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Kimble v. United States

United States District Court, D. New Mexico

March 18, 2019

BRYAN O'KEETHE KIMBLE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE MARTHA VÁZQUEZ, UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is Plaintiff Bryan O'Keethe Kimble's Petition for Writ of Coram Nobis. Doc. 1, supplemented by Doc. 5. Also before the Court are his Motions to Appoint Counsel. Docs. 2, 4. Plaintiff is incarcerated and proceeding pro se. He asks the Court to issue a writ of coram nobis vacating his federal criminal convictions. Having determined coram nobis relief is unavailable, the Court will dismiss the petition and deny Plaintiff's motions to appoint counsel.

         BACKGROUND

         The instant matter implicates three federal criminal proceedings involving Plaintiff: 7-cr-334 RB; 10-cr-1808 RB; and 13-cr-2744 RB. In the first proceeding, Plaintiff pled guilty to possessing a firearm after a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841. Doc. 34 in 07-cr-334. The Court (Hon. Robert Brack) sentenced Plaintiff to 37 months imprisonment, followed by a three-year term of supervised release. Id. Judgment on the conviction and sentence was entered January 3, 2008. Id.

         In March 2010, Plaintiff was arrested and charged with possessing a firearm after a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The United States initiated a new criminal case, 10-cr-1808 RB, and pursued revocation in Plaintiff's original case, 07-cr-334 RB. On October 4, 2010, Plaintiff's counsel filed a motion in the new case requesting the personnel file of Sergeant Haskins. Doc. 29 in 10-cr-1808. Haskins was the arresting officer in both cases, 07-cr-334 and 10-cr-1808, and the personnel file purportedly contained information that reflects on Haskins' credibility. Thereafter, the parties reached a plea agreement whereby: (a) Plaintiff agreed to withdraw all pending motions in 10-cr-1808; (b) the United States agreed to dismiss the Indictment in 10-cr-1808; and (c) Plaintiff agreed to accept a sentence of 24 months imprisonment for violating the terms of his Supervised Release in 07-cr-334. Doc. 42 in 10-cr-1808; Doc. 50 in 07-cr-334. The Court (Hon. Robert Brack) accepted the plea, dismissed the second case (10-cr-1808), and sentenced Plaintiff accordingly.

         On September 19, 2012, the United States initiated a third criminal proceeding, 13-cr-2744 RB, after Plaintiff was apprehended with a firearm and methamphetamine. Doc. 1 in 13-cr-2744. Plaintiff pled guilty to the following charges:

Counts 1 and 4: Possessing a firearm as a prohibited person, 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
Count 2: Possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1);
Counts 3 and 7: Possession with intent to distribute methamphetamine, 21 U.S.C. § 841 and 18 U.S.C. § 2; and
Count 6: Possession of a firearm with an obliterated serial number, 18 U.S.C. §§ 922(k) and 924(a)(1)(B).

Doc. 35 in 13-cr-2744. By a Judgment entered September 23, 2014, the Court (Hon. Robert Brack) accepted the plea and sentenced Plaintiff to a total term of 230 months imprisonment. Doc. 50 in 13-cr-2744.

         Plaintiff filed the instant coram nobis petition on June 7, 2018. Doc. 1 in 18-cv-538. He appears to believe the second criminal proceeding, 10-cr-1808, was dismissed due to Haskins' misconduct. Because Haskins was also the arresting officer in the first criminal case, 07-cr-334, Plaintiff contends that proceeding is void and should not have been used to enhance his current conviction.

         DISCUSSION

         A writ of coram nobis is authorized by the All Writs Act, 28 U.S.C. § 1651. The writ is an extraordinary remedy, and relief is only permitted in compelling circumstances. See United States v. Morgan, 346 U.S. 502, 511-12 (1954). To obtain relief by writ of coram nobis, the defendant must have been convicted upon such “fundamental errors” as to render the proceedings invalid. See Ward v. United States, 381 F.2d 14, 15 (10th Cir. 1967). See also United States v. Denedo, 556 U.S. 904, 916 (2009) (noting that “judgment ...


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