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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

Case No.: 3:97-cr-81-RV/MD

v. 3:97-cr-92-RV/MD

3:97-cr-103-RV/MD

CHRISTOPHER SUMMERS

______________________________/

ORDER

Pending are three motions filed by the defendant, pro se, in the three abovenumbered cases: “Title 5 Fed. R. App. P. 21(a) Writ of Mandamus, Prohibition and

Other Extraordinary Writs” (docs. 81, 79, 76, respectively).1 I have construed this

motion --- in which the defendant alleges sentencing error and requests that he be

resentenced --- as seeking reconsideration of the defendant’s previous motion for

writ of error coram nobis, which he filed on June 10, 2008, and which I denied by

order of June 17, 2009. I directed the government to respond to the motion, and it

has done so. The defendant has since filed a reply. 

I. Background

This case has a long history that does not need to be described here in great

detail. What matters for purposes of the pending motion is that the defendant was

charged with (and pleaded guilty to) seven bank robberies --- five in Case No. 3:97-

CR-81, and one in each of the other two cases --- which yielded him a sentencing

guideline range of 140-175 months. On December 18, 1997, I sentenced him to

175 months. He successfully appealed a sentencing guideline issue related to this

sentence to the Eleventh Circuit Court of Appeals, after which he was remanded

back to this court for resentencing. His calculated guideline range on remand was

1

 These three motions are identical. For convenience, in this order I may refer

to the motions in the singular.

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120 to 150 months. A resentencing hearing was held on November 22, 1999. This

hearing --- the transcript of which has recently been filed in each of the three above

cases (docs. 83, 81, 78, respectively (“Tr.”)) --- was most extraordinary.

The hearing began with the government stating its notice of intent to seek

an upward departure from the 120 to 150 months guideline range “based on the

underrepresentation of the defendant’s criminal history.” See Tr. at 2. This request

was based, in part, on the fact that the defendant had, subsequent to his original

sentencing, been convicted of additional robbery, theft, and burglary offenses in

Florida state court, for which he had been sentenced to 18 years incarceration. See

id. at 3. If his criminal history were properly calculated to include those more recent

offenses, the government maintained, the defendant should have a guideline range

of 151 to 188 months. See id. at 6. Rather than oppose this upward departure, the

defendant (both personally and through counsel) made what he aptly described as a

“rather unusual request”: he asked that I impose a “significantly” higher sentence.

The basis for this request was explained by his attorney, Thomas Keith, as follows:

[I]n talking with Mr. Summers, . . . he tells me that as

long as he has a state sentence that’s longer than his

federal sentence, [the state] will put a detainer against

him, and that detainer will cause him to have a certain

number of points in his classification as to where he can

serve his federal sentence at. And as long as that

detainer is there for a serious --- they call it a serious

detainer --- he will never be able to serve his time outside

of a penitentiary setting, federal penitentiary setting. He’s

been stabbed once already in the federal penitentiary

since he’s been serving his time. He certainly would like

to get away from that environment, if he can. So he’s

asked me to ask the court to sentence him --- he doesn’t

care if the court departs upward significantly --- and give

him a sentence that would require him to serve more

[but, counsel noted, it “doesn’t have to be much more”]

time in the federal system than the state has sentenced

him to.

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See id. at 7-8 (emphasis added). His attorney emphasized that if this request for a

“significantly” higher sentence was granted, “of course, [the defendant] would be

willing to waive any appeal, waive any § 2255.” See id. at 8.

The defendant then addressed the court directly. He expressed his opinion

that “penitentiary life is probably the worst life,” and by requesting an upward

departure he was “trying [his] best to get to a lower security prison.” See Tr. at

10-11. He was aware that his request, if granted, would mean that he must serve

more time in a federal prison than would otherwise be required, but he stated that

“I might as well do [my time] in a federal prison versus in the state prison because

I’ve been to state prison and it’s not any better. That’s the reason behind asking

for the upward departure.” See id. at 11-12. This exchange then followed:

THE COURT: So if I understand correctly, you want to

remain in federal custody until the state sentence has

also expired, and that would also mean there is no

detainer or writs while you are in federal custody.

THE DEFENDANT: That’s correct.

THE COURT: The federal sentence [must] exceed the

current state sentence?

THE DEFENDANT: The reason, Your Honor, that is if I

have one day less state time than I do my federal time,

they would release the detainer off of me.

THE COURT: Well, I’ve heard lots of horror stories about

penitentiaries. I’m not sure that a level 3 is gonna be a lot

better than penitentiary, but it may well be.

THE DEFENDANT: Yes. Quite a bit better. 

See id. at 12-13. He further stated his belief that under state law (specifically, the

“Gort Act” [Fla. Stat. § 775.084]), the 18-year state sentence was a “mandatory

sentence,” which would require him to serve virtually “100 percent of [that] time.”

See Tr. at 9, 15.

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After stating on the record that “an upward departure is probably called for

in this case” and that “I can justify the departure” --- and because “I know of no

reason why I cannot do [‘what Mr. Summers is asking’]” --- I called for a short

recess to allow the parties a chance to “play with the numbers” and “go through it

independently.” See Tr. at 8, 16, 18. When the hearing resumed, defense counsel

determined that to accomplish what they were seeking, I would need to sentence

the defendant to at least 288 months (which, when his current and future credit

was factored in, would put the federal sentence a “little” over the state sentence).

See id. at 19-20. Counsel further stated:

[W]e’ve, of course, asked the court to do something very,

very unusual, but there is certainly a reason for it. And in

the long-term Mr. Summers believes that’s in his best

interest to be able to possibly get out of the penitentiary.

He’s gonna serve apparently, you know, almost the 18

years with the state sentence. So he’s not going to get

out before that time. If this court imposes a sentence that

would require him to serve about that much more time

now, it’s not gonna affect his ability to be released. It

may help him get to an FCI facility, that’s what he wants.

See id. at 20-21. Throughout the hearing I asked the defendant repeatedly if he

understood what he was asking the court to do, and if he appreciated what the

practical effect of that request would be. Each time, he said that he did.2

 At one

2

 See Tr. at 15 (“THE COURT: Mr. Summers, are you sure --- are you sure

you want to do [this]? THE DEFENDANT: Yes, sir.”); id. at 23-24 (“THE COURT:

You realize that the effect of this is you are gonna be in the federal prison longer

than you would otherwise be . . . .THE DEFENDANT: Exactly. THE COURT: Do you

understand that? THE DEFENDANT: Yes, sir. THE COURT: Is that what you want

to do? This is your last chance on the record to say anything to the contrary. If you

want to do something else, tell me now. THE DEFENDANT: No, sir. That is what I

want to do. THE COURT: You are sure that’s what you want to do? THE

DEFENDANT: Yes, Sir. THE COURT: Mr. Keith, have you discussed this with him

during the recess and before? MR. KEITH: Yes, Your Honor.”). 

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point, I specifically emphasized to him that “the circumstances themselves may be

different” than what he believed, and he insisted that he understood. See id. at 24.

After being satisfied that he knew of, and appreciated, the consequences of what

he was asking me to do, I sentenced the defendant to 288 months imprisonment,

the exact length of time that both he and his attorney had requested. The sentence

consisted of 230 months incarceration in Case No. 3:97-CR-81; 30 months in Case

No. 3:97-CR-92; and 28 months in Case No. 3:97-CR-103, with the incarceration

sentence in each case to run consecutively. Pursuant to his agreement and waiver,

the defendant did not appeal this sentence and nothing happened in the case for

several years.

As it turns out, the defendant was mistaken in his belief that a longer federal

sentence would result in the state lifting its detainer, which would result in a lower

classification and allow him to avoid serving his sentence in a federal penitentiary.

He was, in fact, housed in a penitentiary. On February 12, 2007, seven years into

his sentence, he filed a “Motion for Placement in the Department of Corrections of

Florida,” requesting that I transfer him from the “harsh conditions” of the federal

penitentiary to a state prison “away from the federal inmates that mean to do me

harm.” He maintained that his previous request for a higher federal sentence was

“unintelagent” [sic] and based on “misinformed information.” I denied this motion.

On March 30, 2007, the defendant filed a “Motion to Void Judgment, Order

or Proceeding Under Title 28 U.S.C. Federal Rules of Civil Procedure, Rule 60(b)(4)

(5) (6) et seq.” In this motion, he was expressly “attacking . . . the process leading

up to [his] sentencing,” including his earlier request for the upward departure. The

defendant explained that shortly after he returned to the penitentiary following his

resentencing hearing, he learned that “the detainers were still lodged because the

Department of Corrections of Florida lodged a detainer until 6-12-2017,” and thus

“a higher federal prison sentence could not and did not prevent the Federal Bureau

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of Prisons from using detainers against defendant.” He maintained that if he had

“not requested a higher sentence, based upon misinformation, and permitted this

court to entertain the appeal court’s decision to correct [the original] sentence of

175 months as ordered, the defendant would be out of the Federal Bureau of

Prisons and in the State of Florida, away from [federal inmates] . . . , and serving

his 18 year state sentence.” The defendant requested that the court “vacate said

sentence and permit defendant to plea anew.” This motion was denied as well. 

On June 10, 2008, the defendant filed his coram nobis motion, noted supra.

He argued in this pleading that not only had he been mistaken in his belief that the

longer federal sentence would eliminate the need for the state detainer and allow

him to obtain placement in a lower security prison, but he had also been mistaken

as to the purported “mandatory” nature of his 18-year state sentence. Specifically,

he asserted:

It wasn’t until May 7th, 2007, that petitioner was made

aware by the Clerk of Court (state) in Hillsborough

County that his 18 year sentence in the State of Florida

was not “mandatory” as offered to the court, of which

the court based its sentencing on. . . [B]ecause the 288

month total sentencing package was designed to

“override” an 18 year “mandatory” state sentence, it was

completely too much time due to the 18 year state

sentence not being “mandatory.” Petitioner’s current

release date for the said 18 year state sentence is in the

year 2014. Because the petitioner is able to earn “good

time” in the state, his release date will now be some 4

plus years excessive as to his federal release date of

1/20/2019. It is obvious that the court was only acting in

the best interest of the petitioner, however, the sentence

was only to “override” the state sentence by mere

months. Had the court known that the sentence was not

18 years mandatory, it is the petitioner’s belief, that the

court would have properly calculated the new sentences

differently. But, because of the misinformation, a 288

month sentence was handed down.

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Because, he maintained, “the higher/harsher sentence was imposed only at the

request of the defendant,” the defendant requested that I withdraw the upwarddeparted sentence and impose a sentence consistent with the Eleventh Circuit’s

original remand of the case.

I denied the defendant’s coram nobis motion in June 2009. However, after

close review of the now-pending “Title 5 Fed. R. App. P. 21(a) Writ of Mandamus,

Prohibition and Other Extraordinary Writs” (which, as noted, I have construed as a

motion for reconsideration), I entered a follow-up order stating that: “Upon further

consideration of the defendant’s motion and record of this case, including a review

of the transcript of the [resentencing hearing], it appears that this may [be] one of

the very unusual cases that may qualify for coram nobis relief.” The government

subsequently filed its response to the defendant’s motion, and the defendant has

filed a reply to that response.

II. Discussion

Preliminarily, I want to make clear that I am sympathetic to the defendant’s

argument. If it were up to me, and if I had the jurisdiction and authority to do so, I

would reduce his sentence. Although an upward departure from the original 120-

150 month sentencing guideline range was appropriate and justified --- for all the

reasons discussed at the resentencing hearing --- I would not have sentenced the

defendant to 288 months on the particular facts of this case.3

 I only imposed that

much harsher sentence because, as he urged at the hearing: “Like Mr. Keith said,

this is all in my best interest.” See Tr. at 23. Even though he was represented by

an attorney; he was repeatedly told about what a higher federal sentence would

mean; he was specifically warned that “the circumstances” of his case “may be

3

 Indeed, it should be noted once again that the government had originally

requested an upward departure from the 120-150 month range to the 151-188

month range. As it is, the defendant received exactly 100 months more than the

maximum of that modified range.

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different” than what he believed at the time; and he waived any right to an appeal,

the fact remains that the defendant received an inordinately more severe sentence

than he would have otherwise been given, and thus, in the interests of fairness, I

would be willing to grant him a sentence reduction. The question, however, is not

whether I would grant him such relief, but whether I can, either via coram nobis or

by some other lawful method. 

“The ancient writ of coram nobis” was available at common law “to correct

errors of fact . . . that affect the ‘validity and regularity’ of the judgment.” United

States v. Morgan, 346 U.S. 502, 506-507, 74 S. Ct. 247, 98 L. Ed. 2d 248

(1954). In Morgan, the Supreme Court determined that the broad all-writs section

of the judicial code [28 U.S.C. § 1651(a)] bestows on federal courts the authority

to issue writs in the nature of coram nobis. Id. at 511. The remedy provided by the

writ, however, is very limited. See United States v. Mayer, 235 U.S. 55, 69, 35 S.

Ct. 16, 59 L. Ed. 129 (1914). Continuation of litigation after final judgment and the

exhaustion or waiver of appeal rights “should be allowed through this extraordinary

remedy only under circumstances compelling such action to achieve justice.” See

Morgan, supra, 346 U.S. at 511. Such compelling circumstances exist only when

the error at issue involves a matter of fact “‘of the most fundamental character,’”

which has not been put in issue or passed upon and which renders the proceeding

itself irregular and invalid. See id. at 512 (quoting Mayer, supra, 235 U.S. at 69);

accord Lowery v. United States, 956 F.2d 227, 230 (11th Cir. 1992) (coram nobis

jurisdiction will exist only to correct “manifest injustice,” and is of “‘limited scope,

existing in those cases where the errors [are] of the most fundamental character,

that is, such as render[ing] the proceeding itself irregular and invalid’”) (collecting

multiple cases). 

Irrespective of whether this case raises issues of fundamental and manifest

injustice, the government maintains that coram nobis relief is simply not available

on the facts presented because the defendant is still “in custody.” Although there

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appears to be at least some case law to the contrary [see United States v. Rhines,

640 F.3d 69, 71 (3d Cir. 2011) (coram nobis relief is “usually,” but not always,

“reserved for situations where the petitioner is no longer serving his sentence”),

citing United States v. Dawes, 895 F.2d 1581, 1582 (10th Cir. 1990) (coram nobis

granted “in spite of the fact that the defendants are in custody”)], Eleventh Circuit

authority makes clear that in this circuit coram nobis is not available to a defendant

“in custody.” See, e.g., United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002)

(“A writ of error coram nobis is a remedy available to vacate a conviction when the

petitioner has served his sentence and is no longer in custody”); United States v.

Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999) (“Coram nobis relief is unavailable to

a person, such as the appellant, who is still in custody”). Accordingly, I am without

jurisdiction to grant the defendant coram nobis relief.

The defendant recognizes this “in custody” jurisdictional requirement, but he

argues in reply to the government’s response that it “would appear” he has served

the 30 and 28-month sentences that were imposed in Case Nos. 3:97-CR-92 and

3:97-CR-103, which means that he is no longer “‘in custody’ for these sentences.

Therefore, error coram nobis is available for those two cases, due to those terms

having been served.” In other words, as he alleged in his coram nobis motion, the

58 months that he was improperly incarcerated on those two cases has had the

practical effect of lengthening or enhancing the 230-month sentence in Case No.

3:97-CR-81 that he is currently serving, and should “be credited to [this] current

sentence.” However, case law in this circuit and beyond precludes the argument.

See, e.g., Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973)

(coram nobis relief is not available “where a petitioner is still in federal custody,”

even though the challenge involves “a prior invalid conviction”) (binding under

Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981) (en

banc)); accord United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (holding

that relief “does not lie in coram nobis” where the defendant is in federal custody

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under one conviction, even though he is challenging an earlier, allegedly improper

conviction). Both Correa-Negron and Little emphasize that where the defendant is

in federal custody under one conviction, and he is challenging an earlier conviction

that has already been completed --- but which in effect lengthens or enhances the

current incarceration --- the proper remedy is a petition for habeas corpus pursuant

to Title 28, United States Code, Section 2255.

However, relief would not be available to the defendant even if I were to

construe his coram nobis motion (which he filed pro se) as a petition for habeas

relief under Section 2255. See United States v. Brown, 117 F.3d 471, 474-75

(11th Cir. 1997) (coram nobis relief not available to the defendant because he was

“in custody”; so the court construed his pro se coram nobis motion under Section

2255). That statute provides that a federal prisoner may be released if the sentence

was imposed in violation of the Constitution or laws of the United States, the court

had no jurisdiction to impose the sentence, the sentence imposed was in excess of

the maximum allowed by law, or it is otherwise subject to collateral attack. Putting

aside the fact that defendant specifically waived his right to file any Section 2255

motion in this case, the motion would have to be denied as untimely as it was filed

almost 9 years after the disputed sentence was imposed. See 28 U.S.C. § 2255(f)

(establishing a one-year statute of limitations for filing a Section 2255 motion).4

4

 It must be emphasized, however, that the timing of the defendant’s motion

arguably presents a closer issue than appears at first blush. The one-year statute of

limitations in Section 2255 does not begin to run until the latest of, inter alia, “the

date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.” See 28 U.S.C. § 2255(f)(4). As

already discussed, the defendant asserts that he found out on May 7, 2007, that

his 18-year state sentence was not “mandatory” (and he knew long before then

that the state was not going to lift its detainer and that he was to be housed in a

penitentiary). Thus, assuming arguendo that I could overlook the defendant’s clear

and express waiver of his right to file a Section 2255 motion, he had until May 7,

2008, to seek relief under that statute. His writ of error coram nobis, if construed

as a motion under Section 2255, was filed one month too late, on June 10, 2008. 

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Nor do I have “inherent authority” to grant the defendant the relief he seeks

for “a district court has no ‘inherent authority’ to modify a sentence that has

already been imposed.” United States v. Catalano, 2011 WL 2342581, at *1 (11th

Cir. June 14, 2011) (citing United States v. Diaz-Clark, 292 F.3d 1310, 1315-19

(11th Cir. 2002) (district court has no jurisdictional authority to alter or modify a

sentence once imposed, other than in specific and limited circumstances, “‘even if

the sentence was legally erroneous’”). Rather, as the Eleventh Circuit recently held,

“[t]he authority of a district court to modify an imprisonment sentence [once it has

been imposed] is narrowly limited by statute,” specifically:

[Title 18, United States Code,] § 3582(c) provides that a

[district] court may not modify an imprisonment sentence

except in these three circumstances: (1) where the

[federal] Bureau of Prisons has filed a motion and either

extraordinary and compelling reasons warrant a reduction

or the defendant is at least 70 years old and meets

certain other requirements; (2) where another statute or

Federal Rule of Criminal Procedure 35[5

] expressly permits

a sentence modification; or (3) where a defendant has

been sentenced to a term of imprisonment based on a

sentencing range that was subsequently lowered by the

Commission and certain other requirements are met.

United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010). Because none

of the above circumstances appear to be present in this case, I must (reluctantly)

conclude that I have no jurisdiction to reconsider or modify the defendant’s 288-

month sentence, even though (as previously explained) some things learned after5

 Rule 35 is limited, and it provides that a district court may (1) within 14

days after sentencing, modify a sentence to correct a technical, arithmetical, or

other clear error; or (2) reduce a sentence if the defendant provided “substantial

assistance” to the government, neither of which is applicable here. As Rule 35's

Advisory Committee Note states, authority under this rule is “very narrow” and

“not intended to afford the court the opportunity . . . simply to change its mind

about the appropriateness of the sentence.”

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the-fact have shown the length of that sentence to be excessive.6

III. Conclusion

For these reasons, the defendant’s “Title 5 Fed. R. App. P. 21(a) Writ of

Mandamus, Prohibition and Other Extraordinary Writs” (docs. 81, 79, 76 in the

above-numbered cases), construed as motions for reconsideration of his earlier

motion for writ of error coram nobis, are each DENIED. 

 

 DONE and ORDERED this 1st day of August, 2011.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

6

 At the time he was resentenced, and in the several years thereafter, the

defendant did not contend that the 288-month sentence --- although high --- was

unlawful; indeed, it was the exact sentence that the defendant and his attorney

requested. As noted, the problem is the defendant was apparently mistaken as to

the facts and legal ramifications of his state sentence, and this mistake frustrated

what he and his attorney (and this court) had expected. Given that this case has

such an unusual factual background, I was not able to find any case factually on

point. But, I did find a somewhat analogous case that reinforces the conclusion I

have reluctantly reached here. In United States v. Addonizio, 442 U.S. 178, 99 S.

Ct. 2235, 60 L. Ed. 805 (1979), the district court sentenced defendant to a period

of incarceration with a particular “sentencing expectation” that was frustrated by

the Parole Commission’s subsequent adoption of new policies and procedures. The

defendant moved to be resentenced, and the trial judge accepted jurisdiction on the

basis that the Parole Commission had not given defendant the kind of “meaningful

parole hearing” that he (the judge) had expected when he imposed sentence; and

he reduced the sentence accordingly. In reversing, the Supreme Court stated that

while the sentencing judge “may well have expectations” as to how the sentence

would be carried out, what took place after the sentence was imposed “affected

the way in which the court’s judgment and sentence would be performed but did

not affect the lawfulness of the judgment itself.” In noting that “once a sentence

has been imposed, the trial judge’s authority to modify it is [] circumscribed,” the

Court explained that “the sentence was and is a lawful one. And in our judgment,

there is no basis for enlarging the grounds for collateral attack to include claims

based not on any objectively ascertainable error but on the frustration of the

subjective intent of the sentencing judge.” See generally id. at 180-90.

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