Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:97cr44-RH

vs.

JOHANN ROSHE WOLMARANS,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY CORAM NOBIS PETITION

Defendant Wolmarans, proceeding pro se, has filed a document titled "MOTION

FILED UNDER THE [WRIT] OF ERROR CORAM NOBIS ALSO SEE NEW

EVIDENCE." Doc. 130. He asserts that 18 U.S.C. § 922(g)(8) is an "unfounded federal

law" and unconstitutional. Id., p. 1. He claims he "is not taking on 18 [U.S.C.] 922(g)(8)

in particular; rather taking on Federal jurisdiction." Id. He claims that coram nobis is his

only remedy, that Congress has no authority to interfere in a state matter as presented

here, where "[t]his gun was the private property of the gun dealer, who was residing in

the State of Florida where Plaintiff was living. And he owned it for several years before

he sold it to Plaintiff" Id., p. 2. Defendant asserts that he "did not commit a crime with it,

[did] not threaten any person with it, and neither did her fire a shot with it; there is no
Page 2 of 4

Case No. 4:97cr44-RH

evidence in this Court to anything different." Id. See also pp. 5-10 (citing cases

regarding the Second Amendment and general limitations on the power of Congress). 

Defendant cites a number of cases claiming that there was no jurisdiction as he

did not ship the gun across state lines, and that the prior felony could not be counted as

he did not have an attorney or waive his right to an attorney. Id., pp. 2-3. He seeks my

recusal and of District Judge Hinkle based on a prior recusal. Id., pp. 3-4. He asserts

jury tampering, as well as improper conduct by the prosecutor. Id., pp. 4-5. 

Mr. Wolmarans is not in federal custody and his sentence expired years ago. He

resides in South Africa, though he provides a mailing address in Havana, Florida. 

In the report and recommendation of June 10, 2003, I noted the prior

proceedings to that date, found recusal was not warranted, and found that Defendant's

various claims (including a challenge to the validity of § 922(g)(8)) could have been

raised previously and therefore coram nobis relief was not available. Doc. 119

(incorporated herein by reference). The recommendation was adopted. Doc. 120. 

Reconsideration was denied, and judgment was entered on the denial of coram nobis

relief so Defendant would have the opportunity to appeal. Docs. 127-129. The

judgment was entered on the docket on December 7, 2004. Doc. 129. Defendant did

not appeal, or file anything until the current motion dated August 13, 2009. 

For his challenge to § 922(g)(8), the court's jurisdiction, and the constitutionality

of his expired conviction, coram nobis remains unavailable to Defendant because there

was at one time an available avenue of relief (either direct appeal or timely § 2255

motion). See Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.), cert. denied, 531

U.S. 929 (2000) (coram nobis "is appropriate only when there is and was no other
Page 3 of 4

1

 The mandate was filed as doc. 69 in this case, though (given the date) it was

not scanned into the electronic docket as recent documents have been. The physical

file is now in federal archives. 

Case No. 4:97cr44-RH

available avenue of relief," and "the writ may issue 'only when the error 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.'"), citing

United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954)

and Moody v. United States, 874 F.2d 1575, 1576-78 (11th Cir. 1989), cert denied, 493

U.S. 1081 (1990); see also United States v. Mosavi, 138 F.3d 1365, 1366, n. 1 (11th

Cir. 1998) (coram nobis is a limited remedy of last resort, unavailable where defendant

failed to raise his issue on direct appeal) (citation omitted).

Indeed, not only was there an available avenue of relief for challenging

jurisdiction, it appears this Defendant actually challenged the constitutionality of §

922(g)(8) on direct appeal. United States v. Wolmarans, 167 F.3d 539 (Table) (11th

Cir. December 31, 1998), rehg. en banc denied, 176 F.3d 496 (Table) (11th Cir. March

8, 1999) (decisions without reported opinions).1 Defendant claimed in his brief that

Congress exceeded its powers under the Commerce Clause in enacting § 922(g)(8). 

Appellant's Initial Brief filed April 22, 1998 (available in Westlaw), 1998 WL 34177210;

see also Brief of Appellee filed May 22, 1998 (available in Westlaw), 1998 WL

34177211. 

This case is closed. The sentence has expired. A challenge to jurisdiction not

only could have been raised on direct appeal, it was raised, and rejected. Defendant is

not entitled to any relief. 
Page 4 of 4

Case No. 4:97cr44-RH

It is therefore respectfully RECOMMENDED that the motion for writ of error

coram nobis, doc. 130, be DENIED WITH PREJUDICE. 

IN CHAMBERS at Tallahassee, Florida, on September 11, 2009.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.