United States District Court, S.D. Texas, Houston Division
ORDER CONFIRMING THE INTERLOCUTORY SALE AND DENYING
THE PETITION FOR WRIT OF CORAM NOBIS
Rosenthal, Chief United States District Judge
United States moved for interlocutory sale of 9202 Wickford
Drive, Houston, Texas 77024. (Docket Entry No. 576). The
court considered Abraham Fisch's objections and overruled
them, recognizing that the United States had the authority to
convey clear title to the property under Fed. R. Crim. P.
32.2(b)(7). The court granted the motion for interlocutory
sale. (Docket Entry No. 609). The United States now moves for
an order confirming that sale. (Docket Entry No. 653). Fisch
objects and has filed for a writ of coram nobis to stop the
sale, the government responded, and Fisch replied. (Docket
Entries Nos. 642, 649, 650). The court ordered supplemental
briefing on specific questions, which the parties provided.
Fisch filed a motion to stay the interlocutory sale in the
Supreme Court while his petition for writ of a writ of
certiorari is pending (Docket Entry No. 655). The Supreme
Court has denied his motion, making this motion to stay moot.
28 U.S.C. § 2001(b) provides the required procedures for
a private sale of realty. The United States met each
requirement. It had three appraisals conducted, which valued
the property between $1, 240, 000 and $1, 750, 000. (Docket
Entry No. 653, Ex. A1-A3). The highest offer was $1, 500,
000, more than two-thirds of the appraised value. The United
States entered into a contract to sell the property,
conditioned on the court's approval. The United States
had the terms of the private sale published in the
Houston Chronicle, a newspaper of general
circulation. The publication took place ten days before the
sale was confirmed. There was no other offer. The United
States' motion for confirmation of interlocutory sale is
granted. (Docket Entry No. 653).
their initial briefs, the parties confined themselves to
arguing whether a writ of coram nobis was a procedurally
adequate vehicle for Fisch to contest the forfeiture. The
court requested supplemental briefing on the merits of
Fisch's argument. (Docket Entry No. 651). The court asked
the parties to respond to the following questions:
(1) Does a preponderance of the evidence in the record show
that Fisch “himself actually acquired as the result of
the crime” the $700, 000 of forfeitable property
currently in dispute? See Honeycutt, No. 16-142 at
(2) Does the “mere intermediary” exception under
21 U.S.C. § 982(b)(2) or a similar provision apply to
United States and Fisch both filed supplemental briefs.
(Docket Entry Nos. 651, 654). On August 25, Fisch filed his
supplemental brief. (Docket Entry No. 654). The court has
considered the arguments and, based on the record and
governing law, denies Fisch's petition for a writ of
Writs Act grants federal courts the authority to “issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). The writ of coram nobis
“is an extraordinary remedy to correct errors ‘of
the most fundamental character.'” United States
v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004) (citing
United States v. Morgan, 346 U.S. 502, 511 (1954)).
The requirements for issuing a writ of coram nobis differ by
circuit. See Nowlin v. United States, 81 F.Supp.3d
514, 521 (N.D. Miss. 2015) (“The various federal courts
of appeals have rendered conflicting opinions as to the
requirements for obtaining coram nobis relief; as
such, its methods of application vary among the
circuits.”). The Fifth Circuit requires a petitioner
seeking the writ to show:
(1) a continuing civil disability as a consequence of her
prior conviction, United States v. Castro, 26 F.3d
557, 559 (5th Cir. 1994); that (2) she exercised
“reasonable diligence in seeking prompt relief, ”
Dyer, 136 F.3d at 427 (internal quotations omitted)
(citing Morgan, 346 U.S. at 512, 74 S.Ct. 247); (3)
no other remedy is available, id. at 422 (citing
Morgan, 346 U.S. at 512, 74 S.Ct. 247); and (4)
unless relief is granted, there will be “a complete
miscarriage of justice, ” Castro, 26 F.3d at
Chico v. United States, 2017 WL 3309826, *2 (5th
Cir. 2017). If a petitioner fails to satisfy any of the
requirements, the writ will not issue.
threshold matter, the parties dispute whether Fisch is barred
from petitioning for a writ of coram nobis because he is in
custody. Coram nobis is “available to a petitioner
no longer in custody who seeks to vacate a criminal
conviction in circumstances where the petitioner can
demonstrate civil disabilities as a consequence of the
conviction, and that the challenged error is of sufficient
magnitude to justify the extraordinary relief.”
United States v. Esogbue, 357 F.3d 532, 534 (5th
Cir. 2004) (emphasis added) (quoting Jimenez v.
Trominski, 91 F.3d 767, 768 (5th Cir.1996)). Petitioners
in custody are consistently denied coram nobis relief in this
circuit. See United States v. Putnam, 686 F.
App'x 277, 278 (5th Cir. 2017); United States v.
Jones, 674 F. App'x 432 (5th Cir. 2017); United
States v. Dominguez, 77 F.3d 478, *1 (5th Cir. 1996).
cannot show a continuing civil disability as a consequence of
his conviction, because he is still in custody. He cannot
show, for example, that any error in his conviction bars him
from reentering his profession, United States v.
Foont, 901 F.Supp. 729 (S.D. NY 1995), or creates a risk
of ineligibility to reenter the country, Kovacs v. United
States, 744 F.3d 44 (2d Cir. 2014). Because he fails the
“continuing civil disability” prong, he cannot
successfully bring a petition for writ of coram nobis.
argues that the “in custody” preclusion is
inapplicable because he is not challenging his conviction or
his sentence other than the application of the forfeiture. If
that is right, then Fisch is using the wrong procedural
vehicle to challenge the forfeiture aspect of his sentence.
Although other circuits have contemplated how coram nobis
might be used to challenge restitution, see, e.g.,
United States v. Mischler, 787 F.2d 240 (7th Cir.
1986) (approving using coram nobis to challenge a restitution
order while in custody); Kaminski v. United States,
339 F.3d 84, 89 (2d Cir. 2003), the Fifth Circuit treats
coram nobis as a remedy “to vacate or modify [a] prior
criminal conviction.” Chico, 2017 WL 3309826
at *2; Telink, Inc. v. United States, 24 F.3d 42, 45
(9th Cir. 1994) (“[A] petition for a writ of error
coram nobis is a collateral attack on a criminal conviction .
. . .”); United States v. Foont, 99 F.3d 76,
79 (2d Cir. 1996). Because Fisch is challenging the
forfeiture, not his conviction, the writ does not lie.
a writ of coram nobis was the appropriate procedure to
challenge the forfeiture, Fisch's argument fails on its
merits. Under the criminal forfeiture statute, “[a]ny
person convicted of a violation of this subchapter or
subchapter II of this chapter punishable by imprisonment for
more than one year shall forfeit to the United States,
irrespective of any provision of State law . . . any property
constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such
violation.” 21 U.S.C. § 853(a). The Supreme Court
recently held in Honeycutt v. United States that
“[f]orfeiture pursuant to § 853(a)(1) is limited
to property the defendant himself actually acquired as the
result of the crime.” 137 S.Ct. 1626, 1635 ...