UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MOHAMMAD ASSAN ALI, : Case No. 1:17-cv-162
Petitioner, : Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman
vs.
ATTORNEY GENERAL,

Respondent.

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 2)

This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on April 10, 2017,
submitted a Report and Recommendations. (Doc. 2). Petitioner filed objections to the
Report and Recommendations on April 19, 2017, and supplemental objections on April

21, 2017. (Docs. 3, 4).'

' The Court has reviewed Petitioner’s objections and finds them to be without merit. Petitioner
is currently incarcerated and awaiting deportation as a result of a California state court
conviction for domestic violence based on a plea agreement entered in 2009. (Doe. 1-1, at 2). In
this action, Plaintiff asks this Court to set aside the California state court conviction via a writ of
coram nobis and/or audita querela. As the Report and Recommendations thoroughly explained,
this Court does not have jurisdiction to grant a writ of coram nobis. As for a writ of audita
querela, the issue of whether the Court has jurisdiction to issue such a writ is not firmly decided.
However, even were such a writ permissible in “the most extreme cases” as outlined by the
vacated Sixth Circuit Court of Appeals holding in Ejelonu v. Immigration & Naturalization

a


As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has

reviewed the comprehensive findings of the Magistrate Judge and considered de novo

all of the filings in this matter. Upon consideration of the foregoing, the Court does

determine that such Report and Recommendations should be and is hereby adopted in

its entirety. Accordingly, IT IS ORDERED that:

1)

2)

3)

4)

Petitioner’s amended petition for a writ of coram nobis and or audita
querela (Doc. 1-1) is DISMISSED WITHOUT PREJUDICE;

Petitioner’s motion for leave to proceed in forma pauperis is DENIED AS
MOOT;

A certificate of appealability shall not issue with respect to any of the
grounds for relief alleged in the petition because petitioner has not stated a
"viable claim of the denial of a constitutional right," nor are the issues
presented "adequate to deserve encouragement to proceed further." See
Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b);

The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would not be taken in good faith and therefore Petitioner is
denied leave to appeal in forma pauperis.

IT IS SO ORDERED.

Date: 5|ufr7 s/ ondiee 4 Erk

Timothy S. Blac
United States District Judge

Serv., 355 F.3d 539, 548-52 (6th Cir. 2004), the circumstances of this case certainly do not rise
to that level. Petitioner’s objections (Doc. 3) fail to rebut the sound analysis of the Report and
Recommendations, and his supplemental objections (Doc. 4) make arguments that concern only
his pending 28 U.S.C. § 2241 petition alleging indefinite detention pending deportation, which is
before a different court. See Ali v. Lynch, Case No. 1:16-cv-1182 (S.D. Ohio Dec. 30, 2016).

2