United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
before the Court is Petitioner Alfred Dover's Petition
for Writ of Error Coram Nobis pursuant to 28 U.S.C.
§ 1651(a). (ECF No. 259.) For the following reasons,
Petitioner's Petition will be denied. In the interest of
justice, the Petition will be transferred to the Third
Circuit Court of Appeals pursuant to 28 U.S.C. § 1631,
as a petition for leave to file a second or successive habeas
petition under 28 U.S.C. § 2255(h).
1997, Petitioner Alfred Dover was convicted of three
crimes-possession of cocaine with intent to distribute, use
of a firearm in furtherance of drug trafficking, and
possession of a firearm as a convicted felon. Over the course
of the last twenty years, Petitioner has consistently and
unequivocally maintained his innocence. After an unsuccessful
attempt (1) to appeal his conviction and sentence, and (2) to
seek habeas relief under 18 U.S.C. § 2255, Petitioner
now seeks relief from this Court in the form of a petition
for writ of error coram nobis under the All Writs
Act, 28 U.S.C. § 1651. Petitioner bases his request on
newly discovered evidence. That new evidence is that one of
the Government's key witnesses in the case against
him-Officer Jeffrey Walker-recently admitted under oath that,
on numerous occasions, he perjured himself, fixed cases, and
planted guns and drugs on arrestees to secure convictions.
These acts were committed during the same time period of
Petitioner's arrest, and in the same precinct as
Petitioner's arrest. We believe that Petitioner, at the
very least, should be able to question Officer Walker about
the circumstances of his arrest. However, we simply lack the
jurisdiction to provide Petitioner with such relief. As a
result, we are compelled to deny his Petition for writ of
error coram nobis.
April 24, 1996, a grand jury returned an indictment charging
Petitioner Alfred Dover with one count of possession of
cocaine base with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) (Count One); one count of use of a
firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (Count Two); and one
count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (Count Three). (Resp.
Mot. 1, ECF No. 262.) Petitioner's codefendant, Montrell
Gary, was charged with possession of cocaine base with intent
to distribute. (Id.) Petitioner and Gary's first
trial in November 1996 resulted in a hung jury. A retrial was
held in February 1997. (Mot. Set Aside Verdict ¶¶
3-4.) On February 7, 1997, following a trial before the
Honorable Raymond J. Broderick, Petitioner and Gary were
found guilty by a jury of all charges. (Id. ¶
14.) Petitioner was sentenced to 188 months in prison on
Count One, with a consecutive 60-month prison term on Count
Two, and a 120-month term on Count Three to be served
concurrently with the sentence imposed on Count One.
(Id. ¶ 19.) The Court also imposed a five-year
term of supervised release to follow the jail sentence.
(Resp. Mot. 2.) Petitioner filed an appeal. On July 7, 1998,
the Third Circuit Court of Appeals affirmed the judgment of
sentence. United States v. Dover, 159 F.3d 1353,
1353 (3d. Cir. 1998).
October 26, 1998, Petitioner filed a Motion to Supersede
Judgment pursuant to Fed.R.Civ.P. 60(b)(4). (ECF No. 139.)
The District Court construed the motion as one attacking a
sentence pursuant to 28 U.S.C. § 2255. This Motion was
denied on April 8, 1999. (ECF No. 141.) Petitioner then
requested a certificate of appealability, which was denied by
the District Court on August 26, 1999. (ECF No. 153.)
However, the Third Circuit granted the certificate on July
10, 2000, and remanded the matter to District Court. (Mot.
Set Aside Verdict ¶ 24.)
September 5, 2000, Petitioner filed a motion pursuant to 28
U.S.C. § 2255. (ECF No. 168.) The motion was denied on
May 17, 2002. (ECF No. 191.) Petitioner filed a Motion to
Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 782 of the Sentencing Guidelines on December 22,
2014. (ECF No. 245.) That motion was granted on February 24,
2015, and Petitioner's sentence was reduced from 248
months to 208 months. (ECF No. 254.)
January 15, 2015, Petitioner filed a motion in the Third
Circuit requesting approval to file a successive § 2255
motion. Petitioner argued that a government witness at the
1997 trial, Police Officer Brian Reynolds, had been federally
indicted along with other officers on corruption charges
related to official misconduct. In addition, another trial
witness, Officer Jeffrey Walker, had entered a plea of guilty
to similar charges. (Resp. Mot. 2.) The charges related to
fabricating testimony and planting evidence. Reynolds and
Walker were involved in the arrest and conviction of
Petitioner on the 1996 charges. On February 4, 2015, The
Third Circuit denied the motion. The Court determined that
Petitioner had failed to make a prima facie showing that his
proposed § 2255 motion relies on either of the
following: (1) newly discovered evidence that, if proven and
viewed in the light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable fact finder would have found him guilty of the
offenses; and (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavoidable. (Feb. 4, 2015 Third
Circuit Order, ECF No. 249.)
27, 2015, Petitioner filed a letter pro se, which he
characterized as a motion under 28 U.S.C. § 2255.
Petitioner alleged that Officer Walker's testimony at a
recent federal trial revealed that he and Officer Reynolds
had participated in corrupt acts during the time of
Petitioner's arrest, such as planting drugs and guns in
order to secure convictions. (Mot. Vacate 2, ECF No. 256.)
Counsel was appointed to represent Petitioner, and on August
26, 2015, the instant Petition for a Writ of Error Coram
Nobis was filed.
The Evidence at Petitioner's Trials
first trial was conducted from November 21 to November 25,
1996, and resulted in a hung jury. (Mot. Set Aside Verdict
¶ 3.) The second trial occurred in February 1997.
(Id. ¶ 4.) Officer Brian Reynolds was the
government's first witness at both trials. (Id.
¶ 5.) Officer Reynolds testified that on October 30,
1995, at approximately 2:00 a.m., he saw Petitioner, Montrell
Gary, and two other males standing outside a Lucky 7
convenience store at 43rd Street and Westminster Avenue in
the 16th District of Philadelphia, Pennsylvania.
(Id. ¶ 6.) The males appeared to be locking a
security gate at the rear of the store. (Resp. Mot. 3.) After
Officer Reynolds ordered the males to approach him,
Petitioner took out a white plastic bag, tossed it to
Montrell Gary, and both ran away. (Mot. Set Aside Verdict
¶ 7.) Officer Reynolds and his partner, Sergeant Daniel
MacDonald, pursued Petitioner and Gary. (Id. ¶
8.) Officer Reynolds testified that he ultimately pushed Gary
to the ground and arrested him. Sergeant MacDonald arrested
Petitioner. (Id. ¶¶ 8-9.)
MacDonald testified that when he arrived on the scene with
Officer Reynolds, he observed Petitioner with a handgun.
(Id. ¶ 10.) Sergeant MacDonald further
testified that after he chased and tackled Petitioner to the
ground, Sergeant MacDonald then handcuffed Petitioner, who
was found to be in possession of a concealed handgun.
(Id. ¶ 11.) At that point, backup officers
arrived and helped Officer Reynolds handcuff Gary. (Resp.
Mot. 4.) Officer Reynolds picked up the white plastic bag ...