United States District Court, N.D. Texas, Fort Worth Division
CHARLES C. NOWDEN, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
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.
Grounds of the Motion
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).
summary form, Nowden alleges the following grounds for his
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.
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.
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.
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."
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.
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.
combination of Shaw's unprofessional conduct and the
nondisclosure by the government of the bank records
established, according to Nowden, his right to coram
When a Writ of Error Coram Nobis Is Appropriate
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
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.
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).
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).
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.
History of Nowden's 1996 Bank Fraud Conviction by this
Court, and Related Proceedings
The Indictment and Pre-Plea-of-Guilty Activities
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
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
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,  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.
The Plea Hearing in No. 4:96-CR-085-A
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,
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.
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
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.
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 ...