey not to constitute “use” for purposes of § 924(c). Rather, the indictment
simply recited the elements of the offense, without identifying any specific facts by
which the alleged conduct would be shown. Bousley, 523 U.S. at 616 (quoting
indictment’s allegation that Bousley “knowingly and intentionally used. . . firearms
during and in relation to a drug trafficking crime”) (omission in original). As in
Cotton, the indictment in Bousley unquestionably alleged the crime charged.
Although the government’s lack of specificity as to how it would prove the crime’s
elements left open the question of whether its case was limited to evidence of
conduct not proscribed by § 924(c), the charge to which the defendant pled was a
valid one.
By contrast, it cannot be gainsaid that the superseding information to which
-12-
Peter pled guilty alleged “mail fraud” of the very form held in Cleveland not to
constitute an offense under § 1341. The indictment charged Peter with making
misrepresentations in license applications he mailed to a Florida state agency.
Cleveland held that state-issued licenses are not “property” for purposes of mail
fraud under § 1341. As in Meacham, it is clear under these circumstances that the
Government’s proof of the alleged conduct, no matter how overwhelming, would
have brought it no closer to showing the crime charged than would have no proof
at all. The problem is not that the Government’s case left unanswered a question
as to whether its evidence would encompass a particular fact or element. Rather, it
is that the Government affirmatively alleged a specific course of conduct that is
outside the reach of the mail fraud statute. Peter’s innocence of the charged
offense appears from the very allegations made in the superseding information, not
from the omission of an allegation requisite to liability. In this circumstance, the
rule of Meacham, that a district court lacks jurisdiction when an indictment alleges
only a non-offense, controls. The district court had no jurisdiction to accept a plea
to conduct that does not constitute mail fraud, and the doctrine of procedural
default therefore does not bar Peter’s present challenge.
In Alikhani v. United States, 200 F.3d 732 (2000), we stated that a “genuine
claim that the district court lacked jurisdiction to adjudicate the petitioner guilty
-13-
may well be a proper ground for coram nobis relief as a matter of law.” Id. at 734.
Indeed, jurisdictional error is by its nature of such a “fundamental character” as to
render proceedings “irregular and invalid,” Morgan, 346 U.S. at 509 n.15, and
coram nobis relief affords a procedural vehicle through which such error may be
corrected. When a court without jurisdiction convicts and sentences a defendant,
the conviction and sentence are void from their inception and remain void long
after a defendant has fully suffered their direct force. Moreover, as the Supreme
Court reiterated in Spencer v. Kemna, 523 U.S. 1 (1998), “it is an obvious fact of
life that most criminal convictions do in fact entail adverse collateral legal
consequences.” Id. at 12 (internal quotation marks omitted). See also Wolfe v.
Coleman, 681 F.2d 1302, 1305 (11th Cir. 1982); Minor v. Dugger, 864 F.2d 124,
126 (11th Cir. 1989). Accordingly, a writ of error coram nobis must issue to
correct the judgment that the court never had power to enter. Since coram nobis
relief is available in this circumstance as a matter of law, the district court abused
its discretion in summarily dismissing Peter’s petition.
REVERSED AND REMANDED.
-14-