The opinion of the court was delivered by: William W. Caldwell United States District Judge
The defendant, Willie Tyler, is serving a sentence of life imprisonment on an August 2000 conviction for tampering with a witness by murdering her. He has filed a pro se motion raising claims that challenge his conviction and sentence. As authority for the motion, he invokes the All Writs Act, 28 U.S.C. § 1651, more specifically, the common law writs of coram nobis and audita querela. He also invokes Fed. R. Civ. P. 60(b).
Defendant makes the following claims. First, there were violations of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when the indictment did not charge him with first-degree murder and when the court, rather than the jury, found that he had committed first-degree murder, using a preponderance-of-the-evidence standard, rather than a reasonable-doubt standard, thereby leading to a sentence of life.*fn1 Second, the indictment was ambiguous because it charged Defendant with killing the witness but not with the offense the government intended to prosecute him for, first-degree murder. Third, the sentence violated the Eighth Amendment because it was in excess of the statutory maximum that could have been imposed on the jury's finding alone, a term of years rather than life. Fourth, the life sentence violates the Equal Protection Clause because it differs from sentences given to similarly situated defendants.
The government has filed a response. We will deny the motion.
In April 1996, Defendant was indicted on four counts, among them a charge under 18 U.S.C. § 1512(a)(1)(A) of tampering with a witness by killing her. He was found guilty on all counts, but on direct appeal the Third Circuit instructed us to determine if he should be granted a new trial for a violation of his Miranda rights. United States v. Tyler, 164 F.3d 150 (3d Cir. 1998). On remand, we granted a new trial.
On retrial, in August 2000 a jury again found Defendant guilty, among other charges, of tampering with the witness. Along with the elements of the offense, we instructed the jury on second-degree murder. The jury returned a verdict that the tampering had been accomplished by murder, without specifying the degree. Pursuant to the sentencing guidelines, we sentenced him to life in prison on that charge after we concluded at the sentencing hearing that the guideline section applicable to the offense was U.S.S.G. § 2A1.1, first-degree murder. Defendant's direct appeal was denied. United States v. Tyler, 281 F.3d 84 (3d Cir. 2002). In October 2002, his petition for a writ of certiorari was denied. 537 U.S. 858, 123 S.Ct. 227, 154 L.Ed.2d 95 (2002).
In June 2003, Tyler filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. He presented six claims for relief, including the first three claims in the instant motion. In August 2003, we denied the motion. In October 2003, we denied Defendant's motion to alter or amend under Fed. R. Civ. P. 59(e). In August 2004, we denied his motion for relief from judgment under Fed. R. Civ. P. 60(b), which sought relief from the order denying the motion to alter or amend. Consolidating Defendant's appeals of our orders denying the Rule 59(e) and 60(b) motions, the Third Circuit affirmed. United States v. Tyler, 207 Fed. Appx. 173 (3d Cir. 2006)(nonprecedential). Notably, the court of appeals rejected the Apprendi claim, reasoning as follows:
In convicting Tyler of tampering with a witness by murder, the jury necessarily had to find the elements that Tyler committed murder and that the murder was motivated by a desire either to prevent the witness from testifying or to prevent her from communicating with law enforcement officers. The District Court defined murder in its instructions as requiring killing with malice, or killing intentionally. Although the District Court did not expressly differentiate between first and second degree murder in its instructions, the instructions and the subsequent findings of the jury encompassed the elements of first degree murder. Therefore, the District Court's finding of first degree murder at sentencing was supported by the findings of the jury.
Id. at 176. The court also gave a second reason for denying the Apprendi claim: the sentence did not exceed the statutory maximum for second-degree murder since second-degree murder could also be punished by life imprisonment. Id.*fn2
A. Defendant Cannot Rely on Coram Nobis and Audita Querela
As noted, Defendant invokes coram nobis in making his motion. A defendant in a criminal case may use coram nobis to challenge his conviction when: (1) he "has served his sentence and is no longer 'in custody' for purposes of 28 U.S.C. § 2255"; and (2) he is suffering "continuing consequences" from the conviction. United States v. Stoneman, 870 F.3d 102, 105-06 (3d Cir. 1989). Defendant cannot satisfy the first part of this test. He is still in custody on his conviction. Hence, he cannot rely on coram nobis. See United States v. ...