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IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION

v. : 04-493-1

:

STEPHEN BENSON : CIVIL ACTION

: 14-2687

July _28, 2014 Anita B. Brody, J.

MEMORANDUM

Petitioner Stephen Benson (“Benson”) has filed two post-conviction motions attacking

his sentence: (1) a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct 

Sentence, and (2) a pro se Writ of Error Coram Nobis. For the reasons set forth below, I will 

deny both motions.

I. BACKGROUND

On August 24, 2004, a grand jury in the Eastern District of Pennsylvania returned a threecount indictment charging Benson for an armed robbery in Philadelphia. The indictment charged 

Benson with (1) interference with interstate commerce by robbery in violation of 18 U.S.C. §

1951(a); (2) use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1); 

and (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The 

indictment also contained a “Notice of Additional Factors,” which charged that Benson 

“[c]ommitted an offense in which a firearm was brandished.” In April 2005, Benson proceeded 

to trial and the jury convicted Benson of all three counts.

On December 11, 2006, Benson was sentenced to 240 months in prison. This prison term 

included a consecutive mandatory minimum sentence of 84 months under 18 U.S.C. §

924(c)(1)(A) for brandishing a firearm during a crime of violence. Without the “brandishing”

element of the crime, Benson’s mandatory minimum would have only been 60 months instead of 

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84 months. Although the jury had found Benson guilty of “possession of a firearm in furtherance 

of a crime of violence,” it did not specifically find that Benson “brandished” the weapon. Rather, 

the “brandishing” element was considered as a part of Benson’s sentencing.

On October 15, 2013, Benson filed a post-conviction pro se “Motion/Letter for Relief in 

Light of Supreme Court Decision in Allen Ryan Alleyne v. United States.” Although not styled 

as a § 2255 motion, Benson’s motion questioned his conviction based on the new rule announced 

by the Supreme Court in Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the 

Supreme Court held that “any fact that increases the mandatory minimum [sentence] is an 

‘element’ [of the crime] that must be submitted to the jury.” Alleyne, 133 S. Ct. at 2155. A

failure to submit these facts to the jury violates a defendant’s Sixth Amendment right. Id. at 

2160. Thus, under Alleyne, Benson’s jury should have been required to find beyond a reasonable 

doubt that Benson had “brandished” the firearm, because this finding increased Benson’s 

mandatory minimum from 60 months to 84 months. Because the “brandishing” element was not 

submitted to the jury, Benson requested the court’s advice and asked for the court to appoint an 

attorney for him.

In an Explanation and Order responding to Benson’s Motion, I denied Benson’s request 

for an attorney, because Alleyne does not provide a basis to seek collateral review under § 2255.

In United States v. Winkelman, 746 F.3d 134 (3d Cir. 2014), the Third Circuit explicitly held that 

the rule announced by the Supreme Court in Alleyne “cannot be applied retroactively to cases on 

collateral review.” Winkelman, 746 F.3d at 136. However, because Benson’s Motion was pro se 

and was not specifically designated as a § 2255 motion, I declined to treat it as a § 2255 motion.

See United States v. Miller, 197 F.3d 644, 646 (3d Cir. 1999) (“[D]istrict courts must first take 

certain prophylactic measures before recharacterizing a pro se petitioner’s post-conviction 

motion as a § 2255 motion or ruling on a § 2255 motion denominated as such.”). Instead, I sent 

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Benson this court’s current standard § 2255 form in case Benson still elected to proceed with a § 

2255 motion on the basis of Alleyne.

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On May 9, 2014, Benson filed a motion for habeas corpus relief pursuant to 28 U.S.C. § 

2255. Subsequently, on June 9, 2014, Benson also filed a Writ of Error Coram Nobis. Both 

motions contest the propriety of Benson’s 84-month sentence for “brandishing” a firearm.

II. STANDARD OF REVIEW

Section 2255 empowers a court to “vacate, set aside or correct” a sentence that “was 

imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). If a 

party is entitled to relief under § 2255(a), “the court shall vacate and set the judgment aside and 

shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may 

appear appropriate.” Id. § 2255(b). A petitioner is entitled to an evidentiary hearing unless the 

motion, files, and records of the case show conclusively that the petitioner is not entitled to 

relief.2 Id. 

III. DISCUSSION

A. § 2255 Motion

Benson raises one ground for relief in his petition: “An incorrect sentence for 924(c)(1).” 

Benson further elaborates that “the required amount of time is 60 months not 84,” and that he 

“was found guilty of 924(c)(1)(A), not for ‘brandishing.’” Benson asserts that this claim is timely 

 

1 Use of the court’s current standard form is required by Local Civil Rule 9.3(b) and Rule 2 of the Rules Governing 

§ 2255 cases in the United States District Courts. Use of this form is necessary to assure that a petitioner is made 

aware, before commencement of a 28 U.S.C. § 2255 action, of the warnings required pursuant to United States v. 

Miller, 197 F.3d 644 (3d Cir. 1999) (relating to limitations on the right of the petitioner to file a second or 

successive petition under 28 U.S.C. § 2255); and United States v. Thomas, 221 F.3d 430 (3d Cir. 2000) (relating to 

the statute of limitations for filing habeas corpus petitions). The Miller and Thomas warnings are contained in the 

introductory text of the current standard form. 

2 No evidentiary hearing is necessary because the motion, exhibits, and records conclusively establish that Benson is 

not entitled to relief.

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under § 2255(f)(3), which provides a one-year limitations period running from “the date on 

which the right asserted was initially recognized by the Supreme Court, if that right has been 

newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 

review[.]” 28 U.S.C. § 2255(f)(3). Although Benson does not explicitly identify Alleyne as the 

basis for his claim or his timeliness under § 2255(f)(3), the right newly recognized by Alleyne

provides the only conceivable basis for his claim.

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I will thus treat Benson’s claim as one for 

relief based on Alleyne.

In order for a petitioner to collaterally attack his sentence based on a right announced in 

a new rule of constitutional law, the right that was allegedly denied must be “newly recognized 

by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 

U.S.C. § 2255 (emphasis added). Although the Third Circuit has concluded that “Alleyne did 

indeed announce a new rule,” the Third Circuit has also explicitly held that Alleyne “is not 

retroactively applicable to cases on collateral review.” United States v. Reyes, --- F.3d ---, 2014 

WL 2747216, at *1 (3d Cir. June 18, 2014); see also Winkelman, 746 F.3d at 136 (“Alleyne 

cannot be applied retroactively to cases on collateral review.”). Therefore, Benson cannot 

succeed on his claim because Alleyne is not retroactive and thus does not provide a basis for 

Benson to seek collateral review pursuant to § 2255. Benson’s § 2255 Motion will therefore be 

denied.

B. Writ of Error Coram Nobis

In addition to filing a § 2255 Motion, Benson also filed a Writ of Error Coram Nobis, 

pursuant to the All Writs Act, 28 U.S.C. § 1651. Benson’s Writ appears to seek relief based on 

 

3Benson’s judgment of conviction became final on June 10, 2008, when Benson’s Third Circuit Appeal concluded. 

See ECF No. 110. Thus, to the extent that Benson attempts to assert a claim in his § 2255 motion other than an

Alleyne claim, such claim would be time-barred under the one-year limitations period for § 2255 petitions.

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yet another variant of the same Alleyne claim asserted in his § 2255 Motion. Benson’s Writ will 

be denied because (1) coram nobis is an extraordinary remedy that is inappropriate under these 

circumstances, and (2) Benson may not use the writ of error coram nobis to circumvent the 

gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 

The Third Circuit has stated that “[c]oram nobis is an extraordinary remedy that has 

traditionally been used to attack [federal] convictions with continuing consequences when the 

petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Rhines, 

640 F.3d 69, 71 (3d Cir. 2011) (second alteration in original) (emphasis added) (internal 

quotation marks omitted). “A court’s jurisdiction to grant such relief is of limited scope, and the 

standard for obtaining it is more stringent than that applicable on direct appeal or in habeas 

corpus.” Id. Accordingly, “[e]rrors which could be remedied by a new trial do not usually come 

within the writ. Rather, the error must be fundamental and go to the jurisdiction of the trial court, 

thus rendering the trial itself invalid.” Id. (citations and internal quotation marks omitted). 

Additionally, “[w]hen an alternative remedy is available, a writ of error coram nobis may 

not issue.” Id. This restriction may apply even if such a remedy is procedurally unavailable. The 

Third Circuit has thus found that “the procedural barriers erected by AEDPA are not sufficient to 

enable a petitioner to resort to coram nobis merely because he/she is unable to meet AEDPA’s 

gatekeeping requirements.” United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000).

Given these limitations, Benson’s Writ of Error Coram Nobis will be denied. First, the 

writ is unavailable because Benson is in custody for the purposes of § 2255. Second, Benson has 

not asserted a claim of fundamental error that would justify the extraordinary grant of the writ. 

And finally, Benson’s writ appears to be an attempt to circumvent the gatekeeping requirements 

of AEDPA. Benson’s inability to bring an Alleyne claim under § 2255 does not enable him to 

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resort to the extraordinary remedy of coram nobis. Benson’s Writ of Error Coram Nobis will 

therefore be denied.

IV. CONCLUSION

For the reasons set forth above, I will deny Benson’s Motion Under 28 U.S.C. § 2255 

to Vacate, Set Aside, or Correct Sentence. A certificate of appealability will not issue.4I will also 

deny Benson’s Writ of Error Coram Nobis. 

s/Anita B. Brody

___________________________ 

ANITA B. BRODY, J.

Copies VIA ECF on _______ to: Copies MAILED on _______ to: 

 

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In the Third Circuit, a certificate of appealability is granted only if the petitioner makes: “(1) a credible showing 

that the district court’s procedural ruling was incorrect; and (2) a substantial showing that the underlying habeas 

petition alleges a deprivation of constitutional rights.” Morris v. Horn, 187 F.3d 333, 340 (3d Cir. 1999). Benson

has not made such a showing.

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