Fishman v. Garland

• Court: District Court, District of Columbia
• Decided: March 27, 2023
• Docket: Civil Action No. 2021-3049
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEVEN FISHMAN, : : Petitioner, : Civil Action No.: 21-3049 (RC) : v. : Re Document Nos.: 11, 15 : MERRICK B. GARLAND, : : Respondent. :

MEMORANDUM OPINION

GRANTING RESPONDENT’S MOTION TO DISMISS; DENYING PETITIONER’S MOTION FOR DEFAULT JUDGMENT

I. INTRODUCTION

Petitioner Steven Fishman, proceeding pro se, seeks a writ of coram nobis to vacate a portion

of a sentence imposed on him for a criminal conviction in the Northern District of Oklahoma. 1

See Pet. Writ Coram Nobis (“Writ Petition”), ECF No. 1. After an issue effecting service,

Petitioner also moved for a default judgment. See Mot. Default. J., ECF No. 11. After service

was effected, Respondent Attorney General Merrick Garland jointly moved to dismiss for lack of

jurisdiction and failure to state a claim and opposed Petitioner’s Motion for Default Judgment.

Mot. Dismiss and Opp’n, ECF No. 15. For reasons explained below, Respondent’s Motion to

Dismiss is granted and Petitioner’s Motion for Default Judgment is denied.

1 In his petition, Mr. Fishman also sought relief under 42 U.S.C. § 1983, but he withdrew this claim in his reply. See Pet’r’s Reply to Mot. to Dismiss at 14, ECF No. 18 (“[A]ll claims under 42 U.S.C. § 1983 are hereby withdrawn.”). II. BACKGROUND

Mr. Fishman was convicted in the Northern District of Oklahoma in 2009 for conspiracy

to commit mail and wire fraud and conspiracy to commit money laundering. 2 Verdict Form,

United States v. Fishman No. 07-CR-0195-004-CVE (N.D. Okla. 2009), ECF No. 288. He was

originally sentenced to 262 months’ imprisonment and three years’ supervised release and was

ordered to pay $3,684,213 in restitution. Judgment and Commitment Form at 2–3, 5, United

States v. Fishman No. 07-CR-0195-004-CVE (N.D. Okla. 2009), ECF No. 334. On December

30, 2020, the court in the Northern District of Oklahoma revised Mr. Fishman’s sentence to time

served but increased his term of supervised release to five years, a period set to conclude on

December 29, 2025. Order Modifying Conditions or Term of Supervision, United States v.

Fishman No. 07-CR-0195-004-CVE (N.D. Okla. 2009), ECF No. 639. He is being supervised

by the U.S. Probation Office in the Central District of California. See id. Petitioner filed his

original petition in this Court on November 15, 2021. He asks this Court to “expunge the…

[s]upervision [o]rders” and to order the National Crime Information Center to “report that the

Petitioner is no longer under [s]upervision by the United States Probation Office.” Writ Petition

at 6.

The Court dismissed the original petition without prejudice for failure to prosecute after

Petitioner failed to cure a service defect. See Order Dismissing Case without Prejudice, ECF No.

5; Order to Show Cause, ECF No. 2. Petitioner filed a motion to reconsider, see Mot. Recons.,

ECF No. 6, which the Court granted on June 15, 2022 based on proof that Petitioner in fact

2 The Court takes judicial notice of the docket in Mr. Fishman’s criminal case in the Northern District of Oklahoma. See Lewis v. Drug Enforcement Admin., 777 F. Supp. 2d. 151, 159 (D.D.C. 2011) (explaining that courts “may take judicial notice of public records from other court proceedings.”); Jurdi v. United States, 485 F. Supp. 3d. 83, 100 n.4 (D.D.C. 2020) (same).

2 attempted to serve all necessary parties by certified mail, see Order Granting Mot. Recons., ECF

No. 7. On September 28, 2022, the Court ordered the Office of the Clerk to serve Respondent.

Min. Order, Sep. 28, 2022. Three days later, on October 21, 2022, Petitioner filed a motion for

default judgment. 3 After extensions granted by the Court, Respondent filed its motion to dismiss

and opposition on December 1, 2022. See Mot. Dismiss and Opp’n. That motion is ripe for

review.

III. ANALYSIS

Filings by pro se litigants are subject to “less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 5551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)). However, “even a pro se plaintiff must meet his burden of

proving that the Court has subject matter jurisdiction over the claims.” Fontaine v. Bank of Am.,

N.A., 43 F. Supp. 3d 1, 3 (D.D.C. 2014); see also Bickford v. Gov’t of U.S., 808 F. Supp. 2d 175,

179 (D.D.C. 2011); Newby v. Obama, 681 F. Supp. 2d 53, 55 (D.D.C. 2010). Courts must

address jurisdiction as a “threshold matter. ” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

94–95 (1998).

A. Writ of Coram Nobis

Petitioner seeks a writ of coram nobis. “At common law, ‘the writ of coram nobis was

available to correct errors of fact that affect the validity and regularity of the judgment.’” United

States v. Lee, 84 F. Supp. 3d 7, 8 (D.D.C 2015) (quoting United States v. Morgan, 346 U.S. 502,

507 (1954)). Coram nobis is an “extraordinary remedy;” id at 9, and exists only to correct “those

cases where the errors were of the most fundamental character,” United States v. Addonizio, 442

3 The motion is dated October 1, 2022, though it was not docketed until October 6, 2022.

3 U.S. 178, 186 (1979). Although use of the writ is no longer available in civil cases, federal

courts “retain the authority to grant a writ of error coram nobis in criminal proceedings under the

All Writs Act, 28 U.S.C. § 1651(a).” 4 Id. While the “precise contours of coram nobis have not

been ‘well defined,’” United States v. Denedo, 556 U.S. 904, 910 (2009) (citation omitted), to

justify issuance of the writ a petitioner must show: “(1) a more usual remedy is not available; (2)

valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from

the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the

error is of the most fundamental character.” United States v. Hansen, 906 F. Supp 688, 692–93

(D.D.C. 1995) (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987)). As a

threshold matter, however, the “[r]elief must be sought in the court in which the sentence was

imposed.” Id. at 692; see also Stoller v. United States, 216 F. Supp. 3d 171, 175 (“[O]nly the

court that imposed the sentence has jurisdiction to grant a write of coram nobis.”); Denedo, 556

U.S. at 912-13 (“Because coram nobis is but an extraordinary tool to correct a legal or factual

error, an application for the writ is properly viewed as a belated extension of the original

proceeding during which the error allegedly transpired.”).

This Court did not impose Petitioner’s sentence, so it lacks jurisdiction to grant his

petition for a writ of coram nobis. Petitioner argues that jurisdiction lies under the All Writs Act,

28 USC § 1651, see Writ Petition at 5, but “[t]he authority to issue a writ under the All Writs Act

is not a font of jurisdiction.” Denedo, 556 U.S. at 914; see Stoller v. United States, 216 F. Supp.

3d 171, 176 (D.D.C. 2016) (“The All Writs Act . . . merely permits a court to issue writs in aid of

jurisdiction.”). In this case, Mr. Fishman was convicted in the Northern District of Oklahoma,

4 28 U.S.C. § 1651(a) states: “The Supreme Court and all courts established by Act of Congress may issues all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.”

4 not in this Court, so this Court lacks jurisdiction to grant the writ he seeks. See Verdict Form,

United States v. Fishman No. 07-CR-0195-004-CVE; Writ Petition at 1.

B. Writ of Habeas Corpus

A writ of coram nobis “provides a way to collaterally attack the criminal conviction of a

person . . . who is no longer ‘in custody’ and therefore cannot seek habeas relief.” United States

v. Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015) (quoting Chaidez v. United States, 568 U.S.

342, 360 n.1 (2013)); see also Dufur v. U.S. Parole Com’n, 34 F.4th 1090, 1095 (D.C. Cir. 2022)

(“[T]he sole remedy for assertedly unlawful incarceration is through habeas corpus.”). As

Defendant remains under supervised release, see Order Modifying Conditions or Term of

Supervision, United States v. Fishman No. 07-CR-0195-004-CVE (N.D. Okla. 2020), ECF No.

639, he is still “in custody” for purposes of seeking a writ of habeas corpus, see Banks v.

Gonzales, 496 F. Supp. 2d 146, 149 (D.D.C. 2007) (“[A] petitioner who is on parole, probation,

supervised release, or released on bail is deemed to be ‘in custody’ for habeas purposes.”

(citation omitted)); Rahim v. U.S. Parole Comm’n, 77 F. Supp. 3d 140, 143 (D.D.C. 2015)

(“[Petitioner] is deemed ‘in custody’ so long as [petitioner] remains on supervised release.”

(citation omitted)). But even if the Court liberally construes Petitioner’s pleading as seeking a

writ of habeas corpus, it still fails because it does not name the proper respondent. “[T]he only

proper respondent” to a habeas petition is the petitioner’s “‘immediate custodian.’” Stokes v.

U.S. Parole Comm’n, 374 F.3d 1235, 1238 (D.C. Cir. 2004) (quoting Rumsfeld v. Padilla, 542

U.S. 426, 434–35 (2004)). This is because “a writ of habeas corpus does not act upon the

prisoner who seeks relief, but upon the person who holds him in . . . custody.” Id. at 1236-38

(quoting Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 494 (1973)).

5 Here, Mr. Fishman is under supervised release in the Central District of California and

reports to the U.S. Probation Office in the Central District of California. See Order Modifying

Conditions or Term of Supervision, United States v. Fishman, No. 07-CR-0195-004-CVE (N.D.

Okla. 2020), ECF No. 639. Petitioner names Attorney General Merrick Garland as Respondent,

but U.S. Probation Offices are extensions of the federal district courts, not the U.S. Department

of Justice. See 18 U.S.C. § 3602 (“A district court of the United States shall appoint qualified

persons to serve . . . as probation officers within the jurisdiction and under the direction of the

court making the appointment.”); § 3603 (listing administering supervised release as among

probation officers’ duties); § 3672 (vesting responsibility to administer the probation system with

the Director of the Administrative Office of the United States Courts). Accordingly, because

Respondent does not have custody over Petitioner, the Court has no authority to grant the writ

Petitioner requests. See United States v. Dohrmann, 36 F. App’x 879, 881 (9th Cir. 2002)

(“Because [petitioner] was on supervised release when he filed his motion, the relevant custodian

is his supervised release administrator.”); Chaner v. United States, No. 22-cv-1140, 2022 WL

4279732, at *1 (W.D. Tenn. Sept. 15, 2022) (“The proper respondent in a [habeas] proceeding

brought by a petitioner on federal supervised release is . . . the chief probation officer overseeing

his supervised release.”); cf. Guerra v. Meese, 786 F.2d 414, 417 (D.C. Cir. 1986) (suggesting

that the Parole Commission would be the appropriate respondent for a petitioner on parole). 5

5 While there may be some doubt under the law of this Circuit as to precisely who might qualify as the “immediate custodian” of a petitioner on federal supervised release, the Court does not reach this “open issue” because, for the reasons explained above, there is no doubt that it is not the Respondent named in the petition at issue here. Forbes v. Del Toro, No. 21-cv-2175, 2022 WL 17475402, at *2 n.6 (D.D.C. Dec. 5, 2022); see Guerra, 786 F.2d 414, 417 (rejecting the notion that “federal courts may entertain a habeas corpus petition when the custodian is outside their territorial jurisdiction”).

6 C. Default Judgment

As explained above, the Court lacks authority to grant the relief requested, whether styled

as a writ of coram nobis or of habeas corpus. Consequently, the Court also lacks authority to

enter a default judgment. See Jerez v. Republic of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (“A

default judgment rendered in excess of a court’s jurisdiction is void.”); Phila. Indemnity Ins. Co.

v. Emerson, 308 F.R.D. 16, 18 (D.D.C. 2015) (“[T]he procedural posture of a default does not

relieve a federal court of its ‘affirmative obligation’ to determine whether it has subject-matter

jurisdiction over the action.” (citation omitted)); Mark v. Islamic Republic of Iran, No. 20-cv-

651, 2022 WL 4103854, at *1 (D.D.C. Sept. 8, 2022) (“Before the court can enter default

judgment, Plaintiffs must establish subject matter jurisdiction.”); Fed. R. Civ. P. 55(d)

(explaining that a default judgment may be entered against the United States or its officers or

agencies “only if the claimant establishes a claim or right to relief by evidence that satisfies the

court.”). Petitioner’s motion for default judgment therefore must be denied.

IV. CONCLUSION

For the foregoing reasons, Respondent’s Motion to Dismiss, ECF No. 15, is GRANTED

and Petitioner’s Motion for Default Judgment, ECF No. 11, is DENIED. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 27, 2023 RUDOLPH CONTRERAS United States District Judge