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Amiel Cueto v. United States of America

February 16, 2012

AMIEL CUETO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Frazier, Magistrate Judge:

ORDER

Before the Court is the petitioner's (Doc. 24) motion for leave to conduct discovery.*fn1

The respondent, the United States of America ("government"), has filed a response (Doc. 33), and the petitioner has filed a reply (Doc. 34). For the following reasons, the is the petitioner's (Doc. 24) motion for leave to conduct discovery is granted, in part, and denied, in part.

I.Writ of Error Coram Nobis; Generally

A writ of error coram nobis is available under the All Writs Act, 28 U.S.C. § 1651, which provides that "the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651. A writ of error coram nobis is considered to be an "extraordinary remedy, allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction." Chaidez v. U.S., 655 F.3d 684, 687 (7th Cir. 2011) (citing Godoski v. United States, 304 F.3d 761, 762 (7th Cir. 2002)). As such, the writ "should only be allowed under compelling circumstances." Howard v. U.S., 962 F.2d 651, 653 (7th Cir. 1992) (citing United States v. Morgan, 346 U.S. 502, 511 (1954); United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988), cert. denied, 490 U.S. 1084 (1989)).

A writ of error coram nobis case should be viewed by the Court as very similar to a writ of habeas corpus case brought pursuant to 28 U.S.C. § 2255. "A writ of error coram nobis affords the same general relief as a writ of habeas corpus." Howard, 962 F.2d at 653 (citing United States v. Bonansinga, 855 F.2d 476, 478 (7th Cir. 1988)). The main difference between a writ of error coram nobis and a writ of habeas corpus is that the former lacks the custody requirement. See id. Instead of the custody requirement of a writ of habeas corpus, the petitioner in a writ of error coram nobis must be able to demonstrate that he or she suffers from a substantial legal disability. See id. (citing United States v. Bush, 888 F.2d 1145, 1148, 1150-51 (7th Cir. 1989). The petitioner in this case claims that he has a substantial legal disability as result of his conviction in that 1) he is unable to practice law because he was involuntarily disbarred, and 2) loss of certain First and Second Amendment rights. See Doc. 1 at 42-45.

II.Writ of Error Coram Nobis; Discovery

In his motion for leave to conduct discovery (Doc. 24) and reply to the government's response (Doc. 34), the petitioner has indicated that he believes the case at bar is a "civil action under Rule 81 of the Rules of Civil Procedure", and therefore, he "has the right to conduct the limited discovery he has requested [without the Court's permission]." Doc. 34. However, "in order to be on the safe side," (Docs. 24, 34) the petitioner has filed a motion for leave to conduct limited discovery. Rule 81 of the Federal Rules of Civil Procedure provides:

Rule 81. Applicability of the Rules in General; Removed Actions

(a) Applicability to Particular Proceedings. .

(4) Special Writs. [The Federal Rules of Civil Procedure] apply to proceedings for habeas corpus and for quo warrantor to the extent that the practice in those proceedings:

(A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and

(B) has previously conformed to the practice in civil actions.

FED. R. CIV. P. 81. There are no statutes or federal rules specifically applicable to a writ of error coram nobis. Therefore, the petitioner is likely relying on Rule 81, Section (a)(4)(B) for his position that he "has a right" to discovery. The Seventh Circuit has routinely equated an application of writ of error coram nobis to a writ of habeas corpus. See PART I, supra. In fact, on at least one specific occasion, the Seventh Circuit found the application of the discovery rule applicable to writ of habeas corpus to a writ of error coram nobis entirely appropriate. See, e.g., U.S. v. Balistrieri, 606 F.2d 216, 221 (7th Cir. 1979), cert. denied, 446 U.S. 917 (1980) (reasoning that the nature a writ of error coram nobis and writ of habeas corpus case are remarkably similar and finding permissible the application of Rule 6 (Discovery) of the RULES GOVERNING SECTION 2255 PROCEEDINGS to a writ of error coram nobis case). ...


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