01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL DUANE BENJAMIN,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

____________________________________

)

)

)

)

)

)

)

)

)

)

CASE NO.: C06-0759-RSM

REPORT AND RECOMMENDATION

Petitioner is a federal prisoner who has filed pro se a “petition for a writ of error coram

nobis.” He claims in the petition that in 2003, before he commenced his current federal sentence,

he was sentenced by a state trial court to 22 months’ imprisonment after pleading guilty to second

degree theft. (Petition at 1-2). Petitioner contends that the sentencing court directed that the state

sentence be served concurrently with any other sentence that might be imposed. However,

petitioner apparently finished serving the state sentence in April 2004, whereupon he was released

to federal authorities pursuant to a federal detainer. (Petition, Ex. B at 1). Some time after that,

petitioner began serving his current federal sentence. Thus, petitioner argues, his state sentence

was not served concurrently, but rather consecutively, to the federal sentence. Petitioner claims

a constitutional violation has thereby occurred, and seeks to vacate the state conviction. (Petition

at 9).

Case 2:06-cv-00759-RSM Document 7 Filed 06/27/06 Page 1 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -2

The petition has not been served on respondent and for the reasons set forth below, the

court recommends that it be summarily dismissed. See Rule 4 of the Rules Governing Section

2254 Cases in the United States District Courts. (“If it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court, the judge must

dismiss the petition . . . .”). First, petitioner has previously raised this claim regarding his state

sentence in this court, through a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See

Benjamin v. Compton, Case No. C05-1630-TSZ-JPD. The court denied that petition, based upon

a Report and Recommendation (“R&R”) issued by the Honorable James P. Donohue, United

States Magistrate Judge. (Doc. #5 in Case No. C05-1630). In his R&R, Judge Donohue

recommended dismissal because (1) the petitioner was no longer in custody pursuant to the state

court judgment under attack; (2) it did not appear that petitioner’s federal sentence had been

enhanced due to the state court sentence; and (3) even if it had been enhanced, the proper place

to challenge the enhanced sentence would be in the federal district where the federal sentence was

imposed, which appeared to be the District of Idaho. (Id. at 2-3).

The District Court, Thomas S. Zilly, agreed with Judge Donohue’s recommendation and

dismissed the case. (Doc. #9 in Case No. C05-1630). Petitioner is currently appealing that

decision to the Ninth Circuit Court of Appeals. (Doc. #14). Although Judge Zilly denied

petitioner’s request for a certificate of appealability (Doc. #15), his appeal could still proceed if

the Ninth Circuit grants his request. See Fed. R. App. P. 22(b). Because the issue raised by

petitioner in the instant petition for a writ of error coram nobis is duplicative of his earlier petition,

and because that petition is pending before the Ninth Circuit, the petition here should be dismissed.

See United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991).

Case 2:06-cv-00759-RSM Document 7 Filed 06/27/06 Page 2 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -3

In addition, a petition for a writ of error coram nobis does not appear to be the proper

vehicle for petitioner’s claim. The Supreme Court has held that coram nobis jurisdiction exists

only “in those cases where the errors were of the most fundamental character, that is, such as

rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69

(1914). Petitioner does not allege that the sentencing proceeding in state court was either

irregular or invalid. Finally, there is nothing in the record that demonstrates that any other

sentence – federal or otherwise – existed at the time petitioner was sentenced by the state court.

Therefore, there was no other sentence with which his 22-month sentence could have run

concurrently. Accordingly, even if petitioner’s claim were properly before this court, it appears

to lack merit.

For the foregoing reasons, the court recommends that petitioner’s petition for a writ of

error coram nobis be dismissed. A proposed order accompanies this Report and

Recommendation.

DATED this 27th day of June, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

Case 2:06-cv-00759-RSM Document 7 Filed 06/27/06 Page 3 of 3