LYNCH, Chief Judge.
This appeal is from the district court's denial of a petition filed by a federal prisoner,
This story starts a long time ago.
In 1983, Murray and six other defendants were charged with conspiracy to possess and possession with intent to distribute over a thousand pounds of marijuana; in 1984, Murray was convicted on one count of conspiracy.
The investigation bore fruit on April 5 and 6, 1983, when the agents observed a suspicious pattern of activity involving a number of the suspects driving to various locations in Boston and switching vehicles amongst each other. Id. at 463-64. It was during this surveillance that one agent, Cleary, asserted he had accidentally happened upon the South Boston warehouse and had seen one of the vehicles under surveillance parked outside. Id. at 464. On the afternoon of April 6, 1983, the agents observed Murray and another suspect get into a white van and a green camper, respectively, which then drove into the South Boston warehouse. Id. A short time later, Murray drove the white van out of the warehouse, stopped in a nearby parking lot, and handed off the van and its keys to another driver. Id. When the agents pulled that driver over shortly thereafter, they found sixty bales of marijuana in the van. Id. at 464-65. The other suspect followed the same procedure with the green camper, and the agents also stopped that vehicle and found bales of marijuana inside. Id.
After finding the marijuana in both vehicles, the agents returned to the warehouse. They entered without a warrant and observed additional bales of marijuana in plain view. Id. at 465. The agents then secured the warehouse, kept it under surveillance, and applied for a warrant to search it, without mentioning in the warrant affidavit that they had already conducted a warrantless entry. Id. at 465-66.
Murray and the other defendants filed motions to suppress the marijuana seized during the vehicle and warehouse searches. See Moscatiello, 771 F.2d at 595. Murray, in particular, sought suppression of the drugs from the warehouse based on the agents' warrantless search. Id. at 600-01. The trial judge, after a ten-day evidentiary hearing at which three FBI agents and one DEA agent testified, denied the motions. See id. at 591. As relevant here, the court determined that the warrant affidavit for the search of the warehouse was supported by probable cause regardless of the information from the warrantless entry, because the affidavit had rested on direct observation by law
Murray proceeded to trial following the denial of his suppression motion, and in 1984 a jury convicted him of one count of conspiracy to possess marijuana. Id. at 591-92. He was sentenced to four years' imprisonment. After various appeals from his conviction which resulted in remands,
Over two decades later, in 2007, Murray filed this petition for a writ of error coram nobis, attacking the denial of the suppression motion in the 1984 case based on newly available evidence that one of the CIs relied upon in the warrant application was James "Whitey" Bulger and that FBI agents had originally learned of the warehouse filled with marijuana from Bulger, not from the circumstances that Agent Cleary claimed. Murray's theory was that, if the FBI had disclosed Bulger's name and the fact that he was both cooperating with and benefitting from the FBI, such information would have materially affected the outcome of the suppression hearing and also would have discredited all of the agents' testimony at trial, which in turn would have materially affected whether he would have been originally convicted or his decision to stop pursuing his appeal and accept imprisonment. He argues that the agents who testified at the suppression hearing were lying at that hearing in order to protect from disclosure the FBI's illicit relationship with Bulger.
The 1984 conviction matters even though Murray has long since been released from imprisonment for that crime. It matters because that conviction operated to increase the sentence Murray received as a result of his next criminal conviction for marijuana distribution, which arose out of
Murray has now served more than eighteen years of that sentence. Through this application for a writ of coram nobis, he hopes to secure his immediate release.
Coram nobis is an ancient writ that was originally intended to allow courts to correct technical errors in their past judgments. Its present, limited use in the American legal system is to correct "fundamental errors of fact or law." United States v. George, 676 F.3d 249, 253 (1st Cir.2012). The Federal Rules of Civil Procedure abolished the use of the writ in civil cases, see Fed.R.Civ.P. 60(e), but it has survived for use in criminal cases. The Supreme Court has held that, under the All Writs Act, 28 U.S.C. § 1651, federal courts are authorized to issue writs of error coram nobis to correct criminal judgments, and that the enactment of 28 U.S.C. § 2255 did not eliminate the availability of coram nobis relief. See United States v. Morgan, 346 U.S. 502, 503-04, 506-13, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (holding petitioner entitled to bring action seeking writ of coram nobis to show constitutional error in prior federal conviction, which caused him to receive longer sentence as a second offender in later state criminal case).
However, coram nobis is an extraordinary remedy, which is available "only under circumstances compelling such action to achieve justice." Id. at 511, 74 S.Ct. 247. It is meant to correct errors "of the most fundamental character; that is, such as render[] the proceeding itself irregular and invalid." United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914). As an extraordinary remedy, coram nobis may not issue when other remedies, including habeas corpus, are available. United States v. Denedo, 556 U.S. 904, 911, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009). The Supreme Court has noted that, given other statutes and rules of criminal procedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (alteration in original) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)) (internal quotation marks omitted). This court has described coram nobis as the "remedy of last resort." George, 676 F.3d at 253.
A district court's order granting or denying a writ of error coram nobis is an appealable civil judgment. See Trenkler v. United States, 536 F.3d 85, 92-95 (1st Cir.2008). In reviewing a district court's decision on a coram nobis petition, this court reviews the legal conclusions de novo and the findings of fact for clear error. George, 676 F.3d at 256. Where the district court declines to conduct an evidentiary hearing and denies the writ as a matter of law, "review ... is plenary." Id. We engage in plenary review here.
The Supreme Court has not yet addressed the precise standards that lower courts should use in deciding whether to issue writs of error coram nobis; it has simply emphasized the importance of restraint in issuing them. See id. at 253-54 (citing Denedo, 556 U.S. at 911, 129 S.Ct. 2213; Carlisle, 517 U.S. at 429, 116 S.Ct. 1460).
This circuit has adopted a three-part test to determine whether a petitioner is eligible for coram nobis relief, along with a fourth part that addresses whether relief should actually be granted. To establish eligibility, the petitioner must first adequately explain his failure to seek relief earlier through other means; second, he must show that he continues to suffer a significant collateral consequence from the judgment being challenged and that issuance of the writ will eliminate this consequence;
The standard for determining whether an error is fundamental is not precisely defined, but because coram nobis "lies at the far end of [the] continuum" of methods for challenging a judgment, id. at 258, it is a high standard. See id. (noting that the burden on a defendant increases at each stage of review, from direct review to first habeas petition to second habeas petition — and then, presumably, to coram nobis).
Even if the petitioner meets all three of the conditions in the coram nobis eligibility test, the court retains discretion to grant or deny the writ, depending on the facts and circumstances of the individual
For the purposes of all the claims of error made in this petition, we will use the materiality standard of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. As the Supreme Court emphasized in Smith v. Cain, ___ U.S. ___, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012), under Brady, the withheld information must be material; evidence is material "when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Id. at 630 (quoting Cone v. Bell, 556 U.S. 449, 470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009)) (internal quotation mark omitted). Importantly, a reasonable probability does not mean the defendant "would more likely than not have received a different verdict with the evidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). It means only that suppression of the evidence must have "undermine[d] confidence in the outcome of the trial."
Of course, a showing that material evidence was withheld in a criminal proceeding would not alone be enough to establish that there was a fundamental error in the conviction, given the extraordinary nature of the writ of coram nobis. Like the three-part eligibility test, materiality is a necessary but not a sufficient condition for sustaining a petition for coram nobis on a nondisclosure theory. An error regarding evidence that was not material necessarily fails to be fundamental; an error implicating material evidence might, but does not necessarily, qualify as fundamental. That depends on the particular facts of the case — for instance, if the withheld evidence supported a colorable claim of actual innocence. No such claim is made here.
The district court captured Murray's essential theory:
Murray, 821 F.Supp.2d at 466 (citations omitted).
Murray argues that these "lies" were material to the motion to suppress as well as to the agents' testimony at trial. He asserts he was denied a fair trial and should be released, or at least granted resentencing.
As to his petition, we make certain assumptions in Murray's favor. First, we will assume that his assertions about Bulger and the FBI were timely and could not have been reasonably made before the time he brought his petition.
The district court, too, made a number of assumptions in favor of Murray. Most particularly, the court credited Murray with having made a "substantial preliminary showing" that Agent Cleary did have prior knowledge of the location of the warehouse and lied about how he came to know of it. Murray, 821 F.Supp.2d at 468 (quoting Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) (internal quotation marks omitted). For purposes of this appeal only, we will assume so arguendo, although the evidence for the assumption is weak.
These various assumptions would establish the first two prongs of the coram nobis test in Murray's favor, and so we turn to the third. On the question of whether Murray's 1984 conviction rested on a fundamental error, we conclude that it did not. Further, on the fourth element of the coram nobis inquiry, we conclude the writ should not issue.
The district court likewise determined that Murray had not demonstrated fundamental error relating to the issuance of the search warrant, the agents' trial testimony, or the government's Brady disclosures. Id. at 468-74. We need not repeat the many grounds of the district court's analysis, but limit ourselves to a few.
First, we conclude, as did the district court, that the omitted and allegedly false statements in the affidavit in support of the warrant were not material to the issuance of the warrant. There was ample probable cause to search the warehouse and no basis to suppress. As the district court pointed out, the warrant was supported by information from two other CIs who were not Bulger and who offered more detailed information about a large-scale marijuana conspiracy. Id. at 469. There was no basis for any insinuation that the CIs fabricated this information. Id. at 468-69. Further, the warrant affidavit included eyewitness observations by multiple agents about the unusual behavior of individuals and vehicles on April 5 and 6, 1983, which eventually led to the agents observing two vehicles leaving the warehouse and discovering that those vehicles contained
From these facts, the district court concluded that even if Bulger had been identified as the third CI (and thus the information linked to him been rendered unreliable), and even if Agent Cleary's purportedly false story about discovering the warehouse had been omitted, the remainder of the affidavit readily established probable cause. Id. at 468-70. We agree. And because the allegedly withheld information was not material, it cannot be the basis for a finding of fundamental error.
In a variant on his core argument, Murray argues that had Bulger's identity and relationship with the FBI been disclosed, he would have had more ammunition to cross-examine the federal agents at trial. Even if we assume this to be so, this line of argument ignores the fact that other evidence strongly pointed to Murray's guilt. A blue van registered to Murray had appeared multiple times in the course of the federal agents' surveillance of the suspected conspirators. Id. at 463. The agents had observed Murray driving a white van out of the warehouse; they had seen him stopping the van and handing the keys to another suspect; and when the agents pulled the white van over shortly thereafter, they found that it contained sixty bales of marijuana. Id. at 464-65. The warehouse itself was filled with more marijuana. Id. at 465. There was strong and direct evidence of Murray's guilt, unaffected by the claimed new ability to impeach.
We see no basis for impugning the original verdict of guilt in light of that evidence. The issue of whether or not the FBI agents were untruthful regarding how they first learned of the warehouse, and regarding Bulger's role in providing that knowledge, does not undermine confidence in the conviction.
The fact remains that Murray did eventually accept a reduced sentence for the 1984 conviction rather than pressing his case after remand from the Supreme Court. There is, and can be, no serious argument that Murray's post-remand agreement was not knowing or voluntary. As we pointed out in United States v. George, 676 F.3d 249, those who have pled guilty are subject to higher standards for issuance of coram nobis. See id. at 256-57. Although Murray's agreement may or may not be rightly characterized as a "guilty plea" as such, see note 3 above, it shares the characteristics of such a plea that are relevant to the coram nobis inquiry, including the abandonment of claims he could have raised on appeal and implication
In the end, Murray's petition for coram nobis is based on the thoroughly improbable theory that the FBI agents lied about everything in Murray's case, not just about how they knew the location of the warehouse, and that despite the other bases for the warrant affidavit, and all of the direct evidence of Murray's guilt, those lies were material. Like the district court, we note that this is sheer speculation, see Murray, 821 F.Supp.2d at 472-74, and is certainly not enough to support issuance of the writ of coram nobis.
Even if there were trial errors, and we do not suggest there were, Murray's case would fail under the fourth element of the coram nobis inquiry. Issuance of the writ would not be warranted under the facts and circumstances of this case. See George, 676 F.3d at 255. Indeed, the interests of justice are best served by denial of the petition. It was entirely appropriate that Murray's sentence for his current conviction take into account a previous crime he committed.
In rejecting this petition, we in no way excuse or condone the FBI's illicit involvement with Whitey Bulger. See generally United States v. Connolly, 341 F.3d 16 (1st Cir.2003) (affirming racketeering conviction of FBI agent who conspired with Bulger). But the connection to Murray's 1984 conviction, for a crime he did commit, is too attenuated to support his petition.
Affirmed.
