UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 72-67 (BAH)
JOHN MILTON AUSBY, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The defendant, John Milton Ausby, seeks an indicative ruling pursuant to Federal Rule of
Civil Procedure 62.1, that the defendant’s renewed coram nobis petition would be granted in
light of changed circumstances, namely the defendant’s release from prison, while the
defendant’s appeal of this Court’s ruling denying his original coram nobis petition remains
pending. See Def.’s Mot. for Relief from Judgment Under Civil Rule 60(b) and, in the
Alternative, Renewed Petition for Writ of Coram Nobis Vacating Conviction for Rape While
Armed, and Request for Indicative Ruling Pursuant to Civil Rule 62.1 (“Def.’s Mot.”), ECF No.
131. The government does not oppose the defendant’s motion for an indicative ruling that would
grant his renewed coram nobis petition. See Gov’t’s Resp. to Def.’s Mot. (“Gov’t’s Resp.”),
ECF No. 132. For the reasons stated below, the defendant’s motion is granted.
I. BACKGROUND
On July 3, 2019, this Court vacated the defendant’s felony murder conviction in
accordance with the D.C. Circuit’s ruling in United States v. Ausby, 916 F.3d 1089 (D.C. Cir.
2019). See Order (July 3, 2019), ECF No. 43. The defendant’s rape conviction was not vacated,
however, because jurisdiction was lacking to do so under either 28 U.S.C. § 2255 or a writ of
coram nobis, since “the defendant had already served his sentence on that conviction and had
1 failed to allege redressable, ongoing harm stemming from the rape conviction sufficient to meet
the requirements of Article III standing.” United States v. Ausby, No. CR 72-67 (BAH, 2019
WL 7037605, at *2 (D.D.C. Dec. 20, 2019); see also United States v. Ausby, No CR 72-67
(BAH), 2019 WL 4737196, at *3–6 (D.D.C. Sept. 27, 2019) (denying defendant’s Motion to
Reconsider Denial of Vacatur of Rape Conviction, ECF No. 59). The defendant appealed this
ruling, see Notice of Appeal, ECF No. 108, which appeal is pending but currently stayed, see
Order (Jan. 23, 2020), United States v. Ausby, No. 19-3092, ECF No. 130.
II. ANALYSIS
As the parties agree, this Court currently lacks jurisdiction to rule on the defendant’s
renewed coram nobis petition because the defendant’s appeal is pending before the D.C. Circuit.
Def.’s Mot. at 5–6. Federal Rule of Civil Procedure 62.1, however, provides authority in this
circumstance for a district court to issue an indicative ruling to “state that it would grant the
motion if the court of appeals remands for that purpose or that the motion raises a substantial
issue.” Fed. R. Civ. P. 62.1(a)(3).
“[T]he authority to grant a writ of coram nobis is conferred by the All Writs Act, which
permits ‘courts established by Act of Congress’ to issue ‘all writs necessary or appropriate in aid
of their respective jurisdictions.’” United States v. Denedo, 556 U.S. 904, 911 (2009) (quoting
28 U.S.C. § 1651(a)). The writ of coram nobis is “an extraordinary tool to correct a legal or
factual error,” id. at 912–13, and “provides a way to collaterally attack a criminal conviction for
a person . . . who is no longer in custody and therefore cannot seek habeas relief under 28 U.S.C.
§ 2255 or § 2241,” United States v. Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015) (internal
quotation marks omitted) (quoting Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)); see
also United States v. Morgan, 346 U.S. 502, 511 (1954).
2 Though “the precise contours of coram nobis have not been well defined,” Denedo, 556
U.S. at 910 (internal citation omitted), a four-factor test is generally applied “to determine
whether coram nobis relief is warranted: (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. Verrusio, No. 09-cr-64 (BAH), 2017
WL 1437055, at *8 (D.D.C. Apr. 21, 2017), aff’d, 758 F. App’x at 2 (collecting cases) (internal
quotation marks omitted).
The defendant’s initial invocation of coram nobis to vacate his rape conviction was
rejected based on the third prong of this test because the defendant had failed to allege
redressable, ongoing harm sufficient to meet the requirements of Article III standing. See United
States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232, at *6, *8 (D.D.C. July 3, 2019);
Ausby, 2019 WL 4737196, at *3–6. On reconsideration, the defendant alleged that, despite the
fact that his thirty-year sentence on his rape conviction had already expired, he would suffer an
actual collateral consequence sufficient to establish standing since, under the District of
Columbia’s Sex Offender Registration Act (“DC SORA”), he would likely be required to register
as a convicted sex offender and comply with the statute’s reporting requirements. See Ausby,
2019 WL 4737196, at *5. This allegation was insufficient, since at that point the defendant
remained incarcerated awaiting retrial on a felony murder charge and was therefore not obliged
to register as a sex offender. Id.; see also D.C. Code § 22-4002(c) (“The Agency may suspend
the requirement to register [under DC SORA] or any other requirement under this chapter during
any period of time in which a sex offender is detained, incarcerated, confined, civilly committed
or hospitalized in a secure facility.”). As the Court explained, “[w]ere the defendant to be
3 released, and were he then required to register as a sex offender, he might then have a concrete
claim, as the government conceded … At this stage, however, the alleged harm is speculative,
and the Court’s original determination—that the defendant lacks standing to challenge his rape
conviction through a writ of coram nobis—remains correct.” Ausby, 2019 WL 4737196, at *5.
These circumstances have changed as a result of the government’s motion, on January 9,
2020, to dismiss the pending felony murder charge against the defendant, Gov’t’s Mot. to
Dismiss, ECF No. 128, and his subsequent release from custody on January 10, 2020, see Def.’s
Mot. at 5. Having been released from custody, the defendant is now subject to registration and
reporting requirements under DC SORA, codified at D.C. Code § 22-4001 et seq. Under DC
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 72-67 (BAH)
JOHN MILTON AUSBY, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The defendant, John Milton Ausby, seeks an indicative ruling pursuant to Federal Rule of
Civil Procedure 62.1, that the defendant’s renewed coram nobis petition would be granted in
light of changed circumstances, namely the defendant’s release from prison, while the
defendant’s appeal of this Court’s ruling denying his original coram nobis petition remains
pending. See Def.’s Mot. for Relief from Judgment Under Civil Rule 60(b) and, in the
Alternative, Renewed Petition for Writ of Coram Nobis Vacating Conviction for Rape While
Armed, and Request for Indicative Ruling Pursuant to Civil Rule 62.1 (“Def.’s Mot.”), ECF No.
131. The government does not oppose the defendant’s motion for an indicative ruling that would
grant his renewed coram nobis petition. See Gov’t’s Resp. to Def.’s Mot. (“Gov’t’s Resp.”),
ECF No. 132. For the reasons stated below, the defendant’s motion is granted.
I. BACKGROUND
On July 3, 2019, this Court vacated the defendant’s felony murder conviction in
accordance with the D.C. Circuit’s ruling in United States v. Ausby, 916 F.3d 1089 (D.C. Cir.
2019). See Order (July 3, 2019), ECF No. 43. The defendant’s rape conviction was not vacated,
however, because jurisdiction was lacking to do so under either 28 U.S.C. § 2255 or a writ of
coram nobis, since “the defendant had already served his sentence on that conviction and had
1 failed to allege redressable, ongoing harm stemming from the rape conviction sufficient to meet
the requirements of Article III standing.” United States v. Ausby, No. CR 72-67 (BAH, 2019
WL 7037605, at *2 (D.D.C. Dec. 20, 2019); see also United States v. Ausby, No CR 72-67
(BAH), 2019 WL 4737196, at *3–6 (D.D.C. Sept. 27, 2019) (denying defendant’s Motion to
Reconsider Denial of Vacatur of Rape Conviction, ECF No. 59). The defendant appealed this
ruling, see Notice of Appeal, ECF No. 108, which appeal is pending but currently stayed, see
Order (Jan. 23, 2020), United States v. Ausby, No. 19-3092, ECF No. 130.
II. ANALYSIS
As the parties agree, this Court currently lacks jurisdiction to rule on the defendant’s
renewed coram nobis petition because the defendant’s appeal is pending before the D.C. Circuit.
Def.’s Mot. at 5–6. Federal Rule of Civil Procedure 62.1, however, provides authority in this
circumstance for a district court to issue an indicative ruling to “state that it would grant the
motion if the court of appeals remands for that purpose or that the motion raises a substantial
issue.” Fed. R. Civ. P. 62.1(a)(3).
“[T]he authority to grant a writ of coram nobis is conferred by the All Writs Act, which
permits ‘courts established by Act of Congress’ to issue ‘all writs necessary or appropriate in aid
of their respective jurisdictions.’” United States v. Denedo, 556 U.S. 904, 911 (2009) (quoting
28 U.S.C. § 1651(a)). The writ of coram nobis is “an extraordinary tool to correct a legal or
factual error,” id. at 912–13, and “provides a way to collaterally attack a criminal conviction for
a person . . . who is no longer in custody and therefore cannot seek habeas relief under 28 U.S.C.
§ 2255 or § 2241,” United States v. Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015) (internal
quotation marks omitted) (quoting Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)); see
also United States v. Morgan, 346 U.S. 502, 511 (1954).
2 Though “the precise contours of coram nobis have not been well defined,” Denedo, 556
U.S. at 910 (internal citation omitted), a four-factor test is generally applied “to determine
whether coram nobis relief is warranted: (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. Verrusio, No. 09-cr-64 (BAH), 2017
WL 1437055, at *8 (D.D.C. Apr. 21, 2017), aff’d, 758 F. App’x at 2 (collecting cases) (internal
quotation marks omitted).
The defendant’s initial invocation of coram nobis to vacate his rape conviction was
rejected based on the third prong of this test because the defendant had failed to allege
redressable, ongoing harm sufficient to meet the requirements of Article III standing. See United
States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232, at *6, *8 (D.D.C. July 3, 2019);
Ausby, 2019 WL 4737196, at *3–6. On reconsideration, the defendant alleged that, despite the
fact that his thirty-year sentence on his rape conviction had already expired, he would suffer an
actual collateral consequence sufficient to establish standing since, under the District of
Columbia’s Sex Offender Registration Act (“DC SORA”), he would likely be required to register
as a convicted sex offender and comply with the statute’s reporting requirements. See Ausby,
2019 WL 4737196, at *5. This allegation was insufficient, since at that point the defendant
remained incarcerated awaiting retrial on a felony murder charge and was therefore not obliged
to register as a sex offender. Id.; see also D.C. Code § 22-4002(c) (“The Agency may suspend
the requirement to register [under DC SORA] or any other requirement under this chapter during
any period of time in which a sex offender is detained, incarcerated, confined, civilly committed
or hospitalized in a secure facility.”). As the Court explained, “[w]ere the defendant to be
3 released, and were he then required to register as a sex offender, he might then have a concrete
claim, as the government conceded … At this stage, however, the alleged harm is speculative,
and the Court’s original determination—that the defendant lacks standing to challenge his rape
conviction through a writ of coram nobis—remains correct.” Ausby, 2019 WL 4737196, at *5.
These circumstances have changed as a result of the government’s motion, on January 9,
2020, to dismiss the pending felony murder charge against the defendant, Gov’t’s Mot. to
Dismiss, ECF No. 128, and his subsequent release from custody on January 10, 2020, see Def.’s
Mot. at 5. Having been released from custody, the defendant is now subject to registration and
reporting requirements under DC SORA, codified at D.C. Code § 22-4001 et seq. Under DC
SORA, the defendant’s rape conviction qualifies as a “lifetime registration offense.” See id. §
22-4001(6)(A). The law applies retroactively to offenses committed “at any time” in the past,
see id. § 22-4001(9)(B), and imposes multiple duties on offenders, including quarterly
verification and other reporting requirements, see id. §§ 22-4008(a)(1), 22-4014; In re W.M., 851
A.2d 431, 436–39 (D.C. 2004).1 The government does “not dispute that these requirements
amount to a cognizable injury in fact or that vacating [the defendant’s] rape conviction would
redress the injury.” Gov’t’s Resp. at 1.
Thus, the defendant now has standing to seek a writ of coram nobis vacating his rape
conviction. Since a lack of standing was the basis for denying the defendant’s previous coram
nobis petition, and the government does not contest the three other prongs for grant of this writ,
1 In Smith v. Doe, 538 U.S. 1009 (2003), the Supreme Court upheld Alaska’s sex registration statute against an as applied ex post facto challenge, finding that sex registration was regulatory not punitive. Since then, and in the absence of any contrary authority from the Supreme Court, most federal courts have similarly upheld the retroactive application of state sex registration statutes. See Shaw v. Patton, 823 F.3d 556 (10th Cir. 2016); United States v. Parks, 698 F.3d 1 (1st Cir. 2012); United States v. W.B.H., 664 F.3d 848 (11th Cir. 2011). Additionally, the District of Columbia Court of Appeals has held that retroactive application of DC SORA does not violate the ex post facto clause. See In re W.M., 851 A.2d at 446 (applying the Supreme Court’s rationale in Smith v. Doe to conclude that DC SORA is not punitive).
4 see Gov’t’s Resp., this Court indicates, pursuant to Federal Rule of Civil Procedure 62.1, that the
defendant’s renewed petition for coram nobis would be granted.
III. CONCLUSION
For the foregoing reasons, the defendant’s motion, pursuant to Federal Rule of Civil
Procedure 62.1, for an indicative ruling that the defendant’s renewed coram nobis petition would
be granted if the Court of Appeals remanded for that purpose, is granted.
An appropriate Order accompanies this Memorandum Opinion.
Date: February 19, 2020
__________________________ BERYL A. HOWELL Chief Judge