United States v. Ausby

UNITED STATES OF AMERICA v. JOHN MILTON AUSBY, Defendant.

Criminal Action No. 72-67 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 3, 2019

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

In 1972, the defendant, John Milton Ausby, was sentenced, following his conviction by a jury for "Felony Murder" and "Rape while Armed," to concurrent sentences of life in prison and 10 to 30 years' incarceration, respectively. See Judgment & Commitment Order (Nov. 22, 1972); United States v. Ausby, 916 F.3d 1089, 1091 (D.C. Cir. 2019). Forty-seven years later, in 2019, while the defendant remained incarcerated only on the "Felony Murder" conviction, the D.C. Circuit considered the defendant's Motion to Vacate Conviction under 28 U.S.C. § 2255, ECF No. 2, and found that the defendant "demonstrated a 'reasonable likelihood'" that a "forensic expert's admittedly false" trial testimony about hair matching "could . . . have affected the judgment of the jury," Ausby, 916 F.3d at 1090 (internal quotation marks and citation omitted), and therefore "presented a valid claim under Napue [v. Illinois, 360 U.S. 264 (1959)] that he was convicted in violation of the Fifth and Sixth Amendments," id. at 1095. Consequently, the D.C. Circuit concluded that "the district court should have granted [the defendant's] § 2255 motion to vacate his conviction." Id.

On remand, the parties were directed to "file a joint proposed order 'to vacate [the defendant's] conviction,' . . . consistent with the D.C. Circuit's mandate," Min. Order (June 7, 2019) (quoting Ausby, 916 F.3d at 1095), and the government was directed to "file an operative version of the Indictment containing only the charges that the government intends to retry," id. The parties then jointly proposed vacatur of the defendant's "November 22, 1972, judgment of conviction on counts of felony murder and rape while armed related to Deborah Noel," Jt. Filing: Proposed Order Vacating the Conviction, ECF No. 34, and the government submitted a version of the indictment proposing to re-try both convictions, see Gov't's Notice of Filing of Indictment (Retyped), ECF No. 36. Acknowledging that the defendant's sentence for rape has expired, the parties urge the Court to "vacate the defendant's felony murder conviction under § 2255, while vacating the rape while armed conviction by issuing a writ of coram nobis." Jt. Submission Regarding Def.'s Conviction for Rape ("Parties' Jt. Submission") ¶ 3, ECF No. 40; see also Def.'s Petition for Writ of Coram Nobis Vacating Conviction for Rape while Armed ("Def.'s Pet.") at 1, ECF No. 41.

For the reasons discussed below, jurisdiction is lacking to vacate the Rape while Armed conviction under either avenue of relief provided by 28 U.S.C. § 2255 or a writ of coram nobis.

I. BACKGROUND

The full factual and procedural background for this case has been set out in prior decisions, see Ausby, 916 F.3d at 1090-93; United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2452988, at *1-2 (D.D.C. June 11, 2019); United States v. Ausby, 275 F. Supp. 3d 7, 9-24 (D.D.C. 2017), rev'd and remanded, 916 F.3d at 1089, and consequently only a brief review of the facts necessary for resolution of the instant dispute is provided. The defendant was originally tried and convicted by a jury in 1972, on one count of Felony Murder and one count of Rape while Armed, for the rape and murder of Ms. Deborah Noel. Ausby, 916 F.3d at 1091. He was then sentenced to life in prison on the Felony Murder conviction and received a concurrent sentence of 10 to 30 years for his Rape while Armed conviction. Id.; Ausby, 2019 WL 2452988,at *1. The defendant was also convicted at a separate trial, in 1973, of murdering two other women, Mses. Sharon Tapp and Sherry Frahm, but he remains incarcerated solely for the Felony Murder conviction as to Ms. Noel. Ausby, 2019 WL 2452988, at *1.

With respect to the defendant's convictions for the rape and murder of Ms. Noel, the evidence submitted at the defendant's trial included testimony from a forensic expert that hairs found at the murder scene were "microscopically identical" to the defendant's hair. Ausby, 916 F.3d at 1090. In 2015, however, the government notified the defendant that this expert testimony was "false or misleading," and "waived any statute of limitations and procedural-default defenses in the event [the defendant] sought relief under 28 U.S.C. § 2255." Id. at 1092. Thus, in 2016, the defendant filed a Motion to Vacate Conviction under 28 U.S.C. § 2255, arguing that "the government's knowing presentation of false and misleading expert hair examination testimony" violated the Due Process Clause of the Fifth Amendment and Napue. See id.

This Court denied the defendant's § 2255 motion, concluding that the "overwhelming evidence against him" left no "reasonable likelihood" that without the false hair evidence, the outcome would have been different. Ausby, 275 F. Supp. 3d at 32 (internal quotation marks and citation omitted). The D.C. Circuit, however, reversed, finding that the forensic expert's false hair-matching testimony "could . . . have affected the judgment of the jury." Ausby, 916 F.3d at 1090 (alteration in original) (internal quotation marks omitted) (quoting Napue, 360 U.S. at 271).

In coming to that conclusion, the D.C. Circuit explained that under § 2255, "[a] federal prisoner may move to have his sentence vacated . . . if 'the sentence was imposed in violation of the Constitution or laws of the United States,'" id. at 1092 (quoting § 2255(a)), and noted that the defendant had "fully served his rape sentence, leaving his life sentence for murder," id. at 1091. Then, upon finding a Napue violation, the D.C. Circuit ruled that this Court "should have granted[the defendant's] § 2255 motion to vacate his conviction," id. at 1095, and "remanded for proceedings consistent with [its] opinion" to afford appropriate relief, id. The defendant did not, and has not, challenged his separate convictions in 1973 for the murders of Mses. Sharon Tapp and Sherry Frahm, sentences he has fully served. Ausby, 2019 WL 2452988, at *7.

On remand, the government has sought to proceed with a new trial related to Ms. Noel's murder. See Min. Entry (Apr. 12, 2019) (setting trial date for October 7, 2019). As noted, in response to the Court's order, the parties proposed vacatur of both of the defendant's convictions, notwithstanding the D.C. Circuit's observation that only the Felony Murder sentence remained. See Jt. Filing: Proposed Order Vacating the Conviction, Att. 1 ("Jt. Proposed Order") at 3, ECF No. 34-1.

Upon consideration of this Joint Proposed Order, the Court sua sponte questioned whether jurisdiction lies to vacate the defendant's Rape while Armed conviction under § 2255, since both the Verdict Form and the Judgment & Commitment Order reflect two convictions, on two distinct charges, for Rape while Armed and for Felony Murder, and since the defendant had fully served his Rape while Armed sentence when he filed his § 2255 motion. See Min. Order (June 17, 2019). As a result, the parties were directed to file another joint submission explaining why this Court has jurisdiction to vacate the defendant's Rape while Armed conviction. Id.

In response, the parties agreed that the Rape while Armed conviction should be vacated, but conceded that whether jurisdiction lies to afford that relief under § 2255 is "not without complexity." See Parties' Jt. Submission ¶ 2. Despite this complexity, the defendant barely addressed the jurisdictional issue, submitting a single footnote to argue that § 2255 confers jurisdiction to vacate the Rape while Armed conviction. See Def.'s Pet. at 5 n.2. The government offered no assistance, submitting no briefing on the issue.

In the alternative, the parties jointly proposed vacating the Rape while Armed conviction through a writ of coram nobis if relief under § 2255 is unavailable. See Parties' Jt. Submission ¶ 3. To this end, the defendant filed an unopposed Petition for a Writ of Coram Nobis. See generally Def.'s Pet. Since the defendant's request for vacatur of his Rape while Armed conviction, through either § 2255 or a writ of coram nobis, is unopposed by the government, the defendant's request for relief is now ripe for resolution.

II. DISCUSSION

The defendant seeks vacatur of his Felony Murder and Rape while Armed convictions, and a new trial on both counts, pursuant to 28 U.S.C. § 2255. See Jt. Proposed Order at 3. In the alternative, if § 2255 does not provide an avenue for vacatur of the defendant's fully served Rape while Armed sentence and underlying conviction, the defendant seeks that relief through a writ of coram nobis under 28 U.S.C. § 1651. Def.'s Pet. at 1. For the reasons stated below, this Court lacks subject matter jurisdiction to afford either form of relief as to the Rape While Armed conviction.

A. 28 U.S.C. § 2255

The defendant seeks vacatur of his Felony Murder and his Rape while Armed convictions, and a new trial on both counts, see Jt. Proposed Order at 3, following the D.C. Circuit's remand for proceedings "consistent with [its] opinion," Ausby, 916 F.3d at 1095. The Felony Murder conviction most certainly may be vacated under § 2255 since the defendant was "in custody" under the life sentence for that conviction at the time of his § 2255 motion. See id. at 1091. Jurisdiction is lacking under § 2255, however, to vacate the defendant's Rape while Armed conviction because (1) the defendant was not "in custody" on the sentence for that conviction when he filed his § 2255 motion, having fully served his Rape while Armed sentence by that time; (2) relief available under § 2255 is circumscribed by the sentence under which thedefendant was "in custody" when he filed his § 2255 motion; and (3) the "sentencing package" doctrine does not extend so broadly to authorize vacating the defendant's expired, concurrent Rape while Armed sentence. Each of these reasons is discussed in more detail below.

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