United States District Court, D. New Hampshire
Williams, Petitioner, represented by Paul F. O'Reilly,
Bertollini & O'Reilly LLC, pro hac vice & Jonathan Cohen,
Cohen & Winters PLLC.
Respondent, represented by Jacob Max Weintraub & Seth R.
Aframe, U.S. Attorney's Office.
REPORT AND RECOMMENDATION
K. JOHNSTONE, Magistrate Judge.
the aegis of the All Writs Act, 28 U.S.C. Â§ 1651, Sunday
Williams has petitioned for a writ of coram nobis. In 2004,
Williams pled guilty to a charge of making false statements,
in violation of 18 U.S.C. Â§ 1001(a), and was convicted of
that crime. Because he pled "guilty to facts that
constituted passport fraud when the charge [against him] was
making a false statement, " Order (Doc. No. 11 at 6),
and because his plea to those facts appears to preclude him
from attaining permanent resident status, he now seeks relief
from his conviction.
petition, Williams advanced claims that his trial counsel
provided ineffective assistance by: (1) changing his plea
without his consent; and (2) misrepresenting and failing to
advise him of the immigration consequences of the plea he
entered. Respondent moved to dismiss. In an order dated April
22, 2016, Judge DiClerico granted respondent's motion as
to petitioner's second theory, but denied the motion as
to the first theory, observing that "[t]he government
[did] not appear to challenge Williams's first claim,
that [his counsel] provided ineffective assistance by sua
sponte' changing his plea." Id. at 6.
this magistrate judge for a report and recommendation is
petitioner's Request for a Certificate of Default, which
he filed on May 31, 2016. Petitioner's request is based
upon respondent's failure to serve an answer to his
petition within 14 days after Judge DiClerico partially
denied respondent's motion to dismiss. Respondent
objects. For the reasons that follow,
petitioner's motion for default should be denied.
argues that after Judge DiClerico partially denied
respondent's motion to dismiss, respondent had 14 days to
serve an answer to his petition, pursuant to Rule 12(a)(4)(A)
of the Federal Rules of Civil Procedure ("Federal
Rules"). In petitioner's view, respondent defaulted
by failing to serve an answer within 14 days of Judge
DiClerico's order. Respondent contends, to the contrary,
that there has been no default because the obligation to
answer a petition for a writ of coram nobis arises only when
an answer is ordered by a judge, and Judge DiClerico has not
ordered respondent to answer the petition. That argument is
based upon: (1) the principle that a coram nobis petition is
treated, procedurally, like a motion brought pursuant to 28
U.S.C. Â§ 2255; and (2) Rule 5(a) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts ("2255 Rules"), which provides that
"[t]he respondent is not required to answer the motion
unless a judge so orders." Respondent has the better
case in which it was called upon to determine the applicable
rules for appealing a decision on a motion for a writ of
coram nobis, the court of appeals recognized that "coram
nobis proceedings are best seen as hybrids - quasi-civil and
quasi-criminal." Trenkler v. United States, 536
F.3d 85, 94 (1st Cir. 2008) (citing United States v.
Craig, 907 F.2d 653, 656 (7th Cir 1990); Mercado v.
United States, 183 F.2d 486, 487 (1st Cir. 1950)). In
its decision, which chronicled the history of the writ, the
Trenkler court cited, with approval, the decision in
United States v. Balistrieri, 606 F.2d 216 (7th Cir.
1979). Balistrieri, in turn, stands for the proposition that
the 2255 Rules are "highly persuasive in deciding how
coram nobis motions should be conducted." Id.
at 221. This court is persuaded by Trenkler and Balistrieri
that the 2255 Rules establish the procedure for responding to
a request for a writ of coram nobis.
court has noted, Rule 5(a) of the 2255 Rules provides that a
respondent must answer a request for a writ of coram nobis
only when a judge orders that an answer be filed. Moreover,
unlike the Federal Rules, the 2255 Rules do not specify a
time frame for a respondent's answer. Because respondent
in this case has not missed any deadline for filing an answer
to Williams's petition, Williams is not entitled to the
default he seeks.
recommending the denial of Williams's motion for default,
this court acknowledges the litigation history of
Williams's petition, which includes two requests by the
respondent for additional time to answer. Those requests tend
to suggest that respondent has only come lately to the
conclusion that its obligation to answer Williams's
petition is governed by the 2255 Rules rather than the
Federal Rules. Even so, the only prejudice to Williams that
results from applying the 2255 Rules is that Williams will be
obligated to litigate his petition on the merits. But, as the
court of appeals has pointed out, resolution on the merits is
the stated goal of the Federal Rules. See Coon v.
Grenier, 867 F.2d 73, 76 (1st Cir. 1989); see also
KPS & Assocs., Inc. v. Designs by FMC, Inc., 318
F.3d 1, 12 (1st Cir. 2003). Finally, it is worth noting that
even if the court were to grant Williams a default, that
would be a relatively minor victory, given that the court
could not grant Williams a default judgment without examining
the validity of his legal claim, see Gustafson Recovery
Servs., No. 14-cv-305-JD, 2015 WL 5009108, at *1 (D.N.H. Aug.
21, 2015), which is essentially the same task Judge DiClerico
will face when ruling on respondent's motion to dismiss.
for the reasons detailed above, Williams's motion for
default, Document No. 12, should be denied, and, pursuant to
Rule 5(d) of the 2255 Rules, Judge DiClerico should fix a
time for Williams to reply to respondent's second motion
to dismiss, Document No. 15.
objection to this report and recommendation must be filed
within 14 days of receipt of this notice. See Fed.R.Civ.P.
72(b)(2). Failure to file an objection within the specified
time waives the right to appeal the district court's
order. See United States v. De JesÃºs-Viera, 655 F.3d
52, 57 (1st Cir. 2011); Sch. Union No. 37 v. United
Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010)
(only issues fairly raised by objections to magistrate
judge's report are subject to review by district court;
issues not preserved by such objection are precluded on