370 F. Supp. 92, 94 (E.D. Pa.), aff'd, 506 F.2d 1050 (3d Cir. 1974).
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("the Act"), was signed into law. Among myriad other changes, the Act altered the method by which prisoners may obtain relief pursuant to 28 U.S.C. § 2255 when their current application is their second or subsequent motion. Specifically, the Act stated that before such a second or subsequent motion could be considered by the district court, it must be certified by the appropriate court of appeals to contain, "1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.; or 2. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. l. 104-132, Title I, § 105, 110 Stat. 1220, April 24, 1996.
To be sure, the Act limits the ability of a petitioner to obtain relief in later Section 2255 motions and encourages all petitioners to include all of their claims of error in their first motion. For this reason, given the broad purpose of the Act, it would be astounding if it could be rendered wholly ineffective by the simple ruse of labeling future § 2255 motions as petitions for writs of coram nobis. In Carlisle, the petitioner was well beyond the time limit for relief under post trial motions. Nevertheless, the petitioner was not entitled to relief under coram nobis because the Rules of Criminal Procedure addressed the particular issue at hand. Carlisle, 116 S. Ct. at 1467. The court did not say that the petitioner was not entitled to relief under coram nobis because the Rules of Criminal Procedure provided relief for the particular issue at hand.
We find persuasive the language of the District Court in Bennett v. United States, 1997 U.S. Dist. LEXIS 7438, No. 87 CR 874, 1997 WL 285987 (N.D. Ill. May 22, 1997), which held that § 2255 relief is not unavailable, as would be required to obtain coram nobis relief, to a defendant who cannot make a showing sufficient to file successive § 2255 motions. " § 2255 is not unavailable . . . it just offers . . . no relief." Id. at *2. We have gone over the defendant's petition and motion and cannot find sufficient reason or excuse for his failure to raise these issues on numerous prior occasions. Indeed, on page 16 of defendant's Brief, he acknowledges that he "has been to this court before." He assumes that relief coram nobis is a matter of right because of the "recent amendments to § 2255." Defendant also assumes that plain error can be raised at any time by coram nobis which is contrary to the holding in Carlisle. Accordingly, defendant's petition and motion will be denied without prejudice to his right to proceed by way of 28 U.S.C. § 2255.
An appropriate order follows.
AND NOW, this 15th day of July, 1997, consistent with the foregoing Opinion, it is hereby ORDERED that defendant's Petition for Issuance of Writ of Error Coram Nobis Under 28 U.S.C. § 1651 and Motion Pursuant to Rule 52(b) Federal Rules of Criminal Procedure (Plain Error) filed July 10, 1997 is DENIED WITHOUT PREJUDICE to defendant's right to refile said motion in proper form in accordance with 28 U.S.C. § 2255.
BY THE COURT
Franklin S. Van Antwerpen, U.S.D.J.
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