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Nowden v. United States

United States District Court, N.D. Texas, Fort Worth Division

June 22, 2018

CHARLES C. NOWDEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE JUDGE

         The above-captioned civil action was initiated by the filing in criminal No. 4:96-CR-085-A, by Charles C. Nowden ("Nowden") on May 23, 2018, of a document titled "Motion for Writ of Error Coram Nobis and Memorandum of Law in Support of Said Motion," urging three reasons why Nowden contends the court should set aside his December 1996 conviction in that case for the offense of bank fraud in violation of 18 U.S.C. § 1344. The court has concluded that the motion should be denied.

         I. Grounds of the Motion

         Nowden alleged in his motion that this court has jurisdiction under 28 U.S.C. § 1651 to grant the relief he seeks, citing as authority United States v. Morgan, 346 U.S. 502 (1954) and United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989).

         In summary form, Nowden alleges the following grounds for his motion:

He currently is incarcerated in a prison facility of the State of Texas, serving a sentence that was enhanced from a 2-to-5 year imprisonment range to a 25-to-99 year range under the Texas habitual offender provision as a result of the bank fraud conviction Nowden received by a judgment of this court in 1996 based on his plea of guilty of that offense.

         On August 8, 1996, Nowden retained attorney Jim Shaw ("Shaw") to represent him in the bank fraud case. He told Shaw that he wanted to go to trial because he was actually innocent of the charge against him. When they first met, Shaw told Nowden that his services would cost $10, 000, which would pay for legal research, depositions, and interviewing government witnesses. He paid Shaw $5, 000 when they had their first meeting. When they met the second time, on August 21, 1996, he informed Shaw that he did not have the remaining $5, 000 he was to pay, but that he would pay Shaw the remaining amount at a later date. Shaw responded that the trial was set for August 23, 1996, that Shaw needed his money before trial, and that if Nowden did not pay him, Nowden would have to take a plea. On August 23, 1996, the date of trial, Nowden told Shaw that he did not have the rest of the money, and Shaw responded that he had only one option, and that was to enter a plea of guilty with the goal of obtaining the shortest sentence he could possibly get.

         Nowden told Shaw that he was innocent of the charges, and Shaw responded that it did not matter because Shaw had not done the things necessary to prepare for trial, having had only sixteen days for trial preparation. Shaw coerced Nowden into believing that a guilty plea was his only choice. Nowden reluctantly allowed Shaw to coerce him into pleading guilty although a guilty plea was against Nowden's wishes. Nowden's guilty plea was not knowingly, intelligently, or voluntarily entered due to ineffective assistance of his counsel and counsel's incompetent legal advice, and the plea should be set aside.

         If Nowden had gone to trial, for the government to prove bank fraud, the government would have been required to prove beyond a reasonable doubt that Nowden committed the bank fraud offense by false or fraudulent pretenses, representation, or promises. A review of the evidence in Nowden's case reveals that Nowden did not commit bank fraud because "the depositing of a series of known insufficient funds checks does not alone constitute false or fraudulent pretenses, or representations." Doc.[1] 277 at 5, ¶ 8 (omitting emphasis, internal brackets, and quotation marks). Thus, the evidence was insufficient to convict Nowden of bank fraud. The facts recited by Nowden in his motion establish that "his guilty plea was not voluntary or intelligently entered and must be set aside." Id., at 6, ¶ 11. Had Shaw properly investigated and conducted proper legal research, he would not have advised Nowden to plead guilty, but would, instead, have proceeded to trial.

         As a third ground for relief, Nowden contends that the government failed to disclose to the defense "the Bank Records; Checks involved; and the deposit slips, showing that [Nowden] did not have anything to do with Bank Fraud." Id. at 3, ¶ 1.

         The combination of Shaw's unprofessional conduct and the nondisclosure by the government of the bank records established, according to Nowden, his right to coram nobis relief.

         II.

         Circumstances When a Writ of Error Coram Nobis Is Appropriate

         "Coram Nobis is a writ of ancient common law origin." Puente v. United States, 676 F.2d 141, 145 n.2 (5th Cir. 1982). It has been abolished in federal civil practice by Rule 60 (b) of the Federal Rules of Civil Procedure, but is still available in criminal matters under the All Writs Statute, 28 U.S.C. § 1651(a). Id. "Coram nobis will lie to correct only errors of the most fundamental character, that is, such as rendered the proceeding itself invalid." Id.

         The writ of error coram nobis was approved by the Supreme Court for use by federal courts in criminal cases in United States v. Morgan, 346 U.S. 502 (1954). In Morgan, the Court rejected the contention that 28 U.S.C. § 2255 supplanted the writ of error coram nobis remedy, stating that "[w]e do not think that the enactment of § 2255 is a bar to [such a] motion," id. at 511, and holding that "the District Court has power to grant such a motion," id. The Court added that "[i]t is presumed that the [underlying criminal] proceedings were correct and the burden rests on the accused to show otherwise." Id. at 512.

         An interpretation by the Fifth Circuit of the Morgan holdings is found in United States v. Dyer, where the Court explained:

In Morgan, the Court emphasized that the writ of coram nobis could not be used as a substitute for appeal and should only be employed to correct errors of the most fundamental character. The Court further admonished that continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice. The writ will issue only when no other remedy is available and when sound reasons exist for failure to seek appropriate earlier relief. In addition, a petitioner bears the considerable burden of overcoming the presumption that previous judicial proceedings were correct.

136 P.3d 417, 422 (5th Cir. 1998)(emphasis added, citations, internal quotation marks, and brackets omitted).

         The Fifth Circuit explained in Jimenez v. Trominski that a writ of coram nobis "will issue only to correct errors resulting in a complete miscarriage of justice." 91 F.3d 767, 768 (5th Cir. 1996).

         In United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989), the Fifth Circuit noted that "[a]n error of the most fundamental character must have occurred and no other remedy may be available." (emphasis added). Even then, "[c]oram nobis is appropriate only where . . . the challenged error is of sufficient magnitude to justify the extraordinary relief." Id. Promptness in seeking coram nobis relief once the pertinent facts are available to the movant is an important factor in determining whether the extraordinary remedy should be considered. See Dyer, 136 P.3d at 427 ("[i]t has long been recognized that a petitioner seeking coram nobis must exercise 'reasonable diligence' in seeking prompt relief.") In Dyer, the Fifth Circuit affirmed the denial of a petition for writ of coram nobis for the reason, among others, that the petitioner "did not act with reasonable diligence in seeking relief." Id. at 430.

         III.

         Pertinent History of Nowden's 1996 Bank Fraud Conviction by this Court, and Related Proceedings

         A. The Indictment and Pre-Plea-of-Guilty Activities

         On July 9, 1996, Nowden was named in a 15-count indictment charging him in Count 1 with conspiracy to commit bank fraud and bank theft, in violation of 18 U.S.C. § 3 71, in Counts 2 through 8 with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and in Counts 9 through 15 with bank theft, in violation of 18 U.S.C. §§ 2113(b) and 2. The United States Magistrate Judge determined that Nowden qualified for a court-appointed attorney, and on July 16, 1996, appointed the Federal Public Defender for this district to represent him. Nowden was released on conditions of release pending trial. He appeared before the undersigned on July 26, 1996, when he pleaded not guilty to all counts of the indictment; and, his trial was set for August 26, 1996.

         On August 16, 1996, Shaw filed an entry of appearance as retained counsel for Mowden, and Peter Fleury ("Fleury"), the Assistant Federal Public Defender who had appeared as appointed attorney for Mowden, filed a motion to withdraw because of having been notified that Shaw had been retained by Nowden. On August 21, 1996, Nowden, Fleury, and Shaw filed a "Statement Regarding Substitution of Counsel," making known Nowden's understanding that his trial date was August 26, 1996, and that the court would not move the trial date to a later date to allow Shaw more time to prepare, and announcing that his wish, nonetheless, was "to be represented by Jim Shaw and for the court to dismiss Peter Fleury, and the Federal Public Defender's Office, from the case." Doc. 120. The court did not at that time grant Fleury's motion to withdraw; and, Fleury continued to represent Nowden along with Shaw.

         Another document was filed on behalf of Nowden on August 21, 1996, this one titled "Motion for Continuance," which was signed by both Fleury and Shaw as counsel for Nowden. Doc. 12 9. The ground of the motion was that Nowden was charged in two separate indictments with various allegations of bank theft and bank fraud, one pending before the undersigned as No. 4:96-CR- 085-A and the other pending before United States District Judge Terry Means (No. 4:96-CR-084-Y), who also holds court in Fort Worth. Nowden alleged that he was scheduled to enter a plea of guilty on August 26, 1996, in the case pending before Judge Means, [2] and that the government planned to file a motion to dismiss the indictment in No. 4:96-CR-085-A immediately thereafter. The motion contained the recitation that the case before the undersigned was set for trial on August 26, 1996; and, the request of the motion was that "this cause be continued to allow the entry of the plea and the filing of the motion for dismissal." Id. at 1-2. An order denying the motion was signed August 22, 1996.

         B. The Plea Hearing in No. 4:96-CR-085-A

         On August 23, 1996, Nowden, accompanied by Fleury and Shaw, appeared before the undersigned for entry of a plea of guilty to Count 4, one of the bank fraud counts, of the July 9, 1996 indictment. The plea was entered pursuant to a plea agreement Nowden, Fleury, Shaw, and counsel for the government agreed to and signed on August 23, 1996. Those same persons agreed to and signed a factual resume on August 23, 1996.[3]

         The plea agreement included agreement by the government to dismiss all counts of the indictment other than Count 4, to which Nowden pleaded guilty, and to dismiss as to Nowden the indictment in the case pending before Judge Means as Case No, 4:96-CR-084-Y. Doc'. 143 at 3, ¶ 8.

         The factual resume disclosed that by his plea of guilty Nowden was subjecting himself to a term of imprisonment of 3 0 years, plus payment of a $1, 000, 000 fine, plus service of a term of supervised release of 5 years. It listed the elements of the offense as follows:

ELEMENTS OF THE OFFENSE:
COUNT FOUR: In order to establish the guilt of the defendant for the offense of bank fraud, a violation of Title 18, United States Code, Section 1344, the government must prove each of the following elements beyond a reasonable doubt:
That on or about the dates alleged in the Indictment,
First: The defendant knowingly executed, or assisted in the executing, or attempted to execute, a scheme or artifice to defrauded [sic] a financial institution listed in the Indictment of money under the care and custody of a financial institution by means of false or fraudulent pretenses, representation, or promises; and
Second: The financial institutions were insured by the Federal Deposit Insurance Corporation[.]

Doc. 144 at l.

         The stipulated facts in the factual resume were slightly more than eight pages in length. The first thirty-nine numbered paragraphs on pages 2-5 appear to be a repeat of the overt acts alleged in the indictment in No. 4:96-CR-085-A, and the conduct alleged in paragraphs 40-57 at pages 5-9 appears to be a ...


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