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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:88-cr-01007-MP-AK

TERRY L. REED,

Defendant.

________________________________/

O R D E R

This matter is before the Court on Doc. 1120, Report and Recommendation of the

Magistrate Judge, recommending that Defendant’s Petition for Writ of Error Coram Nobis or,

Alternatively, a Motion to Vacate under 28 U.S.C. § 2255 be denied. The Magistrate Judge filed

the Report and Recommendation on Tuesday, October 31, 2006. The parties have been

furnished a copy of the Report and Recommendation and have been afforded an opportunity to

file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must

make a de novo review of those portions to which an objection has made. 

The Defendant objects to two findings of the Magistrate. First, the Defendant disputes

the Magistrate’s finding that he “is plainly not entitled to coram nobis relief, as he is still in

custody.” Doc. 1120 at 1. While launching into an extensive exposition of the jurisprudential

theory of precedent and stare decisis in the federal courts, Defendant fails to show that the

Magistrate is incorrect. “Coram nobis relief is unavailable to a person, such as the appellant,

who is still in custody.” United States v. Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999). Even

assuming that coram nobis relief was available, Defendant has not shown any error of the most

fundamental character to warrant such relief. A jury convicted the Defendant of both conspiracy

and the underlying offense. Despite Defendant’s belief, it is not legally impossible for two

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Case No: 1:88-cr-01007-MP-AK

people to conspire to possess illegal drugs. Defendant confuses those crimes that by definition

require two parties to commit, such as adultery or dueling, with the substantive offense that he

was convicted of, which does not require two parties for its commission. Therefore, the Court

finds Defendant’s first objection without merit and agrees with the Magistrate’s

recommendation.

Defendant’s second objection is that the Magistrate erred in finding that “because the

dismissal of the original motion to vacate in this case operated as an adjudication on

the merits, the present motion is second or successive and may not proceed in this Court

without prior certification from the Eleventh Circuit.” Doc. 1120 at 2. Defendant asserts that

this Court’s Order dismissing his first § 2255 motion “shows that the motion was dismissed

without any ruling on the merit,” Doc. 1127 at 9, and therefore his instant motion cannot be

considered successive as a matter of law. The Court agrees with the Magistrate that the

dismissal of Defendant’s initial § 2255 petition as untimely “counts,” and renders the instant

motion a second or successive motion. See Villenueva v. United States, 346 F.3d 55, 59-61 (2d

Cir. 2003), cert. denied, 542 U.S. 928 (2004) (holding “that a habeas or § 2255 petition that is

properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for

successive purposes.”); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (holding “that a

prior untimely petition does count because a statute of limitations bar is not a curable technical

or procedural deficiency but rather operates as an irremediable defect barring consideration of

the petitioner's substantive claims.”). The cases cited by Defendant in support of his objection

are inapposite, and deal with issues irrelevant to the instant analysis. Those cases deal with

correctable errors, such as the failure to exhaust remedies, rather than the non-curable time bar

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Case No: 1:88-cr-01007-MP-AK

that resulted in the dismissal of Defendant’s first § 2255 petition. Moreover, as Defendant’s first

§ 2255 petition was dismissed with prejudice, Defendant was on notice that he could not refile at

a later date. Doc. 851 at 2. Therefore, having considered the Report and Recommendation, I

have determined that the Report and Recommendation should be ADOPTED. Accordingly, it is

hereby. 

ORDERED AND ADJUDGED:

1. The Magistrate Judge’s Report and Recommendation, Doc. 1120, is adopted and

incorporated by reference in this order.

2. Defendant’s petition for writ of error coram nobis or, alternatively, motion to

vacate under 28 U.S.C. § 2255, Doc. 1066, is DENIED.

DONE AND ORDERED this 21st day of November, 2006

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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